§ 2. Injuries Against the Body or Temporal Life of Neighbor

Order of Treatment. These injuries are committed through homicide and mutilation, and therefore through feticide; through the duel, through the direct procurement of abortion; through rape and adultery. With homicide the question of bloody defense is connected; with feticide, the question of the ectopic fetus; with abortion, the question of the acceleration of birth is connected. Yet we shall treat of feticide after the duel, and afterwards of abortion.

Malice. 1. Direct killing of a man, done by private authority, is intrinsically illicit. Say the same of mutilation, except that which is directed to preserving the body or temporal life. These things are manifestly gathered from the principle placed here above, n. 590, and from what was said in nn. 320-323.

Specification. The consent of the one suffering can remove only the note of injustice, but not the other malices; not even the grave offense against piety, which infects voluntary parricide, spouse-killing, or fratricide. Offenses against piety differ among themselves in gravity, but not in species. Grave cruelty annexed in the execution adds a new species of ferocity. But the means or mode of homicide does not change the species.

Nor can a private man kill a malefactor or a man condemned to death, unless there is question of one legitimately proscribed, whom it is lawful to kill, with a mandate of public authority.

2. Casual homicide, or homicide which follows an action or omission apart from intention, will be imputed insofar as it was foreseen as going to follow from an action which, on account of the danger of such an effect, was prohibited by natural or positive law. It is called mixed casual homicide. The case is that of a cleric who, not excused by necessity, illicitly has practiced medicine with burning or cutting.

— A detriment inflicted upon health, for example the active communication of a grave disease, is referred to mutilation.

Therefore they sin gravely who hand over a syphilitic infant to a nurse to be suckled. Nor can the utility of the infant, as the other good effect, alone intended, be alleged, both because, in order that another's health be thus disposed of, the consent of the nurse would be required, and she is not even accustomed to be warned; and because another way of feeding the infant is commonly at hand.

On Bloody Defense. 1. It is right to repel force by force, and to anticipate an aggressor who tries to snatch from you life or the things which are necessary for conducting it honorably, even by an action which at the same time inflicts death, with the mind of defending oneself, and with "the moderation of blameless defense" (that is, of licit defense; the classical formula is taken from Roman law, Cod. L. 8, t. 4, c. 1). That moderation is preserved if only that is done which seems necessary for warding off the injury.

2. The reason of honesty is not, as many say, some conflict of rights, for the person of the aggressor remains inviolable; nor by his delict can anyone alienate a right which he cannot lose by consent; but, with St. Thomas, 2, 2, q. 64, art. 7, the principle of double effect must be used (I, 131). For the aggression of another brings it about that acts which otherwise immediately would be only wounding and killing are at the same time immediately one's own defense. Wherefore killing is only permitted, and cannot be intended as such. And to the difficulty moved by Lugo, Iust., d. 10, n. 149, that what is honestly effected is honestly intended, answer is made by conceding the major, but denying the minor: in the case, killing is not properly effected, but permitted.

3. Conditions. The reason given demonstrates: a) that an aggression morally present is required, not one past, for then vengeance would be exercised; not, however, one merely foreseen, for then there is not yet place for defense. But he is morally an aggressor who has determined in mind to attack you, and at the same time seeks the occasion of the aggression.

What in doubt? If it is confirmed by no exterior action, suspicion can give place to caution, but not to bloody defense. But he who, from the hour or manner in which he presents himself, seems to be feared, must be warned not to approach. If he continues to approach, he will be able to be treated as an unjust aggressor. But if, like a nocturnal thief, whose certain evil intention is already certain, he creates the true danger itself, unless men can be called by a shout, he seems able to be repelled as an aggressor even by death. This sometimes is sanctioned by positive law itself.

On account of the danger of hallucinations and abuses, by propositions 17 and 18 condemned by Alexander VII, the killing of a false accuser, of false witnesses, and of a judge from whom an unjust sentence is certainly imminent, is reproved (Denz. 1117, 1118); - by propositions 32 and 33 condemned by Innocent XI, occisive defense for hoped-for goods, or against him who impedes an heir or legatee lest he obtain an inheritance or legacy, is reproved (Denz. 1182, 1183). Those propositions were condemned by Alexander VII at least as scandalous; by Innocent XI at least as scandalous and dangerous in practice.

Because vengeance is not being done, but one's own defense, this can be exercised even against a materially unjust man, for instance a drunkard. Nor are we prohibited from defending another bloodily: for instance, a woman's assailant against chastity. Yet this will not be lawful if she consents, or, when she can, does not resist, unless, on account of connection, it matters to you that her honor be intact. And the bloody defense of another can be commanded by various offices.

b) That a lesion of a proportionate good is required: of life, of mutilation, of chastity, of a temporal thing which in itself or for the harmed person is of great moment. I would estimate the absolute quantity as not below a thousand francs. That regularly one gold coin suffices is proposition 31 condemned by Innocent XI (Denz. 1181); d'Ann., II, 283 (9), placed the absolute quantity at about 400 francs in his own time. But nothing must be given to a thief threatening force. Wherefore aggression against a temporal good will easily be able to be converted into aggression against the person. But let the aggressor impute to himself the danger of eternal salvation.

c) That necessity of defense is required. Whence if the injury can be averted with a lesser damage to the aggressor, it is not lawful to inflict a greater one. Indeed, if you can flee without disgrace, flight is to be chosen. Wherefore it is not lawful to kill a thief if the thing which he takes away can with sufficient certainty be recovered by another way.

You Ask concerning Vengeance. By vengeance, punishments are taken after a perfect injury. This is not lawful for a private person, but is reserved to public power. Yet a certain medicinal punishment, which is done by blows not dangerous, is permitted by a certain epikeia both to a woman who has been attacked, and to all, after small injuries which it would be too troublesome to refer to the judge.

Wherefore not even of venial sin is a youth to be accused who thus exacts an expeditious but equitable account of a modest injury. Much more will it be lawful for a solicited woman to show her constancy with her hands, so that the other may depart more certainly and not repeat the attempt. Nor is scruple to be had in this matter, nor censure or irregularity to be feared, whoever the solicitor may be. Cf. Lehmkuhl, I, 996, where he also alleges St. John Chrysostom.

Ecclesiastical Penalties. A layman legitimately condemned for homicide is by the law itself excluded from legitimate ecclesiastical acts and from any munus, if he has any in the Church; but a cleric must be degraded (c. 2354, §2). - Those who have perpetrated voluntary homicide, and all cooperating persons, are irregular from delict (c. 985, 4°). - By the notorious delict of homicide done in it, or by an injurious and grave shedding of blood, a church is violated (c. 1172, §1, 1° and 2°).

N. B. Concerning restitution on account of homicide, we shall treat more suitably and more fully after the question of the duel.

I. Notions. A duel is a dangerous contest of two or a few, undertaken by agreement, that is, by a preceding pact, with lethal weapons.

Danger either of death or at least of mutilation or grave wounding is required. For if such danger is absent, the exterior action cannot from natural law and taken in itself be called gravely sinful.

Without agreement, an unjust aggression, which indeed can be had, lies outside that deadly institution which the Church intends to abolish by her penalties.

Lethal weapons are required according to the common sentence. Although, as is reported in the Wroclaw case of August 9, 1890, not a few thought it sufficient that the weapons be able to inflict wounds.

Moreover, he who, whether by provocation or by authoritative command, has morally forced someone unwilling to enter upon a contest of this kind, is guilty of formal injury, since the unimpeded right of declining what he is forbidden to do by the very law of nature must be preserved for each one.

That foolish usage has a superstitious origin. It was referred to the genus of divination, like the ordeals of the Middle Ages, and was a form of tempting God. Wherefore authors treated of the duel where they treated of superstition. Cf. St. Thomas, 2, 2, q. 95, art. 8, ad 3; Sanchez, Praec. Decal., L. II, c. 39.

Duels of today, especially those celebrated among military men, are a demonstration of a strong mind and of one zealous for his own honor; and at the same time a mode of restraining mutual offenses by the fear itself of a duel. As if these things ought or could be sought by illicit means! And the matter came to such an absurdity that criminal law forbade the duel, and at the same time those who did not infringe that law were excluded from the army!

II. Moral Judgment. It is sufficiently plain of itself that a duel, undertaken by private authority, is infected with the intrinsic malice of homicide and suicide.

For some years, especially after the recent war, the fortune, even worldly, of duels has begun to decline. There will be a time when they will wonder how so inept a prejudice could rage so long.

Nor are duelists excused by the evils threatening them from a refused duel, since immunity cannot be sought from an evil act. Cf. the propositions condemned by Benedict XIV in Const. Detestabilem, November 10, 1752.

Concerning duels publicly commanded, it will be said below, n. 638. 2 b.

You Ask. whether into the place of single combat some dangerous attempt can be substituted by which one may show himself a despiser of danger.

Resp. If that attempt at the same time has another, proportionate utility, one will be able to use the occasion of demonstrating constancy of mind. But proof of virtue through rashness as such cannot be elicited.

III. Ecclesiastical Penalties. 1. The duel is punished by excommunication simply reserved to the Roman Pontiff, which, from c. 2351, §1, strikes by the fact itself "those perpetrating a duel, or simply provoking to it, or accepting it, or furnishing any assistance or favor, and also those deliberately watching it and permitting it or, insofar as it is in them, not prohibiting it, of whatever dignity they may be." These words are almost identical with the words of the censure previously laid down in Const. Apostolicae Sedis, so that they must receive the same interpretation (cf. c. 6, 2°).

Therefore: The duel which is struck by censure supposes, according to the probable sentence, the agreement of place, time, and weapons. - Wherefore they escape the censure who, when an unforeseen conflict has arisen, from the same impulse of the quarrel go on equal terms to some suitable place in order to fight (S. C. October 15, 1711). But a duel to the first shedding of blood, or one which is finished by a certain number of blows, is struck, unless in reality, on account of precautions taken, the moral danger of a grave wound is absent. - Those perpetrating, provoking, accepting, are principally punished; wherefore those provoking and accepting are struck by the censure even if no fight has followed, provided the provocation or acceptance was not fictitious, but true, and they determine place, time, weapons, or accept these to be chosen by the adversary.

