Medical Men

A doctor who holds himself out as ready to undertake the care of the sick must have competent knowledge of his profession and must exercise his office at least with ordinary care and diligence; otherwise he will sin against justice and charity in exposing himself to the risk of seriously injuring his neighbour. Unless he is bound by some special agreement he is not ordinarily obliged to undertake any particular case, for there are usually others who are willing and able to give the necessary assistance to the sick. Even in time of pestilence he will not commit sin if he leave the neighbourhood, unless he is bound to remain by some special contract. Of course, one who acted thus would show a mean spirit, and would be justly reprobated.

He should not make exorbitant charges for his services, nor multiply visits uselessly and thus increase his fees, nor call in other doctors without necessity. On the other hand, even at his own serious inconvenience, he should visit a patient whose case he has undertaken when called as far as is reasonable, and he should be ready to call in other doctors for consultation when necessary or when he is asked to do so. He is sometimes bound by the general law of charity to give his assistance gratis to the poor who cannot afford to pay the usual fees.

He may not neglect safer remedies in order to try those which are less safe, but there is nothing to prevent him from prescribing what will probably do good if it is certain that it will not do harm. In a desperate case, with the consent of the sick person and of his relations, he may make use of what will probably do good though it may also probably do harm, provided that there is nothing better to be done in the circumstances. It is altogether wrong to make experiments with doubtful remedies or operations on living human beings, fiat experimentum in corpore vili.

What has been said of craniotomy and other similar operations, the use of morphia, hypnotism, and other dangerous remedies, are questions which have been treated elsewhere.

When the patient is in danger of death, the doctor is bound out of charity to warn him or those who attend on him of his danger, in order that he may make all necessary preparations for death if it should come about.

A medical man should know how to administer baptism in case of necessity (Can. 743).

(St. Alphonsus, Theologia Moralis, book IV, nn. 291, 230 and 231.)

I. A physician is bound to possess sufficient knowledge, and in the exercise of his office to apply diligence proportionate to the gravity of the illness or operation. Hence he ought to furnish the sick person the remedy which seems safer to him. "But if there is no hope concerning the health of the sick person, nor is there present any remedy except a doubtful one, namely one concerning which it is doubted whether it will be useful or harmful, they can, indeed they ought to, apply it. The reason is that thus the business of the sick person is managed usefully; and if death follows, it will not be imputed to them, since otherwise he has no hope of life" (St. Alphonsus IV, 291).

Corollary. It is unlawful to use a means solely for the sake of experiment, except in the case in which the means to be applied is certainly not going to be harmful, and the consent of the sick person is added.

II. A physician should abstain from useless visits and remedies. Observe, however, that those are not plainly useless if they conduce in some way to consoling the sick person or alleviating his pains; nevertheless he should take care that the expenses do not become greater than is just.

III. He can ask the honorarium which, considering the labor and condition of the sick person, is customary to be asked in those regions. If he excels in skill, he can ask what the most skilled are accustomed to ask in circumstances of this kind. The reason is that the service furnished is deservedly said to be worth so much, and that those whose interest it is consent to an honorarium of this kind.

IV. Finally, the physician is also bound, either by himself or through another, to warn the sick person in a timely way concerning danger to life, so that he can provide for the salvation of his soul, receive the sacraments rightly, and arrange temporal affairs. If, however, he is morally certain either that the sick person is in the state of grace, or that the warning will not be useful, at least a grave obligation under this heading is not had (St. Alphonsus VI, 664).

I add these grave words of St. Alphonsus: "O how miserable it is to see so many sick persons (and especially you who are of distinguished dignity) reduced to the final straits of death, so that they may prepare the accounts of life soon to be rendered to God, at a time when they are almost lifeless, when they can scarcely then form words, scarcely hear others, scarcely conceive the state of their own conscience and sorrow for their sins! And all this happens through the fault of those physicians who, lest they displease the sick or their relatives, do not make them certain concerning the danger; indeed they go on flattering them until they themselves altogether despair of life" (Praxis Confessarii, n. 57).

V. With respect to notaries it suffices to treat the question insofar as a notary is bound to restitution toward the treasury if, with the parties consenting explicitly or implicitly, he writes down a price of the thing lower than the true one for this end, that the tax to be paid may be diminished.

Response 1. If there is a custom of writing down a lesser value, and the notary follows that custom, he is not bound to restitution, nor does he sin; indeed, by oath he can affirm that all things have been duly declared.

Response 2. If the notary goes beyond the custom, and deprives the treasury of a tax to which the client is not obliged, likewise he is not bound to restitution; nor does he sin by writing down the lesser value, because he can use a broad mental restriction: Such is the value, insofar as it is subject to a just tax.

Response 3. If the notary goes beyond the custom, and deprives the treasury of a tax (or part of a tax) to which the client is bound, he is obliged to restitution, because by an unjust means, namely a lie, he impedes the state from a good legitimately to be obtained (n. 996). Note, however, that the obligation of restoring belongs primarily to those in whose name the notary acted.

Duties of Certain Professions.—(a) Judges and Lawyers.—The duties of men of the law were discussed already in 1940 sqq. Clients on their part owe their lawyers fair treatment and just compensation for services, while those who have part in a judicial process must give respect to the judge and other officials of the court and due obedience to their directions.

(b) Teachers and Students.—Teachers must make themselves proficient in their matter and in the art of pedagogy; must take care that their teaching is accurate and beneficial; must be steady, punctual, orderly; must give no example or advice but what is good; must be neither too lenient nor too exacting; must preserve discipline in their classes by correcting, punishing, or expelling as need requires; must be just, neither petting nor bullying, and must award honors and averages according to merit. There may be grave harm and sin in denying important academic degrees (such as S.T.M., S.T.D., J.D.C., M.D.) to the worthy or in conferring them on the unworthy. Students on their part owe to their teachers respect and obedience in class matters, to their parents and themselves diligence in study, and to their school avoidance of cheating and of disorderly conduct. In athletics they should not aim at winning for winning’s sake, or playing for playing’s sake, but at the true goal of a sound mind in a sound body. In the selection of preferred studies they should remember that nothing worth while is won without hard work, and that the true objectives of learning are not mere utility, or gain or diversion, but the culture of mind and of spirit.

(c) Physicians, Surgeons, Nurses, and Druggists.—These persons must have sufficient knowledge and skill, and must keep up with the progress of medical science; they must not deny their services or delay to come when there is urgent need; they must give a case diligence proportionate to its seriousness; they must consult in case of doubt, follow the safer opinions, and use the more likely remedies. In his relations with his patient a doctor must be chaste (e.g., avoiding immoral advice or operations, unnecessary psychoanalytic conversations, or bodily exposures); loyal to the confidences received; honest and charitable, not prescribing useless remedies, or overcharging, or refusing service to the poor; mindful of the religious needs of his patients, being not too ready to exempt them from church duties nor slow to remind them when they should send for the priest. Patients on their part should honor the physician, call him in need, obey his directions, and properly compensate him for his services. What is here said of physicians and surgeons is true also of nurses in their duties and capacities. Pharmacists are bound to exercise great care in filling prescriptions; they should not cooperate with abortion or contraception by selling medicines, instruments or appliances to be used for those purposes; they should not sell drugs, dopes, poisons, liquors, etc., forbidden by law.

What are the obligations of physicians, surgeons, and pharmacists? - Physicians and surgeons are bound: Under grave obligation to have sufficient knowledge, so that they know how to prescribe suitable remedies for ordinary illnesses, and at least to doubt concerning other extraordinary diseases, so that a more skilled physician can be called. To apply diligence proportioned to the gravity of the matter which is committed to their care. To preserve fidelity, lest they reveal the secrets committed to their trust and abuse them; but if they fail in these things, they are held for all damages which follow from this. To preserve a just stipend, which is owed to them, as was said concerning advocates. To provide their labor gratuitously to the poor who are in necessity, as was also said concerning advocates. Cf. 40. In applying remedies they must observe the following rules:

They must altogether abstain from prescribing any medicine which directly and of itself is ordered only to evil. Cf. La-Croix, l. 6, p. 3, n. 795, 796. Ordinarily they must follow the safe and secure opinions of physicians. The reason is the danger and damage of the neighbor. When there is some certain medicine, namely one which certainly is going to benefit the sick, they are bound to apply it, omitting that concerning which there is doubt, because otherwise they would imprudently leave the neighbor in danger. If there are no certain medicines, they must apply the more probable and safer ones, both because otherwise they would bring the health of the neighbor into danger, and because they are bound to discharge their office, as much as they can, with the least danger and damage to the neighbor. If it is probable that a remedy will be beneficial, then they can, indeed they are bound, to apply it when they do not have a more certain one. If a remedy is doubtfully going to be beneficial, and certainly will not harm, it must altogether be applied to the sick person. The reason is clear: for some hope shines forth of rescuing the sick person from death, and no danger threatens. When the health of the sick person is despaired of, and both things are probable, namely that the remedy could benefit and could harm, there is a twofold probable opinion. The first denies that it can be applied, because it is never lawful to expose a sick person to the danger of death, nor even of hastening it. The other affirms that it is lawful, because, when the sick person is despaired of, it is more conformable to prudence and to the will of the sick person (especially if he himself expressly consents to this) to apply to him a doubtful remedy than to omit it with certainty of death. The remedy then has at least this good effect: for it now renders doubtful the certain death of the sick person.

Therefore it cannot be called evil. Tamburini has these things as regards this question: "Both opinions are probable, and from the affirmative it follows that the physician ought to apply it, because since he can, he also ought to consult for the one lying sick by every better way." Expl. decal. l. 1, cap. 3, par. IV, n. 17. When the health of the sick person is despaired of; for outside the case of a despaired-of sick person, it is not to be offered, but one must wait for nature, with God's help, to lift itself up. S. Antoninus p. 3, tit. 7, cap. 2. It is not lawful to apply to a sick person, even a despaired-of one, a remedy concerning which it is unknown whether it is healthful or harmful, for making an experiment. The reason is that it is altogether unlawful to make an experiment with the risk of another's life. L. 291; l. 1, n. 46.

Pharmacists are held to the same obligations as physicians, with due proportion. Especially, however, they are held to supply exactly the medicines prescribed by the physician. Nor can they, if they themselves do not have the prescribed medicine, substitute another.

Does a physician sin gravely who in a time of plague deserts the sick lest he contract the infection? - Reply: Negatively, speaking in itself, if the physician has not been constituted by the community, nor receives any stipend from it; for then he is held only from charity, which certainly does not oblige with grave risk of life. Speaking in itself; for if there were no other physicians, or those who are present do not suffice, he would be bound from charity itself to consult for the common danger altogether. Affirmatively, if the physician has been constituted by the community and receives a stipend from it. The reason is that then from the pact entered into, and therefore from justice, he is bound to consult for the common danger.

To what is the physician especially held as regards the soul of the sick person whose care he has undertaken? - The physician is bound in itself under grave obligation to warn the sick person concerning the grave danger in which he is placed, and concerning the necessity of receiving the sacraments, lest he depart without absolution, Viaticum, and extreme unction. This is established from the natural law of charity. It is sufficient, however, that he take care that the sick person be warned by relatives or friends, so that he may kindly admit the priest and be induced to receive the sacraments. This warning is also necessary so that the sick person may dispose concerning his affairs, if he has not already done this before, lest damage then follow. L. l. 3, n. 182.

Note: There is a precept in this matter of Innocent III, C. Cum Infirmitas 13 de Poenit. et remiss., and of S. Pius V, C. Super gregem, March 8, 1566, at least in part abrogated by contrary custom. Physicians of bodies, before all things, had to warn and induce the sick person to call physicians of souls; and after provision had been made for the sick person concerning spiritual health, one would proceed to the remedy of bodily medicine. Physicians to be promoted to the doctorate had to swear that they would warn the sick, laboring under grave disease, concerning confession before they undertook their care, and that they would no longer visit them if within three days they had not confessed. L. l. 3, n. 182; Prax. conf. n. 57; Ithur. Cas. 49, n. 8, 9.

You will resolve: A physician sins gravely: If without sufficient capacity he undertakes to cure a grave disease. If, when a grave and unusual disease occurs, he does not devote special labor. If he applies untried medicines for the sake of trying them. If, when the nature of the disease has not been well ascertained, he rashly prescribes dangerous remedies, especially with risk of life or grave injury. If, once the danger of the sick person has been recognized, he is not present at the opportune time, visiting him day and night if need be, and does not apply all remedies apt for driving away the disease. If he does not permit other physicians to be called where this would be fitting, or if, calling others for the sake of counsel, he attends rather to friendship than to skill. If, on the contrary, without necessity he calls other physicians, with useless expenses for the sick person, or adheres against his own conscience to their counsels. If he prolongs the cure for the sake of gain, uselessly multiplies visits where a fee is demanded for each one, or if he demands an excessive stipend. If, to favor pharmacists who are friends, he prescribes superfluous medicines. If he advises abortion, or means of procuring it, or himself executes it. Finally a physician sins gravely, indeed most gravely, if he does not forewarn concerning the grave danger of the sick person, so that the sacraments may be conferred on him. L. 291 and l. 3, n. 182.

Pharmacists, if you except a few things, sin almost as physicians do in the cases just set forth, especially by applying old medicines, selling useless ones, supplying pregnant girls with remedies for expelling the fetus, not faithfully executing the commands of the physician, for example by presenting one medicine for another, etc. L. ib.

Marcus and Marcellinus, brothers, the one growing blind and the other somewhat deaf, consult Fulberius the physician for an entire year, with no profit, but with great expense. Both brothers complain about this matter to Fulberius, but Fulberius replies that the progress of the cure was altogether great, since he prevented the infirmity from increasing. Besides, he says, there is no other remedy for either, for a perfect cure, except to attempt a surgical operation for both.

It is asked: 1.º What must be judged concerning Fulberius? — 2.º Can Marcus and Marcellinus subject themselves to that surgical operation?

R. To the 1st: Fulberius indeed is not to be disturbed because of the multiplied consultations and consequently because of the honorarium received, if in fact he prevented the infirmity from increasing. For there is no doubt that there are infirmities wholly incurable by human remedies. Therefore if Fulberius, since he truly could not expel the infirmity, prevented its progress and increase, he did not effect a useless cure, but on the contrary a very useful one. But unless Fulberius rightly knows the infirmity, and also knows remedies useful for curing it, it is necessary that he send the sick persons to a more skilled physician. And he is wholly held to do this especially as regards that surgical operation, unless he himself is truly skilled in operations of this sort.

