Particular Cases of Damnification

464. Obligation of restoring. In this place a fitting occasion offers itself also to treat of the obligation of restoring because of damage inflicted in spiritual goods. Spiritual goods are understood not only as supernatural goods, which conduce to the eternal salvation of the soul, but also natural goods such as sciences and arts, the use of reason and of free will. To supernatural goods also pertains the good of the priestly and religious state.

Assertions. 1. He who by an unjust means (fraud, lie, force, fear instilled) inflicts spiritual damage on another, or impedes another from obtaining a spiritual good, is bound to repair the damage inflicted if it can be repaired in the same order: for anyone has a right to demand that evil not be inflicted on him by an unjust means.

a. Therefore he who induced another to sin by fraud or instilled fear is bound from justice to call him back if he cannot of himself return to the former state. But if of himself he can do this and does not do it, the damager is bound to nothing: for since the damaged person voluntarily perseveres in evil, by this very fact he is considered to remit the injury to the damager.

b. He who by fraud induced another into practical error, from which another evil can follow, for example, that reputation unjustly taken away from the neighbor need not be restored, is bound to recall the error and compensate the damages arising from it and foreseen in some way.

c. He who by fraud induced another into speculative error, for example, that there is no purgatory, generally does not commit a grave injury unless the error concerns the principal dogmas of faith, or unless the errors are many and of great moment.

d. He who by poison or other illicit means deprives another of the use of reason, memory, or free will, injures justice, but is not bound to restitution because of this spiritual damage itself inflicted, because it cannot be repaired in the same order; yet he is bound to repair temporal damage, if any was suffered by him who was deprived of the use of reason. The same must be said if someone by force, fear, or fraud turns another away from the study of letters or arts, or does not permit him to use the science or art acquired.

2. He who without an unjust means inflicts spiritual damage on another, or impedes him from obtaining a spiritual good, is bound not from justice but only from charity to repair the damage inflicted, if he can: for where no injury is inflicted, no obligation of restitution is had.

He who by evil example or persuasion induces another to sin is bound to call him back only from charity, not from justice.¹

¹ Cf. on this matter Lugo, disp. 9, n. 1 ss.; Elbel-Bierbaum, Theologia moralis II, pr. 6, n. 180-205.

¹ The obligations of a violator by stuprum are referred, some to the oppressed virgin, others to the offspring perhaps conceived; and the obligations toward the injured virgin are different if the violator promised marriage to her, and if he did not promise marriage. The violator by stuprum contracts obligations toward the injured virgin because the virgin (which is required for true stuprum) was oppressed by force and violence: for the fornicator who commits the sin with the virgin consenting, if offspring is excepted, is bound to nothing, neither toward the virgin, because no injury is inflicted on one willing and consenting, nor toward her parents, because injury is done to the parents only insofar as the injury inflicted on a minor daughter redounds to the parents; but no injury is inflicted on the consenting daughter; therefore none redounds to the parents.

¹ Cf. Lugo, disp. 12, n. 1-37.

469. Toward the virgin. 1. If the violator by stuprum did not promise marriage, he is bound to repair all damages which befell the virgin from the sin, because of these he himself is the efficacious and unjust cause. But he can repair these damages in two ways: either by taking her as wife, or by furnishing her a dowry, or by otherwise seeing to it that she can marry equally well as she would have married if she had not been violated; and if for that reason she cannot marry, he must support her.

a. Yet the woman is not bound to accept the violator by stuprum who offers himself as spouse, unless she spontaneously wishes it: for it is altogether repugnant to equity that she who has suffered injury through stuprum should in addition lose the liberty of marrying whom she wishes; wherefore if she refuses to marry the violator by stuprum, he must endow her.

b. The violator by stuprum is not bound to marry the virgin who, after refusing the dowry, demands marriage: for he is bound only to repair the damage inflicted by stuprum, but this is repaired by endowing her so that she can marry equally well.

2. If he promised marriage, so that he obtained intercourse by the promise of marriage, by force of the contract of promise, even if he promised fictitiously, he must marry her, with these cases excepted: alpha. if there is fear that the marriage will be unhappy, as if there is between them a great inequality of status (not only of riches); beta. if the virgin could easily advert that the promise was not made seriously; gamma. if the parents reasonably dissent.

3. For the good of virginity taken away he must restore nothing, because virginity cannot be compensated by goods of fortune. Therefore if the stuprum remained hidden, so that the woman suffered no other damage besides the loss of virginity, the violator by stuprum is bound to nothing.

470. Toward the offspring. If offspring is born from the intercourse, the violator by stuprum is bound:

a. To pay the expenses of birth.

b. To nourish the offspring, that is, to pay the expenses for food, clothing, habitation, and education, and this he alone, because he alone is the cause of the sin.

c. To acknowledge the offspring and legitimize it through subsequent marriage; yet this obligation is only of charity or piety, and therefore does not urge with grave inconvenience.

471. Obligations of the fornicator: a. The fornicator is not bound to pay the expenses of birth if the mother can bear them, because the mother freely consented to the sin.

b. The burden of nourishing the offspring rests upon both parents from natural law.

The quantity which each part must contribute for nourishing the offspring they can establish by common consent. But if the father refuses to contribute his part, the mother can go to the judge: for civil law imposes the burden of nourishing illegitimate offspring, at least in part, on the male fornicator, with the exception of the French code, which imposes this burden on the mother alone.

c. If a woman admits two lovers and sins with each, so that it is unknown who is the father of the offspring, of itself neither is bound to nourish the offspring (except indeed the rare case of which in n. 460), because the woman is the cause why the father cannot be established.

Yet if civil law imposes in penalty of the offense the burden of nourishing the offspring on any male fornicator who can be the father of the offspring, the woman can demand payment from either through the judge: for a law of this kind cannot be called unjust, both because it is established in favor of the offspring, and because each fornicator truly placed the act by which he could become the father of the offspring.¹ But where civil law does not grant this right to the woman, she acts unjustly and is bound to restitution when she denounces either man at will as father of the offspring, not having certitude of this thing, since she herself is the cause of the uncertainty.

¹ Cf. C.A. Section 163, where he is presumed the father who had access to the mother at the suitable time; on the contrary C.G. Section 1717 denies every right of this kind to such a mother.

It is asked: a. who must repair the damages arising from adultery; b. what damages must be repaired; c. how they must be repaired.

472. Who must repair the damages. 1. If from adultery no offspring is born, the adulterers are bound to nothing, except the case in which the adultery becomes known to the husband: for since an injury is inflicted on the husband by adultery, this indeed cannot be compensated by money, but must be repaired by satisfaction.

2. If offspring has been born from adultery, and the woman was driven to consent by force, the adulterer alone must repair all damages which follow from the adultery.

3. If the woman freely consented to the adultery, each is bound in solidum to repair the damages arising from the adultery.

4. If the husband consented to the adultery, the obligation of restoring ceases, provided necessary heirs are not deprived of the legitimate portion.¹

5. If the adulterous wife doubts whether the offspring is of the husband or of the adulterer, no restitution is to be made: for offspring is presumed legitimate unless the contrary is certainly established, from the known axiom: the father is he whom the nuptials demonstrate.

6. But if the offspring is certainly adulterine and it is doubtful which of several adulterers whom the woman admitted is its father, no one is bound to repair the damages, except in the case in which the individuals knew that the woman admitted several and adverted that by this manner of acting they impeded it from being known who should nourish the offspring, and therefore impeded the woman from obtaining that to which she has a right.

The opinion of certain older authors affirming that each adulterer is bound to nourish the offspring is supported by no reason, since no one must repair damages of which he himself is not the certain cause.²

¹ Cf. D'Annibale II, n. 281.

² Cf. Lugo, disp. 13, n. 19; St. Alphonsus, n. 658.

473. What damages must be repaired. 1. Nearly every difficulty vanishes if the spurious offspring can be separated from the family and nourished and educated outside the family; therefore if this can easily be done, care must be taken that it be done.

2. But if this cannot be done: a. the adulterer must repair the expenses of birth and education which the husband made; b. the detriments which other members of the family suffer from the fact that the spurious child received the paternal inheritance equally with the others: for these damages follow per se from the adultery.

3. If anything is bequeathed or donated to the spurious child by blood-relatives who think him legitimate, it indeed need not be restored by the adulterer, because this damage follows from adultery per accidens.

4. It is clear that a spurious son who knows his condition can retain neither the paternal inheritance nor gifts made to him solely as legitimate, because the donation, as proceeding from error, is null, unless it is of slight moment or made in view of the person.

474. How they must be repaired. 1. The adulterous woman is not bound to manifest her crime, neither to the husband lest he give anything to the spurious child, nor to the spurious child so that he himself restore: a. because manifestation cannot be made without the gravest evils excusing from restitution, namely hatred and sadness of the husband, domestic discords, grave infamy; b. because manifestation is useless: for the son is not bound to believe his mother asserting that he is illegitimate, since he is not bound to believe one witness.¹

2. Yet the adulterous woman is bound to repair damages by other modes: by laboring more diligently, by administering the domestic estate more industriously, by diminishing her own expenses, and, if she has her own goods, by disposing of them in favor of the legitimate offspring.

3. If the adulterer cannot make restitution without the gravest inconvenience (danger of life, detriment to reputation, discord of families), he is excused from making it.

¹ Cf. Lugo, disp. 12, n. 62. This opinion among doctors is sufficiently common, namely that no one is bound to believe one witness, even if of faith in no way suspected: for positive law (in St. Alphonsus, n. 651) has established this for the common good, to forestall the frauds of men.

He who by fraud, violence, or other unjust means leads another to commit sin, or deprives him of any supernatural or natural good belonging to the soul and mind, is guilty of injustice, and is bound to make reparation to the injured party. If the same effect is produced by persuasion or other not unjust means, a sin of scandal is committed; but justice is not violated, nor is there any obligation to make restitution. These principles are not only applicable to sin, but to vocation to the religious state and to sound doctrine, especially of the practical order. Priests or masters, who by their office are bound to instruct others and teach them the truth, are in a special manner obliged to correct any false instruction which they may have given. Better leave people in ignorance than imbue their minds with falsehood.

There is a controversy among theologians as to whether there is an obligation apart from the just sentence of a judge for one who has injured another in one species of goods, as, for example, in his reputation, to make restitution to him in goods of another order, as, for example, in money. A competent judge may, of course, impose such an obligation according to the rules of equity; but apart from positive law the opinion which denies any strict obligation to do this seems the more probable. For if justice imposed such an obligation, equality would have to be secured between the injury inflicted and the compensation paid. This however, seems impossible in such a case, for there is no common measure of reputation and money. Moreover, however large a sum of money were paid in compensation for detraction, the reputation which had suffered would not thereby be restored. Justice, however, requires that what has been taken away should be restored, not something else.

When one has injured another’s reputation by slander or detraction, he is under a grave obligation in serious matters to restore his neighbour’s good name as far as he is able, and to make reparation for all other damage which the injured party has suffered in consequence of the slander or detraction. If he has lost his position or money, restitution of these must be made as far as possible, We saw above that more probably the detractor is not bound to pay money precisely in compensation for the injured reputation, unless condemned to do so by competent authority. The mode of restoring the injured reputation of another will vary according to circumstances. If no other way presents itself, the slanderer must say that he spoke falsely, for the reputation of the innocent is of more consequence than that of the guilty. A detractor who has injured the good name of another by making known his secret sin, cannot, of course, say that he spoke falsely, but he must do what he can in some other way towards the desired end. There will be no obligation to do anything if the calumny or detraction has been forgotten, or if the injured party has lost his reputation in some other way, or if the injured party prefers that the matter should not be reopened, or if it is physically or morally impossible now to do anything towards restoring his good name.

One who has unjustly wounded another, according to the more probable opinion, as we have seen, is not bound to make compensation in money for the wounding or mutilation.

He is, however, bound to make restitution for all expenses to which his action has subjected the injured man, and for all other money losses which followed in consequence of loss of work, position, etc., and which were in some way foreseen by the wrongdoer. If the injured man dies, restitution must be made to his heirs or legatees for all the expenses he was put to or the losses he suffered on account of the unjust action, If, in consequence of the injury inflicted, the injured man cannot provide for wife, children, or parents, or if death ensued, the wrongdoer will be obliged to provide at least what is necessary for their support. For these had a right not to be deprived of their support by the unjust action of the wrongdoer. There are no necessary heirs according to English law, and it is a controverted point whether restitution is due to other heirs, relatives, or creditors who have suffered damage from the injury inflicted. It is probable that inasmuch as injury to such people is not necessarily connected with unjust wounding or homicide, and only follows from it in a remote and accidental manner, there is no obligation to make compensation to others besides the above-mentioned.¹

Whether the injured man can release the wrongdoer from the obligation of providing for his family who are dependent on him is a disputed point among divines. Many approved theologians hold the affirmative on the ground that the family acquire their right to compensation through the injured man, who therefore can release the wrongdoer from all obligation to make restitution. This opinion is certainly probable, and so in case of a duel where both parties have freely consented to fight, and therefore freely accept the consequences of their action, there will be no strict obligation for the victor to make any compensation for wounding or killing his adversary.

¹ Lugo, disp. 11, n. 77.

Scientist et volenti non fit injuria; and so if a woman suffers loss of reputation, position, or money, in consequence of fornication freely committed, no restitution will be of strict obligation. Even for criminal assault or rape no restitution in money is of obligation to compensate precisely for the loss of virginity. But the man who has been guilty of this crime must make restitution for other losses, and either by marrying the woman wronged or by providing her with a dowry, he must, as far as possible, put her in the position in which she would have been if he had not wronged her.

No money compensation is of obligation on account of adultery when no child has been born of the adulterous intercourse. If a child has been born, and loss ensues to the husband who is compelled to support a child which is not his, or to the family because one who has no right comes in for a share of the inheritance, compensation must be made by the guilty parties. Great difficulties would arise if an adulterous wife made known her crime to her husband, so she is not bound to do this; nor is a child bound to believe the sole assertion of his mother that he is illegitimate. Compensation must be made in other ways as far as possible. In practice, however, if husband and wife are living together, it will rarely be certain whether a child that is born is the fruit of adultery or not, and the presumption is that it is legitimate. If they are not living together, the adultery will be patent to the husband, and if he consents to support the child and treat it as his own, the obligation of the adulterer will cease.

Goods of the body are injured through homicide and mutilation. But damages that will follow from these can be distinguished into spiritual, corporal, and temporal damages. Each must be discussed.

I. Spiritual damages consist in this: that the one killed is deprived of the last sacraments, of time for meriting, etc. Moreover, they must be restored only if both the damage that followed is certain and the damage can truly be compensated; for example, if the killer prevented Masses from being celebrated which the one killed certainly would have taken care to have celebrated for his soul.

II. Corporal damages consist in deprivation of life, of a member, of health, and in the endurance of pain. There is no obligation of restoring these through goods of fortune (n. 980). Nevertheless, there is an obligation, not indeed by way of restitution for the lost member, but for the expenses that followed from it, of assigning goods of fortune to the injured person insofar as he wishes to substitute an artificial member for the member taken away.

III. Temporal damages are distinguished into damages inflicted on the injured person himself and damages inflicted on third parties.

1. Damages inflicted on the injured person himself consist in the expenses of treatment, yet with those things deducted which he, if healthy, would have had to spend on food; likewise in emergent damage or ceasing profit for the time in which the injured person still lived and had to cease from labor. Restitution must be made according to the valuation of the hope of obtaining the goods, and indeed to the injured person himself or, if he has died, to his heirs. But if the killer does not restore these things, his heirs are held to restitution, unless the injured person has condoned them. "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630, 631).

Question 1. Whether something can be deducted from restitution of ceasing profit for the labor which the injured person would have had to spend in order to obtain the profit.

Response. Some affirm it; others seem rightly to deny it, for by his unjust action the killer caused the deprivation of the whole profit; hence he is also held to restore the whole profit. Yet in practice "Bonacina reasonably reconciles the opinions, saying that only that should be subtracted which the one killed is presumed to have been willing to give for the redemption of the labor" (St. Alphonsus, III, 639).

Question 2. Whether the heirs of the killer are freed from the obligation of restoring if the killer is punished with death.

Response. It seems this must be denied, because the penalty is judged to have been imposed only to satisfy vindicative justice, not commutative justice. Nevertheless, the heirs are excused from restitution if compensation for damages is not sought, because then the parties are presumed to condone, unless the thing still existed, or unless the damage was very grave (St. Alphonsus, III, 705).

2. Damages inflicted on third parties can chiefly regard the family, that is, parents, wife, and children; other blood-relatives; those to whom the one killed was doing good; and the creditors of the one killed. Now:

a) Damages inflicted on the family consist in deprivation of the support which the one killed was procuring for it, and likewise of the profit which he would still have procured for it. By the consent of all, these must be restored. The reason is deduced from the fact that the killer injured not merely a physical person, but, as it were, a moral person; a moral person, I say, which the others constituted with the person killed. Hence restitution is to be made to them (St. Alphonsus, III, 631). Nevertheless, "nothing is restored for funeral expenses, because those eventually would have had to be made at some time; unless perhaps, on the occasion of the death inflicted, for example outside the homeland, it was necessary for greater expenses to be made" (St. Alphonsus, III, 631). For the rest, restitution again must be made according to the valuation of the hope of obtaining those goods (St. Alphonsus, III, 631, question 2). A right norm will be the one which insurance societies follow on the occasion of an adverse event.

Question 1. Whether restitution is to be made to the family if it can conveniently provide for itself.

Response. Affirmatively; since the fact that the family can provide for itself does not prevent its right from having been injured; but from an injured right there arises the obligation of restoring. Yet the killer is not held to restore if the family receives from another what it would have received from the injured person, for example, "if the wife (and the same would have to be said of children and parents) afterward has married equally conveniently, nothing is to be restored to her; because then in reality she does not suffer damage" (St. Alphonsus, III, 631, question 1).

Question 2. Whether the injured person can remit the restitution owed to the family.

Response. Many deny it, because no one can remit restitution owed to another; but with St. Alphonsus and others it seems this must be affirmed, because the right of the family is entirely subordinated to the right of the father. Hence just as the father can validly transfer goods into another's ownership, so too he can validly remit restitution for them. But here again note: "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630).

b) Damages inflicted on other blood-relatives do not have to be restored: neither by reason of the good from the obtaining of which he impeded them, because they did not have a strict right to it; nor by reason of the means employed, since it would be unjust only with respect to the one killed. For the same reason the same must be said about the poor to whom the one killed was doing good, and about others who would have received certain things from the testament (St. Alphonsus, III, 632).

c) Damages inflicted on creditors likewise do not seem to have to be restored. It is indeed true that they are impeded, as we suppose, from obtaining a good in which they had a strict right; but they are not impeded by the killer, but by the heirs or by the law exempting the heirs, while the killer is only an occasional cause (St. Alphonsus, III, 634).

Nevertheless, St. Alphonsus and others judge that the enumerated damages must be restored if the killer acted with the intention of harming the enumerated persons (n. 996).

Corollary I. He who provokes another to a duel and kills or wounds the provoked man, who freely accepts the contest, is not held to restitution, neither toward the injured person, because he consented to the damage in fortune that would follow, nor toward the family, because the injured person, from whom the family would have received goods, by his own consent prevented him from acting unjustly toward it, since it had only a consequent right in the goods (St. Alphonsus, III, 638).

Corollary II. The one attacked, who deliberately exceeded the measure of blameless defense, seems to be held to restitution for the damages that followed from the excess, because the excess was truly unjust (St. Alphonsus, III, 637).

Objection. The attacker knowingly and willingly exposed himself to the danger that the one attacked would exceed the measure of blameless defense; but no injury is done to one who knows and wills.

Response. He who knowingly and willingly exposes himself to the danger that his right be injured is not therefore judged to yield his right.

Corollary III. What has been said about damages following from homicide is also to be applied to damages arising from wounding and other injuries of the body.

Goods of the soul are distinguished into natural and supernatural goods.

I. Natural goods are: intellect, will, memory, sciences, arts, and the use of these. In this matter, injustice is committed either by unjustly harming someone in the said goods or in their use, for example by inducing someone unwilling or ignorant into drunkenness or by casting him into a hypnotic state; or by unjustly impeding someone from obtaining a good of this sort, for example knowledge; or by not procuring for someone a good, for example an art, although one is held from justice to procure it. Now:

1. He who has committed injustice according to what has been said is held from justice: 1° to remove the cause of the damage, for example fear that has been instilled, and to prevent, insofar as can be done, damages threatening from it; 2° to restore damages or ceasing profit that have followed or will follow for the injured person, for example ceasing profit from the fact that someone is unfit for his office; 3° to return, according to the proportion of negligence, the stipend agreed upon and accepted, if someone, for example, has not duly performed the office of teaching.

Corollary. He who harmed someone only by persuasion, entreaties, or example is commonly not guilty of injustice, and therefore contracts only an obligation of charity. I have said commonly, because he who by persuasion or entreaties led another into a sin of injustice is held from justice to restitution with respect to the injured person.

II. Supernatural goods are: grace, virtues, vocation to the religious state, etc. Now:

1. He who unjustly, for example by lies or fear, led another into a harmful error or into sin, or led him away from a good work, for example from Religion, is held as was said under I about him who unjustly harmed someone in the natural goods of the soul.

2. He who only by persuasion or example led another to evil, or led him away from good, is not held to restitution; nevertheless he is held from charity, more than others, to promote his conversion. There are some who judge that he is held to this from justice; but because he did not sin against justice, no obligation of justice can arise.

The goods of chastity and modesty are injured through stuprum and adultery.

Adultery: 1° injures the conjugal right of the legitimate spouse; 2° if it becomes known, inflicts a grave insult on that same spouse; 3° finally brings with it damages in goods of fortune.

The injury to conjugal right cannot be repaired; the insult is compensated by showing sorrow, etc. But especially the damages in goods of fortune must be discussed.

I. Damages to be restored with respect to goods of fortune are distinguished into damages inflicted:

1. On the legitimate husband. They consist in this: that offspring belonging to another is supposed to be fed and educated by the husband. These do not have to be restored if the husband consented to the adultery; otherwise, they do.

2. On legitimate children or other heirs. They consist: 1° in this, that the illegitimate child will share the inheritance of the putative father with the legitimate children; these likewise do not have to be restored if the husband consented to the adultery. Yet if the legitimate portion is injured, the legitimate children can appeal to the law; 2° in this, that the illegitimate child will divide the inheritance of the mother with the legitimate children; these things per se are not to be restored, since the mother can freely dispose of her own goods. Yet if the legitimate portion of the legitimate children is injured, they enjoy the right of appealing to the law; 3° in this, that through error about their condition, testamentary dispositions, inheritances ab intestato, or donations come to illegitimate children, which otherwise would have come to legitimate children or others. Moreover, since these things rest on error, they are invalid, and therefore must be restored by the illegitimate child if he has been convicted of his illegitimacy. I have said: if he has been convicted of his illegitimacy; wherefore note that the spurious child is not held to give credence to his mother, unless proving indications are present (St. Alphonsus, III, 654). The adulterers must restore these things to the legitimate children insofar as their adultery must be called a cause per se; but this must be said of testamentary dispositions and inheritances ab intestato, not always of donations.

II. Persons restoring. 1. If each voluntarily consented to the adultery, each must restore a part;¹ but if one fails, the other is held to the whole, while recourse against the partner remains (St. Alphonsus, III, 651).

2. If the woman was led to adultery by fear or fraud, the adulterer is obligated to restore the whole damage; if he fails, the adulteress is. But the adulterer is held to restore the whole damage even if he did not persuade the woman to substitute the adulterous offspring for the husband. "The chief reason is that although the adulterer merely permits his son to be substituted, nevertheless by begetting the son he is the proximate and direct moral cause of all the damages, since he places the adulteress in the moral necessity of substituting the offspring; from this it is morally impossible for her to cast the offspring out of the house because of the infamy she would undergo. But the contrary must be said ... if the adulteress, without her own infamy and danger of substitution, can keep and feed the offspring outside the house" (St. Alphonsus, III, 659, question 30).

3. If the woman was overcome by physical force, the adulterer is held to repair the whole damage; nor, if he fails, is the woman held.

¹ Others obligate the seducer to the greater part, because he is a cause both moving and executing.

III. Time of restoring. If the damage has already actually followed, it is to be repaired as soon as possible, like any other damage. If it has not yet been inflicted, the guilty person must so arrange matters that at the opportune time he may restore to the one to whom he ought whatever the spurious child is going to acquire unjustly by inheritance. But if, in this case, the adulterer were near death, he is held to restore immediately, by himself or by another, according to the probability of the life of the spurious child, taking into account his age and strength.¹

¹ Aertnys-Damen, I, n. 825.

IV. Mode of restoring. The adulteress, if she has goods of her own, should restore from these. If not, she should strive to satisfy in another way, if it can be done, for example by working more diligently, etc. Nevertheless, the adulteress, even if she cannot restore otherwise, is scarcely ever held to reveal her crime, namely on account of the infamy and other evils threatening from it (St. Alphonsus, III, 652, 653).

Note. What the law is in doubt whether the offspring is adulterous, or of which adulterer it is, see n. 1008.

Cf. Part VIII, on the eighth precept, where the injury of reputation is treated, and, because of the connection of the matter, also the injury of the other goods enumerated is discussed.

Seduction.—Having discussed scandal, which leads others into sin by bad example, we shall now consider, first, solicitation or seduction, which leads others into sin by moral inducement, and, secondly, cooperation, which assists another to sin (see 1460).

Seduction is some external act (words, writing, signs or gesture) by which one directly and explicitly seeks to win the consent of another to sin. There are various modes of solicitation.

(a) There is command to sin, which is an authoritative direction to commit sin imposed by a superior on his subject. Command is given expressly, as when a father tells his son to steal; or implicitly, as when he tells his son that it will please him if the son steals.

(b) There is counsel to sin, which is direct persuasion to do evil made through argument that sin is lawful, or through instruction on the ways of committing sin, or through advice, request, promises, threats, etc., as when one writes in praise of suicide to a person who is very discouraged, and recommends it.

(c) There is enticement which is an indirect persuasion to sin made through flattery, insinuation, calumny, narratives, etc. Thus, Absalom worked on the people of Israel and beguiled them into rebellion against his father (II Kings, xv. 1-6). Those who ridicule temperance and so lead others to drink excessively, entice to drunkenness. A host who offers little except fine meats on a Friday entices to the violation of abstinence.

The Malice of Solicitation.—(a) The gravity of this sin according to its nature is mortal, but it may be venial on account of imperfect deliberation or smallness of matter (see 1473). Thus, it is a mortal sin to command one’s son to commit grand larceny or perjury, a venial sin to command him to commit petty theft or tell a harmless lie. (b) The circumstances of the sin that aggravate or extenuate are the greater or less degree of deliberation and malice, the greater or less evil of the sin to which one induces one’s neighbors, etc. (see 1473, 1474). (c) The species of the sin of solicitation is twofold; there is the sin of scandal, opposed to charity, inasmuch as a neighbor is led to sin, and there is also the sin which one persuades a neighbor to commit (see 1468 sqq.).