Accomplices, on the contrary, are struck secondarily. Wherefore it is necessary that the principal fact have happened, which, if there is question of spectators, cannot be unless the duel itself. Witnesses, seconds, etc., and also physicians and confessors furnish assistance or favor if, asked by the duelists, they are present even with the intention of shortening the fight, or curing wounds, or absolving. But not teachers of weapons, who merely teach the art of fighting to those by whom it has been determined to fight, nor drivers who carry duelists to the place of the fight, if thence the fight has not been made easier or more certain. - Deliberately watching are only those who by their presence add courage to the fighters or splendor to the fight and thus continue condemnable prejudices. - Permitting and not prohibiting are not private persons but public powers, civil or military, which either give positive license or, when they can, by no means impede the duel. - Of whatever dignity they may be: today from c. 2227, all persons, if you except only Cardinals, are affected by pontifical excommunications latae sententiae.

2. "Those dead in a duel or from a wound received thence" are deprived of ecclesiastical burial, and consequently of an exequial Mass and public funeral offices. But today, contrary to what was before the Code, this penalty ceases if, before death, they have given some sign of penitence (cc. 1240, 1241).

3. Duelists and their seconds are by the fact itself infamous (c. 2351, §2), and therefore are irregular from defect, incapable of benefices, etc., of legitimate acts, of the exercise of an ecclesiastical right or munus, and to be kept from ministry (cc. 984, 5°; 2293; 2294). But if homicide has been committed, they are besides irregular from delict (c. 985, 4°).

You Ask. whether duels which are called "American" are struck by ecclesiastical penalties.

They amount to this, that both adversaries expose themselves to the danger of death or of grave damage, whence one by chance perishes, the other by chance escapes unharmed: as if, of two lozenges, one is harmless, the other infected with poison, and both must consume one or the other.

Resp. Since they have no appearance of a fight, those duels are not affected by those penalties.

You Ask. concerning the so-called "measures" of youths who frequent the universities of Germany.

Those "measures" consist in this, that, well protected in the principal parts of the body, both youths attack one another with a certain small knife and strive to cut the face. The permanent trace of the wound then received is exhibited as something honorific and glorious.

When questioned by the Bishop of Wroclaw, the S. Congregation of the Council, on August 9, 1890, responded that those dueling in this way and their seconds become irregular from infamy of law.

The same S. Congregation declared to the Bishop of Regensburg, on February 10, 1923, that this resolution still stands, and he had at the same time alleged the scandals of a more benign sentence (A. A. S. XV (1923) 151; Per. XII, 51). Others present this declaration as extensive, given on account of the special circumstances of Germany, while others distinguish light "measures" from graver ones. They judge that only the graver ones, in which a probable danger of mutilation or of a grave wound is really had, are subject to the response. However the matter may be, one must strive for the complete suppression of all barbarity.

— In a matter which is not free from difficulty, it will be better first to report the things which are altogether certain.

Principle. An unjust killer or mutilator directly touches the very person whom he kills, wounds, etc., and, if he was a father of a family, also the per se cause of the support of the family properly so called: of wife and children. Hence he is per se injurious principally to the wounded man himself, and secondarily to his family. Hence various corollaries.

1. Nothing is owed from justice, on account of killing or wounding in a duel, unless the victor forced the other by force or threats to fight: no injury is done to one consenting.

Authors, after Lugo, d. 11, n. 66 ff., and St. Alphonsus, l. III, n. 638, obligate the challenger to repairing damages for the challenged man who was forced by common human respect to accept the duel. Yet against this obligation it can be objected: a) that the provocation itself is often commanded by the same human respect; b) that the cause of coercion in the proposed case is not the challenger himself but worldly prejudices. The challenger by his provocation gave occasion to human fear, but did not excite it. Cf. Noldin, II, 468, 6.

2. According to the common sentence, nothing is owed from justice if, before death, the wounded man remitted everything. For since the support of the family was not furnished except by the father willing it, the injury is not judged to have been done to the family in its goods except insofar as this lesion is repugnant to the will of the father. Yet a judicial action for obtaining compensation is not destroyed by this renunciation of the deceased.

3. These cases being excluded, by reason of the wounded or killed man himself, there is owed to him or to his heirs: a) for the body itself harmed, only that which the judge has defined; b) compensation of the foreseen spiritual damage, through suffrages and Masses of which, by the act of the killer, the victim was deprived; c) compensation of temporal damage: expenses for sickness; emergent damage or cessant profit from inability for work. - Funeral expenses per se are not to be restored, unless thence they have become greater than they otherwise would have been. - On account of the difficulty of estimation, a composition must be entered upon with those having the right.

4. To the wife and children, per se, only the support of which they are deprived through that death is certainly to be restored. Therefore if other goods are at hand for the family, if the widow has married well, nothing now will certainly be owed. For, in other respects, the killing is not injurious to the family.

5. Since a debtor is not the thing of creditors, his killing is not injurious to them: wherefore it is not certain that anything is owed to them. Nor does anything seem to be owed to a society which has insured the life, because with respect to the insuring society, the killer was not bound from justice to abstain from killing.

6. But if the killer wished directly to harm the creditors or the society, not a few then obligate him to make good the damage which they have suffered.

7. He who, unjustly attacked, has exceeded the moderation of blameless defense, will rarely be held to making any restitution on account of the damages thence following, both because the attacker himself voluntarily went into and accepted such danger, and because the one attacked usually committed the excess without full deliberation. Cf. Piscetta-Gennaro, III, 498.

Fuller Exposition of the Matter. "The resolution of this question is difficult on account of the arguments which can be made from every side, to which satisfaction cannot so easily be given" (Lugo, Iust., d. 11, n. 73).

1. Three Things Chiefly Are Asked.

a) Because, besides material damages of the economic order, homicide is also accustomed to bring detriments of the moral and superior order, authors on this occasion introduce the question concerning the obligation of compensating these latter detriments with money. This controversial question has already been solved negatively by us above, n. 587.

b) What real damages, and for whom, must be repaired by the homicide?

c) Does the universal condonation which, before death, the wounded man made, avail to take away fully every debt of justice?

2. On Material Damages to Be Repaired. a) Let us state the principles of solution. Homicide can be damnose to the killed man himself, before death; then to the family, heirs, and connected persons; then to many others, for example creditors, the poor, and pious works.

Whatever temporal damages, at least foreseen in a confused way, happened before death to the person killed, confer on him an active right, which enters his patrimony and, after his death, comes to the heirs and legatees like any other rights. Concerning this right and its transfer to successors, no doubt can or does arise.

Yet homicide is not injurious to the poor, to pious works, to creditors, nor to the family itself, except insofar as it wounds its right of sustenance to be obtained from the deceased. For the deceased was not the thing or slave of the poor or creditors, nor was he bound to live for their sake. Nor was he the thing of the family. Yet he was bound by a strict office of piety to support certain persons intimately connected to him, so that, if need should be, those persons would be permitted to seek that sustenance for themselves secretly from his patrimony. But the abundance of food which thus from the strict office of piety is owed to the family cannot be taken away without injury committed against it. Just as one who snatched a tutor from a ward would be injurious to the ward, so he who deprives a family of the natural provider of support violates the rights of the family damnously: which damage must be compensated to it. These things having been posited, we have whence we may understand and judge the various sentences.

b) Various Sentences. a) All material detriments, at least foreseen in a confused way, must be compensated to all who suffer them. Lugo (d. 11, n. 75) judges this sentence of several older authors and also of Vasquez (Restitutio, § 3, dub. 7) to be rather practically impossible than speculatively false. It is rejected by us because the first condition of restitution to be made is lacking: an action unjust to him who suffers the damage.

β) Many hold, and St. Alphonsus, L. 3, n. 631, has as certain, the sentence which obligates the homicide to restoring to necessary heirs and also to the wife all the profit which they would have made from the deceased surviving, according to a reasonable estimation of present hope. The reason brought forward is that that damage follows per se (Noldin, De praeceptis, 466), and that heirs have a right not to be cast down from this hope through homicide. But it would have to be demonstrated that homicide is unjust with respect to those persons, not only insofar as it takes away from them the author of owed support, but also the giver of an undue benefit. Since this is not proved, the proximity of the damage cannot beget the obligation of restitution. This is indirectly confirmed by the things which are had against the exception "per accidens" in Lugo, d. 11, n. 78.

Thinking this, Lehmkuhl, I, 1179, appeals to the absolute will by which the deceased intended to confer on those persons all the profit which, living, he would have obtained. That is, those persons would receive that emolument from the succession of the deceased. But this reason supposes that a right to those profits exists in the patrimony of the deceased to whom they succeed. Now, however, as Lessius observes, Iust., c. 9, n. 155, and after him Lugo, l. c., n. 78, the killed man never had a right to that restitution, "as one whose obligation arose after his death." Or otherwise, cessant profit now belongs to no one, and therefore is owed to no one for the time in which he exchanged temporal things for eternal.

Wherefore we rather adhere to those who circumscribe the obligation of restitution to owed support, insofar as those strictly connected persons are deprived of it through the death of the father or husband. Nor can the accidental will by which the deceased in fact intended to provide for another beloved person confer on this person a right to support.

We also observe that even the best authors speak rather confusedly concerning the quantity to be restored to necessary heirs. For while before they defined the quantity by every hoped-for emolument, afterwards, when they speak of causes excusing from this restitution, they bring forward things whence you would say that only support was owed. Cf. already Lugo, d. 11, nn. 87, 88; St. Alphonsus, l. III, n. 631; Noldin, II, 466, 2; Tanquerey, III, 566.

γ) When there is question of more remote heirs and of creditors, the opinion becomes more common which denies that anything is to be restored to them, whether because that damage follows per accidens, a reason which, being obscure, proves little if in fact the killer knew the consequence; - or because there is no certainty concerning the absolute will of the deceased (thus Lehmkuhl, I, 1180); - or, and this is our reason, because those emoluments are not in the patrimony of the deceased; and, as Lehmkuhl says, I, 1181, concerning creditors, "they have an action against the debtor and his things as long as he lives; they do not have a right that he continue to live."

