Article II. On Negative Duties

Several things are prohibited to clerics, either because they bring with themselves a danger of harm, such as suretyship (can. 137); or because they are unbecoming to the clerical state, such as unbecoming arts, games of chance, etc. (can. 138); or because they are alien to the clerical state, such as the medical art, notariate, etc. (can. 139 sq.).

I. Suretyship. A cleric is prohibited from standing surety, even with his own goods, without the local Ordinary having been consulted (can. 137). The reason is evident; for experience establishes that suretyships, even when made with due prudence, often create harm or at least danger of harm for those who have aided others in such a way. There is added that, even if the surety can fulfill the obligations which he has taken upon himself - which is required in every suretyship - nevertheless often from those financial vicissitudes there arise dissensions and contentions which can be an impediment to the fruitful ministry of clerics. A fortiori it is not lawful for clerics to stand surety with goods not their own, or goods in any way pertaining to the Church, since they are not owners of those goods, but only administrators (cf. can. 1523, 1° and 1527).

II. Unbecoming or Base Arts (can. 138), of which kind are, for example, the offices of butchers, innkeepers and tavern-keepers, actors and comedians, shoemakers, lay service or servitude, etc. (St. Alphonsus IV, 189).¹

¹ Cf. c. 3, D. 44; c. 1, Clem. III, 1; Trent, session 22, on reform, c. 1.

III. Games of Chance, with Money Staked (can. 138). Games are distinguished into games of chance, games of skill, and mixed games, according as they are governed by fortune alone, or by skill alone, as playing chess, or by fortune and skill, as playing cards. Therefore:

1. It is prohibited only to give oneself to games of chance with money staked (can. 138). Other games are not prohibited of themselves; nevertheless, accidentally they can become sinful, for example through excessive frequency, through neglect of the sacred ministry, and so forth.

2. Clerics sin gravely by giving themselves to games of chance: 1° if they play with grave scandal; 2° if they play frequently and for a long time. Moreover, sufficient frequency is present sooner if one plays for a great sum of money than if for a moderate sum (St. Alphonsus III, 896-898).

3. Religious, both because of their state and because of scandal, more easily sin gravely than secular clerics, and the more easily according as they profess stricter observance, especially if by acting so they would open a way for such games in their Order, or would play for a notable sum; in the latter case they would also sin against poverty (St. Alphonsus III, 901; V, 32).

Corollary. A prohibition of a Bishop would not seem equitable by which, in general, all games even privately exercised would be forbidden to clerics; for unless particular circumstances advised such a prohibition, such a prohibition would have to be called too severe and alien from the mind of the Church.¹ Moreover, although the game of dice remains prohibited to clerics, nevertheless a constitution of a Bishop would have to be criticized by which at once a grave penalty, for example excommunication, would be imposed on violation of this law. Thus the secretary of the Sacred Congregation of the Council² wished mitigated a decree of the Bishop of Vaison by which priests playing dice were struck with excommunication latae sententiae. The prohibition indeed was held valid, but the penalty had to be mitigated.³

¹ Cf. Benedict XIV, De Synodo dioecesana, book XI, c. 10, n. 4.

² 20 December 1687.

³ Cf. Benedict XIV, De Synodo dioecesana, book X, c. 2, n. 2; book XI, c. 10, n. 5; cf. also c. 1, D. 35; c. 15, X III, 1; c. 11, De excessibus praelatorum, V, 37; Trent, session 22, on reform, c. 1.

IV. Carrying Arms. They should not carry arms unless a just cause for fearing is present (can. 138). For it is fitting that a cleric, a minister of the peaceful God, express in his external conduct the spirit of Christ's gentleness and meekness, with which spirit the apparatus of arms, especially when carried publicly, can with difficulty be combined. Here also attention should be paid to civil laws, which commonly impose similar prohibitions on all citizens indiscriminately.

V. Hunting. They should not indulge in hunting, and should never exercise noisy hunting (can. 138). Hunting - by which bird-catching is also comprehended - is distinguished as twofold, noisy and quiet. Noisy hunting is that which is done with great tumult and noise of weapons, dogs, and beaters; quiet hunting is that which is done with snares and nets, or even with a shotgun, but without the aforesaid noise. Therefore:

1. Noisy hunting is forbidden simply; but quiet hunting, if it is done moderately and without scandal, is not prohibited. Nevertheless, particular statutes or precepts should be attended to; since the Ordinary, if a just cause is present, can altogether prohibit hunting with a shotgun, though not with a censure added, unless for grave and special causes.¹

2. Noisy hunting exercised without grave scandal and not frequently is not mortal (cf. St. Alphonsus III, 606; Homo Apostolicus, tract 10, n. 72).