Seduction is incitement to sin, and so differs from mere permission of sin in another. It is never lawful to incite to sin, but it is lawful for a sufficient reason to permit sin in others, as was said above in reference to Pharisaic scandal (see 1477, 1482, 1483). But, in applying this principle to concrete cases, it is sometimes difficult to draw the line between incitement and mere permission. We shall discuss now the following cases in which this difficulty occurs: (a) when one requests another to do something which one knows will be a sin for him; (b) when one advises another to commit a less rather than a greater evil; (e) when the opportunity for another to commit sin is not removed, or is prepared.

Is it lawful to ask another to do something, when one knows that he will not consent without sinning?

(a) If the thing requested is sinful in itself, the request is also sinful. Hence, it is not lawful to ask a thief to sell the goods he has stolen, nor is it lawful to request absolution from a priest who lacks jurisdiction.

(b) If the thing requested is lawful in itself, but there is no sufficient reason for the request in view of the fact that the other will sin by granting it, the request is sinful. Hence, it is not lawful to ask baptism from a person who is in the state of sin, when one can easily obtain it from another person who is in the state of grace.

(c) If the thing requested is lawful, and there is a sufficient reason for the request, one does not sin by making the request. Hence, it is lawful for the sake of the common welfare to require that witnesses take an oath, even though one knows that one of them will commit perjury.

Is it lawful to advise another to commit a less evil in preference to a greater evil?

(a) If the other has not made up his mind to commit either evil, it is not lawful to advise that he do either. Thus, to counsel another to steal, and to make his victims the rich rather than the poor, is a species of seduction.

(b) If the person has made up his mind to commit the greater evil and the lesser evil is virtually contained in the greater, it is lawful to advise that he omit the former for the latter. For in thus acting one prevents the greater evil and does not cause the lesser evil, since it is virtually contained in the greater evil which the other person had already decided on. Thus, if Titus is bent on stealing $100, Balbus is not guilty of seduction, if he persuades Titus to take only $10. We are supposing, of course, that Titus is so determined to steal that it is out of the question to deter him from taking at least a small amount.

(c) If the person in question has decided on the greater sin and the lesser is not virtually contained in the greater, it is not lawful to recommend that he commit the smaller instead of the greater sin. For, if one does this, one does not save the other from the internal guilt of the greater sin intended, while one does add the malice of the lesser sin which was not intended. Thus, if Titus plans to kill Caius, it is not lawful to advise that he rob him instead, or that he kill Claudius instead, for robbery is a specifically distinct sin from murder, and Claudius is a different person from Caius. But, if Titus planned to kill Caius in order to rob him, it would not be unlawful to point out that the robbery could be carried out without murder and to advise accordingly.

Is it lawful so to prearrange circumstances that an occasion of sin will seem to offer itself to another?

(a) If the end and the means used are good, this is lawful; for there is no scandal or seduction, but sin or the danger of sin is permitted for a proportionately grave reason. Examples: Sempronius knows that someone is robbing his desk, and it is important that he discover the thief. He leaves the desk open and watches from concealment to see whether a suspected person who is coming to the room will steal. Claudius is quite certain that Titus is stealing his chickens, but he needs evidence in order to have Titus convicted and deterred from future stealing. So, he leaves doors open and hides himself with witnesses that Titus may be caught in the act.

(b) If the end or means is bad, it is not lawful to prepare an opportunity for sin, because in either case one intends something sinful. Examples: Sempronius knows that his wife Titia has been unfaithful and he threatens to leave her. She, wishing to have a countercharge to make or to secure evidence to discredit his word, hires various dissolute females to lay traps for him and his friends. Claudius out of revenge wishes that Caius be sent to jail, and he therefore employs agents to provoke Caius into something criminal in word or deed that will justify incarceration. Balbus knows that Mercurius is a dangerous character, and he frames a scheme by which Mercurius will be invited to participate in an act of banditry and be captured. Titia and Claudius sin, because their purpose is wrong; Balbus sins because he uses wrong means. All three are guilty of seduction, at least in intention.

Duty of a Lawyer When the Justice of a Cause Is Doubtful.—(a) In a civil cause, the lawyer may act, whether for the plaintiff or for the defendant. He may even take a case whose justice seems less probable, for the purpose of the trial is to settle the doubt, and not infrequently the cause that seemed doubtful or less probable at the outset is vindicated by the examination. Some moralists distinguish for cases in which the doubt is one of fact between the defendant and the plaintiff: if the former’s case is less or equally probable, they say, one may take it, but not so if this is true of the latter’s case.

(b) In a criminal case, when life, reputation or other grave issue is involved, the common opinion is that a lawyer may not prosecute if the case of the people is doubtful or less probable, but he may defend, as was just said, even though he is certain that the accused is guilty. The office of the prosecutor is not necessarily to secure a conviction, but to see that justice is upheld, while the office of the defender is to take care that an accused person is deprived of no right or protection that he should have under the law.

Defamation.—Defamation (backbiting) is the unjust blackening of the reputation of another person by secret words.

(a) It is unjust, that is, it has no reasonable motive to justify it. Defamation differs from just revelation of secret faults.

(b) It is a blackening or besmirching, that is, a taking away or lessening of fame. Defamation casts a shadow over or totally obscures the brilliance of a good reputation.

(c) It is against reputation, that is, against the favorable opinion and report of the public on the virtue and character or other good qualities of a person, Thus, it is defamation to say that an individual is a drunkard, or that a professional man is incompetent, if these persons are not known to have such defects. If a person has no reputation here and now, except a bad one (e.g., a criminal who has just been convicted and sentenced to prison, a loafer who is often seen intoxicated on the streets, a woman who is often heard peddling scandals), it is not defamation to speak about the true and public faults of this person; nor is it sinful to speak thus if there is some suitable reason (e.g., to discuss a murder trial that is being reported in the papers, or to tell a humorous incident that will do no harm). But those who uselessly or harmfully discuss the known weaknesses of their neighbors are sinners called gossipers or fault-finders.

(d) It is against the reputation of a person, that is, of an individual possessed of right. The party offended by defamation can be a natural person (i.e., a rational being, whether infant or adult, high or low, rich or poor) or an artificial person (i.e., a society, group or collection of individuals endowed with reason); he can be either a living or a deceased person, for death does not destroy the soul nor take away the right to reputation.

(e) It is against the reputation of another, that is, defamation as now used is a sin of injustice, and one cannot be strictly unjust to oneself; but “self-defamation” may be used in a wider sense to designate a sin opposed to charity (see 1575 sqq.).

(f) It is accomplished by means of words, that is, by oral communication or its equivalent. One can defame, therefore, by word of mouth, by deaf and dumb language, by writing, by a gesture, by silence, or by a look.

(g) It is done by words or signs that are secret, that is, by words or signs expressed before others but in the absence of the person who is defamed, or at least when he is thought to be absent (backbiting). The defamer is like the thief who wishes to do harm but does not wish the victim to know the author of the harm.

The Differences between Defamation and Contumely.—(a) They differ in their purposes, for the defamer intends to hurt another in his reputation before the public, while the contumelious man intends to hurt another in his honor, either in his own eyes or in those of others. (b) They differ in their manner of procedure, for defamation is behind the back, contumely before the face, of the party who is injured. The defamer has some respect for his enemy, for he fears to face him and resorts to undermining, but the contumelious sinner despises his enemy and shows it by insulting him to his face.

Various Forms of Injury to Good Name.—(a) By reason of the intention, the injury is either defamatory (as when derogatory things are said about another behind his back) or contumelious (as when derogatory things are insultingly said to him in his presence). Hence, there can be injury to reputation that is not contumelious (e.g., the secret spreading of a rumor that Balbus is a drunkard); there can be contumely that is not injurious to fame (e.g., the addressing of Balbus as a drunkard when no else is by, or when those present know already that he is a drunkard), and contumely that is injurious to reputation (e.g., when one calls Balbus a drunkard before others who thought he was a sober man).

(b) By reason of the purpose, defamation is willed either explicitly or implicitly. In the former case the defamer expressly intends the blackening of his neighbor’s reputation; in the latter case he intends something unnecessary, such as mere indulgence of levity or talkativeness, though the blackening of his neighbor is foreseen. Explicit defamation is regularly a mortal offense, implicit defamation a venial one; but the degrees of sinfulness may be changed, if the former sin causes slight, or the latter sin serious damage.

(c) By reason of the injury done defamation is either detraction or calumny. Detraction blackens a reputation by revealing faults or defects that are real; calumny (slander) injures reputation by stories that are untrue. A common form of calumny is a mixture of truth and falsehood (e.g., when a historian ascribes to a villain, in addition to real crimes, faults of which the latter was innocent), or of half-truths that convey the impression of what is untrue (e.g., when a historian narrates that a certain character killed a man and does not give the background or causes of the killing, such as provocation, challenge, mistake; or when a biographer tells of the crimes of his subject and glosses over the virtues, or makes no mention of his amendment).

(d) By reason of the means used defamation is either direct or indirect. Direct defamation is more open and positive; indirect defamation is rather concealed or negative. There is also the distinction of slander (which is oral) and libel (which is written or printed). Libel is more grievous, since it has a permanence that is not found in spoken words.

Examples of Indirect Defamation.—(a) Faint praise is a subtle mode of defamation, as when one says of an absent person that he has not committed murder yet, or that like everyone he has some good points, for to the listeners this indicates that the speaker does no hold a high opinion of the person discussed.

(b) Silence is also at times a hidden form of defamation, as when Titus says to Balbus that the absent Caius is good and Balbus out of malice answers: “Let’s talk about something else; we must be charitable”, or when Sempronius falsely declares in company that the absent Claudius is to the knowledge of Julius a depraved character and Julius, who is present, makes no protest against the misrepresentation.

(c) Depreciation is defamatory, as when one says that a person who is being discussed is not as pious or reliable as is commonly believed, or that there is great room for improvement, or that he is much better now than in times past, or that there is another side to the picture, or that he is good, but....

(d) Denial of good qualities is defamatory, when it lessens the esteem in which a person is held. The good qualities here referred to are those that render a person distinguished or commendable among his fellows: chiefly these are moral qualities (viz., virtuous habits, dispositions and acts); secondarily, natural and internal qualities (such as learning, quickness of mind, experience, strength and health of body, and in women, beauty); finally, natural and external goods (such as wealth, famous ancestry, able assistants in business, or the excellent merchandise supplied, etc.).

Examples of Direct Defamation.—The following are examples of direct defamation:

(a) sinister interpretation, as when one states that words or acts of a neighbor that were good or at least open to a good interpretation, were dictated by greed, ambition, pride, etc.;

(b) unjust revelation (detraction), as when one reveals secret faults or crimes;

(c) exaggeration, as when one magnifies a venial into a mortal sin, an exceptional or indeliberate fault into an habitual or deliberate sin; or when one distorts a sin of one species into a sin of another and far more heinous species, or accuses a whole class or body of men because one of their number has fallen. Those who add their own little detail or circumstance to a defamatory tale as they pass it along are proverbial examples of exaggeration: “Fama crescit eundo”;

(d) false accusation (calumny) is the worst kind of defamation. Innocent XI condemned the proposition that one may probably use calumny without serious sin as a defense of one’s own justice and honor (see Denzinger, n. 1194).

Direct defamation is committed either by plain words or by insinuation. (a) Examples of defamation by innuendo are those ambiguous expressions or half-veiled accusations that arouse suspicion and often do more injury than plain accusations. Thus, to say with a laugh or in an ironical tone that a certain person is human, or broadminded, or prudent may be equal to volumes of abuse, since the words can have a bad meaning as well as a good one. Similarly, such expressions as, “What I know about him is not to be told,” “I know what no one would believe,” etc., may be taken for slurs on character.

(b) Examples of defamation by plain speech are all those innumerable statements which, either in general terms (e.g., that another person is a scoundrel, a villain, a reprobate) or in specific ones (e.g., that another person is a blasphemer, a thief, a liar), tend to blacken the good name of a neighbor.

Good Repute or Fame.—Good repute or fame is of various kinds. (a) Thus, by reason of its object, good reputation is either negative or positive. A negatively good reputation consists in the absence of any unfavorable opinion or belief about a person, while a positively good reputation is the common judgment in favor of a person’s worth. (b) By reason of its relation to the real character of a person, it is either true or false. Thus, if a man is regarded by the community as honest, his reputation is true when he is really honest, but it is false when he is in fact dishonest. (c) By reason of its degree, it is either ordinary or extraordinary. Ordinary good repute is that which every person needs, and it consists in the public belief that an individual is trustworthy and competent in the affairs and duties that pertain to his state or occupation. Extraordinary fame is that which is not necessary, such as the celebrity which a person enjoys for unusual ability as a statesman, orator, financial expert, mathematician, or for virtue that is far above the average.

The Right to Good Reputation.—(a) Those who are absolutely unknown (i.e., both as to their identity and their character) have no right to reputation, since reputation attaches to one who can be named or described, and hence it is not defamation (though it might be rash judgment) to say that a stranger who passed on the street and was lost in the darkness must have been a criminal.

(b) Those who are known by sight or name, but who have not as yet shown what they are, have a right to a negatively good reputation, for a man should not be considered evil until his conduct has given ground for unfavorable judgment (see 1727 sqq.). It is not defamation to say about an unknown family that has moved into a locality that we do not know what kind of people they are, but it is defamation to say that they are likely undesirable.

(c) Those who are known in a place and who have already acquired a good name there have a right to a positively good reputation; for, if the reputation is true, it is a good which they have honestly acquired; if it is false, it is a good of which they are in possession, and possession itself is entitled to respect.

Sinfulness of Detraction.—The civil law does not generally punish slander if the slanderer can prove that his statements are true, but this does not make veracious defamation morally lawful. God detests and punishes crimes (e.g., fornication) of which human law sometimes takes no account. The harmfulness of veracious defamation is both public and private.

(a) Defamation Does Public Harm.—The peace and order of the community would be seriously disturbed, if it were lawful to attack reputations simply because one was persuaded that they were unfounded: the person detracted would be hampered in his official business and social relations, innocent persons would be blackened as well as the guilty, and the friends and relatives would suffer with the person detracted.

(b) Defamation Does Private Harm.—The peace and security of the individual would be uselessly assailed. Reputation is profitable both in spiritual and temporal ways, and it is therefore a ruthless act to rob a person of it, when he has done nothing in public to forfeit it and its possession by him is harmful to no one.

Right to True and False Reputation. There is, nevertheless, a difference between the right to a true and the right to a false reputation.

(a) Thus, the right to a true reputation is an absolute and universal right, one which does not cease in any case, for truth and justice demand that one should not represent as evil a person who is really good. This right applies to an extraordinary, as well as to an ordinary reputation.

(b) The right to a false reputation is a relative and limited right, one which ceases when the common good on which it rests no longer supports it (e.g., when it cannot be maintained without injustice). Moreover, there is no right to an extraordinary reputation, if it is based on false premises, for the common good does not require such a right, and hence it is not detraction to show that the renown of an individual for superior skill or success is built up on advertising alone or merely on uninformed rumor.

Sinfulness of Gossip or Criticism about Real and Known Defects.—(a) It is not unjust, per se, since it does not take away fame, that being non-existent. (b) It is sinful, if there is no sufficient reason for it, but not mortally sinful per se, since grave harm is not done to the reputation of one whose reputation is already bad. The sin committed is usually that of idle talk or of uncharitableness, by reason of the disedification offered the listeners, or the malice that prompts the speaker, or the sadness that is caused to the person gossiped about. Gossip is dangerous, since it prepares the way for detraction, as detraction prepares the way for calumny.

Moral Species of Defamation.—(a) Moralists agree that wrongful defamation is a sin against justice and charity. It violates justice, since it infringes a right which is not less strict than that of proprietorship over goods of fortune; it violates charity, since it is opposed to friendship and love of neighbor. They also agree that other species of sin can be added to defamation (e.g., infidelity, as when one denies that Christ was sinless, or blasphemy, as when one defames a Saint).

(b) Moralists disagree on the question whether certain forms of defamation are distinct sub-species or only degrees of one lowest species. Some hold that detraction and calumny are distinct species, because calumny adds mendacity to defamation; others say that detractions about specifically different sins are distinct kinds of detraction (e.g., that it is one species of sin to say that a neighbor is a drunkard, and another species to say that he is a thief, and the reason is that the reputation for temperance is a different thing from the reputation for honesty, etc.); still others hold that defamation of parents and other immediate relations is a special form of defamation, as being contrary to piety. There are, on the contrary, theologians who reject all these distinctions and hold that the difference between defamations is only one of more or less, since all of them have the characteristic note of attack on reputation, which is one right. Hence, just as the stealing of a cow and the stealing of a cat are only greater and lesser forms of the sin of theft, so likewise calumny and detraction, etc., are only major and minor degrees of the sin of defamation (see 2012, 2013, 2115).

Species of Sins of Defamation.—Since the species of sins must be particularized in confessions, the question of the distinction between defamations has practical importance. The common opinion on the line of action to be observed seems to be as follows:

(a) the penitent is obliged as a rule in serious matters to tell whether his defamation was simple detraction or calumny. The reason for this, according to some, is the specific difference between these two sins; according to others, the reason is that otherwise the confessor cannot know whether the sin was mortal or venial, or what restitution is to be imposed. As to detraction of parents or superiors, it seems that the quality of the person detracted should be mentioned, if there was any incitement to disrespect or disobedience;

(b) the penitent is not obliged to mention the sins or defects he ascribed to the person he defamed. Nor should the confessor inquire about this unless it is necessary in order to know what was the gravity of the sin or what kind of reparation should be enjoined (cfr. 2013). Moreover, questions about what was said might easily lead to a disclosure of the name of the person defamed, and thus the confessional would be turned into a place of defamation.

The Numerical Multiplication of Defamations.—(a) They are multiplied when there are many sinful acts about distinct objects; for example, when Balbus calumniates Caius today as a thief and Claudius tomorrow as another thief, there are two calumnies (see 209).

(b) Defamations are multiplied when there are many sinful acts about the same object; for example, when Balbus calumniates Caius today as a thief and repeats the same calumny tomorrow, there are two calumnies. But if Balbus begins his story today and does not finish it till tomorrow, there is one calumny (see 214, 215).

(c) Defamations are multiplied when there is one sinful act about many distinct objects; for example, when Balbus calumniates by saying that the two worst thieves he knows are Caius and Claudius, there are two sins. But if Caius and Claudius are regarded as a unit (e.g., if they are the firm of Caius and Claudius), there is one sin. A like calumny would be that Caius came from a dishonest family (see 216-219). If Balbus calumniates Caius before ten persons, he does not commit ten defamations, it seems, but ten scandals, since the ten form a body in the matter of fame, but are individuals in the matter of example. If Balbus calumniates by saying that Caius has broken all of the ten commandments, there may be ten calumnies or but one calumny, according to the intention and the effect (see 217, 218).

The Theological Species of Defamation.—(a) From its nature defamation is a mortal sin, and hence the Apostle declares (Rom, i. 29, 30) that detractors are hateful to God. In the first place, it inflicts an atrocious injury on the public welfare, sowing everywhere hatreds, dissensions and disorders—so much so that detractors are rightly called an abomination to mankind (Prov., xxiv. 9).

(b) From the smallness of the matter or the imperfection of the act defamation may be only a venial sin. Criticism of others is a vice so widespread that almost all mankind (even pious persons) would be involved in continual mortal sins, were it not for the fact that sins of speech are frequently the result of ignorance, thoughtlessness, or sudden passion (James, iii. 2 sqq.), and that the things said are frequently of no great harm to the person criticized.

The gravity of the harm done by defamation is well expressed by St. Bernard when he says that defamation at one blow inflicts a mortal Wound on the person defamed, on the defamer himself, and on the listener.

(a) Thus, the person defamed is robbed and often irreparably of a good name, one of the most esteemed of possessions; he is deprived of many spiritual and temporal opportunities, and is frequently dragged down to social and moral ruin, and even to suicide. Scripture says that the tongue of the detractor has the sharpness of a razor, and it compares him to an arrow dipped in poison, and to a biting serpent.

(b) The defamer destroys his own good name, at least in the sight of God, for he defiles his own soul with guilt; he disgraces himself before others, since it is well known that defamation is the vice of those who feel themselves inferior or guilty. And, worst of all, his sin is seldom repented of or repaired by satisfaction, since the defamer is generally too proud, hateful, jealous or revengeful to acknowledge his error, or is so blind that the thought of the harm he has done and of the grave obligation of satisfaction never crosses his mind.

(c) The listener is scandalized and contaminated by what he hears, his ideals are shattered, his respect for virtue or religion is destroyed, and he is encouraged to continue the work of the defamer.

Comparison of Defamation with Other Injuries against the Neighbor.—(a) Defamation is less sinful than injuries to internal goods, and hence homicide and adultery, which are opposed to the good of the body and of life itself, are graver sins than defamation.

(b) Defamation is less sinful than injury to higher external goods perpetrated in a contemptuous manner, for defamation being secret does not add insult to injury. Hence, just as robbery is more offensive than theft, so is contumely more sinful than defamation.

(c) Defamation is more sinful than injury to lower external goods, such as lands and money, for fame along with honor approaches spiritual things on account of their relation to virtue, whereas wealth is of the order of corporeal things. Hence, the Scriptures teach that a good name is more important than great riches (Prov., xxii. 1), more enduring than thousands of vast and precious treasures (Ecclus., xli, 15).

It should be noted that the foregoing comparison is based on the nature of the sins compared, for by reason of circumstances the order given may be reversed; for example, a slight indignity is less serious than an outrageous calumny, the theft of thousands of dollars is far more sinful than the circulation of a ludicrous story that is harmful, but only in a slight degree, to the reputation of a neighbor (cfr. 220 sqq.).

Rule for Determining the Seriousness of Defamation.—The rule for determining whether the matter of defamation is serious or not is the amount of harm done by the defamation, and hence not one but several factors have to be considered.

(a) Thus, the defect ascribed to the neighbor has to be considered, for some kinds of defects (e.g., littleness of body or prodigality) are less disgraceful than others (e.g., dwarfishness of mind or soul or niggardliness), and it is more harmful to reveal one mortal sin than to reveal a hundred venial sins.

(b) The person defamed is to be considered, for imputed defects that are not harmful to one person may be harmful to another (e.g., the charge of being a toper might be considered praise among persons of gay or rough habits, but it would be regarded as disgraceful among serious and refined persons).

(c) The person who defames is also to be considered, for little attention is paid to the talk of some, but much weight is given to the slightest words of others. Indeed, some persons’ condemnation is equivalent to praise.

(d) Finally, the persons before whom the defamation is spoken are to be considered, for everyone knows that it is much more harmful and dangerous to speak ill of others before certain ones than before others (cfr. 1461, 1462).

The Harm Done by Reason of the Defects Revealed.—(a) If the defects are natural imperfections of soul or body that do not connote moral stain or turpitude, and if no great detriment is caused by revelation (e.g., to say that another person is deaf, hunchbacked, a beggar, or dense), disclosure is not in itself serious, or even sinful; for little or no harm is done, and the defects are of such a character that they can be readily discovered by observation. But if the defects are very ignominious or harmful, defamation is a grave sin (e.g., to say that a very distinguished person is illegitimate, or of a mixed race, or that his immediate relative was a criminal).

(b) If the defects are related to moral stain, but do not imply it, revelation of them is not a grave sin, provided no great loss is caused by it (e.g., to say that a person is scrupulous about himself, or has certain peccadillos or human imperfections). If a shortcoming is usually understood as a propensity rather than as a fault (e.g., quick temper, high-strung disposition, pride, closeness with money), there is little if any harm done by speaking of it. But if the defects mentioned are such as imply or insinuate actual moral lapses (e.g., to say that a person has a venereal disease and the cause is unknown, or that he has delirium tremens or morphinism, or is of a very passionate nature), the revelation is defamatory and more or less sinful.

(c) If the defects are moral, he who reveals them is guilty of sinful defamation. But the harm done by the imputation of moral guilt is greater in some cases and less in others. Some sins are more disgraceful from their degradation (e.g., carnal sins, see 224), and from this point of view it is worse to accuse a neighbor of gluttony or sexual irregularity than of pride. Some sins (e.g., solicitation, sodomy) are especially heinous in the eyes of the law and produce legal infamy, because they are more harmful to the public or more subject to public contempt (see Canons 2320, 2328, 2343, 2351, 2356, 2357). There are also some defamations that are less harmful to reputation, but more damaging to material prosperity (e.g., it is usually more hurtful to the prospects of a person in business to be charged with incompetency, dishonesty, or carelessness than to be charged with religious indifference or impurity). Finally, there are gradations in the malice of the same kinds of sin (see 197), as in the angry thought, the angry word, the angry deed, in tipsiness and drunkenness, in occasional and habitual lying, etc.

Is it sinful to narrate the secret faults of another, if at the same time one tells of his repentance and amendment?

(a) If the infamy remains in spite of the remarks about a change of life for the better (as is generally the case), the narrator is guilty of sinful detraction. Thus, it is very harmful to one in an exalted position if it is given out that he was at one time bibacious, but succeeded in thoroughly curing his appetite. The same principle applies to those who praise in one matter and detract in another (e.g., by stating that a person is very learned, but also very dishonest).

(b) If the infamy does not remain, because the atonement is so extraordinary as to make the hearers think little or nothing about the fault, the narrator is not guilty of sinful detraction. Thus, it is not detraction to narrate that a saint was so grieved over a lie he told that he did lifelong penance for it, or that a person who was once lukewarm—a thing that is quite common—has in later years become fervent in an uncommon degree. But the stigma that attaches to uncommon sins or carnal sins is hardly overcome by the mention of repentance, unless the person spoken of is already long dead or is one from whom very little is expected.

The Harm Done by Reason of the Person Defamed.—(a) Serious faults are sometimes attributed to certain persons without serious sin, because, on account of the life led by these persons or the notoriety they have already achieved, they suffer no serious detriment when defects like to those already known are charged against them. Thus, if it is well known that a person keeps company with a fast set or consorts with a tough gang, he suffers little if one reveals that he uses profanity, gambles, drinks to excess, etc.; and if it is known that a person has these vices, he is not harmed much by mention of a particular instance or by the additional report that he has been arrested for cheating and disorderly conduct. But the case is different if defects unlike those already known are charged (e.g., if one says of a person known as a liar that he is also a thief), unless the person spoken of has so black a name as an all-around cheat that no new crime charged to his account can give a deeper dye to his reputation.

(b) Light faults or acts that are not sinful in themselves are sometimes matter of grave defamation when spoken of certain persons, namely, when so much is expected from these persons that even minor defects are serious blots on their fame. Thus, to say that a layman is a confirmed liar or loves the opposite sex might be only a venial sin or no sin at all, but the same statements about a grave cleric would be seriously defamatory.

Defamation supposes that the party who is injured is in possession of a good name. But it is possible that the same individual who enjoys a good name in one place or time, has a bad name in another place or time. Hence, a number of special cases on defamation present themselves for consideration.