δ) Not a few respond more severely if the homicide wished to harm creditors, because then, thus Lehmkuhl, I, 1180, that intention demonstrates foresight and attention to the nexus of causality. But, as Piscetta-Gennaro observe, III, 495, intention does not convert occasion into cause; that is, it cannot make an external action unjust. We did not deny the nexus of causality, but the causality is not demonstrated to have been unjust to the creditors.

Nor, contrary to what Piscetta-Gennaro think, III, 491, does it matter with what will the deceased was disposed, who perhaps can be considered as already paying, because by that will the deceased cannot acquire posthumous emoluments.

3. On the Efficacy of Condonation. Lugo, d. 11, n. 63, denies, with several, that the support owed to wife and children could have been condoned by the killed man, since these belong directly to those persons. But they do not belong to them unless the deceased was in reality furnishing that support, and therefore willed to furnish it. Wherefore with Lehmkuhl, I, 1181, and others, we judge that all things could validly have been remitted.

But do not confuse the condonation of injury as such with the remission of the debt of justice consequent upon it.

Heirs also preserve the action in the external forum which the civil law has attributed to them. But if a criminal action is instituted, and they do not use the faculty of seeking pecuniary compensation, the remission of that debt can rather easily be gathered thence, at least from a certain contempt. Thus it happens not rarely that a certain very modest sum of money, for example of one franc, is sought to affirm a right which, however, the party does not wish to use.

— To the society which perhaps has insured the life of the person killed; to the State or institution which, on account of that homicide, must pay a pension to the children or widow, nothing seems to have to be restored. For the action was not injurious to them. Nor does the response seem to have to be changed if the crime was committed with the intention of obligating the society or the State to pay those monies. For intention can indeed remove the excuse which is sometimes sought from an effect too distant; but it cannot make unjust an exterior action which is not opposed to objective right.

Noldin, II, 466, rather argues from this, that the public treasury and the insurance society perhaps do not urge the obligation of repairing the damage inflicted upon themselves: "for concerning cases of this kind, even if foreseen, nothing is provided in their statutes." That reason seems to us of little efficacy. For another's right which arises from a delict must be satisfied spontaneously, unless positive condonation can be presumed; but no indication of this is demonstrated.

But if someone should have wished, by the death of the insured person, to obtain for himself the promised money, from the contract itself he has no title for obtaining it.

Principle. From the time when the rational soul has been infused, the fetus, even in the womb of the mother, is a person distinct from the mother and equally inviolable. Therefore in no way can it be said to belong to the viscera of the mother, concerning which she may reasonably determine what she wishes. Nor less are the calculations of certain persons to be repudiated, who, comparing the utilities of both lives, that of the mother and that of the offspring to be born, strive excellently to gather which life in the conflict, as they say, is to be immolated.

Corollary. To exercise embryotomy upon a fetus certainly or probably living (by which, either by the head being broken or by the body being cut, it is killed) is never lawful. The contrary sentence cannot safely be taught from the Holy Office, May 28, 1884, and August 19, 1889. For that action is a certain or probable (by probability of fact) homicide of an innocent, which cannot be intended even as a means to the greatest good. Nor is it an obstacle that the loss of life would be slight, because it is never right directly to shorten life, even in the dying. Nor can the fetus which is naturally developed in its own place be held as a materially unjust aggressor.

Grave Doubt. In cases where the safety of the mother altogether requires that the fetus be expelled, and, on account of the narrowness of the opening, it cannot be expelled except by embryotomy, Catholic physicians were accustomed to wait for the moment at which, taught by the stethoscope, they judged the infant dead, so that then, without fault, they might cut its body into parts or bore through the head. But since a recently spread opinion concerning many cases in which death is only apparent seems to defer certainty of death in such a case at least for an hour; since it also happens that in the case of suffocation, artificial respiration seems, as it were, to restore life to those whose heart was already not beating, it is asked whether or not it is lawful for the physician to exercise embryotomy as soon as the heart has now ceased from beatings.

Certainly, if the case tolerated delay, one would have to wait longer. But in the present case the delay would be lethal for the mother. Again, no positive probability is present by which we could say of such an infant: "probably he lives." But the experiment of artificial respiration cannot be attempted.

Therefore, since we cannot be directed by a mere possibility, and the necessity of the mother urges, will there not be someone who judges it lawful that, content with the sign of which there is an abundance, the surgeon hold the infant as dead and treat it as such? We had in mind to propose the doubt rather than to resolve it.

Ferreres, I, 501, II, end, would permit the matter without hesitation, since he thinks the certain right of the mother is to be preferred to the right, as he says, doubtful, of a fetus probably or more probably dead; and Prummer, II, 136, where he has these words: "Sometimes, however, the fetus is not certainly dead, but more probably now does not live. Then also several authors rightly teach that craniotomy is lawful for saving the mother, because a living mother is not bound to give her life for a fetus more probably now dead." Yet rather than there being question of life to be given for the fetus, there is question in the case of conserving one's own life with the death of the offspring if this offspring is living, as is sufficiently probable.

Tolerance of Good Faith. In various words, authors warn that it is to be permitted to the prudence of priests that, in extreme cases which, alas! occur, they not disturb the good faith of the surgeon. For when otherwise the death of the mother is imminent, and the eternal salvation of the fetus has probably been consulted by baptism at least in the womb, the dishonesty of an action which, by suppressing a fetus certainly going to die, saves the mother, is not so evident that it has not been denied or recalled into doubt by certain highest moral theologians, such as C. d'Ann. (II, 284) and Ballerini (Ball.-Gury, I, 403, note 13). And observe that in the present danger of death, abortion would be attempted too late, so that then there can be question only of craniotomy or embryotomy.

Concerning this tolerance of good faith, cf. Lehmkuhl, I, 1002; Noldin, II, 340; Prummer, II, 136; Gennari, Cons. mor., T. I, Cons. 77, where he proves these things from Kenrick, Theol. mor., I, 130: "if the surgeon asks what is lawful, let him answer: 'I do not know how the life of the fetus can be taken away without fault'" (and therefore with mention of the resolutions of the Holy See omitted). If the mother asks what is to be done by her, it seems it must be said that she ought to ask the surgeon to consult the life of the fetus in every way he can.

Notions. 1. Definition. Abortion is defined as the ejection of an immature fetus, or of one which cannot yet live outside the mother; while acceleration of birth, theologically, is the premature expulsion of a fetus which nevertheless can now be brought forth viable. For physicians, abortion is rather the ejection of a fetus not yet formed, whence they understand acceleration of birth more broadly, even of the expulsion of an immature fetus.

Regularly, that a viable fetus may be brought into light, it must be contained in the body of the mother for at least seven months; nor is it expelled before 34 weeks without special danger.

Now, however, by the help of a certain special incubation, some six-month fetuses can be preserved.

2. When the Rational Soul Is Infused. The fertilized little egg morally begins at once to live physiologically for itself. Yet do not thence conclude with several writers of the nineteenth century that immediately also, or from the first moment, the rational soul is infused by God. That immediate infusion of the rational soul, as Prummer, II, 138, notes, cannot be proved by any solid argument. On the contrary, right philosophical teachings concerning the soul, the form of the body, demand, with a miracle excluded, such as followed the conception of Christ, that with St. Thomas, Summa theol., 1 p., q. 76, art. 3, ad 3; q. 118, art. 2, ad 2, and all scholastics, after several Fathers, we hold that this infusion is delayed for some time; and this is confirmed by more recent observations of physiology, entirely different, of course, from those which were admitted in the age of St. Thomas.

Cf. our De Castitate, 3rd ed. Nevertheless, immediate infusion of the spiritual soul remains sufficiently probable that, theologically, the fetus from the first instant must be baptized and treated as a man.

3. What Abortion Is Materially. Observe also that voluntary abortion cannot be described as an action by which the mother ceases to carry the infant otherwise unharmed, and, as it were, places him outside her womb, in a place where, however, with respiration lacking, he cannot live; but "first and per se the living fetus itself is attacked in the same way in which someone whom another pierces with a lethal wound is attacked. For violently to rupture the membranes and the ligaments by which the fetus has grown together with the maternal uterus is in reality nothing other than to inflict a lethal wound upon the fetus" (Lehmkuhl, I, 1008); "it deprives the fetus of the office of the placenta by which he adheres to the mother and receives nourishment and purification of the blood" (Aertnijs-Damen, I, 571).

4. Baptism in the Womb. Not long ago an instrument was invented by which the membranes by which the fetus is covered are so cut that water can be injected by means of a little tube, and in the very womb of the mother a probable baptism can be conferred upon the infant.

5. Medical Causes of Abortion are of three kinds. For either: a) the mother labors under a disease by which she will be cured with more difficulty, or not at all, unless pregnancy is suppressed. An example is pulmonary phthisis; b) or the gestation itself of the uterus brings disease with it. Inexsuperable vomiting is reported as the worst; c) or, on account of the narrowness of the opening, the mother cannot bring forth the mature fetus. This difficulty can not rarely be met either by Caesarean section (cf. 625) or by symphysiotomy. By this latter operation, the fibro-cartilage by which both bones of the pubis are joined is cut; after that cutting has been performed, the opening of the pelvis can be dilated by one or two centimeters.

Moral Judgment. Directly to procure abortion is held as equally illicit as feticide. Thus the classical doctors think; if any seemed to admit an exception, they supposed that the fetus was not yet animated. Thus St. Alph., l. 3, n. 394; thus most more recent authors; thus the Holy Office, which assimilated abortion to an operation directly occisive, which, in any case, it declared could not safely be taught to be lawful, August 19, 1889. Cf. response of July 24, 1895; for example, Analecta Ecclesiastica, III, 483. Concerning the force of the formula "cannot safely be taught," cf. Gennari, Cons. mor., t. I, cons. 77, in which he cites Bucceroni. For to expel an immature fetus, who will not be brought forth viable, is to inflict a lethal wound upon him. But he who has brought upon a man the proximate cause of death contracts the malice of homicide. And even if the fetus is not yet animated by a rational soul, it cannot be directly expelled without contracting a malice similar in genus, but graver in degree, than that which is in pollution or the onanistic use of marriage. For in each case, even if bodily safety is to be procured, a faculty which has been conferred on us immediately on account of the good of the species is directed, in an order inverted from the species, to a singular good. Therefore it is a sin against nature.