To the 2nd: In order that a useful response be given to Marcus and Marcellinus, it is necessary that they themselves ask Fulberius about the outcome of that operation. If Fulberius is truly skilled, if the outcome of that operation will certainly be profitable, if at least that operation can be performed without danger of greater harm, then certainly there is no difficulty, and Marcus and Marcellinus, if they wish, can subject themselves to that surgical operation. But if the good outcome of such an operation is scarcely probable, or although probability of a good outcome is not lacking, nevertheless danger is present, as in fact not rarely happens, that Marcus after the operation remain wholly blind and Marcellinus wholly deaf, then indeed it would not be prudent to subject oneself to an operation of this sort.

31. • They are bound above all under grave obligation 1º to have sufficient knowledge and skill; 2º to employ diligence proportioned to the gravity of the matter which is committed to their care. But if they are deficient in these things, they are bound concerning all damages which follow from this.

Moreover, they must furnish their work gratuitously to the poor who are in necessity ¹, as was said above, n. 11, about advocates.

¹ Say the same if they receive a stipend from the Community; although not every reception of gifts is on this account forbidden to them. Nevertheless care must be taken that in this matter they do not conduct themselves in such a way that it is now commonly established that from the bestowal of gifts depends that diligence in healing which otherwise, by reason of the stipend, is to be employed toward the sick.

But in curing the sick they must observe the following rules:

I. They are bound to follow opinions of physicians that are safe and secure, at least ordinarily, because the danger of the sick person cannot be removed by probability.

II. When it is certain that some medicine will be profitable to the sick, they are bound to employ it, doubt being set aside; but if certainty is lacking, they ought to prefer the more probable.

III. When no hope appears concerning the health of the sick person, and there is no remedy present except a doubtful one, or one concerning which it is doubted whether it will be profitable or harmful, it seems that it must be employed ². - St. Ligorius, n. 291.

² In what sense this can be admitted, see in the following note to n. 34.

Hence a physician sins gravely: 1º if without sufficient capacity he undertakes to cure a grave disease. 2º If, when a grave and unusual disease occurs, he does not expend special work. 3º If he employs untested medicines for the sake of testing. 4º If, the nature of the disease not being well understood, he rashly prescribes dangerous remedies, especially with risk of life or of grave injury. 5º If, when the danger of the sick person has been recognized, he is not present opportunely, visiting him by day and night if there is need, and does not employ all means suitable for driving off the disease. 6º If he does not permit other physicians to be called when it would be fitting, or if, calling others for the sake of consulting, he attends rather to friendship than to skill. 7º If, on the contrary, without necessity he calls other physicians with useless expenses to the sick person, or if against his conscience he adheres to their counsels. 8º If he prolongs the cure for the sake of gain, needlessly multiplies visits where a wage is demanded for each one, or if he demands an excessive price. 9º If, to favor friendly pharmacists, he prescribes superfluous medicines. 10º If he counsels abortion, or the means of procuring it, or executes it himself. 11º Finally, the physician sins gravely, indeed most gravely, if he does not forewarn concerning the grave danger of the sick person, so that the Sacraments may be conferred upon him. - St. Ligorius, n. 291, and Bk. 3, n. 182.

32. • Pharmacists, if you except a few things, sin almost as physicians do in the cases just set forth, especially by employing old medicines, by selling useless ones, by supplying to pregnant girls means for expelling the fetus, by not faithfully executing the mandates of the physician, for example by giving one medicine for another, etc. - St. Ligorius, ibid.

33. Questions. - QUESTION 1º. To what is a physician specially bound with regard to the soul of the sick person whose care he has undertaken?

Resp. He is bound of himself under grave obligation to admonish him concerning the grave danger in which he is placed, and concerning the necessity of receiving the Sacraments, lest he die without absolution, Viaticum, and Extreme Unction. It is clear 1º from natural law, or from the precept of charity. It is clear 2º from the very well-known Decretal of Innocent III, confirmed and renewed by other subsequent Supreme Pontiffs. It is clear 3º from the general Lateran Council, year 1245 (chapter Cum infirmitas ³, 13, De Poenit. et remiss.). - Yet it is not always necessary that the physician himself admonish the sick person concerning the proximate danger of death. Sometimes it suffices that he take care that he be admonished by relatives or friends, so that he may kindly admit the Priest and be induced to receive the Sacraments. If the sick person has a known Confessor, it will be enough if he is warned about the state of his penitent; for then by visiting him he will be able more efficaciously to move him to provide for the salvation of his soul. But let the physician beware lest he allow the admonition to be deferred too long. For he ought not prolong it until the danger of death is certain; but he is bound to this office when he notices that the danger is gravely imminent. If physicians observed this custom, sick persons would not so greatly dread the admonition, nor would they be seized with terror at mention of confession.

³ The chapter Cum infirmitas in reality is nothing other than that very well-known Decretal of Innocent III alleged by the Author a little before, and which holds the 22nd place among the Decrees of the Fourth General Lateran Council, with the title: “That the sick should provide for the soul before the body.” But most wisely the Lateran Fathers observed that this decree also serves to avoid the danger of bodily health. “This indeed,” they say, “among other things gave cause to this edict, that certain persons lying on the bed of sickness, when they are advised by physicians to dispose concerning the salvation of souls, fall into an article of desperation, whence they more easily incur the danger of death.” On the contrary, as Sylvester notes with Io. Andrea (Sum., v. Medicus 3), from the fact that the sick know that physicians say this in every illness, mortal and non-mortal, from precept, fear and danger will cease.

34. • QUESTION 2º. Does a physician sin gravely who in time of plague deserts the sick, lest he contract the disease?

Resp. Yes, of itself, unless there are other physicians who will furnish help to the sick. The reason is that physicians from office are constituted for the common good of society; hence in a common danger they must consult not for themselves, but for society; for a private inconvenience must yield to the public good ⁴. - Thus all theologians.

⁴ Make a distinction between physicians who, by reason of a stipend constituted for them by the Community, are bound from justice, and physicians to whom no certain stipend is assigned by the Community; for these latter are bound from charity alone, which surely does not oblige with grave risk of life.

QUESTION 3º. Can a physician apply remedies of doubtful efficacy when the sick person is despaired of?

Resp. 1º A remedy probably going to be profitable must be employed, if another more certain one is not had. The reason is that provision must be made for the sick person in the better way in which it can be done; but then he is helped without any danger of damage.

Resp. 2º A remedy cannot be applied to a sick person, even one despaired of, concerning which it is simply doubted whether it is healthful or harmful, and this for making an experiment for other sick persons. The reason is that it is altogether illicit to seek an experiment with danger to another’s life.

Resp. 3º If a remedy is certainly not going to harm and doubtfully going to benefit, it must absolutely be applied. The reason is plain: for some hope shines forth of rescuing the sick person from death, and no danger is imminent.

Resp. 4º In mere doubt whether the remedy is going to benefit or harm, outside the case of a sick person despaired of ⁵, it is not to be furnished, but one must wait that nature, with God helping, may raise herself up. - Thus St. Antoninus, whose words are these, p. 3, tit. 7, ch. 2: “If he, the physician, doubts about a medicine, whether it ought to harm or benefit, he does badly by giving it, because in doubt he ought rather to leave the sick person in the hand of the Creator.”

⁵ The Author in this place seems to except the case of despaired-of health, although in the preceding response 2º he denies that a remedy concerning which it is simply doubted whether it is healthful or harmful can licitly be applied even to a sick person despaired of. But this apparent contradiction will vanish if you understand the second response of negative doubt, so that the phrase “it is doubted” is equivalent to “it is unknown,” as St. Alphonsus has it more clearly thus (Bk. 1, n. 46): “It is certain 2º that it is not lawful to apply to a sick person, even one despaired of, a remedy concerning which it is unknown whether it is healthful or harmful, for making an experiment on the sick person.” But the final response will be understood of a remedy which some reason suggests can benefit the sick person. Yet concerning this case St. Alphonsus sets down a twofold opinion, one denying that this remedy is licit, the other affirming; and of this opinion the same St. Alphonsus judges thus: “The second opinion, however, which is sufficiently probable, and perhaps more probable, affirms that it is licit; because when the sick person is despaired of, it is more conformable to prudence and to the will of the sick person, especially if he expressly consents to this, to apply to him a doubtful remedy than to omit it with certainty of death.”

Notion and Division of Offices. 1. By a general and rather confused notion, any office designates certain parts to be carried out for the utility of others. These parts can be undertaken accidentally or permanently: office is more properly understood concerning parts stably undertaken; they can be of private character, which are undertaken and abandoned by those willing, as if someone offers himself for curing diseases, and be entrusted by public authority; i. e. there are private and public offices.

2. On public offices. In order that a perfect society may attain its end, the Church and the various states have many things to be done, both for their own immediate good and for the good of the citizens of whom they consist. To perform these things well society at once inviolably (or by right) can and ought. But a moral person, of itself altogether powerless, is compelled to do all things through legitimately deputed physical persons. Thus it happens that the immense province by which the Church and states are administered is divided into many partial procurations or ministries, to which rights and duties are attached. These are public offices. Therefore a public office expresses a certain sum of rights and duties committed to a physical person for exercising some part of public action; and it can be defined briefly: public procuration or administration.

The conferral of these offices, or the deputation of a physical person to exercise an office, can be made in various ways, concerning which there is not to be treated in this place. We know that, in the Church, the first deputation was made authoritatively by Christ, and then, from the power communicated through Christ to Peter and the Apostles, the erection and conferral of offices was ordered; while, in the state, the first possession of supreme jurisdiction has a much less definite origin. For our purpose it will be enough to have noted this: that public offices are for the most part undertaken voluntarily, and only when affairs are desperate are they committed to be carried out by the unwilling. Yet the faculty of enjoining the very undertaking of an office cannot be denied to the supreme public power; and by canon 128 itself there is sanctioned the obligation by which clerics are held to undertake and faithfully carry out the office which, in the necessity of the Church, the bishop has imposed on them.

II. Obligation. The general office of managing an office well follows the very undertaking of the office. When there is question of a private office, this obligation of justice is easily explained by an express or tacit contract. But from the very nature of the matter, he who undertakes a public office to be managed is held by justice toward society. For society has a strict right that it be well administered. To this right there corresponds an obligation of justice which has its seat in the deputed official: for no other seat can be thought up. When an office is undertaken voluntarily, there is added the character of a contract with the Superior who conferred the office.

Moreover, however, there is commonly affirmed an obligation of commutative justice also toward individual citizens to whom the proper action of the office is destined. Thus citizens can demand from justice that magistrates be willing to judge their causes. What proximate source shall we assign to that debt of justice?

Since no agreement has intervened between magistrates and individual citizens, the proximate source is the law itself, which imposed that office to be exercised from justice toward individuals.

III. Certain Sins to Be Avoided in the Undertaking, Exercise, and Resignation of Office.

1. He who does not know himself to be capable cannot, without injustice, undertake an office, whether private or public. He is a harmful deceiver who, without sufficient expertise, offers himself for exercising an art. Therefore parents sin who, with all consideration of capacity neglected, destine for a public office a son whom they have found less fit for private affairs; those sin who, though unskilled, have sought popular votes. Yet here account must be taken of the greater faculty which the people possesses of electing deputies acceptable to itself. He who has known how to catch the popular breeze, provided that afterwards, in exercising the office, he can and wishes to conduct himself according to the counsels of prudent men, can even do something useful for society, if by his election he has impeded the election of a worse person. All things at last fall back here: that nothing harmful to the republic be done, and that its utility be sufficiently provided for.

You should also observe that the notion of capacity is relative, so that here he must be judged most skilled who elsewhere would have to be rejected as unfit.

But what remains to be done by him who, not being suitable, has been affected with an honor? If he can, he ought to render himself capable, and meanwhile, with the help of advisers, perform his offices well; otherwise he ought to lay down the office.

2. An office once undertaken cannot be neglected without injustice, but it must be fulfilled with that diligence which the common or private good requires and which was expressly or tacitly promised. In vain you will allege private inconveniences. For not only, if there is question of a public office, must public utility be placed before private utility, but also by a tacit promise in the undertaking of the office the one managing the office is held to suffer all inconveniences, to enter into all dangers which are of themselves connected with the office.

These things hold also concerning the lowest administrators. Contrary to what is often thought, greater diligence is owed to public persons, such as the Church and the state, than to private persons.

3. To those who have long and well conducted themselves or have become incapable by sickness, pensions are customarily offered from the public treasury or from a constituted pension fund. Justice forbids that, by feigning sickness or incapacity for the matter, someone should obtain for himself a pension of this kind.

But today the minds of many must be healed from that harmful error by which public utility is made almost of no value, so that even public officials, especially civil ones, do not know how to serve the community itself, and, without scruple, squander public monies, while they carry moderate solicitude concerning true public utility.

I. Notions. 1. On the order of judgments. a) In canon law, although by force of c. 1573 every Bishop ought to constitute an official with ordinary power of judging, nevertheless the same person of the Bishop is legislator, judge, and administrator; while today, in temporal society, a perfect distinction flourishes between legislative, administrative, and judicial power. b) Both in the canonical and civil forum, there are distinguished civil causes, in which a lawsuit arisen between parties is extinguished by a definition of right, while no penalty is established, and criminal causes, in which coercion of delicts for the common good is principally intended through fitting penalties; principally, I say, because, both in the canonical and civil forum, in a criminal cause it is lawful accessorily to move a private complaint, for example to obtain repair of damages.

c) In the canonical forum, the tribunal of first instance for causes of seculars and non-exempt religious, and also for controversies between seculars and regulars or between regulars of different religions, is the Bishop, from whom appeal is made to the tribunal of the Metropolitan. But if the Metropolitan himself was judge of first instance, the tribunal of a suffragan Bishop, once chosen with the approval of the Holy See, is the court of appeal for him. The third grade of jurisdiction, which, with the Supreme Pontiff permitting, can also be the first, is the Roman Rota. But since there are twelve auditors of the Rota, who judge by a turn of three auditors, appeal from a sentence of the Rota is devolved to another turn of the Rota. Over all tribunals in some way presides the Supreme Tribunal of the Apostolic Signatura, consisting of some Cardinals, which judges concerning a complaint of nullity against a rotal sentence, concerning conflict of competence between inferior tribunals, etc. (cf. c. 1603, 1604). When the nullity of a sentence has been declared, or restitution has been conceded, or recourse admitted, it remits the cause to the Sacred Rota, unless the Most Holy otherwise provides (c. 1604).