(a) Thus, there is the case in which a person who has a good name here is juridically infamous elsewhere; that is, he has lost his good name elsewhere through a final and valid sentence, conviction, or confession made in a public trial (see Canon 2197).

(b) There is the case in which a person who has a good name here is actually infamous elsewhere, that is, his crime is known to so many persons there that it is morally impossible to keep it secret or excuse it.

(c) There is the case in which a person who has a good name now was in bad repute formerly; that is, his bad name of the past has been forgotten or has been obliterated by many years of good living.

Meaning of the Expression “Infamous in a Certain Place.”—(a) The place referred to is either a closed community (e.g., a monastery, a college, a family) or an open community (e.g., a village, a neighborhood, a parish, a town, a city); (b) the notoriety referred to is either universal (i.e. known to all the community), or general (i.e., known to the greater part of the community), or sufficient (i.e., known to so many and such talkative persons that the whole community will shortly be made to share in it). A crime known only to one or two, or to a small circle of Christian-living persons, is not notorious.

Number of Persons Who Are Required for Sufficient Notoriety.—(a) Some authors assign certain definite figures for this purpose—for example, in a closed community of thirty or a hundred members a fact is notorious if known to seven or fifteen; in a neighborhood of forty persons, if it is known to eight individuals from different families; in a village whose population is one thousand, if it is known to twenty here and there; in a town of five thousand people, if it is known to forty here and there.

(b) Other authors hold that no invariable rule can be given, but that in each case the matter has to be determined by a prudent judgment based on the character of the crime, the quality of the guilty person and of the persons present at the time, the publicity of the place, etc. Thus, if the crime was committed in some central spot from which news was quickly disseminated, a smaller number of spectators would make a deed notorious in the surrounding territory.

Publicity of Commission or Report.-Actual infamy or disrepute is produced either by the publicity of the crime or by the publicity of the report.

(a) Thus, a crime has publicity in its commission when it was done in a public place (e.g., on the street, in a public room) or in a private place but before a considerable number of persons, or when its indications were publicly given (e.g., by a confession, by maintenance of a suspected woman in one’s home), or when it was submitted to public notice or judgment (e.g., the acts of one in public office, the words of one who delivers a public address, the deeds of one who boasts about them).

(b) A crime has publicity in its report, when it is widely known, whether due to the talk of the people, or to presumptions or suspicions.

Revelation about a Person Who Is Juridically in Disrepute Elsewhere.—(a) This exposure is not contrary to commutative justice, according to the common opinion, for the condemnation deprives the criminal of his right to fame (as regards the matter in which he is found guilty) in all places, and it is often to the interest of the public to know who has been convicted of crime elsewhere. Exception should be made for the case in which a trial is conducted secretly in order to spare the reputation of the condemned, as when a corporation expels one of its members after a hearing and an unfavorable vote (see 2057).

(b) This revelation is contrary to charity when it deprives a person without reason of the good fame which he possesses and which he would not otherwise have lost; for we should love our neighbor as ourselves. Example: Balbus served a term in jail in the town of A, on account of drunkenness. He then moved to the distant town of B and by his good conduct built up an excellent reputation. Claudius from A arrives and maliciously spreads around the news that Balbus had been once in jail for drunkenness. Claudius sins gravely against charity.

Revelation about a Person Who Is Actually in Disrepute Elsewhere.—If the person in question will in all likelihood soon lose the reputation he has here, the following cases must be considered:

(a) if the disrepute is based on the publicity of a misdeed, the revelation is not opposed to commutative justice; for he who sins publicly thereby resigns his right to reputation as regards all those persons and places to which knowledge of his delinquency is likely to arrive. The revelation is against charity, however, if there is no sufficient reason for it; but since the news would be soon brought hither from other sources, no great harm is done and no serious sin committed by the revelation;

(b) if the disrepute is based on public rumor and the rumor is unjust, revelation, according to some, is opposed to commutative justice, since it is nothing but a continuation and extension of the original injury. Others hold that, unless one knows the rumor to be false, revelation is not unjust in this case, since, as is supposed, the revealer was not the author of the rumor, and those to whom he spoke would have learned it shortly even without him. Of course, if the person about whom the revelation is made suffers some considerable damage by reason of the early loss of his good name, the person who makes the revelation unnecessarily is guilty of serious sin. And rumor should never be represented as an established fact.

If the revelation is made about one who is actually in disrepute elsewhere, but who is in little danger on that account of losing the good name which he has here, opinions differ regarding the extent of the guilt.

(a) Some hold that revelation in this case is a grave sin against charity, since in a serious matter it saddens a neighbor, and thus violates the rule of love to do unto others as we would have them do unto us; and others add that it is also a grave sin against justice, if the party spoken against is solicitous about his fame, since it deprives him without reason of a great good to which he is entitled on account of undisturbed possession.

(b) Others hold that this revelation is not a grave sin, either against justice (since the right of the community to know about crimes that were committed elsewhere prevails over the right of the individual) or against charity (since charity does not oblige under grave inconvenience).

(c) Others again distinguish between different cases, Thus, some say that, if the crime in question is one that is very detrimental to the public (e.g., murder, treason, white slave traffic, scandalous impurity), the opinion under (b) is true; whereas, if it is one that is not of that character (e.g., drunkenness in a private person), the opinions under (a) are true. Some also distinguish in the case of non-pernicious delinquencies between those that are notorious elsewhere by reason of the public way in which sin was committed and those that are notorious only on account of rumor; in the former case, they say, the manifestation is not unjust, for, although public good does not call for it, the guilty person himself has forfeited his right by the public manner in which he sinned; but in the latter case it may easily be unjust (see previous paragraph). The mere fact, however, that a fault which contains no threat to the public welfare was committed in a public manner does not seem to be a sufficient reason for manifestation (e.g., when it will injure a man in earning a living or in supporting his family), and we believe that one who speaks of such a fault without necessity sins against charity, if not against justice, and that the sin is often mortal.

Notoriety in a Closed Community.—Notoriety in a closed community is not absolute publicity, and hence the conclusions just given on absolute publicity do not apply to closed communities.

(a) Thus, if a fault is actually notorious in a closed community, the members may speak about it to one another, if there is any sufficient reason for this. Hence, if the majority of the members of a religious house know about a fault that has been committed there, it may be divulged to one who is in ignorance about it for his instruction or warning. Similarly, servants in a house may tell other domestics about faults which are commonly known in the house.

(b) If a fault is notorious in a closed community but not outside, the members as a rule may not speak or write about it to outsiders without injustice, for generally speaking there is no reason arising from necessity or utility for such a revelation. Moreover, the community itself suffers in repute from such disclosures, since outsiders will be impressed with the thought that the community has wicked members or is lax, and that there is a lack of unity among them. To carry stories from one monastery or house to another (even of the same Order) is a form of detraction to outsiders, according to St. Alphonsus.

Revelation about a Person Formerly in Disrepute.—When the revelation concerns one who was in disrepute formerly, but who has a good name now, either because his crime has been forgotten or because he has lived it down, a distinction must be made between juridical and actual notoriety.

(a) If the former disrepute was juridical notoriety, the revelation of it is not unjust, since condemnation pronounced in a court of law gives the right to others to make the sentence known in any place or at any time; but more probably it is mortally uncharitable, if made without necessity, since it harms the other person or his family in the reputation which he has honestly recovered, thus depriving him of a good most useful to him and hurtful to no one else.

(b) If the former disrepute was actual notoriety only, the revelation is uncharitable, according to all, since it does not observe the golden rule of doing to others as we would be done by. Many hold that it is also unjust, since an obliterated crime is the same as an occult crime, which cannot be divulged without injustice (see 2067). Moreover, the person who has built up for himself a new reputation has a right to it, and by the revelation of the old reputation this right is infringed, inasmuch as his present good name is also lost or made useless. It should be noted that the common good sometimes makes exceptions, and thus it is not forbidden to historians to make revelations about happenings that throw a new and unfavorable light on the youth or earlier years of persons no longer living (see 2072 Sqq.).

Case in Which the Name of the Person Defamed Is Not Given.—(a) If there is nothing to indicate the individual and no reflection is cast on a body to which he belongs, per se no sin is committed. Hence, if one says, “A certain person whom we shall call Balbus stole a sheep,” there is no defamation in the narrative, even though a real happening is described. Similarly, if one says that in the city where he is speaking there are many criminals, or that even among his numerous auditors there are doubtless some who are living in mortal sin, there is no defamation.

(b) If there is something to indicate the individual meant, or if reflection is cast on a body to which the individual belongs, sin is committed by the remarks. Hence, if the narrative about Balbus and the stolen sheep went on to describe incidents so that the hearers could easily perceive that Balbus was a person known to them, this person would be injured in his fame. Again, if one states that in a certain city which one names 90% of the married people are addicted to drunkenness, or that the party who was guilty of some scandalous act was a member of a Religious Institute, harm is brought directly upon individuals or damage is done to societies. It is true that an organization is not really discredited by the misdeeds of one of its members, but in popular opinion very often the disgrace of one is the disgrace of all.

Namely: 1. on account of homicide; 2. defloration; 3. adultery.

364. After the things said concerning injuries concerning the goods of the body, we must now treat of injuries concerning the goods of the soul. Now the principal goods of the soul are: (a) reputation, or the good estimation which we enjoy among others, which is injured in two ways: internally by rash judgment, but externally by detraction or defamation; (b) honor, which consists in the acknowledgment of our excellence, and is offended by contumely; (c) truth, to which are opposed lying, when what is false is said, and violation of a secret, when truth is revealed which ought to have been kept silent.

564. State of the question. (A) The obligation of restoring arises from homicide and wounding committed unjustly, efficaciously, and culpably. Hence he who kills or mutilates another for the sake of just defense, and with the moderation of blameless defense, is held to no restitution. But he who, in a case of legitimate defense, notably exceeded just moderation, according to some, is bound to restitution; according to others, probably he is not bound, because the unjust aggressor knowingly and willingly exposed himself to the danger of death, and ought to impute to himself his own death or wounding; for he who is unjustly attacked can scarcely think of the moderation of blameless defense, and almost always is in good faith.

(B) Damage from homicide or mutilation can be threefold: natural, namely the loss of life or members; spiritual, insofar as the one killed is deprived of the opportunity of doing penance and of the suffrages which by testament he could have procured for himself; temporal, which happens either to the one killed or mutilated himself, or to his family, e.g., expenses for treating the wound, ceasing profit on account of the death, illness, or mutilation of the injured person.

565. Now (a) natural damage cannot properly and directly be compensated in the same genus; and it is controverted whether indirectly and equivalently it must be compensated through a payment of money. Many modern authors probably say that no compensation is owed unless it is imposed by the judge, because none is possible, since life, integrity of members, and bodily health exceed every price. Yet we judge it more probable, with St. Thomas¹ and many other older theologians, that some compensation is owed even for natural damage to the injured person, but not to his family. "When that which has been taken away is not restorable through something equal, compensation such as is possible ought to be made, as when someone has taken a member from another, he ought to compensate him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." For although justice intends perfect equality, yet if this cannot be obtained, we ought to approach it insofar as can be done. Yet according to all, care must be taken lest such compensation be an incitement to crime, e.g., to fornication. - The same diversity of opinions prevails as often as restitution in the same genus of goods cannot be made.

¹ St. Thomas, 2. 2., q. 62, a. 2, ad 1.

(b) Spiritual damage can and must be compensated in the same genus, through prayers, Masses, and other spiritual works. According to not a few, this obligation arises from justice; according to others, from charity; let the confessor warn homicides about this matter.

(c) Therefore it remains to speak of temporal damage.

566. Principle: A homicide or mutilator is bound to repair all temporal damages which he at least confusedly foresaw as going to follow from his action. - For he truly is the unjust, efficacious, and culpable cause of these damages.

567. Corollaries. (A) This obligation is real, and therefore passes to the heirs, who nevertheless are not held beyond the forces of the inheritance.

(B) The principal damages are: expenses for the treatment of the wounded or killed person, - or for the funeral, namely insofar as they are greater than if the injured person had died at home; ceasing profit on account of the wound or death of the injured person, which must be estimated by the judgment of a prudent man, with all circumstances of person, age, office, labor, etc., considered.

But because it is difficult to define these altogether accurately, it is very expedient that a friendly composition or transaction be made.

(C) Restitution must be made primarily to the injured person himself, and, after his death, to his nearest heirs, namely parents, children, and wife, because, on account of the very strict bond by which they are united to him, they form one moral person with him. The obligation of restoring to these nearest heirs is certain if they were receiving support from him and do not otherwise have that by which they may sustain themselves. More probably and more commonly the same is said, against Lacroix¹ and a few others, in the case in which parents, wife, and children can easily provide for themselves; for even in this case they have suffered unjust damage.

¹ Lacroix, lib. III, P. II, de Restitutione, n. 309; St. Alphonsus, n. 631.

568. (D) It is controverted whether restitution must be made to the remaining heirs, even blood-relatives, and to creditors of the deceased, who incur damage from this. These are the things which seem more probable to us:

(a) It is not clearly established, and therefore the obligation of restoring is not to be urged for non-necessary heirs, whom namely the deceased was not bound to provide for; for it is uncertain whether the deceased had the will of enriching them, and therefore if they suffer damage, it is caused by accident, and moreover such damage is partly compensated by the fact that they approach the inheritance sooner. - Yet the case is excepted in which one of them had been received into the family of the deceased, and held as a son; for then the deceased at least implicitly promised to have care of him, and obligated himself to this.

569. (b) Nor is the obligation of restoring to creditors of the deceased established, unless the homicide in a particular case foresaw and, according to some, intended the damage of creditors of this kind. Otherwise, damage inflicted upon creditors follows by accident, so that the homicide is not truly the efficacious cause of the same (n. 472); but with foresight, and according to some with intention, added, now nothing is lacking that the homicide should be the efficacious, culpable, and unjust cause of the damage.

To be noted. If one lethally wounded spontaneously and freely before death remits all debts to the homicide, the latter more probably is not bound from strict justice to restitution: for by condonation the debt is extinguished, from what will be said below. - Yet the wounded person, by acting thus, injures charity, if his relatives need support.

570. (A) He who provokes another to a duel, and by force, fear, or grave threats morally compels him to accept, and at last kills or wounds him, is bound to restitution like a homicide or one who wounds; for he uses unjust means for extorting consent; he who is provoked is truly unwilling, and injury is done to the unwilling.

(B) But if the one provoked spontaneously accepts, and is killed or wounded, or a fortiori if the one provoked kills the one provoking, no place is given to restitution by natural law; for each, by freely accepting the duel, freely exposes himself to the danger of incurring damage: but injury is not done to one knowing and willing.

Yet, if the civil judge has enjoined reparation of damage, his sentence obliges in conscience, since it was passed on account of the public good, to keep others away from duel.

571. Obligations toward a seduced or oppressed woman. (A) He who by force or fraud oppressed or seduced an honorable woman is bound to repair all damages which followed from this. For by using these means, he inflicted damages of this kind unjustly, efficaciously, and culpably.

It is explained: (a) by force or fraud; under which name come not only violent oppression, whether in the state of waking or in the state of sleep or drunkenness, but also threats unjustly impressed, importunate prayers of a superior, lies or false promises - especially a promise of marriage - by which the woman as it were unwittingly or unwillingly is induced to intercourse.

(b) An honorable woman, whether she is a virgin or a widow, provided she is held as chaste according to public estimation.

572. (c) He is bound to repair the damages. And this can be done either by marrying the woman,¹ - or by dowering her, so that more easily she may marry another, although deflowered.

¹ A woman is not bound to accept the seducer who offers marriage, but keeps the freedom of marrying whom she wishes: then the seducer must dower her, according to the common and true opinion.

The former indeed is to be counseled, unless too great a disproportion between the man and the woman, or another grave reason, stands in the way; nor however is it to be imposed under grave sin, unless an explicit promise of marriage had been present; - indeed even in this case this obligation is not to be urged if marriage is morally impossible because of disparity of condition, hatreds going to arise between families, or other unhappy outcomes prudently foreseen, - if the girl from the circumstances could easily have noticed that the promise was feigned, or afterward freely condoned the offense, whether explicitly or implicitly (e.g., by breaking faith).

If the seducer does not marry the girl, he must furnish her a suitable dowry, - or otherwise take care that she can marry according to her condition, - or, if she cannot marry, contribute to her support. - Yet he is excused from this duty if the woman in fact suffered no damage of fortune, because, e.g., she already married according to her state, or entered religion, or died by premature death; likewise, if the woman condoned the injury.

573. (B) He who deflowered a girl freely consenting, or induced her to sin only by prayers, blandishments, or persuasions, strictly is not bound to restitution under this head, unless afterward he manifested the hidden delict to others, or was condemned by the judge to a fine. - The reason for the rule is that injury is not done to one knowing and willing.

But if he manifested the matter to others, by that very fact he becomes an unjust detractor, and under this respect he must repair the damages which followed from it. Moreover, if the judge, on account of the public good, has commanded some reparation, this sentence obliges in conscience.¹

¹ By French civil law, from art. 1382, a pregnant girl can obtain compensation from the seducer. Cf. Planiol, 4th ed., I, n. 1529 sq.

574. Obligations as regards offspring conceived. (A) If someone has seduced a woman by force, fear, or other unjust means, he is bound, if offspring has been born, to bear all expenses of nourishment and education, because he himself is the unjust, efficacious, and culpable cause of the whole damage. Yet, if the father does not provide for the offspring, the mother is bound, by the law of piety, to educate the infant; but the seducer is bound to compensate all expenses which she underwent.

(B) If the woman freely consented, both parents are held by an equal obligation, in solidum, to educate the offspring until he can provide for himself; for piety, by which parents are held toward children, obliges to this.

(C) It is altogether fitting that the offspring be acknowledged before the Church and the civil forum, and be rendered legitimate, unless a grave inconvenience stands in the way, lest the offspring remain infamous and without inheritance.

575. State of the question. Adultery, besides the malice of fornication, carries an injury inflicted upon the other spouse, which must be repaired through satisfaction, when the adultery has become known to the husband; but if it has remained secret, silence must be altogether preserved, lest quarrels be caused. If offspring has not been born from the adultery, no temporal damage is to be repaired; but if offspring certainly has been born from adultery, there is a twofold damage to be repaired: (a) the expenses for nourishing and educating the offspring, which the husband unjustly underwent; (b) the portion of the paternal inheritance by which the legitimate children are unjustly deprived, because the illegitimate child unjustly receives some part of the inheritance. - But more probably damages which come by accident are not to be compensated, e.g., from the fact that blood-relatives give or leave by testament certain things to the adulterine child.

I said: if offspring certainly has been born from adultery; for in doubt, offspring is judged born from the legitimate husband, according to that: the father is he whom the marriage shows.

576. Principles. (A) If a man by deceit or force carnally knew the wife of another, he alone is bound to repair all damages, because he alone is the unjust, efficacious, and culpable cause of the damage.

(B) But if the wife freely consented to adultery, both adulterers are held in solidum to restitution of the damage inflicted upon the husband and legitimate children; for each is the unjust, efficacious, and culpable cause of this damage.

577. Corollaries. (a) Sometimes the adulterous woman alone is bound to repair the damages which happen by reason of inheritance; namely if she could easily have avoided these damages, by nourishing the adulterine offspring outside the family, e.g., in an orphanage, - and the adulterer did whatever he could to obtain this; for by acting thus, he sufficiently retracted the cause of damage posited by him; and the adulterous woman alone, by refusing this means, is the efficacious cause of the damage as regards the division of the inheritance. But this is rarely verified, since in practice it is very difficult to educate offspring outside the family without suspicions arising.

578. (b) If a wife has had carnal commerce with two adulterers, at a time apt for conception, and it is doubted which of the two is the father of the adulterine offspring, it is controverted whether both are bound to restitution: - according to some, neither is bound, because no one is obliged to reparation of damage unless it is morally certain that he is the efficacious cause of the same; but concerning neither is the matter morally certain. Yet more probably each is bound in solidum or at least according to the proportional part of the doubt; for each posited a cause of itself apt for causing the damage, and if paternity is doubtful, each cooperated in producing this uncertainty; and therefore he cannot be excused from restitution because of this uncertainty.

579. On the mode of restoring. It is very difficult to restore in this case, since from restitution suspicions about the adultery committed can arise, which would disturb the peace of the family. Hence the confessor must be altogether prudent in this matter.

(A) For the most part an adulterous woman is not bound to manifest her crime in order to avoid the damages going to follow from it; such a revelation generally cannot be made without danger of incurring the hatred of the husband, discords, divorce, and grave infamy, not only for herself, but for the whole family; but all these are much graver inconveniences than damages of fortune, and therefore dispense from restitution, if it cannot be done otherwise.

(B) Moreover a son is not bound to believe his own mother when she manifests his adulterine origin, unless from the circumstances as supports this testimony produces certainty, e.g., if it is proved that the father was absent at the time of conception. But if the matter is certainly established, he cannot in conscience retain the paternal inheritance.

(C) If it is possible to educate the adulterine offspring in a foundling hospital, without suspicions arising, this indeed must be furnished, since thus the expenses of education are greatly limited and the division of the inheritance is avoided.

Otherwise, the adulterous woman will strive to restore, by giving more, from her own goods, to the legitimate children than to the illegitimate child, by diminishing expenses, by working more diligently and giving the fruits of labor to the legitimate children. - But the adulterous man can restore by giving something to the legitimate children, whether among the living or by testament, according to the estimation of a prudent man.

The sins against the honor we owe our fellowmen are partly internal and partly external. They differ in degree according to the nature of the attack and the relation existing between the offender and the offended.

The legal axiom that every man must be considered honorable until the contrary has been proved, embodies a truly Christian principle, for the essence of Christianity is charity, which “thinketh no evil.”¹ Whoever disregards this maxim, has either lost charity, or is about to lose it. Merely to entertain unfounded suspicion internally is an injustice to others and an act of infidelity to God.²

¹ 1 Cor. XIII, 5.

² Matth. VII, 1; Luke VI, 37; John VII, 24; 1 Cor. IV, 5; Jas. IV, 13.—St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 4: “By the very fact that someone holds a bad opinion of another without sufficient cause, he injures and despises him. But no one ought to despise another or inflict any harm whatever without compelling cause. And therefore, where manifest indications of someone’s malice do not appear, we ought to regard him as good by interpreting what is doubtful in the better part.”—Ibid., ad 2: “It is one thing to judge things and another to judge men. For in a judgment in which we judge things, . . . each person ought to strive to judge things according as they are. But in the judg- ment in which we judge men, . . . we ought rather to tend toward judging a man good, unless a manifest reason to the contrary appears.”—Hence the moral and legal axiom: “Nemo praesumitur malus, nisi probetur.”

1. The internal acts by which we violate the duty of honoring our neighbor, in so far as they influence our conduct towards him and thus cause him injury, are: groundless suspicion and rash judgment.

a) We are guilty of groundless suspicion against our fellowman if we doubt his virtue for altogether insufficient reasons (levia indicia). This sin usually begins with an unfounded doubt (dubitatio temeraria), which, if it is not promptly suppressed, engenders rash suspicion (suspicio temeraria).³

³ St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 3: “There are three degrees of suspicion. The first degree is when a man begins to doubt another’s goodness from slight indications; and this is a venial and slight sin, for it belongs to human temptation, without which this life is not lived. The second degree is when someone holds another’s malice as certain from slight indications; and this, if it concerns some grave matter, is a mortal sin, inasmuch as it is not without contempt of one’s neighbor. The third degree is when a judge proceeds from suspicion to condemn someone; and this pertains directly to injustice, whence it is a mortal sin.”—St. Augustine, Tract. in Ioa., 26, n. 2: “Noli velle iudicare, si non vis errare.” (Migne, P. L., XXXV, 1607).

Unfounded suspicion of others usually comes from corruption in one’s own heart. If we were better men ourselves, says a modern writer, we should not consider others capable of so much evil. “He who is himself wicked,” says St. Ignatius of Loyola, “easily suspects others, just as he who suffers from vertigo, imagines that everything about him is moving round and round.”

b) Rash judgment (iudicium temerarium) consists in thinking ill of others without sufficient warrant. It differs from groundless suspicion only in degree: the former implies hesitation, whereas the latter does not.⁴ Holy Scripture tells us, and experience confirms it, that unfounded suspicion and rash judgment both originate as a rule either in malice, which sees nothing but wickedness in others, or in envy or hatred, which inspire ill will towards others. In some men these vices result from the bitter disappointments of a life-time. When they spring from malice, envy, or hatred, unfounded suspicion and rash judgment are invariably sinful, because they involve a lack of charity. The gravity of this sin may be gauged by the importance of its object and the degree of pleasure which the sinner takes in his uncharitable act.

⁴ Gury, Comp. Theol. Mor., I, n. 481: “1. A rash judgment is a true assent, conceived from slight indications, concerning some sin or defect of one’s neighbor; 2. rash suspicion is a weak assent concerning one’s neighbor’s evil, or an assent concerning another’s stain conceived with fear of the opposite; 3. doubt is a suspension of the mind determining itself toward neither side.”

Merely to harbor a momentary and spontaneous (or involuntary) doubt regarding the virtue of another is, of course, no sin at all. Such judgments frequently flash through the mind—we are so quick and prone to judge ill of others without sufficient reason. All this is merely a temptation. But from the temptation we pass on to sin if, knowing the insufficiency of our reasons, we nevertheless deliberately form an unfavorable judgment regarding another’s virtue. “Suspicion,” says the Angelic Doctor, “denotes evil thinking based on slight indications, and this may arise from three causes. First, from a man’s being evil in himself, and from this very fact, as though conscious of his own wickedness, a wicked man is prone to think evil of others. . . . Secondly, it is owing to a man’s being ill-disposed towards another; for when a man hates or despises another, or is angry with or envious of him, he is led by slight indications to think evil of him, because everyone easily believes what he desires. Thirdly, it may arise from long experience, wherefore the Philosopher says (Rhet. ii) that old people are very suspicious, for they have often experienced the faults of others. The first two causes of suspicion evidently connote perversity of the affections, whilst the third diminishes the nature of suspicion, in as much as experience leads to certainty, which is contrary to the nature of suspicion. Consequently, suspicion denotes a certain amount of vice, and the further it goes, the more vicious it is.”⁵

⁵ St. Thomas, Summa Theologica, 2a 2ae, qu. 60, art. 3: “Suspicion denotes an opinion of evil when it proceeds from slight indications, and this happens in three ways: first, from the fact that someone is evil in himself and, from this very fact, as though conscious of his own malice, readily thinks evil of others. Secondly, it arises from the fact that someone is ill-disposed toward another; for when someone despises or hates another, or is angry with or envious of him, he thinks evil of him from slight signs, because everyone readily believes what he desires. Thirdly, it arises from long experience. The first two causes of suspicion manifestly pertain to perversity of affection; but the third cause diminishes the nature of suspicion, inasmuch as experience advances toward certainty, which is contrary to the nature of suspicion. And therefore suspicion denotes a certain vice, and the farther suspicion proceeds, the more vicious it is.” (Vide supra, n. 3).—Gury, Comp. Theol. Moral., I, n. 482: “A rash judgment concerning a neighbor’s fault is by its kind a mortal sin against justice; for each person has a right to his good reputation in the judgment of individuals. . . . Often, however, it is venial because of the slightness of the matter or the imperfection of the act. Rash suspicion and doubt concerning a neighbor’s stain are only venial by their kind. The reason is that, because of their weak and readily changeable adherence, they ordinarily inflict only slight harm on one’s neighbor, since they do not destroy his reputation but only diminish it and render it doubtful.”