Not a few writers, for example Lehmkuhl, I, 1003, condemn direct abortion of a fetus not yet animated by this reason alone, that it is "anticipated homicide." We confess that it is not distinctly grasped by us what force is in that reason. For how is a man killed before he exists? Nor is there any right of a future man. Wherefore by that form of argument the proper malice of that abortion is not declared, unless you add with Aertnijs-Damen, I, 576, that it, more than pollution, is opposed to nature, and thus suggest the reason just given by us.

Before the last responses of the Holy See, some authors otherwise approved, such as Ball.-Palm., II, 910 ff., and Lehmkuhl, I, 818, though not after the seventh edition, in certain most grave cases thought more benignly: either that by the intention of saving the mother the direct nature of abortion was removed, or that the mother could, as it were, cease from conserving the fetus. But since the safety of the mother follows abortion and is obtained through it, an intention of this kind does not remove the direct procurement of abortion; and the mother does not merely cease from conserving the fetus, but by a positive and often difficult effort expels it. It will indeed be able to happen that in an extreme case good faith is not to be disturbed much, yet with insistence that they apply themselves to those operations which preserve the mother and the offspring together, and that they bear solicitous care concerning the eternal salvation of the offspring.

Observe also that for saving the mother in an extreme case there would rather be need, if it were lawful, of craniotomy than of abortion, which, in the present danger of death, would be attempted too late.

Because men of our age are persuaded less by philosophical reasons than by practical ones, it is opportune to show them how the severity of the Holy See spares several human lives, far from being the cause, even per accidens, why more perish. For if, to save the temporal life of the mother, you should say that killing the infant is lawful, this will be exercised even on account of a probable necessity, nor will all things be attempted with the same solicitude for saving both lives. And note that no worldly reprehension will be incurred by a physician who, alleging necessity, kills an infant who could have been saved with the mother; while if the mother dies in a dangerous birth, this death will easily be imputed to the more prudent physician. Therefore by the very utility of his own reputation, the physician will be impelled to follow the safer parts against the fetus, thus immolating many who could have lived with the mother. Experience itself clearly confirms this. Add also that from one excusing cause men are led to admitting others: it is enough to read academic reports to see how broad a field some wish already to lie open to feticide and abortion.

— It will be lawful to accelerate birth whenever, by this reason, better provision is made for the very life of the infant. But that it be done on account of the safety of the mother, it is necessary that it be performed "at that time and in those ways by which, from things ordinarily happening, provision is made for the lives of the mother and the fetus" (Holy Office, May 4, 1898, ad II). The reason is that the will of the infant, where there is question of the danger of his life, cannot be supplied by the parents except so that provision is made for his good and utility; by no means, however, contrary to what Lehmkuhl, I, 1007, judges, so that there be made an act even of indirect immolation of life, which an adult could make from heroic charity. Yet this can be understood somewhat more broadly, because the mother herself is necessary to the infant.

On Caesarean Section. Caesarean section is an incision of the abdomen and uterus of the mother performed for extracting the fetus. Thus, immediately after the death of the mother, Caesarean section will be licit, indeed per se obligatory, for extracting even an immature fetus, who thus is snatched from equally certain and more prompt death and will be able to be baptized. Here again worldly prejudices stand in the way of eternal salvation; and those who were preaching abortion for saving the temporal life of the mother will condemn the cutting open of the dead mother for procuring eternal beatitude for the infant. On account of penal laws today, the priest will be able only to warn the physician and the family of their office. But although absolutely he can with difficulty resist the will of relatives, the physician or surgeon nevertheless possesses in his very skill an authority by which he can perform that operation safely. The best counsel often will be that immediately, asking nothing, he extract the fetus, as though a natural complement of the care promised. If there is morally no hope of baptism, the reason ceases on account of which, even after the death of the mother, the fetus is to be extracted. But in the very womb of the dead mother he will soon perish by asphyxia.

A surgical operation, for instance a Caesarean section, which is necessary for procuring baptism for her infant, per se must be undergone by the mother, even with her own danger, if the baptism which otherwise cannot be conferred is sufficiently certain. For preserving temporal life, she will not have to admit that danger. Since today operations are made much more safely than before, and they bring no true horror to a person put to sleep, the mother is gently to be induced to obey the counsels of an upright physician. Yet we shall beware lest a woman who is foreseen as going to die be placed in bad faith. Therefore often her grave obligation will have to be passed over in silence.

On Ecclesiastical Penalties. "Those procuring abortion, the mother not excepted, incur, the effect having followed, excommunication latae sententiae reserved to the Ordinary; and if they are clerics, they are besides to be deposed" (c. 2350 §1). - "They are irregular from delict.... 4° Those who.... have provoked abortion of a human fetus, the effect having followed, and all cooperators" (c. 985, 4°).

They procure abortion who, by physical or moral action, efficacious and with direct intention, bring it about that a fetus not dead is expelled before seven months from conception. By the new law, from c. 2209 §§1-3, those commanding, and those furnishing positive and necessary cooperation, such as physicians, are comprehended by the censure; also those who, on account of a further good end, exercised an illicit abortion. Concerning the cooperation of a pharmacist who merely sells a potion, it will be more difficult to establish that it was necessary. The mother herself is no longer immune from censure. Yet one who has yielded to grave extrinsic fear escapes the censure. - But the censure is incurred from the moment at which the fetus is ejected, from the means applied. - If someone repents before the effect has followed, so that he has received absolution, he seems immune from the censure, which cannot now accede to the sin as accessory. If otherwise, without use of the sacrament of penance, he sincerely has grieved, today from can. 2209 §5 compared with 2229 §3, he seems to be held by the censure (cf. also c. 2231).

N. B. In interpreting the present censure, certain authors, although they wrote after the Code, seem to have passed over canons 2209, 2229-2231. Thus Pighi, Curs. theol. mor., l. 3, nn. 551, 552.

Craniotomy, although graver in itself, since it is plainly distinct from abortion, is not affected by this censure.

But irregularity today receives the same interpretation as the censure. Cooperators, however, seem to be positive cooperators only (from c. 2231), although Cerato (Censurae vigentes, n. 161, p. 229) also comprehends negative cooperators. Cf. Gen., I, 634; Pighi, l. 3, n. 602. But those who have exercised craniotomy do not escape irregularity from homicide.

— Indirect abortion, on account of a grave and proportionate cause, is admitted by all. For then another good effect is intended or chosen, which can be obtained by no other way, and the expulsion of the fetus is actively permitted.

But "in practice it is not always easy to discern whether a certain medical action is a direct or indirect killing of the fetus" (Prummer, II, 141). That it be indirect, no utility can be sought from the expulsion itself of the fetus, as such, or from the grave wound inflicted upon it.

Cases. 1. Therefore a mother affected by a lethal disease can use necessary remedies which, at the same time as they cure the disease, induce the danger of abortion; the very uterus morbidly affected, which cannot be tolerated longer without danger of life, can be taken away from her. And these things are certain.

2. But is it lawful, for replacing the uterus, to evacuate the liquid of the amnion? This is controverted. Certainly incision of the amnion is the most usual mode of procuring abortion. But, in the case, the incision is not made so that abortion may follow, but so that the uterus, which by its collapse brings the mother into danger of life, may be restored to its place. Hence you would say the matter is lawful. Yet a difficulty again arises from this, that that liquid is contained by a membrane which pertains to the fetus. Therefore the incision seems to have the nature of a lethal wound. Wherefore the matter is disputed, and the negative parts seem truer, unless, by an incision or puncture prudently made, by which only a part of the liquid flows out, the abortion itself can probably be avoided and follows only per accidens. And similar difficult cases can arise where the fetus itself seems to exercise an action positively and gravely harmful.

3. Therefore if, by new increases of science, similar difficult cases are proposed where the fetus itself, not simply as fetus, but, for example, as morbid, seems to exercise an action positively and gravely harmful, nothing is to be established precipitately, but the case is to be subjected to serious examination, with the principle always firm that no utility can legitimately be obtained through an action directly occisive as through a means.

On the Ectopic Fetus. 1. Description of the Fact. Sometimes, on account of various causes, for the most part unknown, the fertilized little egg, outside the uterus, either adheres to the ovary or oviduct, or, falling down into the abdomen itself, is applied to some intestine of the mother, and there begins to grow. Hence tubal, ovarian, and abdominal pregnancy are distinguished. Yet Cappellmann-Bergmann, Medicina pastoralis, p. 50, warns that it is not so certain that the third is had.

Extra-uterine pregnancy, as the same Doctors explain, for the most part is naturally interrupted, either by internal abortion, when it is either reabsorbed or, as it were, "petrified," or by the splitting of the oviduct, or rupture. Then sometimes maternal blood is poured out in such quantity that thence the mother is brought into danger of life. But the effusion is sometimes minimal or even none. Rarely does it happen that the pregnancy perseveres so that, by means of laparotomy, a living and viable fetus can be brought forth.

Therefore every extra-uterine pregnancy renders the life of the mother less secure; internal abortion or rupture creates a positive danger of life. Extra-uterine gestation, for a certain time, is very difficult to recognize. But if, to recognize it, you open the abdomen of the mother, then you are almost forced to cut out the sac with the fetus, so as to spare the mother's days. But if it is known otherwise, then accurate observation diminishes the danger of the mother.

Not a few physicians treat extra-uterine gestation as if harmful cells had grown in the body (excroissance), or as a tumor to be cut out, or directly to be destroyed, for example, by electric force or injection of morphine.

Others deny that the hand of the surgeon is to be applied until compelling necessity has been present.

2. Moral Judgment. 1. That distinction cannot be denied which intervenes between an ectopic fetus and a fetus contained in the uterus. Nature itself, as Lehmkuhl says, I, 1007, has prepared existence in the uterus for the fetus, while the ectopic fetus is not in its place. Hence it is more per se dangerous and damnose to the mother, and in that part by which it adheres to the mother it can more easily have the nature of a deadly tumor or cyst. But because the nature of the thing which the mother bears outside the uterus is often doubtful, the question itself is at once divided into these two: what is lawful if it is uncertain whether there is a tumor or a fetus; and what is lawful if it is certain that a fetus is present.