In the civil forum there is distinguished, for lesser controversies and delicts, the conciliating judge (pretore, juge de paix); then, for civil causes, the ordinary tribunal, which among us is called of first instance, which at the same time is the tribunal of appeal from the sentences of the conciliating judge. Often special tribunals exist, such as the tribunal of commerce for controversies among merchants, of upright men (prud'hommes) for controversies between masters of works and workmen, of guardianships, which in some regions supplies the family council. From the tribunal appeal is given to the Court of Appeal. By a like reason a double grade is had in causes of delicts. But here, for graver delicts, and also, not rarely, for delicts of the political order and of the press, there is customarily an assize court in which citizens, designated by lot among the foremost, with oath omitted (whence they are called jurors), answer affirmatively or negatively to questions posed by the magistrates who are present at the same time, and thus judge the accused guilty or innocent. Having heard these responses, the magistrates who compose the assize court establish the penalty according to law, if the accused has been judged guilty, and pronounce the sentence. If, however, some part of the votes dissents from the other, the magistrates themselves ought to declare what they think concerning the accused, and join their vote with either part.

Above the tribunals and Courts of Appeal or of assizes there exists a Court (one or multiple) of Cassation, which judges concerning defects of form and concerning a violated law of judgments; but it is not accustomed to examine the intrinsic merit of the cause, but remits it to a different court to be judged.

In Roman law the magistrate (praetor) spoke the law and wrote the formula according to which the judge, after examination of the fact, had to give sentence, whence procedure was distinguished in iure and in iudicio. If you except what we just said concerning the Supreme Tribunal of the Signatura and concerning the Court of Cassation, in both canonical and civil forum the same judge pronounces concerning fact and concerning law.

In the canonical forum, besides the judge or judges (if the tribunal is collegial), auditors can be designated, who, abstaining from sentence, cite and hear witnesses, and instruct judicial acts; an actuary ought to be present to draw up the acts or at least to subscribe them. There is also a promoter of justice, to whom now the criminal action or accusation is reserved (c. 1934), and who also, in contentious causes, where the public good requires it, carries a part; and the defender of the bond, for protecting the bond of sacred ordination or marriage.

In the civil forum there are distinguished judges properly so called, who, sitting, bring sentence, and officials (the royal or republican procurator or his substitute, or the advocate general or procurator general) who, standing, in certain civil causes express what they think, or in criminal causes carry the parts of accuser.

But, while in the canonical forum the beginning of action and inquiry also pertains to the judge, in the civil forum the judge cannot legitimately bring sentence unless asked, either by the parties in a civil matter, or by the public procurator in a criminal matter.

In the canonical forum, parties can act by themselves or choose for themselves a procurator (avoué) by whom they are represented, and an advocate by whom they are defended. This latter, moreover, is given from office in criminal causes. In the civil forum, when the cause is not criminal, sometimes the parties cannot appear by themselves but must choose some procurator.

In the canonical forum, the defense must be made in writings; "nevertheless a moderate disputation before the judge sitting for the tribunal is admitted for illustrating something, if, either party or both parties requesting it, the judge judges it useful and admits it." Cf. c. 1863 and 1866, § 2. On the contrary, in the civil forum, the defense is made orally and causes are of themselves conducted publicly.

In both forums, canonical and civil, there are declaratory sentences and decisory or decretory sentences. A declaratory sentence authentically promulgates either the nullity of a juridical act or (this in the canonical forum alone) a contracted penalty; a decisory or decretory sentence, as a particular law, contains the proximate title by which the right of the parties is constituted or the penalty is to be sustained by the accused. And, while the cause is deliberated, the judge issues several mandates and orders as a true Superior.

II. The requisites for a legitimate judgment are these three: jurisdiction, right process, and right intention. It is necessary that the cause be duly introduced and ended. In the present-day civil forum, the judge must always observe the solemnities required by law, nor is he accustomed to have the faculty of bringing an arbitrary penalty, but only within certain limits, according to the variety of cases, can he increase or diminish the penalty. He enjoys an unequal power of composing controversies in various laws.

Defect of right intention is opposed to charity but not to justice.

A secular judge does not have jurisdiction over ecclesiastical persons or causes; for settling these he can validly be delegated by the Supreme Pontiff alone.

Wherefore he who uses lay jurisdiction against ecclesiastical persons or in ecclesiastical causes violates justice toward ecclesiastical society and toward the person whom he compels without right; he sins besides against religion, from whose motive the privilege of forum was introduced. This is of itself grave. Yet derogation from this privilege is made through Concordats and also through custom, at least centenary; which custom the Secretariat of State, in the year 1911, recognized for Belgium, Germany, and Holland (cf. Per. VI, 190).

By this recognition, which seems to savor of some toleration rather than a formal abdication of right, sacrilege and injury toward ecclesiastical society seem to be removed. But has penal jurisdiction over ecclesiastical persons also therefore been conceded; has a lay magistrate been made truly competent in a criminal matter? We doubt it. Wherefore, at least where a graver cause is being conducted and an express concordat or indult is lacking, we judge it should be advised that the formal faculty, concerning which c. 120, § 2, if it can be done, be sought where the privileged forum has merely become obsolete. And also by persons who draw priests and prelates before a lay judge, the natural law must be attended to, which commands that we show due observance to Superiors and avoid scandal.

Penalties of One Violating the Privileged Forum. From c. 120, Cardinals, Legates of the Apostolic See, higher Officials of the Roman Curia on account of business pertaining to their office, or one's proper Ordinary cannot be brought before a lay judge without permission of the Apostolic See; and he who has dared to draw a person of this kind without such permission to a lay judge contracts by the fact itself an excommunication reserved to the Apostolic See in a special manner (c. 2341); the rest who enjoy privilege of forum cannot be brought before a court without permission of the Ordinary of the place in which the cause is conducted; which license, however, the Ordinary, especially if the plaintiff is a layman, is not to deny without a just and grave cause, especially when he has in vain given labor to composing the controversy between the parties (c. 120, § 2); and he who has dared to draw another Bishop, even merely titular, or an Abbot or Prelate nullius, or someone from the supreme Superiors of religions of pontifical right, before a lay judge, contracts by the fact itself an excommunication latae sententiae simply reserved to the Apostolic See; finally, if he has dared without license to bring before a layman another person enjoying the privilege, a cleric indeed incurs by the fact itself suspension from office reserved to the Ordinary; but a layman is to be punished by his own Ordinary with suitable penalties according to the gravity of the fault (c. 2341). But, because daring is required, no one contracts the penalty who, compelled by office, draws a privileged person to a lay judge; and, by the very text of the canon, judges are excluded from this delict, since they draw no one to their tribunal. Cf. Epitome, III, n. 540.

III. Obligations of the Public Procurator. Besides competent knowledge: 1. he ought to guard the reputation of citizens. Wherefore, unless indications have preceded which suffice according to laws and received customs, he cannot inquire specially concerning some person whether he has committed some crime. Nor in canon law can he be cited as accused unless he is one against whom half-proof has existed; 2. since he is a promoter of justice and not of condemnation, he ought to speak sentence according to the merit of the cause, nor, by a prejudged reason, urge condemnation beyond what the proofs permit; 3. he ought to strive that causes, especially criminal ones, be judged quickly, and that citizens perhaps innocent not be detained too long in preventive prison. (Concerning that infamy to be avoided, cf. Ball.-Palm., Op. theol. IV, 559.)

IV. Obligations of the Instructing Judge. 1. He himself ought to be diligent in examining causes; and because public knowledge must be acquired, and by that reason which is expedient for the common good, the judge can employ only those means of investigation which are approved by usage, and do not furnish occasion for many abuses, or which are not repugnant to the judge's own dignity. A confession extorted by unjust means the judge cannot use for condemning the accused. And the same seems to have to be said if he has known the fault by unjust interrogations whose injustice the accused did not know. (Cf. Palm., Opusc. Theol. IV, 556, who thinks this more probable.) But if, by unjust interrogations, the fault of another has been detected, since the action was not unjust to the other, that fault can be publicly vindicated, i. e. judicially punished.

2. Among means plainly foreign to the character of present-day criminal process, the use of hypnotism seems to have to be placed. For it approaches a certain kind of torture, since it extorts the confession of a delict by insuperable force; and this not without harm to a perhaps innocent subject and diminution of his liberty for the future. Wherefore, unless perhaps a special necessity of averting a public evil should require it, we judge it unlawful to employ means of this kind. But it is clear that a confession made in that sleep can never be held as a certain argument, but indications thus given must be proved by ordinary means.

V. Obligations of the Judge of the Cause. 1. In examining and dispatching causes he ought to employ the usual diligence of a prudent judge. "For from office he is held to render to each his own: which he does not do if he defers sentence without a just cause." (Busembaum, De iudice.) He is held to refund to the injured party damages and expenses proceeding from gravely culpable negligence.

2. In criminal causes this holds: "the delict not being proved, the accused is absolved." And because the judge puts on a public person, the delict ought to be established for him from public knowledge. Public knowledge, however, is that which is gathered according to the acts in the trial. - If by private knowledge he has known an innocent man who nevertheless is publicly convicted, he ought to free the accused in every way, if he can, for example by offering himself as a witness and withdrawing from the cause as judge. If he can do nothing, some, with St. Thomas, think that here also merely public knowledge must be attended to. Others simply deny this, since it is the right of the innocent person not to be condemned. More rightly, with Lugo, Iust. d. 37, n. 41 ff., you will distinguish greater criminal causes and lesser causes in which there is question only of monetary penalties. For over these goods the public power has eminent dominion by force of which, on account of a proportionate public cause, it can take them away from citizens. But it is of public interest that the order of judgments be preserved, since violation of it easily becomes scandalous. Then therefore the opinion of St. Thomas seems to have place, but not when the penalty of death or the like would have to be pronounced.

3. In a civil cause, doubts of fact are solved for the accused. For this is perpetual: the proof lies upon him who affirms, not upon him who denies. This reason is already enough for preferring the possessor, insofar as he merely repels the action of the other.

But what concerning a doubt of law?

With the rules of the older authors omitted, the civil judge should answer according to the opinion which, after study has been made, is more approved by him, unless he prefers to follow the opinion received in the tribunal of appeal, lest his own be reformed. For he can defer much to its authority.

This is the mind of our laws and the common reason by which the office of judge is understood. For a judge is not merely a private doctor, but by his authentic definition removes the doubt in a particular case. But since, in giving his solution, he ought to be solicitous concerning truth alone, he surely will have sinned if he has adjudged the matter to him whom the lesser probability favors. Lugo, Iust. d. 37, n. 117, excepts if the common good, for example of avoiding scandal, because by accident the choice of the more probable opinion would bring great public detriments, demands that sentence be brought for the less probable opinion; or if the cause is one which, from positive law, is to be favored in doubt.

Nor does justice stand in the way that, according as he can, he concede something to the lesser probability. In a morally equal doubt, others say that the thing is to be divided, if the judge can do this. (For example, in the U.S.A. this would be forbidden; he would rather have to leave the thing in its own state.) Nor do they condemn those who adjudge the thing to either party. But he should always be mindful of rule 11 of Law in 6°: "the accused is to be favored rather than the plaintiff." Concerning the cooperation of a judge with an unjust law, we treated above, n. 140.

Can a judge suggest to the other party what it could allege for itself?.

St. Alphonsus (L. 1, n. 210) reproves this, because he cannot act as an advocate. Reuter, Neo-confessarius, III, 465, judges that of itself it is lawful, and after him Lehmkuhl, I, 960, 5.

Indeed he says it must be done from charity, "if there is question of grave public damage, or danger of a soul, or the harming of a pious cause." But let the judge beware lest he seem to be carried away by zeal for parties, which would be scandalous. Nor do we think this lawful where there is question of means of law which cannot be supplied from office, but are valid only if they are appealed to by the litigant: thus prescription.

Moreover, juridical arguments the judge can and ought to allege in giving sentence.

What is lawful for a judge concerning gifts?.

With the law of nature considered, he can accept little gifts spontaneously offered, but not, before sentence, those which create danger of perverting judgment. Yet of those things which he has accepted he acquires dominion. - He ought to restore those things by which he obligated himself to doing that to which he is held from justice, for example to bringing a just sentence. But those things which compensate an honest and undue performance, for example extraordinary diligence, he by no means ought to return. Finally, before the iniquity has been committed, but not afterwards, he ought to return the price of iniquity. Cf. the things said concerning an illicit cause n. 412.

What therefore if, when the option is permitted to him, he has accepted a price so that he might examine some cause first? Laymann, L. 3, s. 5, tr. 4, c. 1, n. 9, does not dare to condemn this, while on the contrary Lugo, Iust. d. 37, n. 136, with St. Alphonsus approving, L. 1, n. 196, and Lehmkuhl, I, 969, think that it is not lawful to accept anything for the choice of some party whenever from justice you are held to do either gratis, nor is any labor added: for you perform nothing onerous which would be compensated by a price.

But every acceptance of gifts detracts not a little from the reputation of magistrates and from the honor of justice. Wherefore laws are entirely to be approved which gravely punish judges who have accepted such things. Every acceptance of gifts is prohibited by canon 1624 and 1911, § 2, both to judges and to the inquisitor; in causes of Beatification, moreover, they ought to emit an oath concerning gifts not to be accepted. Modest edible things, which before the Code, when offered liberally, were tolerated, do not seem to be contained in that prohibition.

VI. Effect of an Unjust Sentence. In a doubtful case the presumption favors the sentence. But where it is certainly unjust, it does not oblige conscience, although sometimes, in the external forum, it ought to be observed for avoiding scandals. The very party which has triumphed, when the error is known, ought to yield to the other and according to general rules restore what has been accepted. If the judge is to be blamed, he ought to repair damages. But unless there is question of laws which impose a compensatory fine of taxes, he will have to restore nothing on account of a fine not sought, because the end of penalties is not that the treasury be enriched.

I. Concerning Necessary Knowledge,. it is asked whether a juror lawfully performs an office which, without sufficient expertise, he often will have to exercise.