To entertain a sort of general distrust towards strangers or to reserve one’s judgment regarding their honesty or disinterestedness, in consequence of having had one’s goodness repeatedly imposed upon, is no sin, because there is some reason for such a general distrust. Still, we must always remember that Christian charity commands us to think good rather than evil of our neighbor.⁶ The Talmud lays down a prudent rule of conduct when it says: “Judge no one unless you have been in his place.”

⁶ Cfr. Is. XI, 3; Luke VI, 37; John VIII, 15 sq.; 1 Cor. IV, 5.—St. Augustine, De Agone Christ., c. 27, n. 29: “In that passage [Mt. vii, 1], where [the Lord] forbids judging, He admonishes us not to condemn anyone whose thought is not open to us, or of whom we do not know what sort of person he may afterwards become.” (Migne, P. L., XL, 395).

“Frequently there is a greater sin involved in judging rashly of another than in the act that is so judged. The wise men of the world (sapientes mundi) warn us not to outdo the sins of others by passing rash judgment upon them; how much more carefully ought we to consider our own conduct, lest we condemn petty faults in others and at the same time incur grievous sins ourselves.”⁷

⁷ Pseudo-Ambrose, Apol. II David, c. 2, n. 5 (Migne, P. L., XIV, 889).

“To have a low opinion of oneself and always to think well and commendably of others,” says Thomas à Kempis, “is great wisdom and perfection. If thou shouldst see another openly sin, or commit heinous crimes, yet thou oughtest not to esteem thyself better, because thou knowest not how long thou mayest remain in a good state. We are all frail; but do thou think no one more frail than thyself.”⁸

⁸ De Imitatione Christi, l. I, c. 2 (ed. Pohl, II, 8).

2. The chief external sins against the honor of our fellowman are contumely, calumny, and slander.

a) Contumely (contumelia) means casting a man's faults in his face to detract from his dignity. This may be done either in his physical or in his moral presence. Moral presence is assumed when the insult is uttered before those who know the victim and to whose respect he attaches weight.⁹ This includes publication in the press.

⁹ Gury, Comp. Theol. Mor., I, n. 478: "A person can be present either personally or physically, or morally through an image or through something else in which he is represented to some extent."

Contumely implies insult. An insult is any remark or expression by which another is denied the dignity of a human being, or accused of a moral defect, or charged with a crime or an offense. It is not necessary that the utterance in question actually contain an expression of contempt or disrespect, but the intention of injuring the other (animus iniuriandi) suffices.

The seriousness of the sin of contumely is measured by the intention of the offender, the importance of the matter involved, and the dignity of the person injured. No contumely is committed by parents and superiors when they censure the sins and faults of their children or subjects, even if this is done in a humiliating way, though they should, of course, always remember that even just reproaches must be kept within proper limits and that brutality and unnecessary harshness often produce a contrary effect.

The ancients took cognizance of real contumely, but not of verbal, and the Roman law did not punish the latter, probably for the reason that in former times men were less sensitive in regard to verbal insults than they are now, but especially because the spoken word did not then enjoy the publicity now given to it through the press.¹⁰ St. John the Baptist and Jesus Christ Himself severely censured the Scribes, Pharisees, and Sadducees.¹¹ St. Polycarp, when asked by the heretic Marcion whether he knew him, answered: "Certainly I know the first-born of Satan!"¹²

¹⁰ Homer (Ilias, I, 210 sqq.) describes Athene as intervening between Achilles and Agamemnon with the words: "Do not engage in combat nor draw the sword, for you can insult him in words as much as you please."—Linsenmann, Moraltheol., p. 457; W. S. Lilly, On Right and Wrong, London, 1892, Ch. VII, "The Ethics of Journalism," pp. 150–173.

¹¹ Matth. III, 7; XII, 34, 39; XVI, 4; XXIII, 13–33; Mark VIII, 38; Luke III, 7; XI, 42–45; cfr. Matth. XV, 26; XVI, 23; Mark VII, 27; Luke XIII, 32; Acts XIII, 10; XXIII, 3; Gal. III, 1, 3; Phil. III, 2; Tit. I, 12 sq.

¹² Irenaeus, Adv. Haer., III, 3–4; cfr. Polycarp, Epist. ad Philipp., c. 7; Funk, Patres Apost., Vol. I, 2nd ed., p. 304; Kirsopp Lake, The Apostolic Fathers (Loeb Classical Library), Vol. I, p. 293.

Contumely, says Fr. Slater,¹³ is of itself a grave sin against justice and charity, for it injures a man in what he values more than wealth, and as a rule an insult wounds the reputation as well as the feelings of him who is insulted. Christ shows how grievous a sin is committed by contumely when He says: "Whosoever shall say to his brother, Raca, shall be in danger of the council. And whosoever shall say, Thou fool, shall be in danger of hell fire."¹⁴ Like most sins against justice and charity, contumely may be a venial sin only, if the matter involved is slight. Chaff or banter, which is not intended to wound or irritate others is, of course, harmless, so long as it keeps within due bounds.¹⁵

¹³ Slater, Mor. Theol., I, 462.

¹⁴ Matth. V, 22.

¹⁵ Slater, ibid.

We insult a neighbor not only in words, but also by sending him abusive, immoral, or frivolous cards, a custom which exists in some countries and constitutes a serious abuse of the practice, in itself unobjectionable, of sending tokens of congratulation or remembrance at certain seasons of the year. The exhibition and circulation of offensive cards seriously menaces the morals of the young and promotes the world-wide movement against sound ethics.

b) Calumny (calumnia) or slander is committed by falsely imputing to another something which injures or destroys his reputation. This usually consists in accusing him falsely or exaggerating his faults or denying his good qualities or wilfully misinterpreting his intentions,¹⁶ and may be done in speech or in writing; in the latter case is called libel or pasquil.

¹⁶ Deut. I, 27; Mark VII, 22. On Matth. XII, 36 ῥῆμα ἀργόν, verbum otiosum, cfr. E. Nestle, Philologica Sacra, Berlin, 1896, pp. 58 sq.

Calumny involves three distinct acts; namely, first, a wilful lie, which is aggravated by the fact that it is told in secret and the injured person cannot defend himself against it; secondly, a sin against charity, and thirdly, a violation of justice (iustitia commutativa), because the injured person frequently suffers damage in his social position or good name.

If calumny is committed in general terms, i. e., if we declare our neighbor to be entirely bad without a redeeming trait, it is a mortal sin. If we impute to him only one fault, or several faults, the gravity of the sin committed varies according to the seriousness of the faults imputed, the consequences of the imputation, and the malice with which the calumniator strives to effect the moral or social ruin of his victim. The lighter the unjust accusation and the less intentional the imputation of evil, the smaller will be the guilt incurred.

In its worst form calumny is little less than spiritual murder and must be reckoned among the sins that cry to Heaven for vengeance.¹⁷

¹⁷ Cfr. Ps. C, 5; Jas. IV, 11; 1 Pet. II, 1.—St. Jerome, Epist. 54 (al. 10), n. 13: "It is impossible for anyone to pass through the course of this life without being bitten by men, and it is the consolation of the wicked to carp at the good, while they think the guilt of sins is diminished by the multitude of sinners. Yet the fire of stubble soon subsides, and the overflowing flame gradually dies when nourishment fails."—Epist., 108 (al. 27), n. 19: "A slanderous tongue is accustomed to carp at saints as a consolation for the offender."—Epist., 148 (al. 14), n. 16: "Never detract from anyone at all, nor wish to appear praiseworthy by censuring others; learn rather to adorn your own life than to carp at another's. There are very few who renounce this vice, and rarely will you find those who wish to present their own life as blameless without willingly censuring another's. So great a lust for this evil has invaded men's minds that even those who have withdrawn far from other vices nevertheless fall into this one as though into the devil's final snare. But do you so flee this evil that not only do you yourself not detract, but you do not even at any time believe another who detracts. Nor by agreeing give authority to detractors, lest by nodding assent you nourish their vice. . . . Indeed, this vice is such that it should be extinguished among the first, and should be wholly excluded by those who wish to train themselves in holiness. For nothing so disturbs the mind; there is nothing that makes the mind so changeable and frivolous as readily to believe everything and to follow the words of detractors with the mind's rash assent. Hence frequent dissensions arise, hence unjust hatreds. This it is that often makes enemies even of the closest friends, when a malicious tongue separates souls that are indeed harmonious but credulous. On the other hand, it is great tranquility of mind and great steadiness of character not rashly to hear anything adverse about anyone. Blessed is he who has so armed himself against this vice that no one dares detract in his presence. But if there were in us this diligence not to believe detractors indiscriminately, everyone would now fear to detract, lest in detracting they make not others so much as themselves contemptible. But this evil is notorious for this reason, and this vice flourishes in many for this reason: because it is willingly heard by almost everyone." (Migne, P. L., XXII, 557, 896, 1211).

The varieties of this sin are described in the old memorial verse:

"Imponens, augens, manifestans, in mala vertens, Qui negat aut minuit, reticet laudatque remisse."

If one is calumniated, he should recall that it is not the worst fruit that is attacked by the wasps, as the German poet Bürger says, or, as an Arabian proverb puts it: "People do not throw stones at a tree unless it bears fruit."

Some men resemble bees, not by their diligence, but by their sting.

c) Detraction, or backbiting (diffamatio, detractio)¹⁸ is committed when one unjustly deprives another of his good name by revealing his real but secret faults in his absence. This is a sin against justice as well as charity, because every man has a strict right to his good name. The more uncharitable the disposition of the detractor or slanderer, the more unfavorable the light in which he places his neighbor, the more widely the detraction circulates, the more the victim's position or activity depends on his good name, and the worse the results of the detraction, the more serious is the sin committed. Another factor to be taken into consideration here, as in all sins of defamation, are the consequences resulting from detraction in the case of those who hear of it.

¹⁸ The older Scholastics designated both calumny and detraction with one word: detractio.—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 73, art. 1.—Gury, Comp. Theol. Mor., I, n. 459, says: "Detraction is a secret and unjust violation of another's reputation, or the unjust blackening of the reputation of an absent neighbor. Reputation is the good estimation that others have of someone's life and morals. Detraction is called simply such if the neighbor's reputation is violated by reporting a true crime; it is called calumny if the violation follows from imputing a false crime."

Unsophisticated persons are apt to lose their good opinion of others generally (odium generis humani) and their reverence for virtue. Hence a sin of this kind, aside from the malice it involves, is more grievous when committed by persons in whose veracity and judgment one has great confidence.¹⁹

¹⁹ Gury, Comp. Theol. Mor., I, n. 460: "The gravity of detraction is to be taken chiefly from the gravity of the harm that one's neighbor is foreseen to suffer from it, and not precisely from the gravity of the defect or crime related about him. Hence, to determine the gravity of detraction in a particular case, attention must be paid to the character: 1. of the detractor—whether he is serious and discreet, or talkative and frivolous; 2. of the injured person—whether he enjoys a good or bad reputation, etc. The reason is that greater or lesser credence will be given according as the speaker is worthy of greater or lesser trust; likewise, greater or lesser injury to reputation will follow in proportion to the greater or lesser esteem enjoyed by the injured person."

Like calumny, detraction can be committed against an entire community or class, and not only by word of mouth, but also in writing. To defame others in writing is a more grievous sin than to do so by word of mouth. Writings enjoy a certain permanency and therefore are able to exercise their influence not merely in the present, but likewise in the future.²⁰

²⁰ Cfr. St. Paul's judgment of the Cretans (Tit. I, 12), and the sayings: "Litera scripta manet" and "Literae non erubescunt"; i. e., one writes more boldly than one speaks.

Mendacity and detraction are the primary vices of the modern newspaper press. "Journalism is conducted under conditions which tend to nourish this vice. The newspaper is, by its very nature, an ephemeral production, read for an hour and then cast aside, and probably never looked at again. Its assertions have done their work before an opportunity of correcting them is presented. Besides, it rests with editors whether contradictions of false and misleading allegations, which their journals may contain, shall appear in them or not. And it is manifest to all men that the considerations by which this question is determined are, in a vast majority of instances, wholly unethical. Again, the conditions under which the newspaper publicist works are extremely unfavorable to the cultivation of the virtue of veracity. He is called upon suddenly to expound views which shall strike his readers as profound, well-considered, or original, about subjects of which, very likely, he knows nothing truly or exactly. Or he is summoned to essay the defense of 'principles' to which he is wholly indifferent. Or he is bidden to attack some institution, some interest, some work, which whatever there may be of good left to him confesses to be worthy of respect and support. A very few years' practice in a calling of this kind is apt to render him as indifferent to the goal whither his pen conducts him, as is a cab-horse to the destination whither the driver's 'fare' is conveyed. And the worst of it is that, in time, he comes to glory in his shame. Aristotle, in the Nicomachean Ethics, distinguishes between two kinds of liars; there is 'the liar who loves a lie for its own sake,' and 'the liar who lies to win reputation or to make money.' But many a journalist who, at first, belongs to the latter of these classes, and is perhaps a little ashamed, for a while, at finding himself there, passes pretty swiftly into the former. Thus does he anticipate in this life, the doom which Dante ascribed to the damned; he is in the miserable estate of those 'genti dolorose' who have lost 'il ben del intelletto.' And then, by a fatal and necessary law, his chief object, next to the provision of the means of 'agreeable feeling' for himself, is to bring down as many as possible to his own level. Nor does he find any surer way of effecting this, than by the persistent denial of those moral excellences which he has ceased to strive after, or even to venerate. Is a man the object of reverence and admiration, for patriotism, philanthropy, piety? Your newspaper censors, with due protestations of hatred of hypocrisy, will strip off the veneer which imposes on the unsuspicious; will show their readers that these pretended virtues are a mere cloak for some base or sordid end; will demonstrate conclusively that 'old Cato is as great a rogue as you.' And their efforts are only too successful. I think I may truly say that the newspaper press, during the last quarter of a century, has done more than anything else to de-ethicize public life; to lay the axe to the root of duty, self-devotion, self-sacrifice, the elements of the moral greatness of a nation, which is its true greatness."²¹

²¹ W. S. Lilly, On Right and Wrong, pp. 171 sqq.

Formal detraction differs from material in that it is intentional. Formal detraction, or, a fortiori, slander, be- ing contrary to justice and charity, which bind under a grave obligation, is of itself a grievous sin, though frequently only venial on account of the smallness of the matter involved. Material detraction usually proceeds from carelessness, lack of caution, love of gossip, or a desire to be entertaining and, therefore, as a rule, is a venial sin only, unless indeed it seriously injures the good name of others.²²

²² St. Thomas, Summa Theol., 2a 2ae, qu. 73, art. 2: "Verbal sins are to be judged chiefly from the intention of the speaker. Detraction by its nature is ordered to blackening someone's reputation. Hence, strictly speaking, he detracts who speaks ill of someone in his absence for the purpose of blackening his reputation. Now, to take away someone's reputation is very serious, because among temporal goods reputation seems to be more precious, through the loss of which a man is hindered from doing many good things (Eccli. 41, 15). And therefore detraction, strictly speaking, is a mortal sin. Yet it sometimes happens that someone says certain words by which another's reputation is diminished, intending not this but something else. This, however, is not detraction strictly and formally speaking, but only materially and, as it were, accidentally. And if someone utters words by which another's reputation is diminished for the sake of some necessary good, with the due circumstances observed, it is not a sin and cannot be called detraction. But if he utters them from levity of mind or for some unnecessary cause, it is not a mortal sin, unless perhaps the word spoken is so grave that it notably injures someone's reputation, especially in matters pertaining to uprightness of life, because from the very kind of words it has the character of a mortal sin."

Note that the guilt of detraction, aside from the underlying intention, is measured by the amount of injury done (gravitas damni), and that, consequently, attacks upon the good name of others are grievously sinful in proportion to the dignity or social position of the persons attacked. To attack the good name of a priest or superior, therefore, is more grievous than to attack the reputation of an ordinary citizen.

While it is never permissible falsely to impute a crime to another,²³ it may be licit, nay a strict duty, to reveal his true faults for a higher purpose. This is the case, for instance, when it becomes necessary to inform legitimate superiors, to warn inferiors, children, etc., or to protect oneself or others against serious injury, or if the faults revealed are already known in consequence of a public trial or the culprit's own admission (notorietate iuris) through the confession of confederates (notorietate facti) or through rumor (notorietate famae). Whenever the revelation of the sins or faults of another seems necessary as a means of reforming him or of averting a greater evil, it is morally licit, nay a duty, for the reason that the sinner has lost the right to his good name because he can not preserve it except to the detriment of others and to his own injury.²⁴ But even though his faults and crimes are notorious, charity commands us not to reveal them to persons to whom they would otherwise probably remain unknown. Besides rumors must never be represented as facts.

²³ Prop. damn. sub Innoc. XI, n. 44: "It is probable that one who imputes a false crime to someone in order to defend his own justice and honor does not sin mortally. And if this is not probable, scarcely any opinion in theology will be probable." (Denzinger-Bannwart, n. 1194).

²⁴ Gury, Comp. Theol. Mor., I, n. 461: "It is never permissible to impute a false crime to another. . . . It is permissible, however, for a just cause to reveal a hidden crime even with the loss of his reputation, because sometimes the public or a private good requires this, and then the neighbor's right to the preservation of his reputation ceases. The causes for which another's crime may lawfully be revealed are the following: 1. A notable advantage to the revealer himself, e. g., to seek advice or assistance in a grave matter, provided, however, that every disposition to detraction is excluded; 2. The advantage of the offender, namely, for his instruction or correction, etc.; 3. The public advantage, as for preventing evils threatening the state, religion, or some community; 4. A grave private advantage, either of the hearers or of others, e. g., that they may guard against evils, losses, or inconveniences that otherwise will certainly or probably befall them. The reason for these cases is that one who then reveals another's sin injures neither justice nor charity. 1. He does not injure justice, because the neighbor does not have so strict a right to his reputation that others are bound to conceal the truth when its disclosure is necessary to avoid grave harm, whether to oneself or to others. 2. He does not injure charity, because charity does not bind at so great a loss. For if you are not bound to prevent harm to your neighbor, even greater harm, at grave loss to yourself, neither are you bound in that case to conceal your neighbor's hidden crime." Cfr. ibid., n. 465–466.

Detraction comprises all evil speaking and criticizing of others through the spreading of tales to the disadvantage of their good name. This applies especially to suspicions cast upon the internal motives of our fellowmen.

A special kind of detraction is known as tale-bearing (susurratio), and consists in mischief-making between friends by telling tales to the disadvantage of one of them, with the object of sowing or promoting discord.²⁵ This sin is particularly detestable if it is directed to the destruction of mutual confidence between husband and wife.

²⁵ Prov. VI, 16 sqq.; XXVI, 20, 22; Ecclus. V, 16 sq.; XXVIII, 15.—Cfr. St. Thomas, Summa Theologica, 2a 2ae, qu. 74, art. 2: "A sin against one's neighbor is graver in proportion as greater harm is inflicted on the neighbor through it. Harm, however, is greater in proportion as the good taken away is greater. Among the remaining external goods, however, a friend is preeminent (Ecclus. vi, 15). Reputation itself, which is taken away by detraction, is especially necessary for this, that a man be held fit for friendship. Therefore tale-bearing is a greater sin than detraction and even than contumely, because a friend is better than honor and to be loved than to be honored."

By listening wilfully or with pleasure to a detractor, or encouraging him by asking questions or applauding his tales, or not hindering them if we are able, we formally coöperate in his sin.²⁶

²⁶ Prov. XXV, 23.—Cfr. St. Bernard, De Consid., l. II, c. 13: "Whether to detract or to listen to a detractor—which of these is more damnable I would not easily say." (Migne, P. L., CLXXXII, 756).

Mockery or derision (derisio, irrisio, illusio, subsannatio) makes sport of another's honor. It sometimes runs counter to charity also by employing the faults or infirmities of others in order to make them a butt of laughter or contempt. The most grievous sin of this kind is the mockery of God and sacred things; next in order come mockery of parents, superiors, and virtuous persons.²⁷

²⁷ Is. XXXVII, 23; Prov. XXX, 17; Job XII, 4.—Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 75, art. 2.—Possidius, Vita Sti. Augustini, c. 22 (Migne, P. L., XXXII, 52): "Whoever loves to gnaw at the life of the absent with words, let him know that this table is unworthy of him."

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 60, art. 3–4; qu. 73 (Rickaby, Aquinas Ethicus, II, 18 sqq., 82 sqq.).—St. Alphonsus, Theol. Mor., l. III, n. 962–977 (ed. Gaudé, II, 355 sqq.).—Jocham, Moraltheologie, Vol. III, pp. 400 sqq.—Schwane, Die Gerechtigkeit, pp. 77 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 110 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Pastor., Vol. III, pp. 156 sqq.—J. E. Ross, Christian Ethics, pp. 259 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 659 sqq., 678 sq.

Detraction, calumny, and other like sins violate justice, and therefore involve the duty of making restitution, as far as possible, for the damage inflicted, and of seeking reconciliation with the person injured.

1. An insult or contumely wilfully committed against a fellowman calls for an apology (deprecatio). However, a formal apology is, as a rule, demanded only of subjects; among equals an act of extraordinary benevolence will serve the same purpose; on the part of superiors in their relation to inferiors, a special sign of good will or amiability will suffice.¹

¹ St. Alphonsus, Theol. Mor., l. III, n. 986–987 (ed. Gaudé, II, 373).—St. Augustine, Epist., 211 (al. 109), n. 14: "Whichever nun has injured another by abuse or cursing or even by charging her with a crime, let her remember to take care as quickly as possible, by making satisfaction, of what she has done, and let the one who was injured forgive without dispute. But if they have injured each other, they ought mutually to forgive the debts owed to each other, on account of your prayers, which you certainly ought to have holier in proportion as you have them more frequently. Better is she who, although often tempted by anger, nevertheless hastens to obtain forgiveness from the one whom she acknowledges that she has wronged, than she who is slower to become angry and is more reluctantly inclined to ask forgiveness. She who does not wish to forgive her sister should not hope to receive the effect of prayer; but she who never wishes to ask forgiveness, or does not ask it from the heart, is in the monastery without cause, even if she is not cast out from it. Therefore, for your part, refrain from harsher words; but if they have issued from your mouth, do not be ashamed to bring forth remedies from the same mouth from which the wounds were made. When, however, the necessity of discipline compels you to speak harsh words in restraining those younger than you, even if you feel that in those very words you have exceeded due measure, it is not required of you that you ask forgiveness from them, lest, while excessive humility is observed toward those who ought to be subject, the authority to govern be broken; nevertheless, forgiveness must be sought from the Lord of all, who knows with how much benevolence you love even those whom perhaps you rebuke more than is just." (Migne, P. L., XXXII, 964).

If the insult was committed in actions, it should not merely be apologized for, but restitution must be made for the material damage inflicted.

1. He who has induced another to sin by mere persuasion or example, when the other has freely consented, is held only by the office of charity to call him back to a better state; but if he used fraud or fear, he must remove these, must besides indicate suitable remedies, unless the other has sufficiently known these, and must repair other damages, if any have proceeded thence.

II. He who has turned someone away from entrance into the novitiate, or a novice from profession, has not violated justice unless he used force or fraud. If either has intervened, the obligation toward the novice or candidate will return, of which we were just speaking in the preceding case.

Must the emoluments connected per se with that entrance be restored to the monastery? Some hold this and estimate the damages according to the present hope. But because an action of this kind does not tend of itself to inflicting temporal damage upon an Institute, to which no acquired right in a novice belongs, the obligation can probably be denied. - He who by force or fraud has abducted a professed religious is held concerning temporal damages toward the Religion. Force and fraud being excluded, since the religious himself does not certainly sin against justice, the obligation of restitution, with Lessius, Iust., c. 8, n. 16-20, against many, seems able to be denied.

I. He is per se guilty of grave injury who has made an unwilling person drunk, or by the injection of morphine or the use of a similar substance has artificially deprived him of the use of reason, or has filled him with various dreams or phantasms. Cf. what was said I, 478. The damages thence following are to be repaired as far as can be done.

II. He who has taught practical errors must unteach them, and must repair the damages which thence per se have followed for the erring person and for others. But if they were speculative, that is held as venial, unless the error concerns the principal and fundamental dogmas of faith, or the student is defrauded of a great part of the discipline which he wished to learn.

I. A private man is injurious who has prohibited another, by physical force, from free steps or actions; or, morally, by unjust threats has forced him to do or omit certain things; or by fraud has impeded his free choices.

Clerics are protected from these injuries by canonical sanction, that is, by the privilege of the canon. Cf. III, 10.

2. He also is injurious who subjects a non-consenting person, for example by abuse of hypnotism, to his commands. He must from justice restore that person, by suitable means, to his own right.

— Everyone has the right that, according to his goodness, whether innate or acquired, he be esteemed and treated. That right is violated by contumely, detraction or calumny, and rash judgment. Concerning each of these we must speak briefly.

I. On Contumely. 1. Notions. Contumely is the dishonoring of one's neighbor, or an illicit lesion of the honor of one's neighbor. Honor, however, is a testimony concerning another's excellence or goodness. Some goodness belongs to each one, and there is a right that he not be contemned.

Contumely is negative, by which signs of honor which observance and piety would demand are merely denied; positive, when a lesion of honor is contained either by word (through insults, reproaches, curses), or by writing (through an infamous libel), or by deed (through signs, insulting representations).

Specification and Gravity. The mere omission of signs which are not owed from justice is opposed to piety, observance, charity, but not to justice; but a positive denial which is a virtual dishonoring is opposed to it; and much more an act contrary to the honor of another. And it is mortal by its genus, because it is opposed to a good which is worth more than riches themselves. And it will be mortal in reality when it proceeds from an affection mortally evil, whether of contempt or of hatred, or if a grave dishonoring follows; here the quality both of the sinner and of the person dishonored has very great force. The place of St. Matthew, "If anyone shall say to his brother, Fool, he will be guilty of hell fire," is explained insofar as an insulting word manifests mortal hatred.

Although the quality of the person harmed, as for instance of a parent, can add a new species, contumely, as such, is the lowest species, since it contains this one formal malice of prejudice done to the honor of neighbor. Thus most hold, although St. Alphonsus, De Peccatis, n. 48, judges it more probable that contumelies are to be distinguished from their objects, because a proper honor is to be attributed to individual excellences.

With the mind of correcting, humbling, or for another just reason, a Superior can cast some word, otherwise insulting, at a subject; but let him beware of excess.