3. Finally note that fishing is forbidden by no canon.

¹ Cf. Sacred Congregation of the Council, Gnesen and Posen, 11 June 1921 (A. A. S. 1921, p. 498).

VI. Entrance into Taverns. They should not enter taverns and other similar places without necessity or another just cause approved by the local Ordinary (can. 138).

VII. The Medical Art. Without an apostolic indult they should not exercise medicine or surgery (can. 139, § 2).

Except if in some region - as can happen in mission lands - physicians are lacking, while observing what must be observed (St. Alphonsus VII, 384).¹ Attention should also be paid to civil laws, which commonly establish penalties against physicians practicing the medical art without examination and public certificate.

¹ Cf. Sacred Congregation de Propaganda Fide, 28 November 1641 (Collectanea, n. 334).

VIII. Notariate. They should not act as tabelliones or public notaries, except in an ecclesiastical Curia (can. 139, § 2). The office of notary, actuary, or tabellio, from writing up "acts" or recording them on "tablets," is permitted to clerics only in ecclesiastical Curias; not as though this office would otherwise be unbecoming to them, but because it can with difficulty be combined with ecclesiastical duties, on account of the continual attention of mind which it requires.

IX. Lay Jurisdiction. They should not assume public offices which carry with them the exercise of lay jurisdiction or administration (can. 139, § 2). Offices are understood which refer proximately to the government of a state, province, or kingdom, such as, for example, the offices of President of the republic, Minister, Syndic, and so forth. But there are not comprehended in this paragraph offices which pertain only remotely to government, but in themselves properly constitute a certain council, such as, for example, the office of deputy, councillor, senator, etc. But observe the things which follow:

X. The Office of Senator or Deputy. They should not solicit nor accept the office of senators or of orators for making laws, whom they call deputies, without permission of the Holy See in places where a pontifical prohibition has intervened; in other places, they should not attempt the same thing without the permission both of their own Ordinary and of the Ordinary of the place in which the election is to be held (can. 139, § 4).

Moreover the Commission of the Code declared: "If by force of the constitution of the state Cardinals, Archbishops, and Bishops are senators by law, and the Holy See in some way has approved this, the same can fulfill an office of this kind without special permission of the Holy See, provided they satisfy their obligations through a Vicar General or in another way. In any other case they need the permission of the Holy See. But Ordinaries, in granting permission to priests who desire to present themselves as candidates for elections of deputies, should show themselves rather difficult than easy."¹

¹ A. A. S. 1922, p. 313.

XI. Administration of Goods. Without the permission of their own Ordinary they should not enter upon managements of goods pertaining to laymen, or secular offices which carry with them the burden of rendering accounts (can. 139, § 3). Of this kind are, for example, the offices of tutors, curators, administrators, and executors of testaments.

As regards the administration of goods pertaining to laymen, it will not be useless to recall to memory the decree of the Sacred Consistorial Congregation,¹ which indeed praised the zeal of clerics in founding and protecting money chests or savings banks for the temporal assistance of the faithful, but nevertheless prohibited them from fulfilling in them the offices of president, director, secretary, treasurer, and offices very similar to these, without permission of the Holy See. Today, of course, according to the tenor of can. 139, § 3, permission of the Ordinary will suffice.

¹ 18 November 1910.

XII. The Office of Advocate. They should not exercise the office of procurator or advocate, except in an ecclesiastical tribunal, or in a civil one when there is question of their own cause or that of their church (can. 139, § 3). A procurator is understood as one who conducts the parts of the parties before the judge, by petitioning, concluding, etc., for them. An advocate strictly so called, or causidicus, is one who argues the cause of a client before the judge. An advocate differs from a jurisconsult, who only gives counsel, explains the way to the process, but does not defend the client in judgment. An advocate could have fulfilled the parts of a jurisconsult.

Note the things which are had at the end of can. 139, § 3: "In a lay criminal trial pursuing a grave personal penalty, let them have no part, not even giving testimony without necessity." By a grave personal penalty is understood not only capital punishment or mutilation, but every penalty by which the personal or bodily integrity of the delinquent is injured. It is said "let them have no part"; therefore every intervention is denied to them, whether as judge, or as advocate, or as notary. Indeed, as is said at the end of this paragraph, they should not even give testimony in such trials without necessity.