Resp. The question of fact alone is to be solved by jurors. The danger of error indeed is not to be denied, but it is not greatly to be feared lest an innocent citizen appear convicted, since the cleverness and arts of advocates bring it about that often the truly guilty man is absolved. But the legislator himself may ascribe to himself the detriment of the common good which is received from the absolution of the guilty. Therefore a juror seems immune from fault who firmly determines to condemn him alone whom he judges manifest of a true crime. There is added that, with this disposition of mind, he will act better than, according to the things which generally happen, he who would be substituted for him, so that he can judge himself at least relatively capable, which is enough.

II. On the Use of Private Knowledge. 1. Not even a juror can condemn him whom he has known to be innocent. For the arguments brought will never give him the intimate persuasion which, according to law, is necessary that he pronounce the accused guilty.

2. Nor, as it seems to us, can he condemn him whom he has known to be guilty by private knowledge alone. For the very order of justice requires that, for condemning a citizen, public knowledge be had.

Nor does positive law which some allege, for example concerning the law of Belgium, seem to us to have this sense. Yet there are those, as Ill. Waffelaert, Ius II, p. 433, who think that the use of private knowledge can be permitted by law. We will be able to concede this if it is specially of interest to the republic that the crime be punished. Cf. Genicot, II, 9.

What if the accused was a cleric, we have seen above, n. 142.

III. It happens today that jurors are scandalously lacking in their office, when, on account of reasons wholly extrinsic to the cause, such as political passion, or appetite for vengeance, or antisocial errors, they deny that manifest crimes have been committed.

Notion and Office. 1. Arbiters are persons, of themselves private, whom, by an agreement which is called compromise, the parties have voluntarily chosen to settle a lawsuit.

Of themselves they ought to bring sentence according to law, unless from the compromise they have had the faculty of compensating the matter according to equitable and good.

The parties ought to stand by the agreement. Moreover, with certain conditions observed, the sentence of arbiters obtains the force of a thing judged.

2. For certain questions of fact to be solved, the judges themselves are accustomed to designate arbiters (skilled persons, experts). They should then take care that they diligently fulfill their office, and not allow themselves to be drawn, to the detriment either of the treasury or of the private party, into deceitful conclusions.

I. Parts of the Office. This general rule can be handed down: for an advocate those things and only those things are lawful which are lawful for him whom he patronizes. For he undertakes to defend his cause.

2. He is forbidden under grave sin to undertake a cause which he knows to be unjust. But among civil causes which are probable and doubtful on both sides, he can defend either one, even the less probable, provided the client is warned concerning the lesser probability, and provided there is some hope of victory. For each party has the right of bringing forward his reasons in court; nor is that always truer which is more probable. But if there is no hope of victory, the matter would end in a useless vexation of the other party. Make exception, however, if there is a just and proportionately grave reason for prosecuting the suit: for example, if only from prejudices or from the dishonesty of the judges the cause has become desperate. In a criminal cause, he can defend even a guilty accused man, so that he may escape death or another penalty. For the accused is not bound to admit a penalty unless juridically convicted; therefore he can, by himself or through another, overthrow the proofs until he is convicted. But to impede public vindications by right and wrong means, and by abusing the ignorance or passions of jurors, can be opposed even gravely to various virtues; and it socially offends due piety and charity toward the fatherland.

Even in a just cause he cannot employ illicit means, such as false witnesses, spurious documents. Yet if the cause is manifestly just, this will not be opposed to commutative justice.

3. If in the progress of the cause he recognizes its iniquity, he ought at once to warn the client and persuade him to desist. For since he has been hired for a fee, justice itself obliges him to this warning insofar as this care was tacitly promised: this will have to be gathered from customs and from the honesty of the client. Nor can he persuade a composition by which something is remitted from right, because composition has no place except when the matter is doubtful. Yet he does injury to no one if he induces him to a transaction without damage, deception, force, and fear, or to redeem by composition the unjust obstinate vexation of the other party. Even of an unjust cause which he deserts he ought to keep the secrets. Make exception if revelation were the only means of averting a gravest damage from an innocent person. But even then, on account of the prohibition of positive law or the greatest inconveniences, for the most part he will not be held to make that revelation. Cf. the things to be said concerning secrecy in the treatise on truth.

4. An advocate in an unjust cause ought to repair to the contrary party all damages following from the unjust action; and indeed as principal cause, if he has concealed the injustice from his own party; of himself as secondary cause, if the injustice of the cause was clear to the client. Then toward his own client he of himself is held to nothing. The client, from a just cause, for example by friendly composition, can desert the lawsuit; in which case it is enough that he furnish the equitable price of the labor done. But if without a just cause he renounces the suit, and the fee was fixed from the beginning, not a few, with St. Alphonsus himself, L. 4, n. 225, permit that he exact this whole fee. Why, however, unlike another hired laborer, he could exact more than emergent damage and ceasing gain, we confess this escapes us.

II. On the Patronage of the Poor. The law of charity obliges an advocate to give patronage gratis to a poor man in grave necessity, yet without notable inconvenience to himself; in extreme necessity, he would have to patronize the poor man even with grave inconvenience to himself. Generally, however, today, since those who are to defend the cause gratis, pro Deo, as they say, are designated from office, that obligation is lightened for him. But a cause of the poor committed to him cannot be neglected, with justice preserved. For it is part of the office undertaken, and by social authority it is imposed as some office. Yet even in favor of the poor no one ought or can undertake a cause against the obligation of his conscience. It happens, however, that from lamentable ignorance Catholic advocates undertake causes, for example of civil divorce, with an equal mind, as if they could defend all almost indiscriminately. Hence refusal of causes of this kind becomes inconvenient for younger advocates, who must be employed in the office of gratuitous consultations. It is necessary that upright men, instructed, be able themselves to enjoy liberty of conscience. What is to be said concerning the cooperation of advocates we saw in the work On Chastity, 132, 287. This is the summary. Grave causes on account of which it is lawful to seek perfect civil divorce are to be approved by ecclesiastical authority; those causes, however, which the client is permitted to conduct, those same causes, and no others, advocates can undertake.

Today not rarely syndicates have hired advocates who must assist members with counsels. Although they have not contracted with individuals, the agreement seems to have been made in such a way that toward individuals they ought from justice to employ the promised diligence. Under this aspect they have an office, and find a place in this chapter.

Several other officials have a part in administering justice. Others, the more important, are the reporter or relator, who from office summarily exhibits to the judges the true state of the question, as, for example, in criminal matters, the instructing judge; the secretary or actuary, who notes the acts in writing. Others, inferior, are apparitors (uscieri, huissiers), public guards (gendarmi). To this their various obligations return: that, being sufficiently skilled, they execute the office with due diligence; that they preserve fidelity toward clients and therefore not open their secrets; that they consult their utility; that they not cooperate in illicit acts, according to the things said in the chapter on cooperation; that they not demand a stipend beyond the just price which is fixed by law or approved custom.

It is asked whether apparitors can ask a whole salary for individual summonses (exploits) or acts, when they carry several on the same occasion. The matter is to be judged from received usage and the practice of those who fear God. From the law of nature this can be permitted, since the price is not a mere compensation for the inconvenience of the journey. But positive law, received by usage, can stand in the way.

Can they execute an unjust sentence?.

Unless that injustice is manifest, the ministers do not sin by executing it. For the common good itself demands that they not discuss the sentence of a Superior (2, 2, q. 61, art. 6, ad 3).

If it was manifestly unjust, of themselves they cannot execute it. Wherefore they cannot inflict that evil with which even to cooperate materially is always illicit: such as killing, mutilation. For evils to be inflicted in goods, the rules concerning cooperation are to be applied. D'Annibale, II, 592, judges this to be lawful "because the damage of the republic and the damage of those themselves who otherwise would be removed from office prevails." There is not one opinion of the doctors. Cf. the things said, n. 141.

I. Notion. Under the name of notary comes an official who writes authentic acts for the parties and attributes to them a certain date.

II. Obligations. He ought to be skilled and assiduous in dealing both with civil and with fiscal laws, because by prudent counsel he can avoid for the parties not only causes of nullity and litigation, but also not moderate expenses. Wherefore he ought to warn the parties concerning suitable clauses which are to be inserted into acts, and concerning the mode by which superfluous expenses may be prevented. In dispatching affairs he ought to be diligent, and not by his delay increase expenses; and in affairs to be conducted he ought to look out for the utility of the parties by whom he is consulted.

Since he is not instituted to defend the interests of the treasury, of himself in the instruments which he writes he can admit those things which are lawful for the client in defrauding taxes. But let him beware lest he rashly offer himself into danger of having to undergo a grave penalty.

I. Notion. Formerly an accuser was a private person who, on account of the good of public vindication, accused another before the judge of a crime, after undertaking the burden of proving the crime. If proof was lacking, the accuser himself had to pay the penalty. Almost everywhere, in civil law, and now also in canon law, judicial accusation having been suppressed, private persons sometimes must perform only the office of denouncing. The general rules concerning denunciation were handed down in n. 117. Here certain things seem to have to be added concerning the obligation alone of judicial denunciation. The obligation can flow from a threefold source: from the law of nature, from an undertaken office, and from the precept or law of the Superior.

a) From the law of nature judicial denunciation is to be made when it is the sole and probably apt means of impeding public damage or great damage of a neighbor. Cf. Lugo, Iust. d. 38, n. 14. This will be the case of a pending crime, or one which is prudently judged will be repeated. The greater the damage feared, the more certain and imminent it is, the greater the hope of impeding it, the graver becomes the obligation, which is of charity, and, when public damage is at issue, is urged more gravely by legal justice.

From this obligation one's own grave and proportionate inconvenience excuses, also equal damage of the denounced person, if it is done to avert the damage of a neighbor, unless piety besides drives you to consult more for a neighbor who is closely joined with you.

b) From an undertaken office, these ought to denounce harmful persons: fiscal promoters, public and also private guards, insofar as this pertains to the office to be fulfilled.

For all who have been set over persons or things to be guarded ought, both by their own vigilance and by judicial denunciation, to protect persons and things, even with danger and inconvenience promised in undertaking the office, from injuries according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987. They are held from commutative justice, so that they ought to repair damages flowing from neglected office; nevertheless they probably are not held to repay fines lost.

c) From the precept or law of a Superior. From the new Code, an express obligation of denouncing is not imposed except of denouncing clerics or religious who have given their name to the Masonic sect and similar associations (c. 2336, § 2) and soliciting confessors (c. 904 and 2368, § 2). The principle of the obligation is expressed in c. 1935, § 2.

From this obligation there excuses: a) perfect amendment of the delinquent, if satisfaction has been made to the injured party and no danger threatens others (but cf. the things said concerning denouncing a soliciting confessor); b) a secret committed from office, unless from the persevering malice of someone grave damage of an innocent person arises, or religion or the fatherland is gravely interested that it be revealed (cf. Lugo, Iust. d. 38, n. 37); c) if from this grave danger of honor, life, or your goods threatens. Wherefore you are not held to denounce yourself, nor, of itself, the associates of the crime when thus you would equivalently denounce yourself.

N.B. Concerning the witness and the accused, cf. the Treatise on Truth.

I. Offices. 1. From contract, physicians and surgeons ought to help the sick man in the best way they can.

Wherefore they ought to administer the safer remedy which is at hand. Yet with the health of the sick man desperate, they can try a remedy of ambiguous outcome, which perhaps will be useful, perhaps will hasten death, provided the sick man has consented to it explicitly or implicitly, and has been made more certain of the matter, so that he can provide for himself, unless he has already provided for his conscience and his affairs. But if no hope of prudence of this kind is present, that warning does not seem to have to be imposed. If the sick man himself is lacking, those nearest to him seem able to answer for him, as interpreters of his will.

When, besides the good effect, certain harm will follow, and no other remedy is at hand, the cause is to be estimated from the proportion between the hoped-for good and the evil which is feared. But never, as has already been said, for the sake of exploration can dangerous remedies or "operations" be tried on the sick man, even consenting. Cf. Lehmkuhl, I, 1183, V.

Concerning the use of morphine and hypnotism, it was treated, I, 478, and above, 325.

They cannot cooperate in direct abortion. To give an obstinate woman a harmless potion is not illicit, provided, however, that the physician not simulate an evil action; but he ought to beware of scandal and also of the penalties of the law, if an abortion, following by chance, is attributed to him as author.

2. They ought to fulfill the offices of spiritual and temporal charity, frequent occasion of which is offered to physicians. Therefore they will take care that they themselves can in a case of necessity validly confer baptism, especially on fetuses; they will make a dying man aware of his state in time, so that he can provide for his salvation and also for temporal affairs. It is better that they perform this themselves, nor for the most part do they have grave inconveniences to fear for themselves from it. But if others can and will make the warning, it is enough that these be made more certain. They can be excused from grave obligation if either they know that all things have already been ordered, or they hold it certain that it will profit nothing because of the perverse disposition of men. Yet this will rarely happen.

3. They cannot institute more visits in number than the true utility of the sick man demands; or than the solace suggests which is expected from the reasonable will of the sick man or of his family. Say the same concerning remedies to be administered.

4. They cannot exceed the usual rate in fixing a price, yet with account taken also of his skill and reputation. From the poor they cannot exact except the lesser price which it is customary to concede to them: for that alone the poor have tacitly promised.

II. They sin against justice itself when they violate these offices. Nor can those physicians be excused from grave sin who, after making an agreement with a surgeon, persuade clients to operations which are not necessary, for which they themselves obtain from the surgeon a reward for the counsel. Say the same if they prescribe superfluous medicines to be taken.

III. A physician hired by a community: a) from justice is forbidden to desert the sick in time of plague; b) from justice ought diligently to care for those for whom he is hired. For a stipulation in favor of a third party is valid from the law of nature, and the third party, when he calls the hired physician, ratifies the stipulation. Physicians not hired, if they decline grave danger of life, can with difficulty be accused of grave violation of charity, unless probably, while plague raged, they would have saved many who now die.

It will be enough to say one thing: that they furnish good and accurately prepared remedies; and that they beware lest they offer for sale things which are destitute of every useful or honest use. Cf. n. 145.