For the sake of jest to cast light defects, provided the other is not saddened or moved to anger, pertains to urbanity, according to St. Th. 2, 2, q. 72, art. 2. The insults with which women, children, and men of the lowest lot burden one another are not judged gravely to wound honor, so that they are excused from mortal sin, because faith is not given to them. The same often must be said of insults uttered by an angry man.

Cf. also what was said concerning piety, n. 290.

2. On Restitution for Wounded Honor. It is asked whether, from charity alone or also from justice, some reparation must be made, at least if reputation has remained intact. And Molina, Iust., tr. 4, d. 46, judges that new signs of honor are owed from charity alone. But the contrary sentence is to be preferred, because dishonoring, as such, is damnose. For in the very man who is affected by contumely, courage and confidence in acting are diminished; this is not lightly harmful to him. Besides, in the opinion of others, dignity or the title of honor decreases from contumely, and thus the dishonored man is also damaged in his social life.

Reparation is made through an honorific and friendly greeting, or an invitation to table, or a petition for pardon (sometimes even on bended knees and before witnesses; which can also be done through a mandatary), according as the lesion was grave. If material damages have followed, there is no doubt that these must be repaired. But from the common sense of men, pardon no longer must be sought if the offended man has taken vengeance, by himself or by the judge.

II. On Detraction and Calumny. 1. Notions. a) Detraction, in broader use, is any unjust violation of another's reputation. And, from what was said in n. 580, any direct violation committed by a private person is unjust. Detraction strictly so called is distinguished from calumny. For calumny is committed when a false crime is imputed to someone; detraction, when a true but occult crime is revealed.

In the civil forum of Belgium and France, since public officials cannot act except concerning calumny, while proof of sin or delict against private persons is not admitted, they sometimes distinguish defamation, which is a lesion of the reputation of a private man, and calumny, by which the reputation of an official is harmed.

By the intention of wounding reputation, formal detraction is separated from material detraction.

b) Reputation, however, is opinion or estimation concerning another's excellence. Therefore it is a good which we have among others.

Reputation is distinguished: a) of the moral order, which, founded in the use of free will, freely perishes and can be freely restored. This reputation of honesty, of probity, is reputation simply so called, and is had either as connatural or negative and common, insofar as he who is not proved evil is not reprehended; or as positive, special, acquired by the exercise of virtue; b) of the physical or intellectual order, which, being removed from free will, honors capacity, genius, talent.

Reputation is useful, indeed necessary, so that we may foster easy, dignified, and pleasant intercourse with other men, and so that according to our capacity we may render ourselves useful to others and to society, or may discharge our social function.

It is also very useful to enjoy a good reputation for capacity and talent.

2. The Right of Having Reputation. a) A good which serves so greatly the end of human life is manifestly the object of right. And common utility itself demands that it not perish because of an accidental vice; therefore to take away reputation is at the same time to take away the stimulus of conversion and the occasion of repairing the things committed. Moreover, it is to snatch from someone a good which he still has.

But even in a moral matter no one can lay claim to a positive reputation which is greater than his merits.

Finally, this good is not ended by death; for posthumous reputation also is held in great price, and by the hope of such reputation many are stirred to illustrious deeds.

b) Because reputation is a good distinct from the person, it is in the perfect dominion of man, so that one can validly renounce his own reputation. And for the same cause it is situated in the high dominion of the State, so that social authority can, on account of true but occult delicts, mark and punish someone with infamy. Although it is rather repugnant to the mind of the legislator of today that he affect even a guilty man with perpetual infamy.

3. Moral Estimation of Wounded Reputation. a) Malice. Directly to detract from the reputation of someone unwilling is, in a private man, a sin of injustice which participates in the nature of theft, and by its genus is grave, although contumely is judged graver.

But the gravity of detraction is to be estimated less from the defect narrated than from the detriment which is inflicted upon someone's estimation. Wherefore it will often be graver rashly to accuse a secretary of garrulity than of mortal sin.

Nor is it right to detract from the dead.

b) Specification. Although calumny is graver than detraction, nevertheless in species the two do not differ, except insofar as calumny is at the same time opposed to truth; but this malice is not mortal. Nor do various detractions seem to differ among themselves in species, because they are opposed to the same reputation. St. Alphonsus, however, L. V (De Peccato), n. 48, more probably thinks that the species vary because reputations are distinct according to the object or matter.

c) Excuse. He is not unjust who, according to truth, casts someone down from a special reputation of virtue to a common one, or who supplies just notice of the skill or lack of skill of others. For neither had truly acquired or possessed the greater reputation.

Nor is he unjust who, on account of proportionate utility, communicates notice which at the same time harms another's reputation. For often an action which wounds reputation possesses some other utility of this kind. The defamation of another, as the other effect of the notice given, is merely actively permitted. - And more easily a proportionate cause is present for historians, so that concerning facts, especially not recent ones, and concerning men whose reputation now matters less to other living persons, they may speak fully according to the truth, with every consideration of personal reputation removed: both because historical knowledge commonly matters; and because the condemnation of a harmful man very often prepares the restitution of good reputation to an innocent man.

4. Corollaries or Applications. In a place where someone is so unknown that even when present he cannot be designated by anyone by his own name, the person has no reputation. Wherefore calumny uttered against him will have the nature of a lie, but not of unjust detraction.

They do not sin by detraction who, with a view to correction, report the occult defects of children and subjects to parents and Superiors (cf. above, n. 116); - who, for the sake of taking counsel and help, reveal things which necessarily must be communicated; - who by their revelation propose to impede proportionate damage of another: whence, when there is question of conferring an office, of contracting marriage, of undertaking religion, of assuming a physician, preceptor, or servant, it is lawful, indeed sometimes necessary, to manifest the occult impediments, inability, and crimes of another, from which some notable inconvenience is deservedly feared, provided that no other more suitable manner of impeding is at hand, and that the damage feared for the neighbor is not too far below the damage which will follow from the revelation; - who by revelation consult their own reputation unjustly wounded by another; - who, for the sake of solace, communicate to one friend, not to many, an injury done to them by another, especially if care is taken that the person is not named more openly than is necessary for solace; - who manifest a crime public by notoriety of law, that is, concerning which there is certainty by a definitive sentence of a judge, even in other places where reputation was not easily going to arrive. This is done without injustice, because the divulging of the sentence has the nature of a useful penalty, and it is expedient for the public good that criminals be known. Nor is it repugnant to charity, unless you act with a bad intention, or, because of the amendment of the person, the reason of public good has ceased. Indeed, if the matter has only notoriety of fact, the public good seems to demand that men be able to converse about public matters of this kind, and thus avoid errors which would easily flow from false estimation. Thus Lugo, d. 11, n. 61, against others who speak more severely, when the matter is divulged in a place to which reputation was not going to arrive except after a long time. But can the memory of an ancient condemnation be stirred up, with justice preserved? Formerly they admitted this; the matter depends on the mind of the legislator, which we judge to be contrary.

Detraction is only light per se in him who reveals the natural defects of others or general propensities to anger, etc. (lust excepted); or even mortal sins which, because of the condition of the person, wound his reputation only a little, as if you should say of a secular and not very pious youth that he is prodigal, given to loves, etc.; - of him who reveals someone's occult crime to some one prudent and taciturn man, unless the person be one by whom someone specially wishes to be approved. Nor is it an obstacle that the loss of reputation with one person is held grave through rash judgment; because by that judgment a crime is imposed on someone as if falsely, which, in a grave matter, is always grave; - of him who manifests a crime which shortly will be public, because it harms little, unless, however, grave damages follow from that anticipation; - of him who makes one infamous in one crime, for example adultery, infamous concerning another very related one, as for instance fornication; - of him who speaks of the vice of a people in general, or says of some city that many there are wicked, even determining the crime, insofar as either it is notorious or it harms no determinate person. Indeed, often no sin will be committed by this narration.

But it will be grave, against justice, by narrating even light defects to do grave harm, as if you should say that a Prelate of the best name is accustomed to lies, or is illegitimately born; - or to say of someone that you know something about him by which he is to be affected with great shame; - to reveal to those who do not belong to that community grave matters which are contained within the ambit of a restricted community, such as a chapter, monastery, or religion, especially since the infamation of the religion, order, etc., not rarely follows thence; - to detract from an order or religious state in common, or from a monastery, by saying, for example, that life is lived badly in it, that regular observance is not kept (unless that was notorious), or, while the person is passed over in silence, to indicate the monastery where an occult grave sin was committed; - to detract from some place if infamy redounds, as it were, to individuals: yet today, because all kinds of persons are mixed, this will happen more rarely.

5. Material Detraction Arising from Loquacity. is mortal if it brings grave lesion of neighbor, and this is adverted to. But it can be objectively venial, if it is not received or believed seriously. Likewise they judge it venial to report things heard as heard only, affirming nothing concerning the truth of the matter, but rather signifying one's doubt concerning it, unless, however, grave damage is foreseen as going to follow from the manner of narrating or from the levity of the hearers, who are going to believe and spread it rashly. But when not from the manner of narrating, but from their own levity, the hearers are going to believe, it will be grave against charity alone. Justice itself, however, will be gravely harmed if you report the matter as narrated by a man worthy of faith; for others will then reasonably believe. Cf. Lugo, d. 14, n. 56, 57; St. Alph., l. 3, n. 977.

6. Some Things to Be Noted. a) He who reports a public delict must also, from justice, report the penitence and amendment.

b) According to the condition of the hearers, who may be conscious of similar things or altogether ignorant, revelation of the delict of a community, or of clerics, monastery, or clerical order, can gravely harm or not harm. And the stricter the secret (for example, of confession) by which you are bound, the graver obligation of prudence you are held to. Scandals also are to be avoided.

c) From the grave sadness of another, the narration of a natural defect can become grave against charity. Likewise, charity at least being unharmed, the memory of a deed which has been handed over to oblivion cannot be made, unless the reason of the common good demands it.

They admit that it is right for an accused man, if it contributes to his defense, to reveal the true crimes of witnesses in a criminal trial. And if the witness responds illegitimately, calumny itself will indeed be opposed to truth, but not to justice.

2. Restitution of Reputation. a) Reputation itself must be restored by the detractor, not by his heirs, since a personal obligation follows a personal delict; material damages which have followed become the burden of the patrimony itself.

b) He who narrated a true crime can gradually repair reputation by praise, by honor restored. The use of mental restrictions, which others concede and even command, cannot be approved by us. But the imputation of a false crime must per se be destroyed by open retraction before immediate hearers, and also mediate hearers. Sometimes it will suffice to say that he was wholly deceived and that the matter was otherwise than had been said. Yet generally confessors are content with retraction before the immediate hearers, since another retraction is made most difficult, and the immediate hearers are tacitly invited to correct the error of others. Cf. Lugo, d. 15, n. 15, 16; d'Ann., II, 226; St. Alph., l. 3, n. 991.

He who, led by good faith or probable error, has said something false about another without a formal lie, must correct the error from justice, insofar as he can do this without notable inconvenience to himself. But if the error of the hearers was the cause why the crime said of one person was understood of another, he must at least from charity prevent grave detriment of neighbor without his own damage.

c) The obligation of restitution is excused or ceases: on account of physical or moral impotence; but he who was formally injurious must restore with equal damage to himself; - if the occult crime which was narrated, or another similar one, has become public in another way; - if reputation probably was not harmed, because it is likely that faith was not given by the hearers to one who seemed to speak from anger or passion; - if reputation has been recovered in other ways (yet material damages which have followed must be repaired); - if the matter has been covered by probable oblivion, and it is dangerous to renew the memory of the matter; - if the other has detracted from you and does not wish to restore; - if restitution is condoned. That condonation is licit if the infamy does not redound to others, nor impede the fruits of commonly useful labor.

III. On Rash Judgment. 1. Notions. Judgment is a firm sentence of the mind, or indubitable assent; suspicion is begun assent; doubt is not assent except causally, but is, as it were, a suspension of the mind inclining to neither part.

2. What Things Are Lawful. On account of sufficient indications, no one is prohibited from judging, suspecting, doubting; indeed prudence itself compels this to be done in practical matters. Nor, when we doubt, provided that we abstain from a positive judgment concerning improbity, are we forbidden so to act and dispose matters for greater caution as if the other were unjust. This being excluded, rather we ought in mind to incline toward a good interpretation, and to disregard some falsity if any underlies this favorable judgment, because a contingent particular truth does not pertain to the perfection of the intellect according to itself, and that judgment more regards the good affection of the mind. Cf. 2, 2, q. 60, art. 4, ad 2.

3. The Sin of Rash Judgment. Because reputation is a good which we have among others, rash judgment, with full advertence, concerning a gravely defaming guilt of neighbor, is opposed to justice, and indeed gravely. But that sin will rarely be committed, either because at least probable indications are present, or because the defect of reasons is not adverted to. Almost then it will be committed when, while adverting to the obligation of examining the reasons, one neglects the examination from an evil affection, and delights in the apprehension of another's infamy.

4. What of Suspicion and Doubt. Rash suspicion and doubt seem by their genus to be venial. For since some good estimation of neighbor remains in the mind of the one suspecting, no grave injury is inflicted on him. Yet grave can be the malevolence on account of which one persists in grave suspicion or in doubt concerning a grave matter. He who, being interrogated, responds that he is not morally certain but can be deceived, does not judge but suspects; but he judges who has affirmed the matter as certain or almost certain.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. - On Rape and Adultery.

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

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

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

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

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

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

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

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

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

Otherwise, both are held equally per se.

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

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

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

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

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

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

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

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

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

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

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

APPENDIX.

On the Action of Public Power and War.

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

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

951. The unjust damagers concerning whom one must especially treat are: 1. a homicide; - 2. a stuprator or fornicator; - 3. an adulterer; - 4. one defrauding taxes; - 5. one inflicting damage by occasion of military service; - 6. one negligent in fulfilling an office. Concerning one who causes damage in spiritual goods, or in other goods, see nn. 513, 928, 1205, 1214.

952. PRINCIPLES. I. A homicide or mutilator is held to compensate all temporal damages which, from his crime, have been inflicted on the one killed or wounded. The reason is clear from the things said above (n. 948); for killing is of itself the cause of damage. - The one attacked himself who, with true deliberation exceeding the moderation of inculpable defense, kills the attacker, is held to compensation of damage. For the enemy, on account of his unjust aggression, does not altogether lose the right which he has to life. St. Alphonsus, III, 637, with Lugo and others. Cf. the things said in n. 734.

The homicide is held to compensate all damages, and indeed: a) damage emerging, or the expenses of treatment, etc.; b) profit ceasing, that is, the profit of which the one struck has been deprived during the time of his infirmity because of the interruption of labor, and which he had in hope; yet with the expenses which would have had to be made to obtain the profit deducted according to prudent estimation; likewise with funeral expenses deducted, unless perhaps on the occasion of the death inflicted, for example outside the fatherland, greater expenses had to be made, or unless he is bound by the judge to refund them.³ In Germany he is held to pay them (§ 844).

Compensation must be given not only to the wounded man himself, but these debts, as real, are to be paid to the heirs of the slain person, whoever they are; because all heirs succeed to all the real rights of the deceased. Except if the deceased before death validly remitted these things to the killer. We say validly; for he would remit them invalidly if he were so poor that he could not have made the necessary expenses from his own goods, or if from such remission others, for example physicians or benefactors, would be unjustly burdened (III, 630; H. Ap., X, 86).

953. II. A homicide is held to repair for the family of the one struck the profit ceasing for them and the damage emerging on account of the wounding or death of the one killed. The reason is that all the aforesaid persons, but not brothers or sisters, are judged morally one person with the one killed as regards sustenance; hence even after his death the damage is continued in them (III, 631; H. Ap., X, 87; German Code, 844).

Let it be noticed: 1. The reparation of damage must be made according to the value of the hope which each one had, considering the age, health, etc., of the one killed or wounded, of receiving goods or advantages from him if he had not been killed or wounded. 2. Compensation to be made to the aforesaid persons is not from the title of inheritance of the one killed, but from the title of damaging inflicted on them, and therefore it could not be condoned by the one killed. 3. If there is no damage, either because those persons receive sustenance equally from elsewhere, or because the deceased was bringing no utility to them, there is no obligation of compensating. 4. The best mode of compensating is a peaceful settlement with the persons mentioned (III, 631).

954. III. A homicide is held to restore, in proportion to hope, to all those whom he directly intended to harm. Thus, for example, he is held to compensate damages to consanguineous creditors, or to the poor, whom he wished to frustrate of the hope of payment, inheritance, or alms; because each one has a right not to be directly and by force impeded from obtaining a just good.

It was said: whom he directly intended to harm; because if damages of this kind were only foreseen and not intended, a certain nexus is lacking between the homicide and the damages that followed; those are judged to have happened by accident, and it is more probable that the killer, in this case, is held to nothing by reason of justice (cf. 921, 949, Condition 2). St. Alph., III, 632, 633.⁴ See nevertheless the things said in n. 727, II, v. fin.

IV. In defect of the homicide, his heirs are held to compensate the aforesaid damages, even if the killer is punished with death. The reason: punishment satisfies vindicative justice, and therefore legal justice, but not commutative justice. Heirs succeed to all the strict burdens of the killer. Except if the injured parties are judged to yield their right, from the fact that they do not seek restitution (III, 631, 705).

955. Questions. QUAER. 1. To what is one provoking to a fight held, if he kills the one accepting, for example in a duel?

Resp. According to the opinion of Suarez, he is held to restore the damage, because the provocation was a true cause of the damage. - But Lugo (disp. 11, n. 66), with Vasquez and others, more probably contradicts; because although the one provoking sins against charity, nevertheless the other, since he freely accepts the fight, renounces his right to the reparation of damage (III, 638).

Note. Another question is related to this question: whether there is an obligation of restoring if one provoking to a duel is the cause why the one provoked, refusing the contest, is expelled from the army, or undergoes other damages.

Resp. It is not established that the provocation is the cause of itself of the damages which the one provoked suffers; rather it itself is their occasional cause; hence restitution is not to be imposed. Cf. the things already said in n. 949, Condition 2 and the added note.

QUAER. 2. To what are administrators of railways or ships held, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are held to pay as much as the judge by equitable judgment decrees must be paid; and they sin and are held to restore if by fraud, deceit, or bribes they induce the judge to render an unjust sentence (Konings, n. 808, q. 4).

Note. It is counsel that the confessor impose alms and Masses for the benefit of the one killed, for the killing itself (III, 631, 5). Cf. the things said in n. 928. If the homicide is imputed to an innocent third party, see n. 2302, q. 1 and 2306 seqq.

956. Here stuprator is understood in a broad sense as whoever has had relations with a free and honorable person, that is, one who is neither married nor a prostitute. Hence what we shall say concerning a girl is to be understood equally concerning a widow of good reputation (III, 646, fin.; Conf. dir., X, 38).

Now a threefold case must be distinguished: either the woman consented spontaneously in the crime; or she was induced by force or fear; or under a promise of marriage.

957. PRINCIPLES. I. He who has violated a consenting girl, without any promise of marriage, is held to nothing, of himself strictly speaking, except to the education of the offspring, if perhaps one is born. The reason: 1. he owes nothing to the girl, even if he solicited her with gifts or prayers, because injury is not done to one knowing and willing; 2. he owes nothing to the parents, because he did not violate their right, since the daughter is mistress of her own body. Hence authors very commonly say "that the man is not held to make good to the father the damage of goods by reason of the greater dowry which he needs for placing the daughter in marriage" (H. Ap., X, 91).

We said 1. Of himself; because exception is made: a) if the stuprator has manifested the delict; for then he is held concerning the damages following from defamation; b) if he is very rich, and the girl poor; for in this case she is presumed to have consented under the condition of some compensation; c) according to some, if by the sentence of a judge he is compelled to repair damages; but in truth, since laws presume deception or force, such a sentence, if the woman truly consented spontaneously, does not bind the conscience (cf. n. 191).

2. Strictly speaking, or in the rigor of justice; for the stuprator, at least from piety, against which he offended together with the girl, ought to repair the injury of the parents by some signification of honor or by asking pardon, unless perhaps they are ignorant of the delict, or are presumed to refuse such a reparation of honor. Thus probably St. Alphonsus with Sanchez, Croix, Lugo, etc., against St. Thomas and St. Antoninus, etc., who equally probably say that he is held from justice to repair the honor of the father (III, 641).

3. Except to the education of the offspring; for since the stuprator and the girl are equally in fault, both are held, and indeed from natural right, equally and in solidum, to feed and educate the offspring until it can provide for itself. Nor can any disposition of law or sentence of a judge exempt from this obligation (cf. n. 700). Cf. French Code, 340; German, 1708; Austrian, 166-171.

Note. If the girl has had relations with several lovers, it is not licit for her of herself to denounce whomever she prefers as the father of the offspring. Similarly this is not licit for the parents or guardian of the girl. Nevertheless, if civil laws (cf. Austrian Code, 163), as punishment of the delict, oblige the fornicator, as such denounced, to feed the offspring, the girl or parents do not seem to act unjustly in denouncing one of the lovers, in the case namely in which she herself does not know who precisely is the father of the offspring. Thus Noldin, II, n. 471; Delama, n. 391, note; Lehmkuhl, Burgerl. Gesetzb., 1717.

958. II. He who has violated a girl by force or fraud is held to make good all damages of honor and fortune that come upon both the girl and the parents. The reason is that he is the efficacious and unjust cause of these damages.

We said who by force, namely absolute; because if the violence was only moral, that is, if threats, or reverential fear, importunate prayers, or similar things drew the woman to consent, the seducer is held only to part of the damages (III, 642; H. Ap., X, 92; German Code, 825).

From these things it is inferred: 1. If the crime is manifest, the stuprator must indeed ask pardon from the parents, unless they do not care for a matter of this kind; but for the girl, he must increase the dowry, so that thus she may be able to marry equally well as if she had not been violated. Yet he is not held to marry her, since he did not promise this, unless perhaps the damage cannot be repaired otherwise, or unless by the sentence of a judge he is compelled to marriage (III, 641, 646).

2. If offspring has been conceived, he alone is held to sustain the expenses of nourishment and education, or to refund them to the mother; in Germany, § 1708, up to the completed 16th year, and further if this is necessary because of certain defects of the offspring. And this obligation indeed urges by force of natural Law; therefore even in the case in which the law would not favor the mother or the offspring and would deny every civil action. Cf. Gousset, on French Code, a. 340; Spanish Code, 464.

3. If the crime is occult, and the girl marries equally, the stuprator is held to nothing. For he owes nothing for the violation of honesty, which is not commensurable with money; nothing for damage, because there is none; nothing for the injury of the parents, because they are ignorant of the crime. Nevertheless, if the woman is afterward badly treated by her husband because of the known defloration, he is held to compensate the damage to her (III, 642; Lugo, disp. 12, s. 1).

959. III. He who, under a promise of marriage, whether true or fictitious, has violated a girl, is held to accept her for himself as wife. The reason is: a) because such damage cannot be repaired adequately in any other way; b) because in unnamed contracts, do ut des, facio ut facias, as soon as the other party has fulfilled his onerous part, the other also is held, and indeed from justice, to fulfill his own, provided, as in the case, he can do it without sin. Nor does it stand in the way that he promised fictitiously, because he is held, precisely in order to remove the injury, to furnish true consent, when this is necessary so that frauds, which would impede human commerce with common damage, may be removed from contracts (III, 642, q. 1; Vind. Alph., P. III, q. 16). Thus the common and to-be-held opinion, which in practice the S. C. of the Council has confirmed several times (A. S. S., I, 341; III, p. 304).

Note. The Decrees of April 19, 1908, concerning betrothals innovated nothing as regards the present matter. Truly only those pacts are betrothal pacts which are made in writing; but the obligation of entering marriage can arise not only from betrothals, but also from an onerous unnamed contract (cf. n. 1036). See Lehmkuhl, I, 1250; II, 842.

Exceptions. 1. Only the obligation of entering marriage ceases, the obligation of restitution remaining: a) If the girl yields her right, even if the parents dissent; because the right to marriage properly belongs to her. - b) If the law of avoiding scandal or the dishonor of the family stands in the way. c) If a very bad outcome is feared, say, if the girl is known to be too frivolous, or if she is non-Catholic and the perversion of offspring is feared, etc. d) If canonical law stands in the way, for example because of consanguinity, or a vow, for example of chastity, etc., and dispensation is not usually granted, or only with great expenses or inconveniences, which were by no means foreseen. Otherwise, more probably, in the contrary case; because he who is held to the end is held to the means, in our case, to the petition of dispensation. - e) If civil law stands in the way, for example because of the dissent of the man's parents, and marriage becomes morally impossible. - f) If the woman has already been dishonestly corrupted, that is, outside marriage; because to enter marriage with such a woman, at least in many regions, is valued much more highly than that which the stuprator received from her, and otherwise the damage inflicted on her can be repaired sufficiently in another way. g) If the seducer is far more noble or richer, although the girl could not have noticed the deception; because the one seduced, in these circumstances, cannot reasonably intend the reparation of the injury through marriage, and the seducer by joining her to himself in marriage would render more than equal to the injury inflicted (cf. St. Alphonsus, III, 643, dub. 2, 646-650). Yet according to some, disproportion in riches does not free from the obligation of entering marriage.

2. The very obligation of repairing damages also ceases: a) If the seducer is prepared to stand by the promise, and the woman without sufficient reason refuses. Otherwise, if she refuses justly, for example because the man pretended to be of better or equal condition, when he is of lower. b) If the woman from words or other circumstances could easily have noticed the deception, say if she knew the seducer to be much superior to herself in nobility or fortune; for then it can deservedly be presumed that she wished or feigned the deception. - c) If the woman deceived the seducer by pretending herself a virgin; for deception compensates deception. - d) If she is defamed for this reason, that she herself manifested the stuprum perpetrated secretly. e) If the promise of marriage was not the motive cause of the girl's consent; because, in such a case, it must be interpreted like any other gratuitous promise (cf. n. 1062). Let St. Alph., III, 645-648; Lugo, disp. 12, S. 2; Lessius, l. 2, c. 10, dub. 3 be read.

960. It is asked. What if the man has only touches with a virgin?

Resp. He is not held to marriage, because touches alone are not of so great an injury that they induce the obligation of entering a fictitiously promised marriage, nor of so great weight that they do not suggest to the woman the suspicion of fiction; provided, and this is excepted, the woman was not noble or very honorable; or the man had requested only touches with a promise of marriage, and the girl remained marked with infamy because of those touches now made known, or because of notorious familiarity (III, 645; H. Ap., X, 95).

Note. Modern laws do not oblige the deceiver to marriage, but generally oblige him to the reparation of damage inflicted by the unfulfilled promise (Austrian Code, 46; Spanish, 464; German, 825, 847). But if someone has satisfied these laws in good faith, he does not seem to be disquieted. See other things in n. 963, q. 2 and 3.

961. PRINCIPLES. I. If each adulterer freely consented in the crime, each is held, in solidum, to the reparation of the damage. The reason is that each was the efficacious and formally unjust cause of the whole damage (III, 655, 659; Lugo, disp. 13, s. 1; Lessius, l. c., dub. 5).

