Article — Marc, Institutiones Morales
Article II: On Impotence of Observing a Law
- The impotence of satisfying the obligation of law is twofold, namely physical and moral.
Physical impotence, which also is customarily called absolute, is had when strength for fulfilling the law is lacking: in which state there is, for example, a sick man who, fixed in bed, cannot be present at Mass on Sundays and feast days. To absolute impotence is referred the necessity of fulfilling a higher law, according to the things said n. 216.
Moral impotence, or excusing fear, is had when the law cannot be fulfilled without danger of grave damage or inconvenience; and it is defined: grave difficulty per accidens joined with fulfillment of the law.
We say per accidens; for, as Sanchez rightly notes (Decal., l. I, c. 18, n. 2), if the law were, in itself, too difficult or burdensome for the whole community, such a cause could not only excuse from the law, but take away the law itself, as will be explained n. 256 ff.
- PRINCIPLES. I. Physical impotence always excuses from observing the law. The reason is, because "no one can be obliged to the impossible," as the 6th rule of right has it, in the Sixth. Hence, impotence also excuses to which you previously gave cause through sin, for example, by rendering yourself unequal to fasting, provided you grieve for the sin (I, 176; III, 1045).
- II. Moral impotence excuses from observing the law, if damage in itself grave and relatively graver than the neglect of the law is imminent. The reason for the first is, because the legislator is not to be judged to impose, besides the burden which inheres in the fulfillment of the law, another burden, and this a grave one. We say burden, and this a grave one; because otherwise no law would ever oblige, since the fulfillment of any law whatever is joined with some inconvenience. The reason for the second is, because from two necessary evils the lesser must always be chosen (I, 175).
The gravity of damage depends on several things: 1. on the nature of the law: thus negative laws require graver damage; 2. on the intention of the legislator, who for the circumstances of times can act more mildly; 3. on particular circumstances, which give place to epikeia. In doubt concerning the gravity of the damage, the excuse is valid, if the fact truly exists which truly probably suffices for excusing, as is clear concerning a convalescent who fears lest by fasting the sickness be increased (cf. n. 248).
From this you will gather: Grave fear, for example, fear of losing life or health, with damage to society or religion excluded, takes away the obligation of human law, whether ecclesiastical or civil. It also sometimes, although with more difficulty, takes away the obligation of positive divine law, for example, of the law prescribing the integrity of confession; indeed even of affirmative natural law, for example, concerning a deposit to be returned, as we have already explained above (n. 173-174).
- III. Impotence of satisfying the whole law, of itself does not take away the obligation of satisfying that part which can be fulfilled. This is clear from the 54th proposition condemned by Innocent XI: "He who cannot recite Matins and Lauds, but can recite the remaining Hours, is held to nothing; because the greater part draws the lesser to itself." By these words the opinion of Navarrus, Diana, Tamburini, and Caramuel is rejected. Except if the law cannot conveniently be divided, or is not accustomed to be divided, or if in the possible part the reason of the precept does not remain (H. Ap., II, 45).
Hence: 1. He who cannot fast in Lent ought to abstain, if he can, from meats. Likewise, he who cannot fast on all days is held on those days on which he can without grave inconvenience.
If someone, lacking a breviary, knows a few things from the Hours by memory, he is not held to recite them; otherwise, if he holds in memory a notable part, for example, Vespers or Compline. The reason is, because the divine Office is divisible, and the reason of the precept is preserved only in a notable part.
He who vowed a pious pilgrimage, and cannot complete the whole journey, is not held to begin it; because neither can the end of the precept be obtained, nor can the reason of the precept be preserved (I, 177; III, 225).
- If impotence excuses from law, it is rightly asked:
Whether it is lawful to constitute oneself in impotence of fulfilling some law, or, in other words, whether it is lawful to place or not remove causes which impede the fulfillment of the law?