Notion. Day by day more persons occur who are ready, after a fee has been obtained, either to do something for others or to assist others in some undertaking: to such an extent that catalogues of persons from whom alms for good works can be hoped are saleable for a price. If someone is considering a long journey, a society offers itself for procuring every convenience of the journey; if someone wishes either to sell or to buy some house, there is one who seeks out for him a buyer or a seller; if someone has a litigious cause, there is one who wishes to render the way of success more level for him; there is one who investigates unknown heirs concerning unclaimed inheritances so that he may warn them; nor are those lacking who are eager to have a part in concluding and dissolving marriages.¹

Let us call all these by the name of brokers.

From justice itself these ought: 1. to commend nothing which is not worthy of commendation; 2. to employ the promised diligence and not to desert an undertaken cause for a better one, in such a way, for example, that they cannot promise their labor at the same time to two parties whose utilities are contrary; 3. to abstain from every fraud; 4. to be content with an honest price.

Indeed the delicate cases of conscience to which the arts of brokers give place can scarcely be numbered.

¹ The German Code, art. 656, removes every obligation from the brokerage-price promised for a negotiation of this kind concerning marriage. Yet it denies repetition of the price paid.

General Matters. The same or a similar obligation and commutation of rights which a contract between private persons works, the undertaking of an office begets, except that a contract is always a voluntary juridic act, while an office can also be imposed on one unwilling, on account of the common good.

An office cannot be assumed by one incapable without injustice; nor can one, with justice preserved, offer himself for the exercise of an art without sufficient skill, unless lack of a suitable person or another public cause excuses the intervention or assumption of the office.

An office undertaken is then to be fulfilled from justice with the diligence promised expressly or tacitly. Nor does an inconvenience connected of itself with the office excuse from that diligence.

Only on account of true and just causes can someone, after abdicating an office, ask for a pension from the public treasury or from the pension fund.

II. On the Judge. The judge, or magistrate, not only declares the right, but speaks the right, i.e. constitutes the proximate title, as it were by a particular law, either of the right of the parties or of the penalty to be sustained by the accused.

In beginning and prosecuting a process, he ought to observe the order prescribed beforehand by law. Between the civil and canonical forum there is this difference: that a civil judge can judge only causes brought to him either by private persons or by the fiscal promoter, while an ecclesiastical judge often himself commands or executes the inquiry and instruction of a cause. Therefore he himself ought to attend to that rule of natural equity, that, without sufficient indications, he not begin an inquiry against someone in particular, nor without half-full proof order anyone to appear as accused.

For the reputation of the accused person is not accustomed to remain intact. I except a cause of prevailing public necessity.

A lay judge also ought to beware lest he usurp causes of the ecclesiastical forum, with the manner observed in which the privilege of the ecclesiastical forum is urged by the Church in his region.

Moreover, in a criminal cause he cannot condemn anyone unless from the acts it is established to him with moral certitude that he is guilty. If by private knowledge he has known as innocent someone who has been publicly convicted, it is the opinion of grave doctors, and of St. Thomas himself, that he indeed can condemn without injustice; nevertheless today in practice he can and ought to save the innocent man.

In a civil cause, he can and of himself ought to settle doubts of law according to his own founded opinion concerning the law; yet it is lawful for him also to assent to the jurisprudence of the superior court, as to a greater authority.

Doubts of fact for the most part will be solved by the rule which imposes the burden of proving on the plaintiff. But he does not violate justice who, in equal probability, while observing the laws, adjudges the whole to one party; yet he can also have the probable account of the right of the other party which the laws permit, for example in dividing the expenses of the suit.

He is not unjust who accepts gifts liberally offered, but observance of the law forbidding this is altogether to be commended. Those things, however, which he has exacted or stipulated for pronouncing a just sentence are to be restored; but not for an unjust sentence which he in fact brought: here, not there, some title seems to exist.

In general it pertains to the probity of a judge that he have no consideration of persons or causes, excepting those causes to which, from the law itself, favor is to be given in doubt.

III. On Jurors. Jurors can and ought always, by their negative answer, render free from penalty one whom they know to be innocent; nor can they pronounce as guilty anyone except one who has been convicted according to the acts.

But let them beware lest they be scandalously lacking in their office if, on account of reasons wholly extrinsic to the merit of the cause, such as political passion or appetite for vengeance, they deny that manifest crimes have been committed.

IV. On Arbiters. Freely chosen by the parties who have determined to settle a lawsuit by compromise, they ought to bring sentence according to law, unless they are permitted to compose the business from equity and good.

Those designated by a judge should willingly and without zeal for parties perform their office.

V. On Advocates or Patrons of Causes. A patron of causes, in a criminal cause, does not violate commutative justice if he strives to snatch even the truly harmful person from penalty; but those who, by right and wrong means, and by abusing the ignorance or passions of jurors, impede public vindications, can sin even gravely against various virtues, and socially offend due piety and charity toward the fatherland.

In civil process they cannot either undertake or prosecute a certainly unjust cause; they are permitted, with justice toward the other party preserved, to furnish doubtful causes with suitable arguments, provided they warn their own client concerning the uncertain success.

N.B. What is lawful for a witness and for an accused person will be said below, where truth is treated.

VI. On Other Ministers of Justice. Whether higher or lower, they ought to fulfill the office diligently and faithfully, sparing the reputation of persons and tenacious of secrecy.

A manifestly unjust sentence cannot be completed by execution, unless perhaps there is question of goods which someone can renounce.

VII. On Notaries. A notary ought to be skilled and diligent, so that he not only may compose valid acts according to the norm of law and write them faithfully according to the will of the parties, but also know how to compose them in that manner which spares considerable expenses for the parties. He ought usefully to manage the affair of his clients, for example in ordering an auction.

Since he is not an exactor of taxes, he violates justice no more than the parties themselves if he cooperates in defrauding certain taxes.

VIII. On Physicians and Pharmacists. Besides diligent care of the sick, physicians and pharmacists ought to abstain from those contracts by which, through non-necessary medicines or operations, they impose useless expenses on clients.

IX. On Guards of Persons or Things. He who, privately or publicly, has been set over guarding persons or things ought, both by his own vigilance and by judicial denunciation, to protect persons and things from injuries, even with the danger and inconvenience tacitly promised in undertaking the office, according to the reasonable will of the masters. Wherefore sometimes, from the highest rigor, without the oath being injured, guards can turn aside. This holds also concerning those who have been set over the exaction of tolls. Cf. Lehmk., I, 987.

X. On Brokers. Brokers, or mandataries today of manifold name, who, under some title, undertake to care for the affairs of other physical or moral persons, or in some way assist them, from justice itself owe: 1. to those who hired them, fidelity and diligence; 2. to all, the negative offices of justice, by which they are forbidden to commend things which are not to be commended, or to deceive someone by fraud.

Gentlemen, so far I have explained the duties which the physician has in common with all other men, and which arise directly from the natural law independently of any civil legislation. The natural law requires the Doctor to respect the life of the unborn child, thus forbidding craniotomy and abortion. It also obliges him to protect his patients from the baneful effects of venereal excesses. Over these matters human law has no control, except that it may and ought to punish such overt acts as violate the rights of individuals, or seriously endanger the public welfare.

We shall now consider the physician’s natural rights and duties in regard to matters which civil and criminal legislation justly undertake to regulate. One of the chief functions of civil authority is to provide for the observance of contracts. Now, the physician in his professional services acts under a double contract, a contract with the state and a contract with his individual patients. By accepting his diploma of M.D. from the college faculty, and indirectly from the civil authority, he makes at least an implicit contract with the state, by which he receives certain rights conditioned on his performance of certain duties. In offering his services to the public, he also makes an implicit contract with his patients by which he obliges himself to render them his professional services with ordinary skill and diligence on condition of receiving from them the usual compensation.

I. The chief rights conferred on him by the state are these:

1. Protection against all improper interference with his professional ministrations.
2. Protection for his professional career by the exclusion of unauthorized practitioners.
3. Immunity from responsibility for evil consequences that may result without his fault from his medical or surgical treatment of patients.
4. Enforcement of his right to receive due compensation for his professional services.

These rights are not granted him arbitrarily by the state; they are founded in natural justice, but made definite and enforced by human legislation. Take, for an example, his right to receive due compensation for his services. This right was not recognized by the old Roman law in the case of advocates and physicians, nor by the common law of England until the passing of the Medical Act in 1858. Surgeons and apothecaries could receive remuneration for their services, but not physicians. These were presumed to attend their patients for an honorarium or honorary, that is, a present given as a token of honor.

Certainly, if Doctors by common agreement waived their right to all compensation, or agreed to be satisfied with any gift the patient might choose to bestow, they would be entitled to honor for their generosity; but they are not obliged to such conduct on the principles of natural justice. For by nature all men are equal, and therefore one is not obliged, under ordinary circumstances, to work for the good of another. If he renders a service to a neighbor, equity or equality requires that the neighbor shall do a proportionate good to him in return. Thus the equality of men is the basis of their right to compensation for services rendered. The physician’s right to his fee is therefore a natural right, and on his patient rests the natural duty of paying it. Not to pay the Doctor’s bill is as unjust as any other manner of stealing.

As to the amount of compensation to which the Doctor is justly entitled, Ewell’s “Medical Jurisprudence” remarks: “By the law of this country, all branches of the profession may recover at law a reasonable compensation for their services, the amount of which, unless settled by law, is a question for the jury; in settling which the eminence of the practitioner, the delicacy and difficulty of the operation or of the case, as well as the time and care expended, are to be considered. There is no limitation by the common law as to the amount of such fees, provided the charges are reasonable. The existence of an epidemic does not, however, authorize the charge of an exorbitant fee.

“A medical man can also recover for the services rendered by his assistants or students, even though the assistant is unregistered; it is not necessary that there should be any agreed specified price, but he will be allowed what is usual or reasonable.

“It is not the part of the physician’s business, ordinarily, to supply the patient with drugs; if he does so he has a right to compensation therefor. If the agreement is “No cure, no pay,” he cannot, however, even recover for medicines supplied, if the cure is not effected. His right to recover for professional services does not depend upon his effecting a cure, or upon his service being successful, unless there is a special agreement to that effect; but it does depend upon the skill, diligence, and attention bestowed” (pp. 3 and 4).

Further details on this point belong more properly to the lecturer on Medical Law. We are now concerned with the principles underlying special legislation. The main principle regulating all compensation is that there shall be a sort of equality between the services rendered and the fee paid for them. Ignorant people sometimes find fault with the amount charged as a Doctor’s fee. There may, of course, be abuses by excess; but men have no right to complain that a Doctor will ask as much for a brief visit as a common laborer can earn in a day. This need not seem unfair if it be remembered that the physician had to prepare, during many years of primary, intermediate, and professional studies, before he could acquire the knowledge necessary to write a brief prescription. Besides, it may be that his few minutes’ visit is the only one that day; and yet he has a right to live in decent comfort on his profession together with those who depend on him for support.

We must, however, remember, on the other hand, that excessive fees are nothing else than theft; for theft consists in getting possession of another’s property without just title. The following rules of Dr. Ewell are sensible and fair:

“The number of visits required must depend upon the circumstances of each particular case, and the physician is regarded by the law as the best and proper judge of the necessity of frequent visits; and, in the absence of proof to the contrary, it will be presumed that all professional visits made were deemed necessary and were properly made.

“There must not be too many consultations. The physician called in for consultation or to perform an operation may recover his fees from the patient, notwithstanding that the attending physician summoned him for his own benefit, and had arranged with the patient that he himself would pay.” (This, of course, does not mean that the practitioner has a right thus to shift the burden of pay from his own shoulders.) “Where a medical man has attended as a friend, he cannot charge for his visit. Where a tariff of fees has been prepared and agreed to by the physicians of any locality, they are bound by it legally as far as the public are concerned (that is to say, they cannot charge more than the tariff rates), and morally as far as they themselves are concerned” (p. 5).

In these rules Dr. Ewell regards chiefly what conduct the courts of justice will sustain. It is evident that the Doctor is never entitled to run up his bill without any benefit to his patient; where there is no service rendered at all, there can be no claim to compensation. Still it is not necessary that actual benefit has resulted to the patient; it suffices for the claim to the fee that measures have been taken with a view to such benefit. Even when no physical advantage can reasonably be hoped for from the visit, the consolation it affords the patient and his friends may render those who are to bear the expense fully willing that it should be often repeated and, of course, charged on the bill. Provided care be taken that they understand the situation, no injustice is done them. “Scienti et consentienti non fit injuria” is a good moral maxim.

II. We have said that the rights conferred on the physician by the state are conditioned on his performing certain duties. He owes the same duties to his patients in virtue of the contract, explicit or implicit, that he makes with them by taking the case in hand. Under ordinary circumstances, neither the state nor the patients can oblige him to exercise his profession at all; but, if once he has taken a case in hand, he can be justly held not to abandon it till he has given his patient a fair opportunity of providing another attendant; even the fear of contagion cannot release him from that serious obligation.

The duties arising from the physician’s twofold contract, with the state and with his patients, are chiefly as follows:

1. He must acquire and maintain sufficient knowledge of his profession for all such cases as are likely to come in his way. No Doctor has the right to attempt the management of a case of which he has not at least ordinary knowledge. In matters of special difficulty, he is obliged to use special prudence or ask for special consultation. The courts justly hold him responsible for any serious injury resulting from gross ignorance; in such cases they will condemn him for malpractice. I would here remark that, in an age in which the science of medicine is making such rapid progress, every Doctor is in duty bound to keep up with the improvements made in general practice, and in his own specialty if he has one.

2. A second duty is that of proper diligence in treating every single case. Many a patient suffers injury to health or even loses his life in consequence of a Doctor’s neglect. Gross negligence is an offence that makes him punishable by the court, if it results in serious injury. But even if such injury cannot be juridically proved, or has been accidentally averted, the moral wrong remains and is to be settled with the all-seeing Judge. Still, in ordinary ailments, no one is obliged to take more than ordinary trouble.

3. A third duty of the physician is to use only safe means in medical and surgical practice. He has no right to expose his patient to needless danger. What is to be thought of the use of such remedies as will either kill or cure? They cannot be used as long as safer remedies are available and capable of effecting a cure; for neither Doctor nor patient has a right to expose a human life to unnecessary risk. But when no safer remedies are going to effect a cure, then prudence itself dictates the employment of the only means to success. In such a case, however, the patient, or his parents or guardian, should, as a rule, be informed of the impending danger, so that they may give or refuse their consent if they please. For, next to God, the right to that life belongs to them rather than to the physician. The same duty of consulting their wishes exists when not life but the possible loss of a limb is at stake, or the bearing of uncommon sufferings. Moralists teach that a man is not obliged in conscience to submit to an extraordinarily painful or revolting operation even to save his life. Certainly, when the natural law leaves him at liberty, the physician cannot compel him to submit to his dictation; all he can do is to obtain his consent by moral persuasion.