Hence: 1. Both are held to restore all expenses which the husband made for feeding and educating the spurious offspring. - 2. If the spurious child has received an inheritance with legitimate children, or with other legitimate heirs, they are held to compensate these in proportion. - 3. An adulteress who does not have separated goods must repair the damage in the better way she can, for example by administering the family property more diligently, by subtracting from herself superfluities in clothing, in food, etc. But each is held to repair damages insofar as he or she can without detriment to a higher good and without the bringing in of a greater evil (cf. n. 1018). See St. Alph., II, 652.

"Some authors say that if the adulterer had not induced the mother to suppose the offspring among the legitimate, but in this had behaved himself negatively, then he would not be held to maintenance, or at least not to the inheritance. But we say, with the common opinion, that he is obligated to both, because he is always the proximate moral cause of the aforesaid damages, by casting the adulteress into the moral necessity of supposing the offspring. But it must be said otherwise if the adulteress, without her infamy and danger of supposition, can keep and feed the offspring outside the house" (III, 659; H. Ap., X, 101).

962. II. If one adulterer by force, fear, or fraud extorted the consent of the other, he alone must repair the whole damage. The reason is that he is the efficacious and unjust cause of the whole damage. Yet if he fails, the other is held, unless he or she suffered absolute force or invincible deception (cf. n. 995, 3).

963. Questions. QUAER. 1. Whether an adulteress who can repair damages only by manifestation of the crime is held to manifest it?

Resp. Negatively, regularly speaking. The reason is: 1. because in this way, for the most part, she cannot repair damages; for no one is held to believe one witness, although most approved, and therefore neither is a spurious son held to believe the mother asserting that he is illegitimate, unless those indications accede which in the external forum would prove the matter evidently, for example impotence or absence of the husband, etc.; 2. "because rarely can it happen that from such manifestation she would not undergo enormous damages," say grave infamy, savagery, discord, etc. Indeed, generally it is of greater interest for the husband himself and the legitimate children that the matter remain hidden.

Except: a) if she is already of ruined reputation and does not fear the grave indignation of the husband; b) if otherwise public damage is feared which can be impeded, for example if the spurious child is of ruined morals and ought to succeed in the principate; c) if there is probable hope that the spurious child will believe her and renounce the inheritance. The reason is that she is excused when her own damage certainly and notably outweighs another's damage; but by no means when it is equal or only a little exceeding (III, 653 seqq.).

QUAER. 2. To what is an adulterer held who doubts whether the offspring is his or another's?

Resp. 1. If he doubts whether it is his or the husband's, he is held to nothing. For in this case the damage is not established; and the offspring is presumed to be the husband's unless the contrary is proved (III, 657).

2. If the doubt is between two adulterers, whose the offspring is, it is absolutely more probable that neither is held to restitution, and the same holds for fornicators. The reason is that no one is held to repair damage unless it is morally established that he was the cause of the damage.

Except: a) If the second adulterer noticed, which is rare, that by his deed he would be the cause why it cannot be known whose the offspring is. In this case, he alone would be held to the damage inflicted from that uncertainty. b) If by common counsel they perpetrated adultery; for then each would be held in proportion, and, if the other fails, to the whole (cf. n. 908, III, and 984, Quaer., and n. 992, 2).

Note. As regards adulterers who send offspring to the hospital, see the things said above in n. 700, 2, with note.

964. NOTIONS. A tax or duty, taken generically, is everything which by legitimate ruling power is imposed to be paid by citizens for sustaining the common burdens of the republic.

Taxes today generally are of two kinds. Some are called direct, which immediately and by name affect the person, or his goods, according to the estimation of faculties. Of this sort are real taxes, for example on fields and houses, and personal taxes, for example for a family and its members or for the exercise of commerce.

Others are indirect, and fall immediately indeed on things or merchandise, but mediately on persons. To this class especially come duties concerning merchandise to be made or transported, and tolls concerning things to be sold or bought; likewise those which must be paid for the right of succession, for the registration of contracts, for the sealing of letters, for salt, tobacco, etc. Cf. Waffelaert, de Just., II, n. 414; Vermeersch, o. c., n. 97; Willems, Philos., III, p. 505; H. Pesch, die Soz. Frage, I, p. 144; Staatslexicon, v. Steuern.

Note. Taxes are not all those things which are imposed by the Office of posts or railways, etc. In all these things the State performs work as though a private man and enters a true contract with private persons. Yet very many statutes which are laid down by administrators are merely penal, for example that money not be joined to letters, that a ticket not be handed to others, etc. Cf. Genicot, I, p. 574; Ami du Cl., 1906, pp. 265, 367, 467; 1911, p. 369. The author of the article in the periodical Linz. Quart. Schr., 1901, p. 388, seems to embrace the stricter opinion.

965. PRINCIPLES. I. All those in whose hands is the supreme administration of affairs can impose just taxes. The reason: this is necessary for sustaining common burdens.

We said 1. Just taxes: for since it is a question of an imposition burdensome to peoples, the burden must be divided equally.

But taxes are just if there are present: a) a grave cause, that is, the necessity of the common good, to which the worthy sustenance of the prince deservedly pertains, but not the mere utility or abundance of the prince; b) proportion of the tax, both with necessity, lest the people be burdened more than is equitable, and with the riches of individuals, so that those who have more ought also to pay more. Taxes are also just if there is lacking lesion of privileges conceded by the law of a Superior, for example of real immunity as regards clerics (cf. n. 201).

2. Can impose, and indeed in conscience, since supreme authority can direct subjects to their proper end. Yet from this it does not follow that all just taxes oblige in conscience, as we shall see immediately.

3. All those in whose hands, etc. For the imposition of taxes, since it tends to the ultimate and universal good of society, can arise only from supreme authority.

Hence these can impose them: a) emperors, republics, princes, together with assemblies if they exist; b) councils and Supreme Pontiffs, by reason of spiritual governance (cf. n. 873); c) cities, communities, with the prince approving.

966. II. Officials and ministers are obligated from commutative justice to the just exaction of taxes. The reason: for whatever is held concerning the obligation of paying taxes, they are obligated to exact by office, by stipend. Therefore from commutative justice.

Yet from the presumed will of the Superior, collectors can act more benignly with the poor, with those who diligently pay, or who carry goods for their own use (III, 616).

967. III. Those defrauding direct taxes regularly sin against legal justice alone; those defrauding indirect taxes violate a merely penal law. The reason for the first is that subjects in general are held in conscience to observe just laws which directly conduce to the common good; which belongs to legal justice. To this pertain the words of the Apostle (Rom. 13:5): Render ... tax to whom tax is due. The reason for the second is that, as regards indirect taxes, the ordinary indications of merely penal laws are present: a) a very great fine; b) not so intimate a connection with the common good; c) disproportion with the state of fortune of each one, since at times certain indirect taxes burden the poor more than is equitable; d) the practice of the timorous; e) finally extrinsic probability. Cf. n. 183, 2.

We said 1. Those defrauding direct taxes, etc. Therefore we hold a middle way between the opinion which proclaims that all taxes oblige in conscience, and the opinion which says that all are merely penal.

The first opinion has as patrons Sanchez, Lacroix, Lessius, Lugo, etc.; among moderns Schindler and a few others. The second is held by Genicot, Bucceroni, Berardi, Gury-Ferreres. - St. Alphonsus (III, 616; H. Ap., X, 81) rather inclines to the opinion of Lugo and Lessius, and advises this to peoples (see ed. G., II, p. 96). Aertnys, l. III, 377; Lehmkuhl, I, 1173; Noldin, II, 314; Hamm, Steuermoral, p. 310; Porpora, Theol. mor., p. 383 defend our opinion.

Yet let it be noted: a) Although from what has been said it follows that there is an obligation of duly declaring the state of one's goods, so that the quantity of direct taxes to be paid by each can be determined, from this it does not follow that all things must be indicated to the line. Generally, as is established from custom concerning the value of buildings to be determined, to depress 1/4 or 1/3 below the value, even with an oath acceding, is not illicit (Lehmkuhl, l. c.).

b) In doubt, whether negative or positive, concerning the justice of a tax, there is no obligation of paying. Nor does the axiom stand in the way here: A commanding Superior must be obeyed in doubt; because the subject here must furnish a thing evidently burdensome and damaging, and these inconveniences, together with doubt concerning the power of commanding, outweigh the possession of the Superior (III, 617, ed. G., II, p. 100). But collectors, in doubt concerning the justice of the tax, are held to exact it (ib.).

2. Regularly. For it can happen that from the mind of the legislator or from usual interpretation, even as regards direct taxes, the matter is judged as merely penal.

In England, with Crolly testifying (de Rest., n. 1032), tax laws universally are thought to oblige in the manner of penal laws. But in France and in Germany our conclusion is rather commonly admitted.

3. They sin, indeed not always gravely. But grave matter must be measured not from the quantity alone of the taxes defrauded, but also from the hope which the State has of recovering its right, and from the gravity of the harm which perhaps comes upon others from non-payment.

From this Schindler (II, p. 803) concludes that for gravity of matter in this case a greater sum is required than if it were a question of damage inflicted on the State in goods already possessed.

4. Against legal justice alone, so that from non-payment no obligation of restitution can be constructed (Linz. Quart. Schr., 1909, p. 484 seqq.). Cf. Pastor bonus, 1908-1909, p. 67.

Therefore we depart altogether from the opinion of the distinguished Marres, Waffelaert, Koch, Linsemann, and others, who try to demonstrate that taxes oblige from strict justice (see their argument in Genicot, I, n. 574).

Note. In one case there would be an obligation of paying taxes from commutative justice, if namely a certain and determined quota had been imposed by authority on some group, for example of merchants or notable persons (Kontingentierte Steuern). For then, when one does not pay, others of the same category would certainly be held to pay more (Lehmkuhl, I, 1170; Schindler, l. c.).

968. Consequences. I. They sin and are held to restitution:

1. Legislators or inferior ministers who, in the distribution of burdens, for example in municipalities, knowingly are the cause why someone pays more than is due. For each one has a strict right not to bear an unequal burden.

2. Collectors. They are held to restore: a) to private persons, if they exact anything from them beyond the legal tax; b) to the treasury, if they have not employed the diligence due and suitable for exacting the tax; if, without a just cause, they have acted leniently or dissemblingly toward someone, so that he could defraud the whole duty or a respectively notable part of it; if by not imposing fines they knowingly add boldness to those defrauding, and the treasury thence undergoes damages; if they do not exact fines after the sentence, otherwise probably in the case in which no sentence has intervened; or if in any other way whatever they have connived with defrauders. For they must fulfill their office from justice, even if the law were merely penal (IV, 237).

3. Defrauders. These certainly are held to restore to the treasury, or according to others to pious causes: a) if from an express or tacit pact with collectors they have avoided payment of a just tax; b) if, by force employed toward them, they have refused to pay either a tax or a justly imposed fine; c) if by reason of a tax or fines which they justly paid, they have secretly stolen something. For in these cases justice is openly injured.

969. II. They are excused, at least from injustice, and on account of custom or interpretation sufficiently received: 1. All those from whom taxes were not sought. Wherefore, if there is no one present who exacts the duty, a merchant can without fault omit payment of the tax which is accustomed to be sought by reason of passage through a gate or over a bridge. Indeed Sanchez with others thinks it probable that not even those sin, at least against justice, who purposely hide themselves or their merchandise in order to avoid the request of the tax. The reason is "because taxes of this kind have been so received that they are not owed unless sought." 2. Those who, when questioned by collectors what merchandise they are carrying, what merchandise or at what price they have sold it, what is the value of goods accepted by right of succession, etc., weaken the truth. For since the collector could proceed with the greatest rigor and verify the matter, if he does not furnish this, he indicates sufficiently that he wishes to act humanely, and he is presumed not to conduct himself thus without reasonable cause. And this has force especially when the tax is very burdensome or doubtfully just.

3. Those who are so poor that, if they paid taxes, they could not feed themselves and their own, whether because they carry off moderate profit from their commerce, or are burdened by numerous offspring, or because they are oppressed by another's money, etc. "For natural Right demands this, that one first feed himself and his own, and then pay taxes" (III, 616, 617). Cf. Sanchez, Consil., l. 2, c. 4, dub. 10, n. 11, 12.

970. PRACTICAL RULES. Peoples indeed are to be admonished that they pay taxes. But after the fact, they are not to be compelled to restitution "if they probably persuade themselves that in so great a multitude of duties they have paid something unjust, or have contributed competently to public necessities." Thus St. Alphonsus (l. c.) with Lugo and Molina, with whom Billuart, Gousset, and others commonly agree. Nor therefore is it expedient that a confessor inquire from penitents silent about a tax whether they are guilty of some defrauding, lest perhaps, if they are in good faith, he uselessly cast bad faith into them.

N. B. Concerning the mode of restoring on account of damages inflicted on the republic, see n. 1015, q. 3.

971. PRINCIPLES. I. Soldiers in war are held concerning all damages which they have inflicted through private action. But in a war which they know to be unjust, each is held, in proportion to his own influence, concerning damages inflicted by the army itself. Thus of itself; but ordinarily they are excused, whether because of ignorance, or because of fear of a graver evil if they refused to obey, or finally because of physical or moral inability of restoring (cf. n. 1017).

II. Princes and commanders are held primarily, and in solidum, concerning the whole damage inflicted by the army. The reason is that they themselves were the true mandators, or at least because they did not impede the damaging action, to which they were held by office (cf. nn. 978, 988). See St. Alphonsus, III, 407, 580; Gousset, I, n. 1003.

972. III. Only hired soldiers are held from strict justice to military service; but it is not certainly established that young men called to military service are obligated in conscience to undertake the duty. The first is clear, because there is a contract. - As regards the second, authors disagree concerning the justice and the nature of the law which is named from conscription.

Some say that it is unjust, at least under this head, that it is opposed to distributive justice, since only families which have sons suitable for military service are compelled to undergo the hard yoke. - Others indeed deny that it is unjust, at least among nations for which soldiers hired by stipend cannot suffice, but affirm that it must be numbered among penal laws, because delinquents are most gravely punished. - Finally, others, and their opinion seems to be the more common, teach that the law of conscription indeed obliges in conscience, but only from legal justice. Cf. Pruner, de Jure, P. II, § 72, II; Schindler, II, p. 799.

From these things you will gather: 1. Young men who cleverly avoid military service, for example by lies, exaggerated words, previous mutilation, etc., probably are not held to restore: a) neither to the government, in the case in which others do not supply their places, because it is certainly more probable that the law does not oblige from strict justice; b) nor to others who somewhere supply their places, because it is not established that the aforesaid arts are at once unjust and of themselves efficacious for inflicting damage on them; otherwise he would be held to restore who, by not living rightly, has so weakened his powers that he cannot serve as a soldier. The truly efficacious cause of that damage is the will of the legislator who, when one fails, calls another to arms (cf. n. 949, Condition 2).

2. Young men who by bribes corrupt physicians or magistrates so that they may be declared unfit by them: a) certainly are held to no restitution if all young men fit for military service are assumed, since damage is inflicted on no one; b) but more probably they must restore in the case in which, when one is exempted, another must succeed him; for they are cooperators of formal injustice, for they efficaciously excite public officials to inflict unjust damage on another. For he who by law is not compelled to serve as a soldier has a strict right to preserve liberty. Nor may you say that money is licitly given to redeem an unjust vexation; for here the injustice of the law is not established, and therefore neither the injustice of the vexation, unless the matter is with clerics, or others, who by right are immune from that law. Thus Gousset, I, n. 1002; cf. Bonal, Tr. de Just. et Jure, n. 337; Haine, t. II, q. 196; Vermeersch, de Just., n. 129; cf. also Nouv. Rev. Theol., vol. 37, p. 381. Yet others opine that to corrupt officials or physicians is not an induction to an action to which they themselves, namely officials or physicians, would be held from commutative justice. See Lehmkuhl, I, n. 1177. At least the obligation from the title of strict justice is not established.

In practice one must act cautiously, both because most do not advert to the damage and are not guilty of formal injustice, and because very few would obey admonitions.

973. IV. Soldiers who desert the army sin, and are held to return. This is required by obedience or legal justice, and somewhere by the religion of an oath by which they obligated themselves to soldiering for the time prescribed by law; or even by commutative justice, if by a free pact they hired themselves out.

Yet they are excused: 1. if the war is certainly unjust; for then they are held to flee away, if they can (cf. n. 750, Hence, 2); 2. if they would encounter grave danger to salvation, for example if the means of confessing were not available in the article of death, etc.; 3. if, returning, they would be punished with death or other most grave penalties.

It is asked. To what is he held who had hired himself out in place of another, and then deserted military service?

Resp. He is held of himself: 1. to restore the price accepted, because he did not stand by the pact; 2. to repair the foreseen damage, if he for whom he had hired himself out is compelled to undergo military service. But if no damage and no danger of this kind is incurred, restitution does not seem to be urged, because the hirer intended nothing by the pact except his own liberation; if therefore the liberation remains, the hired man does not commit injustice, nor properly break the pact.

He who was negligent or imprudent in fulfilling his office can be held to restitution: 1. from unjust acceptance; 2. from damage inflicted on goods either of fortune or of soul.

974. PRINCIPLES. I. From unjust acceptance all stipendiaries who have not fulfilled the obligations of their duty are held to restitution. Concerning this matter the Roman Catechism speaks thus: "Those also are to be placed in the number of thieves who, when they have been hired for some private or public office, furnishing no or little labor, neglect the duty, and enjoy only the wage and price" (on the 7th Precept).

Hence: 1. A Bishop, canon, pastor, any priest provided with a benefice, or set over the care of souls or some office, if they are lacking to the law of residence, or do not satisfy the obligations imposed by the canons, illicitly and unjustly accept the honoraria assigned to themselves. But if they fulfill part of their duty, they can indeed retain for themselves the part of the honorarium which corresponds to the labor performed, but they are held to confer the rest for the good of the Church (cf. n. 2264, Quaeres, 2248, 2268). - 2. Judges, magistrates, professors, teachers, physicians, etc., who because of negligence, or because of long or frequent absence, neglect to discharge their office either toward the republic or community or toward a private person, are likewise held to restore that part of the stipend which corresponds to their negligence or absence.

975. II. From unjust damaging, whoever, whether on account of a stipend or without a stipend, has undertaken some duty and has inflicted damages on someone through gravely culpable negligence is held to restitution. The reason is that those undertaking some duty, even spontaneously, obligate themselves, at least implicitly and by quasi-contract, to performing it with ordinary diligence (III, 555; H. Ap., X, 41). Recall the things said in n. 949.

Hence: 1. If someone knowingly taught false things and foresaw the damages probably going to happen thence to a pupil or to others, he is held not only to retract his false doctrine, but also to repair all damages which he foresaw would follow from it (cf. n. 513, 928). 2. If some pupil devoted himself to studies for an office to be obtained through the customary tests, and because of the professor's gravely culpable negli-

gence did not obtain the office, or was compelled to frequent school for a longer time: the professor, and if he fails, the prefect of the school, culpably participant in the professor's negligence, is held to repair all the damages of the pupil or of his parents according to the estimation of prudent persons. Cf. Crolly, de Rest., n. 1252.

294. The obligation of restitution is measured by the gravity of the damage together with the gravity of the fault. — Hence:

1. He who from grave fault has caused grave damage is obligated under grave sin to repair it insofar as it truly was caused by him.

2. He who from either light or grave fault has caused light damage is obligated under venial sin to repair it.

3. He who from fault light because of inadvertence has caused grave damage is obligated only under venial sin to repair the damage partially, according to the proportion of the fault; because from an imperfectly human act there cannot follow a grave obligation or grave penalty, since they are not proportionate to it. Thus one who, from anger not fully deliberated, gravely wounded someone is bound not under grave sin but under venial sin, nor to repairing the total damage.

4. He who from light fault posited with full advertence has caused grave damage which he thinks light is obligated, at least under venial sin, to repair the whole damage, because he voluntarily inflicted the whole and consequently voluntarily obligated himself to it; indeed under grave sin, if in some way in confusion he adverted to the danger of grave damage, because then he took that danger upon himself. — Others, however, say: always under grave sin, because the obligation of restoring from a fully voluntary action is measured by the quantity of damage.

5. He who from multiplied light faults has caused several light damages which together constitute one grave damage: if he has thus inflicted grave damage on one person, he is bound under grave sin also to repair it, at least if in some way he adverted to the danger of inflicting grave damage, as is to be presumed and almost always happens; — on the contrary, if he has inflicted it on diverse persons so that none has suffered grave damage, he is bound under venial sin to repair the individual damages; unless he still detains a great good taken away from several: for then he is bound by reason of the thing received.

Prummer aptly notes² from Billuart:³ "Whatever may be the case in speculation about this question, commonly the authors of any opinion warn that it rarely happens in practice that grave damage is caused from venial fault; because, although venial inconsideration is frequent in surreptitious thoughts and internal movements of the soul..., nevertheless it rarely happens in external works of grave moment, which ordinarily at once present their danger and more strongly excite the mind to consideration of themselves, or at least to confused knowledge of the danger. Hence, unless it is certainly established that the inadvertence was venial, in practice it is to be held as mortal, namely conformable to the damage, and the obligation of restoring under mortal sin is to be inculcated."

² Th. M. II, n. 97.

³ Diss. VIII, art. 5.

295. The obligation of restitution does not arise from violation of legal or distributive justice, except per accidens, if commutative justice is at the same time injured, for example, if a contract is violated. Public good indeed demands that offices and benefices be granted to the more worthy; but these do not have a strict and rigorous nor complete right to obtaining them.⁴

⁴ Cf. Tanquerey, De Iustitia, n. 467-468.

Nevertheless, sometimes commutative justice is at the same time injured, with the burden of restitution:

1. in the distribution of offices and duties, if the superior chooses those altogether inept or incapable, for example, as physicians of an army, and thus is the cause of damage for society or also for its members, which will have to be repaired: from contract he is bound toward society; — but not if he chooses the worthy and fit, but passes over the more worthy, unless the designation is made by way of an onerous contract or of a contest entered upon in the strict sense;

2. in the distribution of any benefices whatever, by way of contest, namely, a) if a contestant who is truly worthy is unjustly judged unworthy and thus deprived of his strict right; in which case restitution will have to be made according to the proportion of the hope which he otherwise would have had of obtaining the benefice; b) on the contrary, if an unworthy contestant is admitted as worthy, and thus, because of the determinate number of those to be admitted, another worthy person is excluded; in which case the damage caused to him must be repaired; c) if, when a contest has been instituted precisely for this, that the more worthy be named, the less worthy is preferred to him; in which case the one distributing ought to restore to the more worthy for the damage inflicted: for then the more worthy has a strict right; — but not if the contest is instituted only for knowing in general who are fit and worthy;

3. also in the distribution of burdens, for example, of taxes: if those taxing burden some less and others too much, they are bound to repair the damage inflicted on the latter, because each one has a strict right not to be deprived of his goods beyond what is due, namely, without necessity or a just cause.

296. Corollaries. — From the doctrine set forth the following things are deduced:

1. He who culpably posited a cause of another's damage, if that damage has not yet followed, is bound to retract his fault, and in every way in which he can to impede the cause from producing the harmful effect; otherwise he is bound to restore. But if he could not impede the physical cause thus posited by him, he is nevertheless bound to repair the whole damage caused, because by voluntarily positing a cause whose influence he did not remove, he was truly, efficaciously, and formally the unjust cause of the damage, if not from actual will, nevertheless from preceding will.

2. But he who inculpably posited the cause of another's damage is bound to impede such a cause from producing the harmful effect, provided it can be done without relatively grave inconvenience, that is, without equal or greater damage; otherwise he is bound to restore under grave sin, because the effect becomes indirectly voluntary from an injurious omission, since each person, as long as he can, ought to take care lest an action posited by him harm another.

Hence a) a physician or pharmacist who inadvertently prescribes or furnishes poison, and afterward notices this, ought according to his strength to forestall the effect; — he who inadvertently casts fire into a haystack or into a forest is bound as far as he can to extinguish the fire; — he who from error gravely injures the reputation of his neighbor, or gave harmful counsel, ought to retract, etc.; otherwise they are bound to reparation of the damage;

b) but he who voluntarily administered poison to another, although afterward, repenting, he furnished an antidote but in vain, truly is the cause of the death; — he who, wishing to burn a house, brought fire to the house, even if afterward he tries to extinguish it, truly is the cause of the burned house; — he who by voluntary calumny, even if he retracted as far as he could, harmed his neighbor by damage in temporal things, truly is the cause of the damage: all these are bound to reparation.

1. From error concerning the gravity of the damage: he who from invincible error thinks that the damage which he causes is less than it is, is bound only to restore according to this estimation, because only this is voluntary; unless, however, he foresaw the whole damage in some way indistinctly or in confusion: thus if a servant alienated or destroyed a gem which he thinks to be worth 100 francs, while in reality it is worth 1,000, he must restore 100, unless at the same time he thought that it was a thing of great moment whose value could not be well determined, and thus knew the possibility of great value.

2. From error concerning the person injured: he who, wishing to inflict damage on one person, inflicts it on another, as he who, wishing to burn Peter's house, burns Paul's house, is bound to restore to Paul, because his damaging action is truly, efficaciously, and formally unjust; — whatever some have said: that restitution need not be made for the formal injury toward the first because it was not damaging to him, nor for the damaging injury inflicted on the other because it was merely material. For this is a mere subtlety.

a) For it is a material injury against Paul as Paul, but it is formal against Paul as owner of the thing destroyed; whence the injury is against a man in confusion, but against the owner of the thing, although it is invincibly unknown who that owner may be. And although the personal injury was involuntary, the real injury is fully voluntary, since someone voluntarily destroys a thing which he knows belongs to another, which suffices for moral fault and formal injustice.

b) Hence the error is not substantial, as regards the damaging itself (which would free the act from formal injustice), but merely accidental concerning the circumstances of the damaging action: the agent indeed errs concerning the owner of the thing, but at the same time he knows that the thing belongs to another, which justice forbids to be taken away, and nevertheless he wills to destroy this other person's thing. On the part, namely, of the intellect, although there is error concerning the person, who he is, there is perfect knowledge concerning what he is, or that injury is inflicted upon him; — and therefore on the part of the will, the act is borne toward an evil object, the injury of the right of the owner whose thing is destroyed.

c) Hence it is not relevant to say that the damager is so disposed that he would not inflict damage on Paul if he knew that the thing pertained to him, not to Peter: for the matter is not what he would do, but what he voluntarily did. By interpretative will he would not will the damage, but in fact he wills it. For error makes the act involuntary only concerning the person of Paul as such, not concerning the person as owner.

This is still more indubitable: 1. if the reason for inflicting damage was not the person as such, but his function or office, as if someone from hatred against religion or society wished to kill a priest or judge, and only erred concerning the person of the priest or judge;

2. if sufficient diligence for avoiding the error was not used, and from culpable negligence damage was inflicted on one rather than on another: for then this was foreseen in confusion.