XIII. Use of Public Amusements. They should not be present at spectacles, dances, and processions which are unbecoming to them, or at which it would be a scandal for clerics to be present, especially in public theaters (can. 140). Therefore, by common law the aforesaid amusements are prohibited insofar as the presence of clerics would be unbecoming, or would be a scandal to the faithful; this can easily occur in public theaters. But particular statutes are also to be attended to.

Corollary I. The things which are said here about spectacles and theaters must also be applied to our modern bioscopes. Indeed, in Rome it has been prohibited not only to both clergy, even pilgrims, to attend public cinematographs, even if they treat of a sacred object, but canonical penalties have moreover been threatened, not excluding suspension from divine things.¹

Corollary II. To attend a certain musical work is not prohibited by common law, unless because of circumstances it would fall under the general prohibition by which clerics ought to avoid those things which are a scandal to the faithful, or which generally are unbecoming to their state (cf. can. 124).

¹ A. A. S. 1918, p. 300.

XIV. Military Service. They should not enter secular military service voluntarily, unless they have done this with the permission of their own Ordinary, so that they may become free more quickly; nor should they assist in any way in civil wars and disturbances of public order (can. 141, § 1). A minor cleric who, against the prescription of § 1, has of his own accord given his name to military service, falls by the law itself from the clerical state (can. 141, § 2). Besides, with respect to every cleric, any offices are vacant by the fact itself if against the prescription of can. 141, § 1, he has of his own accord given his name to secular military service (can. 188, 6°).

XV. Trading. Clerics are prohibited from exercising trading or commerce by themselves or through others, whether for their own advantage or that of others (can. 142). Clerics or religious exercising commerce or trading by themselves or through others against the prescription of can. 142 are to be restrained by the Ordinary with suitable penalties according to the gravity of the fault (can. 2380). Commerce coincides with trading properly so called; but the word trading extends more broadly, as will be clear from what is to be said.

1. Notion. Trading properly so called, or commerce, is the buying or exchange of merchandise with the intention of selling it more dearly, not changed for the better (St. Alphonsus III, 837). For it there are required: 1° that a thing be bought and sold; 2° that it be sold more dearly; 3° that it be sold not changed for the better; 4° that it was bought with the intention of selling it more dearly and not changed for the better (St. Thomas, II-II, q. 77, a. 4, ad 1; St. Alphonsus III, 331, 330).

Trading improperly so called is the buying or exchange of a thing made with the intention of selling it more dearly after it has been changed by art or industry. Moreover, someone can change a thing either by himself, or through his own servants, or through workers hired for this.

2. Prohibition. a) Trading properly so called is prohibited to clerics (can. 142). It is the same whether they exercise it by themselves or through others, for their own advantage or for the advantage of others (can. cited).

The reason of the prohibition is explained thus by St. Thomas: "Clerics ought to abstain not only from those things which are evil according to themselves, but also from those things which have the appearance of evil; and this indeed happens in trading, both because it is ordered to earthly gain, of which clerics ought to be despisers, and also because of the frequent vices of traders ... There is also another reason, because trading too greatly involves the mind in secular cares, and consequently draws it back from spiritual things; hence also the Apostle says in 2 Timothy 2: 'No one serving God entangles himself in secular business'" (II-II, q. 77, a. 4, ad 3; St. Alphonsus III, 831).

b) Trading improperly so called is prohibited to clerics if the thing to be sold is changed through workers hired for this. For trading of this kind, by which another's labor is bought and from it gain is taken, was equated in the ancient law with trading properly so called, nor is there reason for interpreting trading, concerning which can. 142 speaks, otherwise (cf. can. 6, n. 2). The same, for the same reason, must be said about exchange,¹ if someone exercises it by way of habit or art, by doing banking.²

c) Trading improperly so called is not prohibited to clerics if they change the things to be sold by themselves or through their own servants. One who by himself changes things and sells them more dearly does nothing other than receive the just reward of his labor. Moreover this, provided that the craft is fitting for them, considering the circumstances, and is done without neglect of their own ministry, must be called equally lawful for clerics as for laymen, because it contains nothing disordered, as is clear from the example of St. Paul;³ therefore it was never prohibited by any law. And to him who changes the things to be sold by himself, there is equated in law one who changes them through his own servants, i.e. through labor already owed from elsewhere.