4. As a consequence from the Doctor’s duty to use only safe means it follows that he cannot experiment on his patients by the use of treatment of which he does not know the full power for good or evil. Nor is he excused from responsibility in this matter by the fact that the experiment thus made on one patient may be very useful to many others. His contract is with the one now under treatment, who is not willing, as a rule to be experimented upon for the benefit of others. And even if the patient should be willing, the Doctor cannot lawfully expose him to grievous danger unless it be the only hope of preserving his life. This follows from the principle explained before, that human life belongs chiefly to God and not to man exclusively.

5. There are various kinds of medical treatment to which we can scarcely have recourse without exposing ourselves to serious evil consequences. Such is the use of cocaine, morphine, and even in special cases of alcohol. The drugs in themselves are useful, but they often lead to evil results. Now in the use of all such drugs as are apt to be beneficial in one way and injurious in another, we must ever be guided by the rules formerly explained concerning evil indirectly willed, or rather permitted to result, while good results are directly willed or intended. If the Doctor is satisfied that a dose of morphine or an application of cocaine will do more good than harm, he can, of course, prescribe or apply it. Still in such matters he must remember that the good effect is but temporary, while its pernicious consequences, especially when habits are thus contracted, are likely to be permanent and cumulative. Besides, the good results affect the body only, the evil often affect body and soul. Many a wreck in health and morals has been caused by imprudent recourse to dangerous treatment, where a little more patience and wisdom would have been equally efficient in curing the bodily ailment, without any deleterious consequences. If once a patient becomes a slave to the morphine or cocaine habit, the only cure is to cut off all the supply of the drug either at once or, at any rate, by daily diminution. To leave him free control of the poison is to co-operate in his self-destruction.

6. The sixth duty of a Doctor is of a different kind. There exists a tacit or implicit contract between him and his patients that he shall keep their secrets of which he becomes possessed in his professional capacity. It is always wrong wantonly to betray the secrets of others; but the Doctor is bound by a special duty to keep his professional secrets; and it is doubly wrong and disgraceful in him to make them known. For instance, if he has treated a case of sickness brought on by sinful excesses of any kind, he is forbidden by the natural law to talk about it to such as have no special right to know the facts. Parents and guardians are usually entitled to be informed of their children’s and their wards’ wrong-doings, that they may take proper measures to prevent further evil. Besides, the Doctor is properly in their service; he is paid by them, and, therefore, his contract is with them rather than with the children. He can, therefore, prudently inform them of what is wrong, but he cannot inform others.

It is a debated question in Medical Jurisprudence whether the Doctor’s professional knowledge of criminal acts should be privileged before the courts, so that he should not be forced to testify to a crime that he has learned from his patients while acting as their medical adviser. Dr. Ewell speaks thus on the subject (p. 2): “The medical witness should remember that, by the common law, a medical man has no privilege to avoid giving in evidence any statement made to him by a patient; but when called upon to do so in a court of justice, he is bound to disclose every communication, however private and confidential, which has been made to him by a patient while attending him in a professional capacity. By statute, however, in some of the United States, communications made by a patient to a physician when necessary to the treatment of a case are privileged; and the physician is either expressly forbidden or not obliged to reveal them. Such statutes exist in Arkansas, California, Indiana, Iowa, Ohio, Michigan, Minnesota, Missouri, Montana, New York, and Wisconsin. The seal upon the physician’s lips is not even taken away by the patient’s death. Such communications, however, must be of a lawful character and not against morality or public policy; hence, a consultation as to the means of procuring an abortion on another is not privileged, nor would be any similar conference held for the purpose of devising a crime or evading its consequences.

“A report of a medical official of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railroad company as to the injuries sustained by a passenger in an accident, unless such report has been obtained with a view to impending litigation.”

The practical rule for a Doctor’s conscience on the subject of secrecy is, that he must keep his professional secrets with great fidelity, and not reveal them except in as far as he is compelled to do so by a court of justice acting within its legal power or competency. If so compelled, he can safely speak out; for his duty to his patient is understood to be dependent on his obedience to lawful authority.

As to the question of Jurisprudence whether the courts ought to treat the physician’s official secrets as privileged, in the same way as they do a lawyer’s secrets, this will depend on the further question whether the same reasons militate for the one as for the other. The lawyer’s privilege is due to the anxiety of the state not to condemn an innocent man nor a guilty man beyond his deserts. To avert such evil, the accused party needs the assistance of a legal adviser who can guide him safely through the mazes and technicalities of the law, and, even should he be guilty, who can protect him against exaggerated charges and ward off unmerited degrees of punishment. Now, this can scarcely be accomplished unless the attorney for the defence learn from his client the entire truth of the facts. But the client could not safely give such information to his lawyer if the latter’s professional secrets were not held sacred by the court of justice.

Can the same reasons or equivalent ones be urged in behalf of the physician? I do not see that they can. And I notice besides that, if he be excused from testifying against his patients, all their servants and attendants would seem to be entitled to the same privilege. Many persons, I think, labor here under a confusion of ideas; a Doctor is as sacredly bound to keep his patients’ secrets as a lawyer is in regard to his clients, but it does not follow that the law cannot grant a privilege to the one and refuse the same to the other, for reasons which require it in the case of the lawyer and not in that of the Doctor.

III. Besides the rights and duties which arise for the physician from his contracts with the state and with his patients, there are other claims on his conscience, which proceed from his character as a man, a Christian, and a gentleman.

1. As a man, he is a member of the human family, not a stranger dwelling amid an alien race, but a brother among brothers. He cannot say, as did the first murderer, Cain, “Am I my brother’s keeper?” But rather he must carry out the behest of the great Father of the human family: “God has given to each one care of his neighbor.”

The maxim of Freemasons is that every member of that secret society must come to the assistance of every brother-mason in distress. But the law of nature and of nature’s God is wider and nobler; it requires every man to assist every fellow-man in grievous need. The rich glutton at whose door lay Lazarus dying of want was bound, not by any human but by the higher law, to assist him; and it was for ignoring this duty that the soul was buried in hell, as the gentlest of teachers expresses it.

(a) As physicians, as men, you will have duties to the poor, who cannot pay you for your services; they are your fellow-men. Their bill will be paid in due time. He is their security who has said: “Whatsoever you have done to the least of these, you have done it unto Me.” He may pay you in temporal blessings, or in still higher favors, if you do it for His sake; but pay He will, and that most liberally: “I will repay,” says the Lord. The rule of charity for physicians is that they should willingly render to the poor for the love of God those professional services which they are wont to render to the rich for pecuniary compensation. While thus treating a poor patient they should be as careful and diligent as they would be for temporal reward; what is done for God should not be done in a slovenly fashion.

(b) In this connection of regard for the poor, allow me also to call your attention, gentlemen, to a point which students of medicine are apt to forget at times, and yet which both God and the world require you ever to bear in mind: it is the respect which every man owes to the mortal remains of a departed brother. I do not know that a people has ever been found, even among barbarians, who did not honor the bodies of their dead. For the good of humanity, dead bodies may at times be subjected to the dissecting-knife, but never to wanton indignities. Reason tells you to do by others as you wish to be done by, and Revelation adds its teaching about a future resurrection and glorification of that body of which the Apostle says that “it is sown in dishonor, but it shall rise in glory.” Be men of science, but be not human ghouls. There is such a thing as retribution. But lately a former millionaire died in a poorhouse and left his body as a cadaver for medical students. We cannot afford to ignore the mysterious ways of Divine Justice. Ever handle human remains in a humane manner; and as soon as they have answered the purpose of science, see that they be decently interred, if possible.

2. There are other duties that you owe not as men but as Christians. All of us enjoy the blessings of Christian civilization, even those who are not Christians themselves. We are dealt with by others on Christian principles, and we ought to treat others in the same spirit. What duties does this impose?

(a) When your patients are in real danger of death, let them have a good chance to prepare properly for their all-important passage into eternity. Give them fair warning of their situation. Doctors and relations are often afraid of alarming the patients and thus injuring their health. But those who attend Catholic patients at least soon find out by experience that the graces and consolations of the Last Sacraments usually bring a peace of mind that benefits even the bodily health. In any case, the interests of the future life are too important to be ignored.

(b) For the same reason, the physician should not prescribe such doses of morphine or other anæsthetics as will render the patient unconscious at a time when he ought to be preparing to meet his Judge. This would be not kindness but cruelty. A little suffering more in this life may save much suffering in the next. If a Catholic priest, on being called to a patient’s bedside, finds that the family’s physician has been so inconsiderate, he cannot help protesting against employing such a man in Catholic families.

(c) If you attend a woman in childbirth, you may be asked by a Christian mother not to let her child die without Baptism. The vast majority of Christians believe that this sacrament is necessary to obtain supernatural happiness. The ceremony is easily performed: no harm can come of it, but immeasurable good for eternity. It should properly be performed by the clergy. But if this cannot be done, any man, woman, or child, even one not a Christian himself, can administer the sacrament. Every Doctor in a Christian land should understand how to do it, and do it with unerring accuracy. It were a disgrace for him to be ignorant of what even an ordinary child is expected to know. The ceremony is so simple; and yet, being an institution of Christ, no man can modify it to suit his notions; if what is done is not just what Christ appointed to be done, it will be of no avail. Notice, therefore, carefully every detail. You will take a little water, say a cupful, real water—cold or lukewarm, that matters not—you will slowly pour it on the head of the child, and, while you do so, you will say, “I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.” That is all. Notice, you must say the words while the water is being poured on the child. For “I baptize” means “I wash”; pour, therefore, or wash while you say, “I wash.” Should you hereafter wish to refresh your memories on this matter, you can do so by consulting the “Century Dictionary,” which explains Baptism, and in particular Catholic Baptism, as “consisting essentially in the application of water to the person baptized by one having the intention of conferring the sacrament, and who pronounces at the same time the words, ‘I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.’” If a cup of water given to the thirsty brings a blessing, how much more the giving of the water of salvation! Should it happen that the child is in danger of dying before delivery, it should be baptized in the womb provided it be at all possible to cause the water to reach or wash its body, projected upon it by any instrument whatever; but the water should flow over the body, not merely over the cyst enclosing it, for the cyst is no part of the child. Even if but an arm or other minor portion of the body is washed, the baptism is probably valid. If any doubt about the valid administration is left, the infant after delivery should be carefully baptized under condition, as it is called; that is, with the condition added that, if the former ceremony was validly conferred, there is no intention of giving a second baptism. For that would not be right; since the sacrament cannot be validly received more than once; it is a sacred initiation, but it were mockery to initiate one that is already initiated.

Should a physician be present when a pregnant woman has recently expired, and the child may still be living in the womb, it will be an easy and important task to perform the Cesarean section as soon as possible, and baptize the little one before it dies. In all this there is no money, but what is far more precious, the securing of eternal happiness. I add with great pleasure that many physicians are wont to comply with all these instructions most carefully, and even to instruct midwives and nurses in the best manner of rendering such services.

3. Lastly, we must consider the duties which a Doctor owes to others and to himself as a gentleman. It may not be easy to define what is meant by “a gentleman,” and yet to some extent we all know it; we recognize a gentleman when we meet one, we pay him sincere homage in our hearts. We readily allow him to influence us and to guide us. We esteem him instinctively as a superior being, as we distinguish a precious stone from a common pebble; so we value a gentleman for precious qualities exhibited in the beauty of his conduct. His conduct ever exhibits two characteristic marks: a proper degree of dignity or respect for self, and a proper degree of politeness or respect for others. Self-respect will not allow him to do anything which is considered vulgar, unmannerly, gross, rude, or selfish; he will avoid the two extremes, of self-neglect on the one hand and self-display on the other. His respect for others will make him treat all around him so as to make them feel comfortable in his presence; he will avoid whatever gives pain or causes embarrassment to even the lowest member of society.

Gentlemanliness has much to do with every one’s success in life, and in particular with a Doctor’s success. It is especially when sick that we are sensitive to everything displeasing in the conduct of others. It is not then the bold thinker or the extensive reader that is the acceptable visitor to the sick-room; but the gentlemanly consoler who always says the right thing at the right time, whose very eye expresses and whose countenance reflects the thought and sentiment most appropriate on the occasion.

There are most able physicians who are not gentlemen, and there are in the medical profession gentlemen who are rather poor physicians; but as a rule, I believe, the gentleman will thrive where the genius will starve. It is more or less the same in other professions. I know learned lawyers to-day who are far from prosperous, while men ten times their inferiors in learning are getting rich. I remember a most skilful physician, now no more on earth, who was a very genius in the science of medicine; but he was so filthy in his habits, he would so unceremoniously chew tobacco at all times, that many dreaded his visits, and would sooner have a man of less ability but gentler manners as their family physician.

Gentlemen, habits good and bad cannot be put on and off like a dress-coat; they are lasting qualities, the growth of years, the result of constant practice and self-denial or self-neglect. And, as I wish you success in life, allow me to conclude this lecture by recommending to you the assiduous cultivation of gentlemanly habits. Cultivate them now, while you are preparing for future labors. You wrong yourselves, and you insult your companions and your professors, when you neglect in their presence the conventionalities of polite society.

1078. • They are held before all things under grave obligation, 1° to have sufficient knowledge and skill; 2° to apply diligence proportioned to the gravity of the matter which is committed to their care. But if they are deficient in these, they are held concerning all damages which follow thence.

Moreover they must furnish their work gratuitously to the poor who are in necessity, as was said above n. 1062. q. 3° R. 2° concerning advocates.

But in curing the sick the following rules must be observed:

I. They are held to follow safe and secure opinions of physicians, at least ordinarily; because the peril of the sick person cannot be removed by the probability of the matter.

II. When it is certain that some medicine will be useful to the sick, they are held to apply it, the doubtful one omitted; but if something certain is lacking, they more probably must prefer the doubtful.

III. What is licit when no hope appears concerning the health of the sick person, and no remedy is present except a doubtful one, see n. 60. II. 2°.