3. From error concerning the substance of the thing destroyed: he who, wishing to destroy one thing, by error destroys another of the same owner, for example, he who, wishing to kill the goat of an enemy, kills the cow of the same man, is bound at least to restore the price of the thing which is of lesser value, because this damage was voluntarily inflicted from formal injury: for although he did not wish to kill the cow, nevertheless he wished to destroy another's thing and to inflict grave damage on him, although he erred concerning its quantity.

1. If doubt of fact precedes the action, that is, if the agent doubts whether the action to be posited inflicts certainly unjust damage or injures a certain right of another, he ought to inquire with diligence proportionate to the gravity of the matter; and if after examination a founded doubt endures, he ought to abstain from the doubtfully harmful action. For justice strictly obligates that we do nothing from which unjust damage of another could follow; and it strictly forbids us to expose ourselves to the danger of probably inflicting certainly unjust damage on a neighbor. In doubt of fact, the safer course must be taken (n. 90-91).

Thus a judge cannot condemn someone concerning whom he seriously doubts whether he is guilty; nor can a physician employ a remedy which is probably harmful, unless another is lacking; nor can a hunter fire a gun if he doubts whether he is about to wound a beast or a man.

2. If doubt follows the action and after diligent examination a founded doubt remains:

a) If it is doubted whether the damage was in fact caused, or whether the cause was unjust, or sufficient for inflicting the damage, the obligation of restoring is doubtful and cannot strictly be imposed.

b) If the damage is certain and the cause of the damage posited is certainly sufficient, but it is doubted whether the cause was efficacious — or whether from that cause, and not rather from another, this damage was inflicted — this is to be presumed until serious reasons are brought forward to the contrary; but if there are founded reasons for doubting, the obligation of restoring, as being doubtful, cannot strictly be imposed.

c) If the damage was certainly inflicted, and a twofold (or multiple) cause is present, of itself efficacious, but it is doubted from which one the harmful effect followed, they are bound to restore in solidum if they acted from mutual conspiracy or with advertence to mutual concurrence: because then the uncertainty concerning the author of the damage is to be attributed to the damagers themselves; and this uncertainty is already damaging in itself and especially in its consequences, for example, in the deprivation of restitution. On the contrary, if each acted entirely unaware of the action of the other, the obligation of restoring becomes doubtful for each one and cannot strictly be imposed on either, because neither is proved to be the author of the damage.

297. Question: Whether one unable to restore from goods of the same order is bound to restore from goods of a diverse order?

Thus, for example, whether he who inflicted merely personal damage by adultery, insult, killing, wounding, etc., is bound to restore from real goods and to give money if he cannot otherwise compensate the damage? St. Thomas affirms, because he who cannot restore the whole is bound at least to compensate the part which he can (a. 2, ad 1 and 2). Many more recent authors with St. Alphonsus deny this: for commutative justice obligates to restitution according to the equality of the damage inflicted; but where restitution must be made in a diverse genus, no equality is present, nor will any compensation ever be possible: by whatever money, the damage is in no way repaired, neither in whole nor in part. Namely, a right in one thing is not a right in another; whence the connection with the damage, the object being lacking, now does not exist.

Now 1) speaking speculatively, the opinion of St. Thomas seems more probable, because if someone cannot render a thing totally to equality, he is bound at least to render as much as he can; and if he cannot render the thing itself, he is bound to render in an equivalent. For although there is not equality of compensation from the nature of the thing, nevertheless there is according to the estimation of men.

2. In practice it is certain a) that the other opinion can be used, and no one can be compelled to restitution, on account of the authority of the great Doctor who holds it, St. Alphonsus; — b) nevertheless that restitution is to be advised, as all say; — c) that it is also of precept for real damage which perhaps will follow from personal damage, for example, for the care of a wound; — d) that material reparation must be furnished for personal damage if a judge has imposed it.

Generally each one is bound from justice to repair damage which he has efficaciously and unjustly brought upon the neighbor in goods of the soul, both natural and supernatural, provided that this damage can be repaired in the same order. For no one has a less strict right not to be injured in goods of this kind than not to be injured in goods of fortune.

805. Resolutions. - I. As to damage in supernatural goods:

1° He who by force, lie, fraud, or unjust fear induced someone into lethal sin is bound under mortal sin from justice to reparation of the damage, by taking away the force or seduction, by manifesting the error, etc. But one who without force or fraud, but only by counsel, induced someone to sin lethally, is indeed bound from charity to revoke that counsel, but not from justice, because no injury is done to one knowing and willing.

2° He who by deceit induced another into error, especially practical, from which grave damage can arise to him in matter of morals, is bound from justice to repair the damages which come from it, and therefore with all care to remove him from error. Say the same concerning speculative error about the articles of Faith.

3° He who by force, grave fear, or fraud impeded someone from entrance into Religion, or induced one already entered to desert Religion, is bound from justice to remove the fraud and deceit; for each one has a right not to be unjustly impeded or drawn away from the obtaining or possession of so great a good. He is likewise bound to repair damages caused to the monastery or Order through the departure of a professed religious, or even more probably of a novice.²

4° He who inculpably placed a cause of damage in spiritual goods, for example preaching false things in a moral matter which he thought true, is bound to the same thing as a material damager who can still impede the damage. Recall what was said n. 749. q. 3°.

806. • II. As to damage in natural goods:

1° He who deprived another of memory, reason, etc., through poison, a love-potion, etc., is bound from justice to repair everything which is reparable from the damage unjustly inflicted.

2° He who by fraud impedes another from learning a science, an art, ... or from teaching others, is bound to dispel the fraud and to repair temporal damages which have arisen from it.

3° He who from office ought to teach an art or science is bound to correct errors, if he has admitted any of some moment. The same obligation also lies upon him if from negligence or levity he has mixed probable things with improbable.

4° But if someone gratuitously and without the obligation of agreement or office were to teach badly, that is, without any or with slight progress of the pupil, from negligence or ignorance, fraud and deceit being set aside, he would not be bound to reparation.

5° He who inculpably placed a cause of damage in natural goods is bound to the same thing as he concerning whom in the next preceding number under 4° it was said.

Namely 1° on account of homicide, 2° defloration, 3° adultery.

807. • From homicide and mutilation a threefold damage can arise: spiritual, when the victim is deprived of the sacraments or of time for due preparation; natural, from life or members lost; temporal. From the first there exists an obligation of charity, as far as one can, of helping the soul of the killed person; indeed, according to distinguished theologians,¹ also of justice, if that damage was foreseen in confused manner, for it is a question of a good from whose obtaining the killed person was impeded by an unjust means. Cf. n. 805. 1°. - For natural damage, since it cannot be estimated by price, more probably nothing is owed; nevertheless the confessor fittingly imposes something for penance or from equity. - Temporal damage is either of the injured person himself or of others.

Damage exists for the injured person himself: 1 on account of expenses for the healing of the wound; 2 on account of damage emerging and profit (pure, namely "clear gain") ceasing for the time during which the wounded man could not attend to his accustomed work or business. Both this (if it was foreseen) and that (unless they have been condoned by the dead person²) must be furnished: a. by any heirs whatever of the dead person; b. by the heirs of the killer or wounder; for the former succeed into the rights of the dead person, the latter into the burdens also of the killer or wounder. - On account of funeral expenses, since they would have had to be made at some time, nothing is owed, unless perhaps, on account of a killing inflicted outside the homeland, they had to be greater.

The others to whom damage can exist are understood of themselves only to be parents, wife, and children, insofar as they actually are deprived either of support or of profit to be perceived, with attention to the hope of life and the condition of the deceased. - Only, that is, not brothers, sisters, and the other blood-relatives, since not these, but only those constitute one moral person with the deceased, namely the family, so that by homicide damage is directly inflicted unjustly only upon them. Wherefore not even the one killed could condone to the killer the reparation of this damage. Nor are creditors of the deceased understood here; because if by his death they are frustrated of payment of the debt, this follows from the killing only by accident and remotely. - Of themselves, because if someone kills another, not I say foreseeing, but intending by this very murder to damage the brothers or creditors, or to impede the making of a will, the damage must be furnished. Cf. n. 692. 5° and (r) p. 475. - In reality, because if, for example, the wife has married equally advantageously, or she, the parents, children are supported by a friend of the killed man, no reparation of damage is owed to them as to support, since it was in fact not inflicted.²

Reparation of damage inflicted by homicide perpetrated without theological fault is also licitly sought from a judge. Cf. n. 747. III.

808. Questions. - Query 1° Does an obligation of justice remain in the heirs if a murderer is punished with death without having repaired the damages?

Resp. Affirmatively. For penalty satisfies vindicative justice, but not commutative justice. Therefore heirs must pay debts from commutative justice, unless the injured parties do not complain, provided nevertheless that the thing does not exist or the damage is not very grave.³

Query 2° Is he bound to restitution who kills another by exceeding the mode of just defense, or the MODERATION OF BLAMELESS DEFENSE?

Resp. Affirmatively, if he deliberately exceeded, because the invader has a right not to be unjustly killed; therefore the killer, by knowingly exceeding the limits of just defense, commits grave injury. - Thus the common opinion. S. Alph.,³ with Lugo,⁴ against some older authors cited by the same Lugo.⁵

Query 3° Is he bound to anything who kills another in a duel?

Resp. More probably negatively, whether he was the one provoking or the one provoked. For no injury is done to one knowing and willing, when the right can be remitted; but even one accepting the fight both willed and could remit temporal damage. Therefore... S. Alph.,⁶ Lugo,⁷ etc.

Others say that the one provoking is indeed bound to restitution if he killed the adversary, but not the one provoked. - But others obligate each one. But these opinions are not to be attended to in practice.

Query 4° To what are those bound who have ownership of railways and of ships which are moved by steam, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are bound to pay as much as the judge by equitable judgment decrees to be paid; and they sin and are bound to restitution if by fraud, deceit, and gifts, as often happens, they induce the judge to bring an unjust sentence.

809. Principles. - I. For merely natural damage, or for the injury of bodily integrity and the loss of virginity, nothing, at least more probably, is to be restored; because that damage cannot be compensated by money.¹ Hence, agreement being set aside and no other damage having followed, for example because the crime lies hidden, or the woman has married honorably, has professed religion, or has died at a premature age, nothing is owed.

II. Even for temporal damage which has followed from base intercourse, nothing, except the education of the offspring, must be restored when the woman consented to the solicitation; for no injury is done to one knowing and willing.²

III. If the deflowerer violated the girl by force or fraud, he is bound to repair all damages coming from it to her or her parents. Yet, if Marriage was not promised, he is not bound to marry her, unless the damage can in no other way be repaired or he has been condemned to this in penalty. But he is bound only for part of the damage who, through moral force alone, suppose threats, reverential fear or fear of infamy, very importunate prayers, touches and kisses, elicited the consent of the girl.³

810. Questions. - Query 1° Is the violator bound to marry the girl violated under promise of marriage?

Resp. The common opinion, and according to S. Alph.⁴ altogether to be held, affirms. The reason is 1) because otherwise the damage cannot be repaired adequately; 2) because the unnamed contract Do, that you may give, etc., is then perfected when the handing over of the thing or the furnishing of the work is done; and then the reason and force of laws which render base agreements void ceases. For the obligation which is then contracted by the other party is not base, nor does it drive one to a base thing. - Yet note the following.

I. If the promise was not the motive cause of the woman's consent, it, as any other gratuitous promise (n. 872 sq.), will have to be interpreted.

II. If it was the motive cause, it obliges from justice, unless excusing causes are present. Hence the obligation ceases: 1. If the outcomes of a very bad marriage are feared, for example on account of the lighter disposition of the girl, hatreds and quarrels of the families, etc., because in these cases the promise, as being concerning an illicit thing, was invalid. 2. If the man afterward discovers that the girl had already been deflowered before or had afterward fornicated with another. The reason of the former is that there is no obligation of furnishing to a corrupted woman what was promised to a virgin; of the latter, because faith is not to be kept with one breaking faith. 3. If, as is clear, the girl herself rejects marriage. 4. If an impediment of marriage is present, the obligation ceases, because it is impossible of fulfillment, if in it there is either never or rarely dispensation; because it is concerning an illicit thing, if the woman is non-Catholic (yet in this case, under the due conditions, dispensation must be sought, if the woman, otherwise honorable, suffers danger to her reputation on account of the man's delict). The obligation holds, and that even with grave inconvenience, if dispensation is usually granted in the impediment, whether an agreement of seeking dispensation is supposed or even set aside. Otherwise if (the agreement being set aside) the fornicator inculpably did not notice the impediment and cannot remove this without grave inconvenience (which nevertheless today scarcely exists). The reason of each is that one who has taken upon himself some obligation by an onerous contract is bound, even with grave inconvenience to himself, to remove impediments which he knows or culpably does not know to stand in the way of fulfilling this obligation; but not those to which (the agreement being set aside) he inculpably did not attend. 5. From a fictitious promise, as from damaging fraud, an obligation exists equally as from a true one. But it does not exist in the case in which the fiction could easily have been perceived by the woman, for example from ambiguous words or from known notable disparity of condition; for then she wished to be deceived and is to be judged to have consented freely.

Compensation made in another way than through marriage is required and suffices: a) Very probably, in the case under 5, if the woman was ignorant even of the fornicator's disparate condition, because justice obliges only to equality, and the woman was not seeking consent of so great a value; b) In the case under 3, if it does not stand through the girl that she enters into nuptials, for example the parents impeding them. Then compensation made in another way suffices, as is clear of itself; more truly, as it seems to S. Alph., it is required, because the promise was made principally for repairing damage; c) In the case under 4, if (the agreement concerning seeking dispensation being set aside) the fornicator did not inculpably notice the impediment of marriage and cannot remove the impediment without grave inconvenience. Resolve the same if dispensation is denied. The reason is that it is always true that damage was unjustly given.

811. • Query 2° Is the violator bound to anything toward the parents of the violated woman, if she freely consented to the sin, for example because they must increase her dowry?

Resp. Most commonly negatively, since the girl is mistress of her body, not the parents. Wherefore, since she is not bound toward them concerning damage, neither can the violator be bound concerning it. Except if this man, by spreading abroad the violation, brought infamy upon the girl, in which case he is bound concerning every damage arising to the girl and the parents from the infamation.¹

Query 3° To what is the violator bound toward spurious offspring?

Resp. 1° If he oppressed the mother by force, he is bound to all expenses of nourishment and education. The reason is clear from what has been said. Yet in his default, the mother ought to undertake care of the child, although she admitted no fault, because she is the mother. But then she preserves recourse against the corrupter, who is bound to compensate to her all expenses which she made on occasion of the offspring.

Resp. 2° If the woman consented to the sin, by natural right both parents are equally and in solidum bound to those expenses. As regards the Fed. States, Smith notes:³ "The ... duties of parents of bastards are regulated to a great extent ... by local statute."

812. Principles. - I. Each adulterer is bound in solidum to repair all damages of the family, if the crime was voluntary on each side, because the whole is imputed to each. Hence 1° all expenses which the husband sustained in nourishing and educating the offspring must be restored. But if these expenses are compensated by the labor of the spurious son, damage which afterward must be repaired is not in reality given to the father. 2° If the illegitimate son with legitimate or other innocent heirs (but not those of the adulteress alone) has already received the inheritance, compensation according to proportion must be made to these.¹

II. The adulteress must restore from paraphernal goods (and, if surviving the husband, from goods coming to herself) to husband and children through donations, through contract, testament, etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and work more diligently insofar as state permits.

III. If the woman consented by force or fear, the adulterer alone is bound; but he who by contract took all damage upon himself is bound in the first place.

813. Questions. - Query 1° Is a woman bound to reveal her crime if she cannot repair the damage in another way?

Resp. Negatively, speaking generally. The reason is 1° because commonly this revelation cannot be made without great infamy, and often also not without danger of death, or perpetual hatred, or other grave evils; 2° because with difficulty could she repair the damage even by it, especially since the son, except in the case in which the mother as adulteress would be condemned in the external forum, is not bound to give faith to her. Except: 1) if the mother is of lost reputation; 2) if by manifesting herself to the spurious son she would probably hope that the son would believe her and would cede the goods, nor would there be feared further great infamy or vexation of the mother; 3) if she could avoid the damage by manifesting herself only to the husband. But the cases of these exceptions, especially of the second and third, are very rare, not to say metaphysical.²

814. • Query 2° What in doubt whether the offspring is of the husband or of the adulterer, or from this adulterer rather than from another?

Resp. to the 1st, more probably, adulterers are bound to nothing, because the damage is not established.³

Resp. to the 2nd. Negatively; see n. 154.

Query 3° Must those things be restored which are given or left to a spurious person because he is thought legitimate?

Resp. Negatively, unless either the spurious person knows himself to be such (n. 894), or some unjust means is used so that another be impeded from obtaining those gifts (n. 692. R. 5°), for example if the adulteress, knowing that some rich man is going to give to the children of her husband, substitutes the spurious child.¹

815. • Query 4° If wealthy adulterers or fornicators send offspring to a foundling hospital, are they bound to repay the expenses?

Resp. It is controverted. The opinion more probable to S. Alph.² denies it, because foundling hospitals have been erected for all indiscriminately abandoned infants, who are cast off by parents. Nor does it stand in the way that aids are supplied by the Government or by the Municipality for these little children, because these are assigned for abandoned children generally, without attention being paid to the parents. Moreover hospices of this kind have been instituted for this end, that illegitimate children be freed from the danger both of eternal and temporal death, to which illegitimate children of the rich are also exposed. In practice parents are to be exhorted that, at least under the title of penance, they contribute something to the foundling hospital.

II. Principles. - Three things are to be attended to in the present matter:

1. The adulterer who by force, grave fear, deceit, or another unjust means led the wife to carnal union is bound from justice, he alone, to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole truly efficacious and formally unjust cause of these.

2. The adulterer who did not use an unjust means, but obtained consent from the wife wholly freely, is bound from justice in solidum with the wife to repair the damages inflicted on the husband and children, because both together are the unjust, efficacious, and culpable cause of them.

3. Several adulterers who, from carnal union had at a time apt for conception, can be the father of offspring certainly adulterine, are bound to reparation in proportion to the doubt, at least if they acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father, which already is a damage certainly inflicted and to be repaired; otherwise it is uncertain whether they are bound to restore, since rather the mother is the cause why the father cannot be established.

III. The manner of restitution is altogether to be attended to, since in practice it is often difficult because of the danger of suspicion by which the peace of the family would be disturbed. Wherefore:

1. The male adulterer can restore by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to prudent estimation.

2. The adulterous mother can restore: a) from her own goods if she has those of which she can dispose without prejudice to the husband; b) from the profit which she makes from her own labor, or by exercising a business or art; c) by diminishing customary expenses, by caring for the family property more diligently, and by living more sparingly insofar as can be done according to her condition, to which, if another manner is lacking, she is also bound; d) by applying to the adulterine offspring the alms which according to her state she can give, or by asking from the husband an alms for a poor relative; e) by secretly taking, as much as she safely can, from the goods which are to come to the adulterine child or have already come to him, and by compensating the legitimate children with them; f) or also by prudently giving counsel to the illegitimate child concerning religious life.

3. If it is possible for the adulterine offspring to be educated in a hospice or foundling house without suspicions arising, care must be taken that it happen thus, since in this way the expenses of education are greatly limited and division of the inheritance is avoided. Nor generally is there an obligation of restoring to the hospice, unless in the case in which it is sustained only by public expenses of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Restitution for damage already following is to be made as soon as possible. For damage not yet inflicted but to be inflicted it suffices that the guilty party so arrange matters that he restore at the opportune time, unless nevertheless he is near death; in which case he is bound immediately to restore, by himself or through another, according to the proportion of probability of the life of the adulterine child, attention being given to his age and strength, and according to the proportion of damage to be inflicted on others.

Thus also he could commit it to the confessor, or to another trustworthy man, that he restore the whole damage from goods to be handed over to him, yet in such a way that, if the adulterine offspring dies before the putative father, he would dispose otherwise of the goods received, as the adulterer had determined.

IV. Observations. - 1. There is no obligation of restoring: a) for the injury inflicted on the husband through adultery, if he has suffered no moral detriment from it, as in the case of secret adultery, or if he does not care for reparation; b) for temporal damage, if none has followed, as if offspring has not been born, or, having been born, by his own labor has compensated the expenses of his education; c) if the husband consented in the adultery; unless nevertheless to necessary heirs, in the case in which on account of adulterine offspring born they would be frustrated of part of the legitimate inheritance.

2. Detriments which come from adultery merely per accidens are not to be restored, from the fact that other relatives or friends give or leave certain things to the adulterine child which otherwise would have come to the legitimate children.

3. Nor is there to be restitution in the case in which the offspring born is doubtfully adulterine; for in doubt offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom marriage indicates. And otherwise restitution is not to be made as long as it is uncertain that the action was efficaciously damaging.

4. An adulterous woman can sometimes be bound alone to repair the damages which happen by reason of inheritance: namely if she could easily remove the adulterine child so that he would be nourished outside the family, for example in a foundling house or hospice, and the adulterer did whatever he could to obtain this; for then he effectively retracted the cause of the damage and did not sin against the family, and the adulterous woman alone efficaciously caused the damage.

5. Nevertheless, regularly, even if it is necessary for avoiding or repairing damages, the mother is not bound to manifest her crime: namely she is not bound with danger of life, nor with danger of graver infamy unless she is already suspected and has partially lost reputation, nor with danger of great hatred on the part of the husband and relatives and of graver discord, nor without hope of fruit, when the manifestation will be of no use, whether because the son will not believe his mother, or because he will not restore, since it is foreseen that he cannot or will not wish to do this.

Nevertheless the mother would be bound if the aforesaid dangers of death, graver infamy, indignation, and scandal were absent, and the son were thought likely to believe his mother and to restore.

6. The illegitimate son is not bound to believe his mother affirming his adulterine origin, even under oath, but can consider himself as legitimate, unless from circumstances or indications the testimony of the mother produces such certainty as would suffice in a public judgment, as if the absence of the putative father at the time of conception is certainly proved. But if this is thus established, the son cannot retain the paternal inheritance, nor gifts which come to him from error, unless meanwhile he has lawfully prescribed.

7. The confessor to whom a dying adulterous woman would wish to entrust that after death he declare the offspring spurious cannot accept that office, both lest confession be rendered odious, and because the offspring would not be bound to give faith to his words, and thus the manifestation would be useless.

V. Corollary concerning Forcible Violation and Fornication. - Similar things hold for unjust or violent violation, which is carnal union with an unwilling unmarried woman, or the oppression of an honorable woman, even if not a virgin or not a minor; to whom damaging injury can be inflicted by reason of future marriage and by reason of offspring perhaps to be born. Now the unjust violator is bound to restore from justice:

1. On account of temporal damage, as inability or difficulty of marrying, infamation and dishonoring, syphilitic infection, etc., if in fact it has been inflicted, provided that it arose of itself from his action and consequently was foreseen in confused fashion. To this the one who oppressed the woman is also bound: to marry her, if he promised this, even fictitiously, and therefore truly deceived the woman, or if the damage cannot be repaired otherwise and graver evils are not prudently feared; otherwise he ought to dower her or increase her dowry, or otherwise take care that she can marry according to her condition, or contribute to her support, according as the damage was inflicted and it is possible to repair it.¹ Nevertheless he is not bound to compensation if in fact the woman has suffered no damage, as if she has already married well, or even otherwise could not have married, or has entered religion, or has been defamed from her own indiscretion, or has now died by premature death.

¹ See more in Summa Theol. Mor., II, n. 382.

2. On account of offspring born, so that, if he is the certain father, he ought from justice to provide for the whole support and education, according to the condition of the mother, until the offspring can suffice for himself. But if the father is uncertain, because several have had carnal union, he is bound to restore in proportion to the doubt, at least if they acted thus by common counsel or knowingly, because the voluntary cause is of the uncertainty of the father, which already is a great damage for the mother and offspring; otherwise he cannot be obliged to restore anything, since rather the mother is the cause why the father cannot be established.

In the case in which the woman has suffered violence or injury in no way, but has freely consented, the man contracted no obligation from justice of itself, but can be obliged from piety and charity. And indeed:

1. To the support of the offspring, according to the condition of the mother, by natural right he is bound for half the part, if he is the certain father, even if the civil law prohibits inquiry concerning the illegitimate father; but he is bound in solidum with the mother, so that, if she supplies nothing, he ought to provide for the whole; but if the civil law or the civil judge petitioned according to law should determine the quantity of support to be paid by the illegitimate father, this would have to be paid. But if there are several uncertain fathers, they are bound to half the support in proportionate part, at least if they acted thus by common counsel or knowingly, as was said above; otherwise none can be obliged to compensate for the support of the offspring.

2. To acknowledgment of the offspring and to its legitimation through subsequent marriage, unless graver inconveniences stand in the way.

Let it be noted that the man of himself owes nothing to the woman:

a) on account of the carnal union had, because to one knowing and consenting no injury is done; unless per accidens, as if he promised something, or, by indiscreetly manifesting the crime, defamed her;

b) on account of the expenses of childbirth, because by offering her body the woman is judged to have taken this burden upon herself.

111. Preliminary Note. Since we have spoken of damaging in general, now one must deal in particular with some damagings in which a special difficulty is found. Following the footsteps of the Angelic Doctor,⁷⁴ we shall first treat of injuries committed by deeds, and then of injuries committed by words. By deeds injury can occur in three ways: 1. by directly injuring the very person of the neighbor; 2. by indirectly injuring the neighbor, namely in another person intimately joined to him; 3. by injuring the proper things of the neighbor. Enough has already been said above concerning this third injury, under damaging in general. Injury of the very person of the neighbor is prohibited by the fifth precept of the Decalogue: "You shall not kill"; by these words there is forbidden primarily every unjust homicide, that is, suicide and the unjust killing of the neighbor, and secondarily whatever injures one's own or another's body in an undue mode. But the neighbor is injured indirectly in a person intimately joined with him through adultery and deflowering. Therefore the order of things to be said is the following: 1. on injury against one's own body; 2. on injuries against the body of the neighbor; 3. on injury arisen from deflowering and adultery.

⁷⁴ Cf. S. theol. 2, 2, q. 64 sqq.

Notions. Stuprum, strictly speaking, is the defloration of a virgin still existing under paternal care;²⁰⁰ fornication is carnal intercourse had with an unmarried woman who has already lost virginity; adultery is carnal intercourse had with a person joined to another in marriage. Here we do not treat of these sins insofar as they wound chastity, but insofar as they wound, or at least can wound, commutative justice. But since there are special and grave difficulties concerning the reparation of damage arisen from adultery, first we treat of the reparation of damage arisen from any carnal intercourse whatever, and then of the reparation of damage arisen from adulterous intercourse.

²⁰⁰ Cf. S. theol. 2, 2, q. 154, a. 6. See other acceptions of stuprum below, n. 699, in the treatise on chastity.