Formerly stricter dispositions and penal sanctions had been established for missionaries of the East Indies, China, Japan, and America, both South and North, exercising illicit trading.⁴ But because these laws seemed to pertain to the common law and today have not been taken up in the Code, they seem to have been abolished by can. 6, n. 6; certainly with respect to the penal sanction, by the same can. 6, n. 5.

d) The obligation of the prohibition is grave from its kind. Therefore one who frequently trades sins gravely; moreover, sufficient frequency is present sooner if someone trades in a great quantity. One who rarely trades sins only lightly, because the canon speaks of exercising trading (St. Alphonsus III, 831).

e) Not only extreme necessity, but even grave necessity excuses from the obligation, namely if it is necessary for the sustenance of the cleric or the family living with him. Nevertheless, in a case of grave necessity, so that the danger of illusion may be avoided, outside Italy permission of the Ordinary is required; within Italy, permission of the Holy See. Thus, considering the Constitution of Clement XIII Cum primum,⁵ which from can. 6, n. 2 seems still to be in force (St. Alphonsus III, 833).

Corollary I. It is lawful "1° to sell fruits gathered from one's own fields; 2° to buy livestock, and sell them after they have been fattened on one's own estates, or to feed flocks so that offspring, wool, etc., may be sold; 3° to exercise an art fitting to one's own state, and to sell the works; 4° to buy fruits and sell animals fattened on them, since properly the labors for taking gain are sold rather than things not changed; 5° to buy for one's own uses, even broadly, and afterwards to sell what remains; indeed, when the price rises, even by purposely using more sparingly, to preserve things for the sake of sale."⁶ 6° To buy, for example, grapes and grain, and from them, either by oneself or through one's own servants, but not through hired workers, to make wine and bread, and sell them with profit. But it is unlawful to buy materials and from them, through hired workers, to manufacture any things which are sold with profit (St. Alphonsus III, 836).

With respect to establishing a printing press, hold these things: It is lawful: 1° if printing is done either through members of the Order or through one's own servants; nor is it prohibited that a hired servant be used, both because a little is reckoned as nothing, and because the accessory follows the principal; 2° if printing is indeed done through hired servants, but there is question of printing one's own works; for it is lawful to make these fruitful just like one's own land. It is unlawful if a printing press is established for printing the works of others, and this through hired servants.

Corollary II. It seems lawful for religious houses to buy things pertaining to devotion and sell them with some profit to guests, provided the profit is received as just compensation of expenses and labor expended, or as a stipend. The reason is that, in the case, the things, strictly speaking, are not sold more dearly. Nor is prohibited trading had if, for example, a missionary quasi-sells depicted or photographically printed cards of his mission to his benefactors, even if at a dearer price than he bought them, because from the circumstances the profit obtained assumes the character rather of alms made to the Mission than of price.

Corollary III. Trading which is called by some political, by which namely someone buys necessary things and sells them to the state or army, that trading, I say, is prohibited to clerics from can. 139, § 2, insofar as it would involve a public office which would carry with it the exercise of lay jurisdiction or administration. If somewhere from charity this were necessary, for example if a missionary in time of famine buys grain for his neophytes, practically no profit will be present, or there will be a case of excuse; nevertheless, it is expedient that the permission of the Bishop be sought.

Corollary IV. To this also pertains the buying of bonds and shares; but concerning it there will rather be distinct discussion in the scholion, after we have briefly noted the remaining things to be noted concerning the obligations of clerics.

¹ Concerning exchange, cf. n. 938.

² Benedict XIV, Constitution Apostolicae, 25 February 1741; Clement XIII, Constitution Cum primum, 17 September 1759.

³ Acts of the Apostles XVIII, 3; XX, 34; 2 Thess. III, 8.

⁴ Constitutions of Urban VIII Ex debito (1633); of Clement IX Sollicitudo (1669).

⁵ 17 September 1759.

⁶ Lehmkuhl, Theologia Moralis, II, n. 774.

XVI. Can. 143 declares: Clerics, although they do not have a residential benefice or office, should nevertheless not depart from their diocese for a notable time without at least the presumed permission of their own Ordinary.

XVII. Can. 144: One who with the permission of his own Ordinary has passed into another diocese, while remaining incardinated in his own diocese, can be recalled for a just cause and with natural equity preserved; and also the Ordinary of the other diocese can for a just cause deny to him permission of further staying in his own territory, unless he has conferred a benefice.

¹ Cf. our little work De virtute castitatis et de vitiis oppositis, n. 18.