Hence a physician sins gravely, 1° If without sufficient capacity he undertakes to cure a grave disease. 2° If, when a grave and unusual disease occurs, he does not expend special work. 3° If he applies untried medicines for the sake of trying them. 4° If, with the nature of the disease not well known, he rashly prescribes dangerous remedies, especially with risk of life or grave lesion. 5° If, when the danger of the sick person has been recognized, he is not present opportunely, visiting him day and night if need be, and does not apply all means apt for driving away the disease. 6° If he does not permit other physicians to be called when it would be necessary, or if, summoning others for the sake of consultation, he attends to friendship rather than to skill. 7° If, on the contrary, without necessity he calls other physicians with useless expenses for the sick person, or if against his own conscience he adheres to their counsels. 8° If he draws out the cure for the sake of profit, uselessly multiplies visits where a salary is exacted for each, or if he exacts too great a price. 9° If, to favor friendly pharmacists, he prescribes superfluous medicines. 10° If he advises abortion, or the means of procuring it, or himself executes it. 11° If easily and without necessity he absolves from fasting or from Mass. 12° If he treats the poor, whose care he undertook from a stipend, less diligently than the rich, or, although not obliged from a stipend, does not assist those placed in grave danger and not having another. 13° If he does not preserve secrets committed to his faith and in order to his art, e.g. by revealing shameful diseases without a proportionate cause. 14° Finally the physician sins gravely, indeed most gravely, if, besides in the case in which he would certainly judge the warning not to be useful, he does not forewarn concerning the grave danger of the sick person, so that the Sacraments may be conferred on him.¹ See also other things concerning the physician above in their own places.

1079. • Pharmacists, if you except a few things, sin almost as physicians in the cases just set forth, but especially by applying old medicines, selling useless ones, supplying means to pregnant girls for casting out the fetus, not faithfully executing the mandates of the physician, for example by supplying one medicine for another, etc.

1080. Questions. - Query 1° To what is the physician specially held as to the soul of the sick person whose care he has undertaken?

Resp. He is held of himself under grave obligation to warn him concerning the grave danger in which he is placed, and, if it is a question of a Catholic sick person, also concerning the necessity of receiving the Sacraments, lest he depart without absolution, Viaticum, and Extreme Unction. This is clear 1° from natural law, or from the precept of charity. 2° From the very well-known Decretal of Innocent III, confirmed and renewed by other subsequent Supreme Pontiffs.² - Yet it is not always necessary that the physician by himself warn the sick person concerning the proximate danger of death. Sometimes it suffices that he take care that he be warned by relatives or friends, so that he benevolently admit the Priest, and be induced to receive the Sacraments. If the sick man has a known confessor, it will suffice if this one is warned concerning the state of his penitent; for then by visiting him he will be able more efficaciously to move him to provide for the salvation of his soul. But let the physician beware lest he suffer the warning to be deferred longer. For he ought not to draw it out until the danger of death is certain; but he is held to this office when he adverts that danger is gravely imminent. If physicians observed this custom, the sick would not so greatly fear the warning, nor at the mention of Confession be seized with terror.

Query 2° Whether a physician sins gravely who in time of pestilence abandons the sick, lest he contract the plague?

Resp. Affirmatively, if it is a question of a physician for whom a stipend has been established by the community, and of those sick persons in whose favor it was constituted. Otherwise negatively, since charity does not oblige with equal danger to oneself.

2331. • A grave and delicate office lies upon PHYSICIANS, and, proportion being preserved, upon SURGEONS and PHARMACISTS, because the life of men, and the safety of their life, are entrusted to them.

Hence they ARE HELD, and indeed under grave obligation: 1. To know those things which pertain to the exercise of their office; - 2. to apply those cares which correspond to the gravity of the disease;

3. to preserve equity in exacting stipend. In these things, if by their own fault they fail, they are liable to reparation of the damage which has followed from this. But in particular:

I. PHYSICIANS (and Surgeons) sin gravely: 1. If without sufficient skill they undertake a grave disease or wound to be cured; or if, when a grave and unusual disease occurs, they do not devote effort to special study of the medication. - 2. If, once the danger of the sick person has been recognized, they are not present to him opportunely. - 3. If they neglect necessary treatment, or do not permit other suitable physicians, where it is fitting, to be called. - 4. If, the nature of the disease not having been well inspected, they rashly apply doubtful or dangerous remedies, especially with risk of life or grave lesion. (See n. 84, 2.) - 5. If easily, and without true necessity, they absolve from fasting, from abstinence from flesh, from hearing Mass. - 6. If they despise a poor sick person constituted in grave danger. - 7. If they exact too great a price; or compel to useless expenses, e.g. by prescribing superfluous medicines, multiplying visits, etc. - 8. If they advise abortion, onanism, or other illicit things. - 9. If they do not preserve the secrets committed to their trust, e.g. by divulging shameful diseases without just cause. - 10. If they do not opportunely warn of grave danger of sickness, that the Sacraments may be conferred. - 11. If in a case of necessity they neglect to baptize. - 12. If in time of plague they abandon the sick without help, for curing whom they have been constituted by the Community with stipend.¹

2332. • IT IS ASKED. Whether a physician is held TO WARN the sick concerning confession to be made?

Resp. 1. If there is question of a mortal disease, or one proximately dangerous, he is held by NATURAL LAW to warn the infirm person, by himself or through others; for each one ought, at least from charity, when he can without grave detriment to himself, to remove from his neighbor the danger of eternal damnation. "Oh how miserable it is," exclaims St. Alphonsus,² "to see so many sick persons (and especially those who are of distinguished dignity) reduced to the extremities of death, so that they may prepare the accounts of life soon to be rendered to God, at a time when they are almost lifeless, when they can scarcely then form words, scarcely hear others, scarcely conceive the state of their own conscience, and sorrow for their sins! And all this happens by the fault of those physicians, who, lest they displease the sick or their relatives, do not make them more certain concerning the danger; indeed they continue to flatter them, until they themselves are altogether despaired of concerning life."

2. If there is question at least of a grave disease, namely when it must be feared that it may become mortal, the physician ought by POSITIVE LAW, that is, from the decree of the Fourth Lateran Council, cap. 22, and from the Constitution Supra gregem of Pius V (where the law has been received and has not fallen into desuetude), he ought, I say, by himself or through another, to warn the infirm person concerning confession to be made within three days; these having elapsed, he is held to abandon the one not confessed.³ - The motive of this law is, lest the infirm, if they know that only the despaired-of are warned, be too much disturbed from such warning; by which it would happen that they would more difficultly take counsel for their own conscience, and easily be cast into a grave danger of life. - But Doctors note that the physician is not obligated to warning if he is morally certain that the infirm person is in a good state of conscience; nor is he held to abandon him if graver causes are present for not abandoning him, especially if no hope of helping the soul is present.⁴

2333. • II. A PHARMACIST sins: 1. If, rude and ignorant, he exercises the office. - 2. If without due diligence he prepares medicines. - 3. If he supplies one medicine for another (unless it were equally good, and of equal price), against the prescription of the physician, with danger of grave damage. - 4. If he sells useless medicines. - 5. If he furnishes medicines for inducing sterility, or for expelling the fetus (although such medicines were plainly ineffective): both because of the scandal which he furnishes to those requesting; and because the imagination of women, from which abortion is usually produced, is not a little stirred by this; and because he commits himself to the danger of undergoing the penalties which civil laws have established against prevarications of this kind.⁵

I. Reason for the question. - There is a special reason for raising a question concerning physicians and pharmacists, since public health depends much upon their manner of acting.¹

¹ On these matters St. Alphonsus, Praxis Conf., nn. 57-58; Aertnijs, Th. P., n. 46; Lehmkuhl in the new edition of Reuter, Neo-conf., n. 167, a, III; Salsmans, Geneeskundige Plichtenleer.

II. Physicians sin against the obligations of their state:

1. If they are not sufficiently versed in the science and practice of their art, or in more difficult cases do not apply study or do not seek more learned persons.

2. If in curing diseases they do not employ due diligence.

3. If they apply a dangerous remedy to a sick person, unless in a desperate case, a safer remedy being lacking.

4. If they employ illicit means, for example directly procuring abortion, or embryotomy, or sterilization, or if they suggest those things which contradict good morals, or use morphine or narcotics in a harmful quantity.

5. If they perform useless surgical operations, or dangerous ones without a proportionately grave reason.

6. If in a difficult birth, or when danger exists, they do not confer or procure Baptism for a fetus, whether mature or immature, not certainly dead, or if they do not know the right manner of baptizing such fetuses.

7. If, when danger of death exists, they do not take care to warn the sick person in due time, so that he may consult his eternal salvation.

8. If without just cause, or from human respect, they pronounce permission to eat meat or to omit Mass.

9. If they neglect the care of the poor, especially in grave necessity.

10. If they exact an immoderate fee, or also multiply visits uselessly, unless this contributes to the consolation of the sick person and is pleasing to him.

More concerning these matters is declared more fully in chapter 2, section B, q. 1.²

² The Summa Theol. Moralis, II, nn. 376-379, can also be seen.

III. Pharmacists can be questioned, among other things:

1. Whether they have supplied remedies to pregnant women for procuring abortion.

2. Whether they have sold one medicine for another and at a price dearer than it is worth.

3. Whether they have prepared or sold unsuitable remedies.

4. Whether they have sold contraceptive remedies or instruments.

5. Whether they have handed over narcotics or other harmful things, unless to those for whom a physician had prescribed them, or whom they know by certain knowledge will not abuse them.

These things hold concerning those who in their own name furnish or sell remedies; but if in this they are serving others, merely material cooperation could be lawful on account of a very grave proportionate reason, at least until they have opportunely sought another service for themselves.

I. General view. - Charity and justice command that the right of the neighbor to the internal goods of life be preserved unharmed, and the opposite sins are prohibited by the fifth precept of the Decalogue. We call the internal goods of man the goods both of the body and also of the soul, namely, the natural use of reason and liberty, and moral and supernatural life. To the good of moral and supernatural life scandal is opposed; to natural good, whatever harms bodily life, or natural reason or free will. Concerning these things it is necessary to recall that not man but God alone has dominion over human life and over the human body, just as over the soul with its natural powers; and therefore:

1. an action directly killing, against the life of an innocent person, is never lawful, and consequently the life of an innocent person can in no case be directly taken away, as would happen in every species of embryotomy or direct abortion, that is, direct expulsion of an immature fetus;

2. likewise direct mutilation is illicit, not only for the sake of utility or profit, but even for the sake of virtue, unless it is for preserving the life or health of the whole body, insofar as the part is for the whole, and the good of the part ought to yield to the good of the whole, lest this be corrupted. Wherefore operations which render sterile or impotent, such as vasectomy, ovosectomy, sterilization, must of themselves be held intrinsically and gravely illicit, as being grave mutilations, unless otherwise health could not be hoped for;

3. likewise harmful actions are illicit unless at the same time and immediately, or not by means of the evil effect, they procure a greater good which compensates the evil and harmful effect;

4. a fortiori it is illicit directly to intend harm to the moral or supernatural life of the soul; likewise to posit an act which can harm it, unless it is done for a proportionately grave reason.

These principles come to be considered more attentively, as regards natural goods, in the actions of physicians generally, in the use of hypnotism, in surgical operations, in the use of certain narcotic medicines, in the use of chloroform and anesthetic means, in actions, potions, and incisions which bear relation to the procreation of the human race.¹ As regards spiritual goods, which are harmed by scandal, it will be said in the following question.

¹ Concerning all these matters especially may be consulted Capellmann, Medicina Pastoralis; Noldin, Tanquerey, Vermeersch, and Prummer in their manual of moral theology; Saesmans, Geneeskundige Plichtenleer, i.e., medical deontology.

II. Concerning the actions of physicians. - The following rules bind under grave obligation:

1. The physician must always use the safer means, i.e., those which, according to what science teaches, are certain; but if such means are not known, that is to be preferred which is more likely and, other things being equal, more quickly conduces to health. There also comes to be attended to, according to the diverse circumstances of persons, the great utility or necessity of a quicker cure, for example in a laborer; likewise also whether the remedies cause less pain or are of less price, so that that is to be preferred which, all things considered, is more profitable and less burdensome.

2. It is illicit for a physician to seek experience from a man by those means concerning which he himself is ignorant whether they are harmful or truly useful, as for example by vaccination from secretions of syphilitic ulcers for the diagnostic end concerning the existence of syphilis;² however, he can employ means which he certainly knows cannot harm, although it is not established for him whether in the present case they will be useful. Nevertheless Noldin adds, Th. M., II, n. 744: it would be lawful to test a remedy with the consent of the sick person, if the matter concerned slight harm which can easily be repaired.

² It is lawful in animals; likewise in malefactors condemned to death, if the civil power establishes this.

3. To a sick person whose recovery now cannot be hoped for, even such a remedy can be provided, when it is not established for the physician whether it will be harmful or useful for curing the health of the sick person: not in order to take an experiment for other sick persons, for it is illicit to seek an experiment in another's life, since evils are not to be done, even to one, so that goods may come to others, even many; but because it is more conformable to prudence and to the will of the sick person to apply that doubtful remedy than to omit it with the certainty of death. For such a remedy, as also for other extraordinary means to be employed, consent generally is to be sought from the sick person, and, if he is not able to consent, from relatives, especially if there is much fear of the danger of great and perpetual harm.

4. It is illicit to take away or notably shorten the life of those lethally wounded, the old, the sick, the dying, lest they suffer longer, even with their consent, by an action directly tending to this, because one must not use an evil means for a good end, nor are evils to be done that goods may come: for all these retain the right to life, and must be committed to God, who alone is Lord of life and alone can dispose directly of their life.

5. Consequently it is illicit in the article of death to provide morphine or a similar soothing means to a sick person directly so that the painful exit of his life may be shortened and be terminated in quiet euthanasia, i.e., a happy death. Indeed, also so that the dying person merely be deprived of reason and depart without the sense of pain; for for this there is not present, at least regularly, a sufficient proportionately grave reason, and certainly not if he is not yet prepared for death, since thus he would be deprived of the opportunity of doing penance and so perhaps would be placed on the way of eternal damnation. Concerning this more will be said below, under n. IV.