2. The doubt, as is plain of itself, must be supposed to be such as is morally invincible. Therefore, as long as it is uncertain whether there is a tumor, which can be cancerous, or a fetus, not a few today, with Genicot leading, I, 376, in earlier editions, permit that it be removed: whether because the certain right of the mother prevails over the probable right of the fetus; or because the mother is in possession and is permitted to protect herself against that which can be deadly and is not proved to be a man; or because, as Ferreres says, I, 501, II, with positive arguments lacking, human life is not probable. He rightly lays down the principle that what is not lawful for a certainly pregnant mother is not lawful for one probably pregnant.

Relying on this principle, which Aertnijs-Damen also mentions, I, 581, we shall say with P. Salsmans, ed. 10, I, 377, that the norms concerning a certain fetus are to be transferred almost equally to a probable fetus.

Yet it is right to take the responses of the Holy Office, immediately to be alleged, concerning the certain fetus alone.

3. What If an Ectopic Fetus Is Certainly Present. Concerning this matter the Holy Office responded twice.

By the prior decree, May 4, 1898, it declared: "Necessity compelling, laparotomy for extracting ectopic conceptions from the womb of the mother is lawful, provided that provision is made for the lives of both fetus and mother, as far as can be done, seriously and opportunely." - By the other, May 5, 1902, to the question "Whether it is ever lawful to extract from the womb of the mother ectopic fetuses, still immature, the sixth month after conception not yet completed?" it answered: "Negatively, according to the decree of May 4, 1898, by force of which provision is to be made for the life of the fetus and of the mother as far as can be done, seriously and opportunely; but as to the time, according to the same decree, let the speaker remember that no acceleration of birth is lawful unless it be performed at the time and by the modes by which, from things ordinarily happening, provision is made for the life of the mother and of the fetus."

By these responses there is certainly confirmed what theologians already handed down before: that excision of the fetus is not lawful before the present necessity of the mother. But what if the necessity of saving the mother urges?

In so grave a matter it will help to hear recent authors.

Antonelli, II, 112, departing in the 1909 edition from the more benign sentence which he had defended before, now does not dare to permit that in extreme danger, where the mother with the fetus is going to die on account of the imminent splitting of the cyst, an immature fetus be extracted; yet he is content with a very slight hope of saving the fetus. - We confess that we do not see how this is composed with the words of the response of May 5, 1902, which require a time and mode "by which, from things ordinarily happening, provision is made for the life of the mother and of the fetus."

Lehmkuhl, I, 1010, 1011, observes that the decree of May 5, 1902, which seems to sound more severe, lacks pontifical approval, and can be restricted "to those cases in which that excision is equivalent to the procurement of direct abortion. But in the proposed case," or when a tumor is opened "which sometimes appears from extra-uterine conception in various organs of the mother, and unless it is cut away, casts the mother into the highest danger and, with the organs ruptured, into certain death," there is had only the indirect extinction of the fetus. "For just as in a normal pregnancy it is lawful to cut out a morbidly affected uterus which brings the mother into danger of life, with the fetus, and yet in this way the fetus is not directly, but only indirectly, devoted to death: so it will be lawful to cut out a tumor lethal to the mother, although an ectopic fetus is contained in it, nor is this cutting directly occisive of the fetus, but only indirectly."

This solution is approved by Genicot-Salsmans, I, 376; Piscetta-Gennaro, II, 223, 224; Prummer, II, 146.

Aertnijs-Damen, I, 583, has these things: "The decisions brought forward can be understood of laparotomy of an ectopic fetus as such, or insofar as the fetus itself by its abnormal place creates danger for the mother, so that extraction of the fetus is in reality a means to saving the mother; but in the cases set forth, not the abnormal state of the fetus, but other morbid affections create danger for the mother. Nor does direct killing seem to be present, since the death of the fetus is neither the means to saving the mother, nor necessarily the end of the action, whether of the work or of the one working."

Cappellmann-Bergmann, Pastoral Medizin (ed. 18), understands the response of May 5, 1902, concerning the extraction of the ectopic fetus as such, not concerning the excision of a tumor joined with the fetus.

Mode Prohibited by Several. Lehmkuhl, l. c., Genicot-Salsmans, l. c., wholly prohibit the use of electric force because then the fetus would be killed directly. Yet rather, as it seems, electric force or a similar means would by way of one thing suppress the tumor and the fetus. But this other reason is added, that only by extraction, if it can be done, can provision be made for the baptism of the fetus. Injection of morphine, according to Antonelli (Medicina pastoralis, II, 111), would be useful only for killing the fetus.

A Certain Conclusion. Not without a certain anxious solicitude do we weigh cases whose solution, whether you embrace the more benign or the more severe one, must be said to be at least indirectly fatal to several human lives. Moreover, the conflict is to be deplored by which, in this matter, the medical schools of today are torn away from the theological schools. And if, as has been reported to us, it also happens that a Catholic professor of medicine more or less openly teaches those things concerning medical abortions which do not agree with the responses of the Holy See, by how much greater difficulty in exercising their art will Catholic gynecologists be pressed, who, while they obey the Holy See, a) seem to depart from the precepts of their own school, b) unless at least they timely set forth the difficulty of conscience, perhaps do not escape the penalties of civil law for having neglected, in extreme necessity, the operation by which the mother could have been saved. Cf. Prummer, I, 136, citing art. 222 of the criminal Code of Germany. Therefore we have in our wishes that by clear documents the conscience of Catholics be directed firmly, and that physicians themselves consider absolute moral principles with greater attention, and acknowledge how well the Church deserves of humanity, while she strongly inculcates and urges the inviolable rights of the human person.

VI. - On Rape and Adultery.

1. By the name of rape (stuprum) we understand here the lustful oppression of an unwilling person. Now he is injurious to a woman who by force or fraud extorts copulation from her; but directly an injury is done to her alone, unless she is married.

We speak of the oppressed woman alone, because lustful acts of violence against other persons are not of themselves damnose to the body, nor do they have the consequences, even of the economic order, which involuntary fecundity brings with it.

2. Adultery, if a wife is unwillingly oppressed, violates both spouses; but the adulterous spouse and his accomplice are injurious to the other spouse.

On Restitution on Account of Rape. The temporal damage, which alone is to be repaired here, is the difficulty which the girl will suffer in marrying well, and the expenses of supporting the offspring, if any is born from the copulation. Hence the corollaries:

1. The violator owes nothing if defloration did not impede marriage, because it remained hidden, or became known only through the indiscreet revelation of the girl, otherwise if through a just action of hers; or if the virgin could not have married, or would not have wished to marry, or if she married equally well.

The best compensation will be made through marriage. Yet the girl does not seem to be able to exact this per se. Nevertheless, he who bent a girl by a true or fictitious promise of marriage will have to marry her, according to the most common opinion. Nor does the canonical nullity of the promise stand in the way, since it is considered as an instrument of deception or fraud. Yet the obligation of marrying ceases if, from the excessive inequality of condition or from the tenor of the words, the fiction could easily be recognized; or if the violator himself was deceived about the virginity of the woman with whom he sinned; or if the marriage, on account of coercion or disparity of conditions, especially of education, does not seem capable of being happy. For it would be too hard to condemn someone to an unhappy life; nor is it truly in the interest of the woman herself that such a marriage be made. Then it is enough that the violator give the woman a dowry which removes the obstacle to marriages as honorable as those which she would have obtained.

If the woman was not intact, often damage is absent. And, unless there is question of an honorable widow, a woman already known dishonorably before could easily perceive the fiction of an excessively lavish promise.

2. As to the expenses of supporting the offspring, the unjust violator alone must bear the expenses of supporting his own offspring.

On the contrary, a woman who makes gain from her body is held before the man, because she is judged to have undertaken that burden upon herself.

Otherwise, both are held equally per se.

Moreover always from piety each parent is held in solidum (cf. below) to supporting the offspring. It is enough that he be supported according to the condition of the mother. - As to children whose filiation has been demonstrated civilly, the obligation becomes civil.

Prudence of the Counselor. Before he declares the obligation of restitution or advises the mode of external action in this matter, let the confessor or counselor weigh all things well, and ask an expert man about prudent execution, unless he prefers to remit the penitent to a man of this kind. For cunning women know how to entice an inexperienced young man so that he thinks himself the seducer, while he has merely fallen into a snare prepared by women. But after the sin has been committed, they complain that they have conceived by him, when either they are in no way pregnant or have sinned with several. Then the money which someone has given to prevent the disclosure of the matter, or to redeem himself from the harassment of accusers and barkers, is easily converted into an argument of guilt, so that it gives occasion for long-lasting servitude.

On Restitution on Account of Adultery. 1. Adultery brings temporal damage from the supposition of adulterine offspring, who is held and treated as legitimate by the ignorant husband and relatives. For if they consented, they would suffer no injury.

The supposition of a child is a fraud by which he uses a strange man as father, and is introduced as legitimate into his family.

2. But in doubt the offspring can be presumed legitimate.

3. But each adulterer is held in solidum for all damages which followed per se; but not for others. Whether both are held in an equal place, or the adulterer only after the woman: this is disputed. For the woman alone supposed the adulterine child. But because by the common adultery she was morally compelled to do this, most assert an equal obligation. Yet the woman alone will be held if she could easily withdraw the child, just as the adulterer alone will be held who oppressed the woman by force.

4. The damages, however, contained by per se connection are support, the customary gifts which the offspring is accustomed to receive from his parent or ascendant, and the goods which he has received from the same by legacy or inheritance. Regularly, goods which he has obtained from other blood-relatives by gift, testament, or succession are judged connected per accidens, or rather of more difficult foresight. Cf. Lugo, d. 13, n. 39, 40; d'Ann., II, 280; while Molina speaks more severely, tr. 4, d. 102.

The reason why nothing is to be restored to other blood-relatives and ascendants, for the most part, seems to be set forth better and more distinctly thus. The supposition of the infant was not injurious to them, nor could it be manifested to them without his infamy. Again, they are not accustomed to attend so much to the true origin of a boy who is said to be legitimate by status, so that it is not certain that they are in reality unwilling.