Note beforehand. a) One thing is an exempting cause, another an impeding cause. An exempting cause is present when someone withdraws himself from the jurisdiction of the law, so that it can no longer reach him. An impeding cause is present when someone, bound by the law or about to be bound proximely, throws himself into such a condition that physically or morally he can no longer fulfill the law. b) The causes which impede the fulfillment of the law are either present, proximate, or remote, according as the law urges at the very time when the cause is placed, or shortly after, or only after a notable interval of time. c) Causes of this kind can be placed either directly or indirectly; according, namely, as the agent is moved either by the end of withdrawing himself from the obligation of the law; or by another end, with the impediment of observing the law nevertheless foreseen. These things having been premised,
Resp. 1. He who places an exempting cause, even if it is done intentionally and directly, with the mind of avoiding the obligation, does not sin. He uses his right (I, 152; III, 1045; ed. G., II, p. 432).
- It is never lawful directly to place or not remove an impeding cause, even a remote one. The reason: because as long as someone is subject to the law, he cannot will to infringe it without such a will being a violation of the law itself.
Therefore the excommunicated sin who do not seek absolution, precisely for this reason, lest once absolved they be held to paschal communion; likewise those who with this intention go away to a place where they will not be able to communicate in paschal time (III, 235; H. Ap., II, 20).
Nor is it lawful indirectly to place, or not remove, a present or proximate impeding cause, which in morals are equated, unless from another source there is present a proportionate just cause excusing. "For every law demands that, without a just cause, an impediment to its observance not be placed" (H. Ap., l. c.); for otherwise it would be finished with the law. But a just cause is one which has proportion both with the gravity of the precept and with the proximity of the impeding cause. See the things to be said n. 272, 273; cf. Sanchez, Decal., l. I, c. 15, n. 4.
More probably it is lawful, even without a special reason, indirectly to place a remote impeding cause. The reason is, because the legislator is not judged to will to restrict liberty so much. For it would be too grave a burden if each one, long before the obligation of the law, were bound to omit all works incompatible with that obligation (Bucceroni, n. 221).
- From these things you resolve: 1. He who, when the law is already urging, foresees that it will be the case that afterwards he cannot satisfy it, is held to fulfill it at the time when he can; for example, if on a feast day you cannot hear Mass about midday, or recite the Hours of the current day later, you are held to anticipate, because the precept already urges. It is otherwise if the time of the precept has not yet begun; for example, you are not held to anticipate paschal time for communicating, nor to use the privilege of reciting Matins on the preceding day, in order to fulfill the precept (IV, 155; VI, 297).
He sins against the precept of assisting at Mass who, for the sake of pleasure, enters upon a journey on Saturday, foreseeing that it will happen that on the following Sunday he will not be able to hear Mass. But he is excused who undertakes a journey on Thursday for hunting, or on account of a similar non-urgent cause. The reason for the distinction is, because in the former case the impediment is judged proximate, and in the latter remote (III, 301).
Similarly from these things it can be determined whether and when, for example, it is lawful to undertake an office, service, etc., in which someone becomes impotent for sanctifying feasts; whether and how far it is lawful spontaneously to exercise labor, or undertake works of piety, by which a man becomes impotent for fasting; and other things of this kind (cf. n. 1235 and 1238 ff.). See the cases of conscience proposed by the distinguished Lehmkuhl, n. 97-103, likewise the things which the Ami du Clerge has often solved, for example, 1906, p. 982; 1911, p. 1121.
Corollary. From the notions here set forth we can understand what the words signify: to act in fraud of the law. Fraud against law can be done in innumerable ways; nevertheless he alone sins by fraud against law who places an impediment to the law, an impeding cause, and indeed in those circumstances where the law already holds him, or an impediment of such a kind that it is forbidden him by the law to place it. Thus fraud would be present if a rich man, beyond his condition or custom, occupied himself with servile works so that he might be tired, lest he ought to fast. But he will not be guilty of fraud who uses a right which is taken away from him neither by law nor by precept: for example, if someone passes into another diocese where the law of hearing Mass is not in force, or where exceptions are present as regards fasting, even if he does this for this end, that he may be exempted from the law: for the use of the right of departing is not interdicted to him by the law. But if this faculty also is taken away by the legislator, for example, as regards obtaining absolution from reserved cases, it is clear that fraud against the will of the Superior is present (cf. n. 206). Cf. D'Annibale, P. I, n. 176; Gopfert, I, § 13, n. 78.