6. Puncture of the heart or artery (ponction du coeur, steek door het hart, Herzstich), which sometimes relatives or connections of the deceased, sometimes on account of the testament of the deceased himself, ask for lest perhaps he be buried alive:

a) cannot be done by a physician, if he does not have indubitable signs of death but seriously doubts concerning it, because this is to expose oneself to the danger of killing a man;

b) but if there are certain signs of death, of itself it is not illicit,³ since this is done only to free the relatives from fear and vain anxieties;

³ If it were illicit, by equal right it would be illicit to bury the deceased.

c) nevertheless the relatives cannot licitly ask for it, because they do this from an evil intention of shortening life if it were still present and of hastening death if it had not yet supervened; with which, therefore, it is not lawful for the physician to cooperate. Wherefore let him try to lead them away from this useless purpose; and if they are unwilling, let him declare to them that he will by no means perform the puncture, unless because he is wholly certain concerning death and solely to dissipate their vain anxiety.

7. The physician is bound, by himself or through others, efficaciously to warn the sick person concerning the proximate danger of death, so that he may dispose concerning temporal affairs and provide for spiritual necessities.

That office of charity is personal; hence, if others are lacking who can or will efficaciously persuade the sick person, the physician himself is bound to warn him by himself. Nevertheless he can be excused if the warning is certainly useless, whether because the sick person certainly does not need the warning, or because the warning certainly will in no way be useful, which nevertheless can rarely be affirmed with certainty.

III. Concerning the use of hypnotism. - Hypnotism is usually described thus: the induction of a peculiar state, analogous to sleep, which is called hypnosis, in which state the man who has been placed in it merely undergoes the suggestions of the hypnotizer. It is induced by very diverse means, which nevertheless probably are all reduced to one, namely the suggestion of sleep; but it has several grades, from simple sleepiness to perfect somnambulism. Concerning this it is useful briefly to note that its practice sometimes is illicit, namely, as often as it is employed unjustly or without a grave cause and great caution. For:

1. The hypnotized person is deprived of the ready use of reason and of dominion over the lower powers, which ordinarily by his own powers he will recover with difficulty without the nod of the hypnotizer; he hands himself over to the judgment of the hypnotizer, by whom he can be led sufficiently efficaciously and often invincibly to perpetrating illicit things, and ordinarily he can be reduced to the same state even while resisting. But such a deprivation of the use of reason and abdication of liberty, involving of itself a grave danger for morals, is illicit as often as a proportionately grave cause and cautions are lacking to remove the danger.

378. State of the question. - To physicians and surgeons there has been committed the office of protecting life and bodily health. Whence a) from justice they can be held to bodily care as from their proper office or from contract; - yet on the occasion of the exercise of this office, b) from charity they can be held to caring for the spiritual or temporal good of the sick, or also c) they can unjustly injure and damage in temporal things, namely by reason of expenses or harm. Concerning these things one must now speak specifically.

379. As regards bodily care, three principles must be attended to by physicians:

I. That they have sufficient skill in their art, at least ordinary skill, namely, for the cases which usually occur among them; otherwise they expose themselves to the danger of inflicting irreparable damage on the sick or wounded, and for that cause they can be obligated to restitution. From justice those are held to having knowledge and skill who have obligated themselves by a prior contract; but others are held not to exercise their art without sufficient skill, unless in a case of urgent necessity, when another is lacking.

Hence 1) physicians who wish to fulfill their office faithfully should not cease to apply themselves to study, because medical science and surgical art progress much.

2. In more difficult cases, if they doubt concerning their own skill, they ought to call in a more skilled physician, taking care that the sick person or his family consent to this; indeed even at their own expense, if it were necessary and he himself were ignorant of matters to be known by ordinary knowledge.

3. Those who lack sufficient knowledge are bound under grave obligation to acquire it, and meanwhile to abstain as far as possible from the exercise of the art, or to invoke the counsel of one more learned.

II. That they employ diligence proportionate to the gravity of the matter which is committed to their care. A physician who has been hired from contract or from a stipend accepted or promised is held from justice; otherwise he can be held from charity, even under grave obligation, in a case of grave necessity, if another is lacking and he himself can help without grave inconvenience; but if he undertakes the care, he is now held from justice, as from a contract tacitly entered into. And indeed:

1. He who has been hired by contract or stipend a) must hurry morally as soon as possible at any hour of day or night, even with grave inconvenience to himself, unless he certainly knows that from delay no damage will follow for the sick person; b) even in time of contagious disease he cannot desert the sick person.

2. He who has undertaken care of the sick person without a prior contract, a) is held to help the sick person in the better and more certain way in which morally he can; b) nor can he desert him, even if the disease becomes contagious, unless another is found who will take care of him.

3. He who, in employing ordinary diligence proportionate to the gravity of the matter, is notably negligent, sins against justice and is held concerning damages.

III. That they not use illicit means for procuring health. From justice safer remedies are to be employed, namely certain ones if they can be had; otherwise those which are more probably less dangerous and harmful, and more and more quickly profitable.

Hence 1) it is illicit, secure means having been left aside, to try uncertain ones.

2. When certain means are lacking, doubtful ones can be employed, provided that they are harmless; and they must be employed if the safety of the sick person is despaired of.

3. Indeed, when other means are lacking, remedies doubtfully harmful but probably profitable can be employed, if the safety of the sick person is despaired of; otherwise, lest death be accelerated, the matter is to be committed to nature, which by no means rarely lifts itself up. In these cases, namely, there must be proportion between the harm which is feared and the good which is hoped for; but even then a dangerous or extraordinary remedy generally is not to be employed without the consent of the sick person, at least presumed.

4. It is illicit to test a new remedy, even one that will profit others, with probable danger to health or life, not even with the consent of the sick person: for he is not lord of his life, nor are evils to be done so that goods may come to others. Unless perhaps there were only the danger of a lighter damage which could easily be repaired, and the consent of the sick person were added.

5. A physician must altogether abstain from illicit remedies and operations, of which kind are the direct procurement of abortion even to save the mother, - remedies of sterility even for preventing dangerous childbirth, - craniotomy, - the use of morphine, opium, cocaine, etc., in that way and degree in which these harm the body or mind, - imprudent or harmful use of hypnotism, - a dangerous operation done without a proportionately grave reason. In so great a proclivity as exists today rashly to perform whatever surgical operations and to employ doubtful and harmful remedies, especially in hospitals of the poor or of infants, physicians easily offend against justice, so that they are held to repairing damages.¹

¹ Noldin, Th. M. II, d. 744.

6. Finally, a physician sins gravely who, without true necessity or manifest utility, inspects or touches the genital organs, especially of women, because he abuses his office; he also sins more gravely who gives to the sick counsels which are directly opposed to the law of chastity, such as of performing onanism, pollution, fornication.

380. As regards the spiritual or temporal good of the sick: By natural law and by the grave precept of charity, the physician is held, either by himself or through another, to warn a sick person in danger of death concerning the sacraments to be received at an opportune time and concerning temporal affairs to be arranged, at least if the warning is necessary: for from charity he is held to remove grave evil from his neighbor, if he can without grave inconvenience.

Hence 1) if others could not or would not warn the sick person, or if the sick person would not believe them warning him concerning the danger, the physician himself by himself is held to warn him.

2. Yet he would be excused from warning if he knew with moral certainty that the sick person was in the state of grace and already had arranged temporal affairs, or was so hardened in impiety that even warned he would not wish to be converted: this can only very rarely be affirmed with certainty.

3. The physician also ought to warn the family, so that provision may be made more safely for the spiritual and temporal good of the dying person.

Formerly by ecclesiastical law, namely by decree of Lateran Council IV (1215), afterwards again confirmed by Pius V (8 Mar. 1566), it was prescribed to physicians that they should not undertake the care of one dangerously lying sick unless by warning him concerning confession to be made, and, if he had not confessed within three days, they should abstain from visiting. Yet the law was never received everywhere, and where it was received, it is now abrogated.

381. As regards expenses: From justice the physician is held to beware of useless expenses and of excessive stipends to be demanded.

A stipend, according to justice, must not only be sufficient so that according to his condition the physician who exercises his art and gives his powers for the greater part to medical care can live; but it can be rather great, as is clear from the importance and utility of those things concerning which he has care, from the breadth of the knowledge and skill required which is acquired only by longer study and great expenses, from the great responsibility at the same time and the dangers to which he is sometimes exposed. But the stipend can be increased when an accidental circumstance is given: a) by reason of greater distance, longer time, multiplied visitation, or special care or operation; b) by reason of more excellent or extraordinary skill, which is not usually acquired except by increased studies and expenses; c) by reason of special danger, to which, in a more difficult case, the reputation of the physician is exposed.

But in determining the stipend, a double measure can be attended to of itself: for either the common estimation can establish it proportionately to services furnished according to those things which we have handed down here; or also it could have it not as compensation according to equality, but as a contribution to the honorable support of the physician, so that for the same care less would be paid by persons of lesser condition, more proportionately by those who are of better condition. Now even according to this measure a stipend is justly established, provided, however, that a price excessive is not demanded from the rich, nor the salary according to the other measure defined by an association of physicians or by common estimation: for no one is judged to wish to grant a price greater than is customary.

Hence 1) the physician sins who for the sake of gain institutes useless visits or prescribes superfluous remedies, unless the sick person desires it or it is necessary for procuring health by such suggestion; who without necessity calls in other physicians or prolongs treatment longer; who performs useless or too dangerous operations for the sake of gain; or demands too great a stipend.

2. A physician cannot demand a stipend greater than ordinary, with the circumstances of places and persons considered. But if extraordinary services are sought from him, such as a difficult surgical operation which supposes singular skill, he cannot demand whatever price according to his pleasure, but that which, with account taken of labor, difficulty, etc., has proportion with the stipend which the most skilled are accustomed to demand.

3. From charity he ought to care gratis for the poor constituted in necessity, namely, in extreme necessity even with grave inconvenience; in grave necessity without grave inconvenience; in common necessity, if he conveniently can, at least when others are lacking.

It is better that a physician abstain from all means little worthy or less right, which smell of cupidity, and easily furnish occasion for abuse.²

² He who desires more on these arguments should consult Salsmans, Geneeskundige Plichtenleer, deontologie medica, in which various practical cases are considered.

I say 1st. Physicians are bound before all things under grave sin to have sufficient knowledge and skill, and to employ diligence proportioned to the gravity of the matter which is committed to their care. But if they fail in these things, they are bound for all damages which follow from it. Besides, they ought to furnish their work gratuitously to the poor who are in necessity, as was said above concerning advocates.

I say 2nd. But in curing the sick they ought to observe the following rules: 1st. they are bound to follow the secure and safe opinions of physicians, at least ordinarily, because danger to the sick person cannot be removed by probability; 2nd. when it is certain that some medicine will benefit the sick, they are bound to apply it, with the doubtful one omitted; but if the certain is lacking, they ought to prefer the more probable one. Hence:

A physician sins gravely: 1st. if without sufficient capacity he undertakes to cure a grave disease; 2nd. if, when a grave and unusual disease occurs, he does not spend special work; 3rd. if he applies untested medicines for the sake of testing; 4th. if, without the nature of the disease well examined, he rashly prescribes dangerous remedies, especially with risk of life or grave injury; 5th. if, when danger has been recognized, he is not present opportunely, visiting the sick person day and night if there is need, and does not apply all means suitable for driving away the disease; 6th. if he does not permit other physicians to be called, where this would be proper, or if, calling others for the sake of consultation, he attends to friendship rather than to skill; 7th. if, on the contrary, without necessity he calls other physicians with useless expenses to the sick person, or if against his own conscience he adheres to their counsels; 8th. if he prolongs treatment for the sake of profit, uselessly multiplies visits where a salary is exacted for each one, or if he exacts too great a price; 9th. if, in order to favor apothecary friends, he prescribes superfluous medicines; 10th. if he counsels abortion, or means of procuring it, or himself carries it out; 11th. if he counsels vasectomy to a man unwilling to have offspring; 12th. or rashly employs a means which can render a woman sterile. - Cf. St. Alphonsus, n. 291; on the second precept of the Decalogue, n. 182; and on the Sacrament of Penance, n. 664.

Where the sick person is despaired of, a remedy probably going to benefit must be applied if he has no other certain one; if the remedy is certainly not going to harm and doubtfully going to benefit, it must wholly be applied; in a positive doubt whether the remedy is going to benefit or to harm, outside the case of a sick person despaired of, it is not to be furnished, but the sick person is to be left to nature.

A physician is bound to the secret of office, which can never be violated except when a dominant reason exists. Hence it is not licit for a physician to manifest the diseases of a family or individual to an agent of an insurance company without their consent; nor is it licit for him to tell a man, without the woman's consent, of an operation, suppose ovariotomy, performed by him on the woman before marriage; nor to make known to a bride before marriage the ordinary diseases of the man which induce no danger of contagion. But if the man previously labored under syphilis, yet now is wholly cured, the physician cannot reveal that previous condition to the woman. But if his condition from that disease is such that he truly ought not now enter the conjugal covenant, let him gravely warn the man concerning his obligation of deferring the celebration, and let him threaten the grave difficulties that will arise from the nuptials. Finally, if the man refuses, the physician has of itself a right to reveal the matter. Yet he will easily be excused if the circumstances are such that he himself would lose the trust of the people from it. Nevertheless, often there can be circumstances which prove that an obligation is present, for example, the law of the place or the custom of physicians; for then there will scarcely be an excusing cause from the burden of protecting the woman, when this can be done without grave inconvenience. - Cf. Bulot, n. 460, 3. - Lehmkuhl, n. 1444. - Genicot, n. 432.

Just as a physician, so also a surgeon is bound under grave sin to have sufficient knowledge, skill, and dexterity. Regularly he cannot perform any operation without the prior consent of the sick or of those under whose care they are. Since the matter being treated is one which is under the absolute dominion of God and not of man, there is not permitted to him an operation whose expressly intended end is to render men sterile. - Cf. above, n. 264, Q. 5.

Question. To what is a physician specially bound with regard to the soul of the sick person whose care he has undertaken?

Resp. He is bound of himself under grave sin to warn him, prudently however, concerning the grave danger in which he is placed, and concerning the necessity of receiving the sacraments. This is established 1st. from natural law or from the precept of charity; 2nd. from the very well known Decretal issued by Innocent III in the general Lateran Council, year 1245, cap. Cum infirmitas, 13 de Paenit. et remiss., and confirmed and renewed by other subsequent Pontiffs, especially by St. Pius V in the Motu Proprio Super gregem, year 1566.