5. Excuse. But they must restore only insofar as they can do it without detriment to a higher good or danger of a greater evil. Wherefore, on account of discords, infamy, hatreds to be feared, and already the immense sadness itself to which the husband ignorant of the matter is exposed, scarcely ever will the adulteress herself be compelled to confess her crime. Nevertheless she must, as much as she can, compensate the damage in other ways: by more diligent administration of the family property; by less personal adornment; by favor made in the testament to the legitimate children, if nothing grave is to be feared from this; by counsel prudently given to the spurious son concerning religious life. - The adulterer himself will often be excused either by too great difficulty, or by the very doubt in which he can be, whether or not the offspring is his own.

6. The adulterine son, as long at least as he is ignorant of his origin, is to be treated as a possessor in good faith. Nor ought he to believe his mother affirming or swearing it.

7. If several at the same time have had access to the wife of another, what is the right will be said below, where cooperation is treated.

APPENDIX.

On the Action of Public Power and War.

Order of Speaking and Utility. - Because physical persons are members or parts of a perfect society, whose rights are exercised through public power, we must examine briefly how far that power can touch persons as members in their body by command and sanction.

Thus an occasion will be given to us of speaking very briefly about war. A fuller exposition of the matter would lack utility, since today especially those who meditate public slaughters are accustomed little to ask and hear theologians. But our parts seem to consist in recalling and inculcating a few principles which, if before war they have been firmly impressed upon souls, will be able to temper at least somewhat the horrors of calamities of that kind.

I. What Public Power Can Do Against the Innocent. Not even public power is ever permitted, whether in peace or in war, directly to kill an innocent person, or to take vengeance upon innocent persons, for example hostages, for the delict of others. If a tyrant demands it, the republic can compel an innocent person to go to the tyrant, because he is held to expose his life for the republic; and one refusing, since, as such, he has become guilty, it can hand over. Yet a virgin, on account of the danger of consent, must never give herself to be violated. Wherefore she can indeed be permitted to her own lot, but never handed over for this end.

II. What Against the Guilty. By public authority and with the order of law preserved, an evildoer can be punished even by death. From preserving that order, on account of the extraordinary necessity alone of the republic, where provision must be made for public safety, public powers can be dispensed and can dispense.

The formal reason why they can exact bloody punishments does not seem to be sought from the quality of parts which citizens have. For the body pertains to the person, inviolable by men. But since capital punishment is demanded by social necessity, God, to whom the right certainly belongs, did not omit to provide for that necessity by a power bestowed.

III. On War. 1. On the Justice of War. a). War cannot be just unless for proper defense or for exercising vindicative justice.

But before he declares war, the prince must take care with all diligence that he be certain of its justice and of a grave cause. If the right is only probable, the matter is to be settled by friendly compact or through arbiters. If the other party refuses these things, it then commits a certain injury which, if there is proportionate cause, it will be lawful to vindicate by arms. Cf. Waffelaert, Iust., II, 444. But once the justice of the war has been perceived, it is to be proposed to the opposing party. Competent satisfaction offered by this party must per se be accepted.

In defensive war, it is enough that there is no certainty of an injury having been committed.

b) Common Subjects, unless there is a vehement contrary suspicion, ought not to inquire into the justice of the war. But today especially, where in public administration so little attention is paid to the obligation of conscience, learned men and theologians cannot rashly admit and defend the justice of war. The same must be said of voluntary soldiers.

c) He who is compelled to have part in an unjust war must abstain from hostile acts, and surrender himself to a hostile soldier whom he cannot avoid by flight. If the opportunity of acting thus is lacking, he will be able, when invaded by the enemy, since by error he is held as guilty, to use the right of defense against him who does not wish to grant life to him surrendering himself.

2. What Things Are Lawful in a Just War. a) In a just war it is lawful to do all those things which are necessary for the end of the war, and are prohibited neither by the law of nature nor by agreements of the law of nations.

For the common good of men demands that those agreements and rules of the law of nations, by which such great evils are tempered, be observed sacredly at least as other agreements are, within the tacitly agreed limits of human foresight.

Faith given to an enemy must per se be kept.

Reprisals are lawful where the injustice is certain, satisfaction has been denied, and they are exercised upon guilty persons or upon goods.

Those who carry on a just war can, according to the case, treat opposing soldiers as formal evildoers, or at least as aggressors materially unjust, with international agreements saved.

Soldiers, I say, because among cultivated nations this is received today, that war ought to be circumscribed by the armies themselves, so that unconscribed citizens and soldiers must abstain from mutual offense.

b) On the Conversion of War into the Combat of a Few.

It must not be said too absolutely that war can, by public authority, be converted into the duel of a few. For this will be lawful only when he who pursues his right does not thereby make his condition worse. Cf. Sanchez, Decal., l. 2, c. 39, n. 15, 16.

3. Right When War Is Finished. a) When war is finished, restitution of things taken and of expenses can be sought, besides a just punishment or congruous satisfaction.

b) Treaties of peace are rather imposed by the victor than freely agreed upon. Yet because it is of the greatest interest for the common good of all that an end of warring be made, they are to be observed sacredly, unless they labor under the most manifest injustice. Therefore they are fortified by a much broader presumption than private agreements.

4. On Restitution. As to restitution, common soldiers of the same army, even if they conspire, are nevertheless not judged to act from conspiracy. For if you except those immediately nearby, the rest are not moved by the cooperation of a determinate soldier. Wherefore, in an unjust war, their obligation comes down almost to this: that they repair the damages done by their own hand. Nor do the owners of things will or expect more. More grave, as is plain, is the obligation of the war leader, who must also repair damages which are inflicted by soldiers on account of his blameworthy negligence.

5. Customary Irregularity. Finally let us recall that by the new Code the irregularity from defect of lenity has been suppressed, so that only those become irregular who have made themselves guilty of gravely blameworthy homicide or mutilation.

Article II. - On Real Injury.

§ 1. - On Injury Itself.

1. Specification. Principle. All injuries in goods of fortune are, as such, of the same moral species; not likewise of the same juridical species, whether you consider the civil forum, where the notion of theft must be attended by us, for example, on account of the special right of prescription to which a stolen thing is subject; or also the canonical forum, for example, on account of reserved cases.

2. On Theft and Robbery. Theft is the hidden taking of another's thing, while the owner is reasonably unwilling. It is called hidden insofar as it is done without force inflicted on the person of the owner; by which note it is distinguished from robbery, in which, therefore, personal injury concurs with real injury. - Taking, in the civil forum, is understood strictly. Wherefore a depositary, a borrower-for-use who refuses to return the thing to the owner, is indeed morally, but not civilly, guilty of theft. Taking implies an intention of gain, which is absent from damnification; this also in the forum of conscience pertains to the same species; nevertheless the distinction must be attended to in the estimation of restitution. - Another's thing is supposed, at least as to the right or that which is taken away. - The owner must be unwilling as to the substance or the thing itself, and not only as to a manner rather uncivil, etc.; reasonably, so that, all things weighed, he deservedly is unwilling, and ought to concede nothing to persons or circumstances.

For, according to the various person taking, the thing can be changed morally. A prodigal man from whom monies are withdrawn to impede their prodigal use would be reasonably unwilling if it was done by an outside person, but not if by his wife. Nor is a faithful servant, prevented by shame or another cause from asking permission, to be blamed because he gives to a very needy poor man a not too great alms which the master could not reasonably deny.

2. To theft of a thing either sacred or entrusted to the Church to be kept, the species of sacrilege is added: cf. n. 269.

On Grave Matter of Real Injury. Principles. 1. Although simple theft and injurious damnification in goods of fortune do not equal robbery and sacrilege in malice, they are nevertheless per se grave sins, because they are contrary to charity among men. "For every harm inflicted on another is of itself repugnant to charity, which moves one to will the good of another. And therefore, since injustice always consists in harm to another, it is manifest that to do what is unjust, from its kind, is a mortal sin" (2, 2, q. 59, art. 4, c.). Therefore that injury cannot be conceived as a sin which, according to varied quantity, becomes light or grave, but must be called a sin per se grave, which nevertheless can become venial per accidens, namely when, on account of lightness of matter, the injury is to be judged morally imperfect. For, according to the principles of St. Thomas, for example 1, 2, q. 88, art. 1, ad 1, a sin grave by its kind does not become light unless, either on account of deficient deliberation, or on account of deficient matter, it is morally imperfect (cf. I, 413).

Therefore the formal reason why a certain quantity can be usurped unjustly without grave sin is not the lesser damnification itself as such, but the substantial observance of the rights of others which can be combined with that usurpation; or also the easy tolerance of the owner from whom something is taken secretly, so that it is not judged to be a reasonable cause of grave offense, but allows human friendship to remain substantially intact. Cf. 2, 2, q. 59, art. 4, sed contra and ad 2.

2. What Matter Is Thence Judged Light.

That a lesion of right be light, it is necessary that at the same time, according to probable estimation: a) it bring no grave privation to the owner himself; b) nor that the thing taken be in itself, i.e. in such a definite society, of universally notable utility; c) nor that the lesion be apt to have a grave repercussion in common security, which it is in the interest of all to protect.

According to the first consideration, matter is relatively light or grave; according to the two later considerations, matter is to be prudently defined as absolutely grave, i.e. with respect to the injured person set aside.

Concrete Estimation. a) On Relatively Grave Matter. Most theologians define grave matter for workers, whom they suppose citizens of the lowest order, by a day's wage or profit; many transfer a similar rule to all men of modest condition; indeed all are to be judged to feel a notable privation if they are despoiled of the value of an entire day. Hence we seem able to establish this perpetual rule: relatively grave matter is that which morally deprives the injured person of the revenues of one day. Cf. also Noldin, II, 415. But probable estimation of revenues is to be gathered from social condition, from customary stipends, etc.; and, on account of festive rest, it will be better to consider the seventh part of weekly profit rather than the daily wage.

But because this rule is established concerning a father of a family, where there is question of fully adult persons who are celibate, or have no family to support, relatively grave matter seems able to be increased almost to double.

Again, however, an injury which is modest as a taking of a thing can become grave as a damnification, if its privation brings grave detriment, because, for example, it is an instrument of labor and cannot easily be supplied.

Where the condition of the injured person is unknown, contrary to what R. D. Garriepy, IV, 262, admits, one cannot attend to absolutely grave matter alone; but, if another indication is lacking, the ordinary condition of that person is to be presumed among modest persons or even the moderately rich. For this, says Noldin, II, 415, note, "is accustomed to happen more frequently."

Yet one must beware of mathematical rigor in this matter.

Since, in the present circumstances of things, prices and revenues are so uncertain, to define materially what grave matter is to be assigned to the various conditions of persons seems very difficult and at the same time unstable. Noldin, II, 115, set grave privation for begging poor at 1 lira or even less according to greater poverty; for workers, 4 lire; for artisans, merchants who labor in their own workshop, 10 lire; for the moderately rich, 20 lire; for the truly rich, 30 lire. Génicot, I, 507, setting nevertheless for a worker a day's wage, and several others agree sufficiently. Yet who does not see that those estimations are at present too severe, since the daily wage of workers is accustomed to reach or even surpass 15 lire? Wherefore we think those indications must be doubled.

b) On Absolutely Grave Matter.

This matter can be investigated more directly both by the authority of theologians and by intrinsic reason.

a) The Way of Extrinsic Authority. If, among the opinions proposed today, we choose the middle as safer, we shall estimate absolutely grave matter at about 50 francs. Yet this computation, in regions in which, either on account of the quality of the money as paper, or on account of the extraordinary dearness of things, the comparative force of money has decreased much, is to be tempered so that it be estimated at least at double; so that, in the last edition, Génicot-Salsmans, I, 507, reasonably increased absolutely grave matter to 100 francs.

Nor does he seem to be reprehended who, since before the war he defined grave matter as 100 francs, now defines the same at 150 or 200 in a region where gold money has been made foreign to use. For although the prices of things have more than tripled, the repercussion to be feared upon common security forbids us to increase grave matter by the same ratio by which the prices of things have increased; but it does not seem to have grown beyond double.

Today Bulot, I, 513, thinks it is found between 25-30 francs. Tanquerey, III, 430, thinks absolutely grave matter in Europe is of 20 or 30 francs; in the U.S.A., seven or eight dollars. Ferreres, I, 713, places it, for various regions, between 30 and 40 francs; which quantities he judges it probable should be almost doubled in present circumstances. Arregui, Nummarium, n. 312, judges absolutely grave matter in our days to be determined, according to the diversity of regions, between 40 and 50 francs; in a note, however, he does not reprehend those who answer more benignly. Before the war, Palmieri confessed that he would not reluctantly assent to those estimating absolutely grave matter, not to stand below one hundred francs (Gury-Palmieri, I, 607). This Ojetti approved, Synopsis rerum moralium et iuris Pontificii, n. 2259. Nor today do Piscetta-Gennaro, III, 251, reprove this, adding these things: "Those who before the war required a sum of one hundred lire today and as long as today's condition of things remains would not undeservedly say that, at least among us, there is not absolutely grave matter which does not reach almost 400 lire; and perhaps there will have been among them those who require a greater sum." Noldin, Praecepta, n. 116, still estimates grave matter at 30 francs; but Garriepy, in the Canadian region, thinks absolutely grave matter to be 8-10 dollars. He himself judges that the opinion of Palmieri sins by excessive benignity. Yet observe that already in the time of Lessius there were those who placed absolutely grave matter not below one hundred crowns; which, however, Lessius rejects as lax (Iust., c. 12, n. 29-31). Prummer, II, 80, places absolutely grave matter at 100 francs, adding "of gold value." But he himself teaches this in Switzerland, where paper money is received in use equally with gold money.

b) By adhering to the principles of St. Thomas proposed above, perhaps you will incline toward an opinion more severe than that which is received today. Does not the Angelic Doctor himself (2, 2, q. 59, art. 4, ad 2), as an example of a small theft, allege if someone "takes away from another one apple, or something such"? Yet if men were asked what they would hold as true and complete thefts, and what rather as arts less approved or not very honorable, they would come near, unless we are mistaken, to the middle opinion of theologians praised above. Indeed they would not attend to this distinction if there were question of a man who is ready to steal everything; but if a man is supposed who, even when he had the occasion of stealing a greater sum, deliberately took for himself from a very rich man no more than 50 or 100 francs, they would not call him simply a thief.

The question could also be posed: "For what sum, stolen from you, would you wish the thief to be condemned to eternal punishment?"

But then they would easily be led into conclusions too benign, because few good Catholics desire eternal punishments for thieves on account of sums taken from them. Thus a person moderately rich, once questioned by us, placed grave matter not below a thousand francs.

Finally observe these things. By estimating grave matter, we know what restitution we must impose under grave obligation; but from this alone judgment cannot be made about the sin committed. For he who meditates despoiling someone is not excused from grave sin because the victim has little or almost no money with him. But that the sin be light, it is necessary that the very intention of the thief not exceed light matter.

Today the worker can no longer be considered as the one from whom the least relatively grave matter is estimated, since many citizens of the middle order have smaller revenues and live more sparingly than many workers.

As Tanquerey, III, 436, well observes, the confessor is helped in his ministry by these estimations; but they would be proposed from the pulpit very imprudently. The preacher would seem to add stimuli to thefts.

Questions. 1. What matter will be judged grave in theft of a sacred thing which cannot be estimated by price?

Resp. The gravity is then to be gathered from the dignity or rarity of the thing. Thus the theft of an honored image, of an notable relic, will be grave.

2. Toward whom is absolutely grave matter alone to be considered?

Resp. 1. Toward those whose daily revenue equals absolutely grave matter, say 100 lire.

Wherefore grave matter alone is to be attended to in injuries done to the treasury or to most communities.

2. Indeed, if the injured persons have no burden of a family, those already who are accustomed to receive beyond half the part of the aforesaid sum are judged to suffer grave injury through the theft of a quantity absolutely grave alone. For, as we wrote just above, with regard to persons fully adult and at the same time celibate, grave matter seems able to be increased to double.

3. Génicot, I, n. 509, thinks that absolutely grave matter alone must be attended to if the sum pertains to a pious work, because then no one has a strict right to that money.

Yet we judge that this cannot be admitted, but that one must see whether or not the end of the pious work is notably harmed. Suppose a box destined to collect alms of Masses for those in agony. Will you say that he sins only lightly who deprives the dying of three Masses? Yet the sum stolen will not be absolutely grave. Likewise, if out of 30 lire which would suffice for redeeming a captive, 20 are taken away, the matter will be judged relatively grave. But the reason added, "that a strict right belongs to no one," would prove too much. For unless a strict right is violated, no injury is committed. But the lesion of the end itself, as such, is to be considered unjust.

Causes Which Permit a More Benign Estimation. Place is prepared for a more benign estimation on account of two kinds of causes: on account of personal or real considerations which show the injured person positively less unwilling; - on account of the mode of injustice, when less audacity and less danger of frequency bring it about that a lighter sanction suffices.

But what if, from affection for a thing of modest value, the person is to be thought more unwilling and will be saddened by a grave and reasonable sadness? Then the thief or damnifier will sin gravely against charity rather than against justice.

I. On the Former Kind of Lessening Causes. a). In things which nature rather than the hand of man produces and which are greatly exposed, such as fruits along a public road, property is held as if a little less sacred and the very economic value of the thing, on account of danger, is diminished. Therefore a greater quantity will complete grave matter.

As Noldin, II, 118, excellently observes, today that can no longer be admitted which formerly, when fruits were made of less account, authors commonly conceded: that it is lawful for a traveler to eat grapes and apples to satiety, unless they are rare and of great price and nothing is carried away (St. Alph., III, 529). Yet he rightly permits that wild fruits (mushrooms, strawberries, blueberries) be gathered and sold by passers-by and the poor, from the presumed permission of the owner, and therefore unless he expressly forbids it; and he adds that a prohibition of gathering such things in municipal woods is per se to be judged merely penal. Nor does he accuse of sin him who here and there plucks one or another apple or cluster of grapes, and say the same of an ear of wheat; or workers who eat from the fruits for the gathering of which they were hired. Finally he estimates that he sins only lightly who rather often takes away that quantity of fruits which he himself can eat.

b) To take away a thing of greater moment, which the owner cares for so little as if it were of slight moment, will be a light sin.

c) Cuttings (ritagli) which remain from material supplied to a weaver or tailor are per se to be returned to the owner who supplied them. But one must consider what usage bears, to which the owner is thought to have accommodated himself. If nevertheless they are modest, so that they are neglected by the owner, the matter will easily be able to be excused, although those practices are less to be approved and commended.

Many authors have written about this matter. Sanchez, Consilia moralia, l. 2, c. 7, dub. 2, n. 1; Lugo, Iust., d. 16, n. 84, 85; St. Alph., l. 4, n. 292; d'Annibale, II, 253, note 27; Aertnijs-Damen, I, 720, Quaer. IV.

d) Poor persons who, in a large wood, gather wood of which they personally have need, provided that by cutting down trees, etc., they do not harm the forest, will easily be excused at least from grave sin.

d) Conjunction of persons, just as it more easily makes certain usurpations of goods immune from injustice, so also, in acts strictly unjust, can render light matter which otherwise would be grave. Judgment must be made with attention to the quality of the one receiving and of the one suffering, the nature of the thing taken, the reason of the delict committed, and the intention by which it was sinned. Thus, other things being equal, for a wife and guilty children, the customary matter can be increased at least by double. Authors judge that the matter can be amplified by half when a religious is unjust to his own monastery. - Domestic servants, if they preserve that human and common fidelity which is compatible with certain secret takings, are easily immune from grave guilt; but the obligation of faithful service makes masters more unwilling as to several other thefts, for example, money from the master's chest. Therefore they sin more lightly if, notwithstanding the aggravating reason of fidelity, they seem to be excused by human frailty.

II. On the Other Kind of Lessening Causes. The cases to be examined here are of the so-called coalescence of several thefts or damnifications.

A twofold question is moved here: when those thefts coalesce, so that, for the gravity of sin and the debt of restitution, their sum must be considered; - what matter must then be judged grave.

On Coalescence. The principle is: small thefts or damages coalesce when they flow together into one moral thing. But they flow together:

a) On Account of the Unity of the Injured Subject. - But a community or society of persons - the Church, the State, a parish, a monastery - is regarded as one subject. - For he cannot be treated more benignly who by several delicts than he who by several agreements makes himself the debtor of the same person. Therefore new injuries are per se then joined with prior ones, unless the matter is such that the owner, considering riches and liberality, would condone it; as if there were question of a few lire which a rich man would easily give to one asking. Indeed they are not condoned on account of fraud, but on account of trifling value they do not coalesce into one grave thing. Yet if the frequency of the delicts brings it about that the owner suffers a new theft more unwillingly, the delicts coalesce. Therefore, that they not coalesce, it is necessary that, considering the lightness of the thing and the interval, the memory of the prior one has almost perished when the other follows.

Practically, lighter thefts accidentally repeated with an interval of one month or 15 days, and very light ones even separated by a smaller space, are benignly judged able to be separated; while those which approach grave matter will be able to subsist when separated only by an interval of two months. Finally, rather light small thefts in consumable ordinary foods almost never coalesce.

b) On Account of Unity of Action or the Moral Connection of Actions. This coalescence is had when, by one act, a thing which pertains to several is stolen, or when at the same time, or separated by too brief an interval of time, small thefts are perpetrated by distinct acts. Indeed, per se, individual small thefts committed to the damage of several would remain separated, but that addition of small thefts is required so that there may be an efficacious sanction of justice, and lest men be too much enticed to pernicious frauds by the lesser gravity. But when light damage is inflicted on several, cases of coalescence are to be treated more benignly than when one person is injured by several damages. Indeed, when there is question of damages done without gain, the coalescence of damages which are done to several is not certain.

c) On Account of Unity of Intention. When someone from the beginning determines to arrive at a grave sum through small thefts, the actions are so continued by this intention that they are separated by no interval, unless so great a distance has been had that the intention is judged revoked.

d) On Account of Unity of Collection: to retain another's thing in grave quantity is also grave. But that the fruits of several thefts be thought morally preserved, it is not enough that the individual thefts brought some gain, if that was soon consumed, for example, in daily food; but it is necessary that in some sufficiently distinct and permanent good you discern, as it were, the collected spoils. That kind of coalescence depends in no way upon the intervals of the thefts.

e) On account of the unity of conspiracy of several who individually have done damages or thefts.

On Grave Matter in Thefts or Damages Which Coalesce:.

a) Principle and Question. When several thefts or damages, taken singly, are not objectively grave, authors agree that a greater quantity is required for grave sin than when there is question of a single injustice. With this principle the question is connected whether on that account absolutely grave matter itself can be increased, or, on the contrary, only relatively grave matter is to be estimated more benignly, so that voluntary injury is always grave if it equals absolutely grave matter.

Noldin seems to think that beyond absolutely grave matter sin cannot be light, on account of the various estimations which he proposes, II, 418-423, in which he never exceeds absolutely grave matter; and Prummer, II, 82, who nevertheless at n. 83 alleges Bannez, where he teaches that "grave matter is present if a daughter annually stole 50 gold coins (250 francs) from her rich father": that quantity notably surpasses absolutely grave matter.

Several seem to say nothing about the matter: d'Annibale, II, 257; Aertnijs-Damen, I, 719; Piscetta-Gennaro, III, 253.

Ballerini-Palmieri, Op. theol., III, 311; Lehmkuhl, I, 1115, at the end; Génicot-Salsmans, I, 510, hand down that one can ascend beyond absolutely grave matter.

And rightly indeed. For matter is estimated absolutely grave insofar as the wealth of the injured person is no longer to be considered; but other relative considerations are not thereby excluded. And if you place as the supreme limit the absolutely grave quantity, matter will not be able to be estimated more benignly for the son of an opulent man than for an outsider; for him who by several acts has taken things belonging to several than if he had committed the theft by one act. For in both cases, because there is question either of an opulent man or of a thing pertaining to several, absolutely grave matter alone is considered. Therefore those causes, in these cases, will at the same time have to be affirmed and denied to be lessening or diminishing gravity.

b) Applications or Examples. Again we warn that mathematical ratios are to be used soberly, and that only indications useful to prudent judgment can be gathered from authors. Therefore:

a) If a thief takes disparate objects from one and the same possessor, more is required than if he had taken money or a thing of one species, because the damage is then less felt. Similarly, if small thefts are separated by an interval, St. Alphonsus, III, 530, establishes matter as greater by half than that which would otherwise have been relatively grave, while others require even double. Therefore absolutely grave matter can also be increased if the person was one for whom this matter alone is attended to.

b) If someone steals from several distinct persons, so that each suffers only a light damage, there are those who then wish the matter to be doubled.

If it happens by distinct acts, but from the intention of arriving more securely at a grave sum, this circumstance will scarcely have to be attended to. But with this intention excluded, both the less depraved soul and the more difficult execution bring it about that even the quantity necessary for grave sin is estimated by some up to triple, at least if the thefts are separated by a notable interval. Cf. St. Alph., III, 530; d'Annib., II, 251.

But when there is question of thefts which have been done against several, "the grave measure," says Ballerini-Palmieri, Op. theol., III, 311, "which thereafter in the case must be computed at least doubly, must be taken not from relative but from absolute gravity." In thefts committed to the detriment of several, one can also attend to the disparity of the things taken.

Observe, when there is question of merchants who are accustomed to deceive many by unjust weight or measure, that the matter can at most be doubled. For they sin from the beginning by the intention of committing grave injury.

c) If several have acted from conspiracy (cf. below), relatively grave matter does not seem able to be changed for that reason, since the damage which several have perpetrated is felt no less than if one had done it; absolutely grave matter seems able to be greater by half than if one had done it in the same circumstances.

d) If without conspiracy each one has acted for himself, the acts remain separated.

e) If others have been moved by someone only by example, the author of the example, as such, violated not justice but charity.

— You will ask how and when grave sin is committed in thefts or damages which coalesce into grave matter?

He who, seduced only by repeated occasion, rather often steals, does not sin gravely in the individual thefts unless he notices that grave matter is being completed by him. And he can avoid that grave sin if he proposes to make restitution soon, so that at least he no longer retains grave matter. - But he who from the beginning wished to do a grave theft or damage sins gravely by that intention; and the individual small thefts contain the continued execution of the same grave sin. - He who, after grave matter has been completed, steals some light thing, either continues the same sin, or commits a new venial sin, according as the theft is judged one act with the prior thefts, suppose a merchant who continues to use unjust weight, or distinct from these, as if, after a watch has been taken away, he steals foods on a new occasion.

On the Right of Necessity. He who, for himself or for another, constituted in extreme necessity, takes another's thing as much as is necessary, does not steal. And he need not restore what has been consumed if he was needy in fact and hope. Indeed, from restoring a modest thing he is morally always exempt. The reason why he can take another's thing is this: that the first destination of goods for the use of the whole human race is not taken away by appropriation, so that nature wills rather that men live from these goods than that they be appropriated and assigned to the lesser utility of the owner. Therefore he who is in necessity can take a thing for himself as though not appropriated. The owner must give the same from charity; from justice he is held only to this, that he not impede the needy man in an unjust way. But it is not unjust for him by a lie merely to dissemble his own things (cf. n. 576). But because the right of taking is bounded by necessity, one who is in extreme need must per se ask for the thing before he takes it, nor can he take except as a mutuum or commodatum a thing which he hopes he can afterwards return. The very request can be omitted if the necessity regards a thing determined in the individual, or if he would recoil from the request almost equally as from death. In a thing also of slight price, the owner is not judged to press the obligation of making a loan. We omit as superfluous the controversy about the obligation of him who, when he took the thing, had no hope of restoring, and nevertheless afterwards became richer.

In quasi-extreme necessity, not more can be taken away than the other must give from charity. Therefore a huge sum cannot then be taken.¹ Finally, in grave necessity, this at most can be tolerated: that a poor man who has asked in vain takes from a rich man something modest, as to whose substance the wealthy man is not judged unwilling. Innocent XI reproved, at minimum as scandalous and pernicious in practice, proposition 36: "It is permitted to steal not only in extreme necessity, but also in grave necessity" (Denz. 1186).

We treated the various necessities above, n. 83.

¹ Wherefore a poor man will not be able to steal a huge force of money to recover liberty or to buy very costly remedies. Thus we say with Génicot, I, 502, but insofar as then extreme necessity regularly is not had.

On Hidden Compensation. Hidden compensation is the taking of another's thing but one owed, done without the debtor's knowledge. It will be just if the debt is of commutative justice; if the thing is taken which is actually in the domain of the debtor, therefore not the thing of another which he holds as depositary or borrower-for-use, and the debt is certain, or at least so probable, that it would be assigned to the creditor by a judge. For then the creditor satisfies himself as if in the name of the debtor, or as if a judge attributes the thing to himself. Nor can the debtor be reasonably unwilling, when the denial of payment would be nothing but a useless harassment of the creditor.

On the contrary, if the debtor does not have an obligation of paying, if the judge would not certainly attribute the thing to the one vindicating it, the creditor by taking it would violate the certain right of the possessor. And if hidden compensation were permitted to him, a place would logically be prepared for perpetual war. For by equal reason the debtor could secretly take back what was secretly taken from him. Yet there are approved writers who, distinguishing fact from right, indeed require that there be certainty in a human way concerning the fact on which the debt rests, but are content with a sufficiently probable right of exacting, so that before a judge it could prevail over the contrary reasons of the debtor. Cf. Lugo, Iust., d. 16, sect. 5; Lehmkuhl, I, 1125; Arregui, 318. But they ask, to avoid the danger of hallucination, that nothing then be done without a prudent confessor or another expert and God-fearing man. We shall permit to that opinion its extrinsic probability.

If there were danger lest, on the established day, the debtor could not or would refuse to make the certainly owed payment, anticipated compensation will not wound justice if at the same time the emergent damage and the ceasing profit which the debtor suffers from privation of the thing are furnished to him. - But that compensation lack every fault, a moderate difficulty of obtaining the thing otherwise is required: otherwise that invasion of another's things would easily contain a light injury; and caution, greater insofar as the debtor is more excused, lest the compensation be damnose to the debtor, who perhaps would pay twice. Charity also demands that, as much as you can without proportionate inconvenience, damage to a third party be forestalled, for example, of a servant who would be accused of theft.

The confessor must proceed cautiously in this matter.