147. Principle 1. In the forum of conscience, before the sentence of a judge, there is of itself no obligation of restitution on account of a physical lustful act, even one perpetrated by force.²⁰¹

The reason is that it is impossible to assess such a physical lustful act in money. But it is said 1. before the sentence of a judge; for if a judge has condemned a defiler, fornicator, or adulterer (especially if they employed force), then such a sentence is just and obliges in conscience. Likewise, since a woman unjustly oppressed, or her parents, have the right of calling the violator before the tribunal of justice, they can exact money for the renunciation of this right. - It is said 2. of itself there is no obligation, because if from the physical act other damages have arisen, whether to body or reputation or fortune, e.g., syphilitic disease, there certainly exists an obligation of repairing those damages, as will appear from the following principles.

²⁰¹ Thus the common opinion. A few authors, among whom Billuart (De iure et iust. diss. 10, a. 11, appendix 2, dico 2), think that the corrupter is held to pay money for the violation of the virginal cloister, if the parents or girl demand it.

148. Principle 2. He who has had carnal intercourse with a woman consenting spontaneously, a) is held to nothing indeed with respect to the woman; b) nevertheless is held in conscience (and indeed even before the sentence of a judge) by an equal obligation with the woman (in solidum) to educate the offspring perhaps conceived, until that offspring will be able to provide for itself.

The reason of the first part is that no injury is done to one knowing and willing. Hence, for example, a fornicator is not held from justice to pay the expenses of childbirth, unless nevertheless positive law has established otherwise.²⁰² But the reason of the second part is that the offspring conceived must be educated by each parent, just as the natural law itself demands. But I say, before the sentence of a judge, because in several regions the civil judge, when asked, is accustomed to determine the quantity of support to be paid by the illegitimate father.²⁰³

If a woman has fornicated with several men and for this reason does not know certainly who is the father of the offspring, no one is held to repair for the woman herself any damage which she suffers from the birth and education of the offspring. Nevertheless in three cases all the men who about that time had intercourse with the woman are held, according to the proportion of the doubt, to reparation of damage, namely:

a) if by force or deceit they induced the woman to sin. For then there is grave injury on the part of the men.

b) if the woman is incapable of educating the offspring. For then there is present a natural obligation incumbent upon those who perhaps begot the offspring.

c) if there is question of a woman joined in marriage and it is certain that the offspring is not from the husband, but was begotten by one of the adulterers. Thus at least probably.²⁰⁴ For then the greatest injury is done both to the husband and to the other legitimate children. But St. Alphonsus and several other theologians teach that the adulterer probably is held to no reparation if there is doubt whether the offspring is his or the husband's, or even whether it is another adulterer's. For no one is held to reparation unless it is morally certain that he was the cause of the damage.

But how the quantity of reparation in these three cases is to be determined cannot be expressed by a general rule. In the first two cases all the expenses can be divided equally among the diverse men. In the last case the adulterous woman ought to restore half of all the damages, and the other half is to be divided equally among the diverse adulterous men. But if the woman cannot restore, the whole damage must be made good equally by the diverse accomplices.²⁰⁵ Besides, in practice, when a woman has had intercourse with several, the matter is accustomed quickly to become public, and then the civil judge will determine everything.

Fornicators or adulterers who are able to provide fitting sustenance, but secretly send offspring conceived from sin to a foundling home, do not seem to be held to any restitution if that foundling home is a work of private charity. The reason is that the faithful giving alms for institutions of this kind intend only the welfare of exposed infants and do not care which infants are fostered.²⁰⁶ But if the foundling home is supported at the expense of the city, then parents who by deceit cause infants to be educated there are held to restore the expenses of education, because foundling homes of this kind are not accustomed to be destined except for parents and infants truly poor. Billuart²⁰⁷ and others teach that in each case the parents are held to restore the expenses of education. But concerning this obligation there is no certainty.

²⁰² Cf. Swiss Civil Code a. 317.

²⁰³ Thus, for example, the Civil Code of Germany (§ 1708 sqq.) establishes that the illegitimate father is held to provide fitting support for the offspring up to the 16th year. Cf. Austrian Civil Code § 166 to 171; Spanish Civil Code a. 143; Swiss Civil Code a. 317-319. The French Code imposes no obligation of support of the illegitimate child upon the illegitimate father; for it prohibits inquiry concerning the illegitimate father: "La recherche de la paternité est interdite" (a. 340). This, however, was changed somewhat in six cases by the law given Nov. 16, 1912.

²⁰⁴ Cf. Tanquerey, Synopsis Theol. mor. De iust. n. 578; Billuart, De iust. diss. 8, a. 11, § 6.

²⁰⁵ Thus also Lehmkuhl, Theol. mor. I, n. 1190.

²⁰⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 656, who also in the second case exempts from the obligation of restitution.

²⁰⁷ De iure et iust. diss. 10, a. 11.

149. Principle 3. He who under a true or even fictitious promise of marriage has seduced an honorable woman to carnal intercourse is regularly held to lead her (although she has not become pregnant) into marriage.

Thus with St. Thomas²⁰⁸ and St. Alphonsus²⁰⁹ almost all theologians and jurisconsults think. The reason is that if the promise was true, then a true (although shameful) contract intervened, gravely obligatory. But if the promise was fictitious, then the promiser deceived the girl or woman enormously, and for this reason he is held, in punishment of such deception, now truly to promise and enter into marriage. But I have said, "he is regularly held to lead this woman into marriage," because several exceptions are given. And so this obligation falls:

a) if this woman afterward fornicates with another; because faith is broken with one breaking faith, as the adage says.

b) if from all the circumstances the woman could easily have understood that the promise of marriage was not serious.

c) if from entering into marriage grave evils, e.g., quarrels, enmities, are deservedly feared; which indeed is especially accustomed to happen if there is great disparity of condition between the man and the woman.

d) if the woman herself now no longer wishes to enter into marriage with the fornicator. In this case nevertheless it must be examined why the woman now no longer wishes to enter into marriage. For the man who deceived her, by showing himself better than he really is, is held at least to repair the damage which was caused from the fornication. But if, without any fault on the part of the man, the woman refuses to marry him, then the man is no longer held to anything.

²⁰⁸ 4, dist. 28, q. 1, a. 2 ad 4.

²⁰⁹ L.c. n. 644.

150. Principle 4. He who by force, grave fear, or deceit induced a woman to carnal intercourse is held to repair all damages which arise from it to the woman, to the parents, to offspring perhaps born, and to others.

The reason is that he who perpetrates carnal intercourse in such a way is truly an unjust damager, who is held to repair all damages truly and efficaciously caused.

Under the name of fear here there also comes reverential fear (which otherwise in canon law is ordinarily not judged grave). Hence if the corrupter is a person of great authority, or a superior or guardian, whom the woman does not dare to resist, he is held to repair the damages arisen.

The damages which arise from unwilling intercourse are accustomed to be the following: bodily disease, defamation of the girl and dishonoring of the family, inability or at least greater difficulty of entering another marriage, expenses for childbirth and education of offspring, etc. The corrupter is not held, at least of itself, to enter marriage with the corrupted woman, unless he has promised this. The quantity of the reparation to be made can be determined either by a judge or from a free agreement of each party.

151. Principle 1. The adulterer is held to no material reparation if from the adultery neither offspring nor any external damage has arisen. Thus at least before the sentence of a judge.

This is plain from the first principle explained above.

Note. When the adultery committed has remained secret, and no other material damages have arisen from it, then each accomplice is to be warned to observe deep silence, because otherwise the greatest quarrels easily arise.

152. Principle 2. If the adultery was perpetrated with each accomplice consenting, then each adulterer in solidum is liable to the reparation of all damages arisen.

The material damages which can arise from adultery are chiefly: expenses for the childbirth and education of the offspring conceived, the portion of inheritance which will come to the spurious offspring and will be taken away from legitimate offspring, and diseases caused from the carnal intercourse itself.

Of itself indeed each adulterer (i.e., the adulterous man and the adulterous wife) is held to repair half of the damages; but if the one cannot or does not wish to repair the other half, the first adulterer is held to repair the whole damage. For each adulterer is the unjust cause of all the damages.

As to inheritances, legacies, and gifts which come to adulterine offspring reputed legitimate, a distinction must be made: a) All inheritances and legacies which come from the putative father (or from the paternal line) by intestacy must be restored. This is plain, because by this the strict right of the legitimate children or of other necessary heirs is injured. b) All inheritances and legacies which fall to adulterine offspring from the mother (or from the maternal line) are not to be restored, provided the civil law does not exclude that offspring from the hereditary succession of the mother.²¹⁰ c) All inheritances, legacies, and gifts which come to adulterine offspring not by intestacy nor by force of law, but by force of the free disposition of donors, need not necessarily be restored. For although such or similar donations would not have come to the adulterine offspring if his condition had been known, nevertheless from this commutative justice is not injured with respect to the legitimate children, inasmuch as they do not have a strict right to those free donations. But if the adulterine offspring certainly knows his own condition, he himself cannot receive or retain donations of this kind, as having been made from error.²¹¹

The adulterous wife ought to make reparation of the damages from paraphernal goods or other goods of which she has free disposition. But if she does not have free goods, she is held by greater labor and industry to repair damages both to the husband and to the legitimate children, insofar as this is possible. Usually, however, the adulterous wife is not held to manifest her crime for avoiding the damages of the husband or children. For such a manifestation is accustomed to cause great quarrels, indeed perhaps divorce. Besides, the common adage says: No one is held to defame himself; and Innocent III established: "To a woman who, while the husband is ignorant, has conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But competent satisfaction ought to be enjoined upon her by a discreet priest."²¹² If nevertheless the adulteress were of such lost reputation that confession of the adultery would not cause grave damage to her, she would be held to make it known in order to avoid grave damages otherwise arising to others.²¹³ But that case is rare.

As to the manner and quantity of reparation of damages to be made by adulterers, great prudence is necessary. Adulterers ought first of all to inquire what up to now the putative father has expended in the support and education or even dowering of the illegitimate offspring, if perhaps that offspring has already assumed a state. All these damages must be made good to the putative father. But as to those things which the legitimate children will be able to suffer if afterward the illegitimate son receives an equal portion of inheritance from the putative father, the adulterers ought to make dispositions for these damages to be made good to the legitimate children. But they are not held even now to make good these damages, because it can happen that the illegitimate son dies before the putative father, and then no damage arises to the legitimate children. But what must be done if the adulterer now is near death, but on the contrary both the putative father and the illegitimate son are still in good health? Certain authors (Navarrus, Soto, Billuart) think that then the adulterer is not held to repair the whole damage perhaps about to occur, but only a certain part according to the prudent judgment of a man. Perhaps it would be better if then the dying adulterer committed it to the confessor, that he, when the case occurs, should make good from goods handed over to him the damages arisen. But if the illegitimate son should die before the putative father, then the confessor ought to dispose otherwise of the goods received, according as the dying adulterer shall have determined. But let the confessor proceed with the greatest prudence and, for greater security, exact from the penitent that, necessity demanding it, he himself not be held to the sacramental seal. But if he foresees that some grave damage is going to occur, it is better that he tell the penitent that he is not held to repair the damage with so great a damage to himself.

Things to be noted for the practice of the confessor. From what has been said it is plain how many things must be considered by the confessor if it is a question of restitution arisen from fornication or adultery. Therefore let the confessor proceed in order as follows:

1. Let him investigate whether from fornication or adultery truly certain and unjust material damage has been caused.

2. Then let him investigate how great that damage is which has already been suffered up to now.

3. Finally let him investigate how great a damage is going to arise in the future for legitimate offspring, for the spouse who is the other party, and for others.

4. If there is question of a dying penitent, let the confessor proceed most cautiously and not assume the restitution to be made in the name of the penitent under the sacramental secret.²¹⁴

²¹⁰ The German Civil Code § 1705 and the Swiss Civil Code a. 324 and 461 concede to illegitimate offspring the right of taking an inheritance from the mother and her blood relatives. The Austrian Civil Code § 754 indeed grants inheritance from the mother, but not from her blood relatives. The French Civil Code a. 762 and the Spanish Civil Code a. 845 exclude adulterine offspring from every legal hereditary succession and concede to him nothing except support.

²¹¹ Cf. Billuart, De iure et iust. diss. 10, a. 11, appendix 3.

²¹² c. 9, X 5, 38; cf. also Billuart, l.c. a. 11, and St. Alphonsus, Theol. mor. l. 3, n. 653.

²¹³ Cf. St. Alphonsus, l.c.

²¹⁴ Cf. Billuart, l.c. We have written more broadly on this matter in Linzer Theol. Quartalschrift 1916, 807 sqq.

I say. Each one is held from justice to repair damage which he efficaciously and unjustly brought upon his neighbor in the goods, both natural and supernatural, of the soul, provided that that damage can be repaired in the same order. The reason for the obligation is that each one has a right no less strict not to be injured in goods of this sort than in goods of fortune. But the reason for the condition added is that otherwise reparation is not possible.

You Will Resolve. - 1st. He who by force, lying, fraud, unjust fear, induced someone into lethal sin, is held under mortal sin from justice to reparation of the damage, by removing the force or seduction, by manifesting the error, etc. But he who without force or fraud but only by counsel induced someone to sin lethally, is indeed held from charity to revoke that counsel, but not from justice, because to one knowing and willing no injury is done. - Cf. St. Alphonsus, nn. 660 and 661.

2nd. He who by deceit induced another into error, especially practical error, from which grave damage can arise to him in the matter of morals, is held from justice to repair the damages which proceed therefrom, and therefore with all care to remove him from error. Say the same of speculative error concerning articles of faith.

3rd. He who by force, grave fear, or fraud has impeded someone from entrance into religion, or has induced one already entered to desert religion, is held from justice to remove the fraud and deceit; for each one has a right not to be impeded unjustly from the pursuit or possession of so great a good, or to be drawn away from it. - Cf. St. Alphonsus, n. 662.

4th. He who has deprived another, for example, of the use of memory, etc., by poison, a love-potion, etc., is held from justice to repair all that which is repairable from the damage unjustly inflicted.

5th. He who by fraud has impeded another from learning a science, an art . . . or from teaching others, is held to remove the fraud and to repair the temporal damages which have arisen therefrom.

6th. He who from office ought to teach art or science is held to correct errors, if he has admitted any of some moment. - I said from office, because if gratuitously and without the obligation of some agreement he teaches and procures no or only very little progress in his hearers through negligence or culpable ignorance, excluding the case of fraud or deceit or special damage proceeding from the error which he taught, he is not held to reparation.

I say. A deflowerer or fornicator is held to nothing for merely natural damage or for the loss of virginity, because that damage cannot be compensated by money. - The same must be said of temporal damage which has followed from base intercourse, except the education of offspring, when the woman consented to the solicitation, because no injury is done to one knowing and willing. But if the deflowerer by force, fraud, deceit, or grave threats has violated the woman, he is held to repair all damages coming to her or her parents, because he is the efficacious and unjust cause of these damages. - Cf. St. Alphonsus, nn. 640 and 641. - Elbel, n. 220. - Lugo, disp. 12, n. 11.

Question. To what is a fornicator held toward spurious offspring?

Resp. If he has violated the mother by force, he is held to all expenses of nourishment and education, as is clear from what has been said. Nevertheless, in his default, the mother ought to undertake the care of the child, although she admitted no fault, because she is the mother; but then she retains recourse against the corrupter, who is held to compensate her for all the expenses which she has incurred on occasion of that offspring. - But if the woman consented to sin, both are held equally to the expenses if natural right is considered; but if attention is given only to civil laws, then:

1st. By Roman law the mother is held to nourish the infant for three years, and afterwards the father ought to provide for him.

2nd. By our law, Kenrick has these things: "The laws of the United States for the most part permit it to be defined by the decision of magistrates or judges what is to be paid; holding him as father whom the mother, under oath, affirms to have begotten the offspring." - Kent accords with these when he says: "The mother or reputed father is generally in this country chargeable by law with the maintenance of the bastard child; and in New York it is in such way as any two justices of the peace of the county shall think meet; and the goods, chattels and real estate of the parents are seizable for the support of such children if the parents have absconded. The reputed father is liable to arrest and imprisonment until he gives security to indemnify the town chargeable with the maintenance of the child. These provisions are intended for the public indemnity and were borrowed from the English statutes on the subject; and similar regulations to coerce the putative father to maintain the child, and indemnify the town or parish, have been adopted in the several States." - Cf. Kenrick, tract. 8, n. 85. - Kent, Comment. vol. 2, part. 4, lect. 29, n. 215.

I say. If an adulterer extorted the consent of a woman by force or grave fear, he alone is held to repairing the whole damage, as is clear in itself. But if indeed the woman consented freely to adultery, both adulterers are held in solidum to repairing all damages of the family, because all things are to be imputed to both as to an efficacious and unjust cause. - Wherefore both ought to restore all expenses which the husband has borne in nourishing and educating the offspring; and if an illegitimate son has already accepted the inheritance with the legitimate children, compensation must be made to them according to proportion. - Cf. St. Alphonsus, n. 659.

You Will Resolve. - 1st. An adulterous woman, if she has paraphernal goods, must from them restore to the husband and to the injured children through manual gifts, by contract, testament, legacies, etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and work more diligently, insofar as her state permits.

2nd. If nevertheless she cannot repair the damage in another way than by confession of her crime, she is not held to this, both because generally this revelation cannot be made without great infamy and often not without danger of death or perpetual hatred and other grave evils, and because it is difficult to repair damage even by this, especially since the son is not held to give faith to the mother. Many except the case if the mother is of ruined reputation; but not even then is the son held to believe her testimony. - Cf. St. Alphonsus, nn. 654 and 655. - Ballerini, note (a), p. 610.

3rd. In doubt whether the offspring is of the husband or of the adulterer, or from this adulterer rather than from another, no strict obligation can be imposed, because there is no certainty concerning it; for in neither case can the true father of the offspring be designated with certainty, and therefore neither can the true cause of the damage. Nevertheless, except with St. Alphonsus: 1st, if the second adulterer adverted at least implicitly that he would be the cause of that uncertainty; 2nd, if the adulterers perpetrated adultery by common counsel. - Cf. St. Alphonsus, n. 658.

4th. Probably wealthy adulterers or fornicators are not held to reimbursing the expenses, if they have sent the offspring to the foundling asylum. The reason is that foundling asylums have been erected for all infants indiscriminately who are cast off by their parents. Nevertheless, all agree that in practice parents are earnestly to be exhorted to contribute something to the foundling asylum, at least under the title of penance. - Cf. St. Alphonsus, n. 656. - Lugo, disp. 13, n. 3. - Kenrick, tract. 8, n. 84.

All agree that one who mutilates, kills, breaks limbs, or renders a man's body useless is held to make restitution of all the damages that follow from these deeds; and if the man cannot be restored by medical treatment, the wrongdoer is held to restore an equivalent in money. Thus the Saintly Doctor in the place cited and in Spec. animae cap. 1; D. Thom. art. 2. ad 1; Richardus in 4. dist. 15. art. 5. quaest. 2; Sylvest. V. restit. 3; Soto Lib. 4. de Iustitia, quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Tanner. disp. 4. quaest. 6. dub. 4; Carbo quaest. 15, and others commonly among these.

Wherefore if the man mutilated or killed was earning by his own industry, reparation must be made out of the goods of the assailant, even if the assailant is dead; and if the slain man was bound in justice to support certain persons, the assailant will be bound to provide for them, as Sotus loco cit. and Valentia loco cit. say against Scotus 4. dist. 15. quaest. 3 and Adrianus de Restit.

Sotus adds that somewhat less must be rendered, at the judgment of a good man, to the heirs of the mutilated or killed man than he himself would have earned, in view of the fact that it is less to have something in hope than in reality; for the man who was killed might have died for another cause, and the man mutilated might have been disabled in some other way. Wherefore Valentia admonishes that diligent consideration be given to age, health, etc., as Caspensis disp. 3. sect. 6 and others also observe.

From all this it appears that what Maior 4. dist. 15. quaest. 19. dub. ult. and Valentia loco cit. say is true, namely that although one who kills a nobleman sins more than one who kills a hired laborer who would have earned nothing by his labor or industry, yet the killer of such a hired laborer is bound to more.

The Saintly Doctor in Speculo animae, cap. 1. v. Damnificatio observes that not only the slayer, but also one who commands, helps, or counsels is held to restitution; yet not one who fails to prevent when he ought out of Charity; indeed he does not even sin mortally if for some reason he desists from removing the slayer — for instance, if he fears the slayer may break in against himself. But if he permits a man to be killed out of hatred, he is not held to restitution unless he himself is bound in justice to prevent it.

Next observe that damages can be exacted in conscience immediately to the point of equality, but not yet that penalty of restitution which is prescribed by law; for by means of that law he must await the judge's sentence, as we have in Leg. ex iudiciorum, ff. de accusationibus.

They dispute, however: whether compensation must also be made in money, or the like, for the injuries of killing, mutilation, etc.

The first opinion is negative. Nauarri in manuali, cap. 15. num. 21; Azorii, Ostiensis. Thus Caspensis loco cit. num. 51; Couar. lib. 2. var. cap. 10; Petrus Nauar. lib. 4. cap. 2. num. 80; Gomez lib. 3. variarum, cap. 6; Lessius Lib. 2. cap. 9. num. 141.

The second opinion is affirmative. Thus D. Thom. art. 2. ad 1; Scotus in 4. dist. 15. quaest. 3; Richardus ibi, art. 5. quaest. 2; Adrianus 4. de restit. quaest. ultim.; Maior in 4. eadem dist. quaest. 14; Sotus Lib. 4. de Iust. quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Carbo quaest. 12; Lopez p. p. quaest. 47; Angles 4. de restit.; Salon quaest. 62. art. 2.

To me the negative opinion appears truer. It is proved by the doctrine of D. Bonaventure. Restitution is a part of satisfaction, or a species of it, as S. Bonavent. 4. dist. 15. quaest. ultim. shows, et in spec. animae. But satisfaction must hold a proportion to the offense, and no one Satisfies unless he Restitutes as much as he took away. From this it follows that Satisfaction and Restitution must be made from proportionate goods; but money cannot be made proportionate to the good of a life taken away: Therefore.

This is the doctrine of S. Bonaventure in 3. dist. 20. quaest. 6 et in 4. dist. 15. part. 2. quaest. cit. It rests, moreover, upon the Laws; for by the Lege finali, ff. de iis, qui deiecit. vel effud. and the L. Liber homo, ff. ad Legem Aquiliam, and the L. ex hac, ff. si quadrupes pauperiem fecisse dicatur, afficitur, it is laid down that a free man cannot be valued at any price; and that a free body receives no estimation, as is had in the L. citata, L. homo, et L. ex hac, where it is added that nothing can be demanded for a free man even if he is killed.

Valentia answers that the Laws conclude only that this is true from the nature of the thing; yet if the injured man for a reasonable cause is content, satisfaction can be made to his very life by money.

But it is beside the point to call that a restitution which is made with things unfit for compensation — e.g. to restore reputation with money, as Sylvester noted V. Detractio, quaest. 4.

Valentia answers with D. Thomas ad 2. that when restitution cannot be made in the same genus, it can be made in another.

But he does not answer the point, because although restitution could be made in diverse kinds — say, the restitution of a field through a price — still it cannot be made except according to a reasonable estimation of things, as Valentia himself says. But there are many things that cannot be estimated by other things: the soul by money, or reputation by gold; for it is of a higher order, incomparable, as it is said Proverb. 22: Melius est bonum nomen, quam divitiae multae — as I shall show in the dub. sequenti.

Valentia objects first, and Tannerus, from Exodi 21: If he who is struck rises again and walks abroad, he who struck him shall be quit, yet so that he make restitution of his charges and the physicians' fees. By this law it is enacted that if the man struck has not recovered, the assailant must make greater restitution — clearly even for death or deformity.

It is answered that the same place sets forth what penalty is owed if the man struck dies: he shall die the death. This is confirmed, for further on, when it speaks of the death imposed on a goring ox, it declares: But if a price be laid upon him, he shall give for his soul whatever is demanded. But if the owner of the ox was aware beforehand of that vice, he himself shall be killed, since according to the precept he did not confine it.

Scotus and Tannerus object second that one who kills another's Ox or Dog must make some restitution for that Ox or Dog killed. Therefore much more must one who deprives a Man of life or health make some restitution for this very thing. And not to notice this (say Scotus, Tannerus, and Adrianus) is foolish.

But the comparison is absurd to me; for an Ox and a Dog are purchasable at a price, nor will any owner of a Dog receive money for the injury of the Dog's death insofar as it was his owner's — but only for the estimation of the Dog and Ox for use. Moreover, satisfactions are exacted from the slayer because he did not fear the Lord of the animal, and the injuries of the world bring contempt upon that contemning slayer.

That reputation is a good having marketable value, the taking away of which obliges in justice to restitution, is certain. For reputation is good estimation among others, of which Proverb. 22: Melius est nomen bonum, quam divitiae multae. From this S. Bonaventure p. p. Centil. sect. 13 deduces that the detractor is held under greater obligation to Restitution than the thief, which Valentia thereupon noted disp. 5. quaest. 6. puncto 5.

Therefore the detractor is held to restore reputation, three conditions concurring. The first is that the reputation have been taken away — for sometimes reputation is not removed by a saying, either because it is not believed, or because that sin does not blacken a person of that rank, as if you say of a knight: He wounded another man. The second condition is that the reputation have been taken away unjustly. The third, that the defamed man have not redeemed his stolen reputation. Thus they report from the common teaching: Soto Lib. 4. de Iustitia, quaest. 6. art. 3, Valentia disp. 5. quaest. 6. puncto 5, Turrianus disp. 53. dub. 3, Caspensis disp. 10. sect. 5.

I assert, therefore, first, that the unjust detractor is held to restore reputation, even with the loss of his own reputation, though not of his life, even by saying (if need be) that he lied. Thus D. Thom. 2. 2. quaest. 62. art. 2. ad 2, Caietanus ibi, Sotus Lib. 4. de Iustitia, quaest. 6. art. 3, Petrus Navar. Lib. 2. de restit. cap. 4. disput. 5. num. 375, Michael Salonius 2. 2. quaest. 62. art. 2. controu. 13, Navar. in manuali Latino, cap. 18. num. 45, Rodriquez 2. part. summae, cap. 45, Lopez prima parte, instruct. cap. 16, Sayrus Lib. 11. cap. 3. num. 21, Filliucius Tom. 2. tract. 32. cap. 9. num. 145, Malder. de Iust. tract. 7. cap. 2. dub. 9. fol. 554, et all the Doctors commonly, as in Valentia loco cit. Fagundez in octavum praeceptum Decal. cap. 15, Tannerum disp. 4. quaest. 6. dub. 4, Bassaeum V. Detractio, 2. num. 4.

Some add a little exception: unless there be great inequality — as if the defamed man be of low condition, but the defamer of great dignity, and he suffer greater detriment by saying he lied. Thus Sotus and Valentia, although Nauarrus doubts of this: for one is not held to make greater restitution than what he took away. Whence it comes about that he is not held to restore reputation with the loss of his own life; for although reputation is a kind of civil death, as Anselmo teaches Lib. de simil. cap. 147 as cited by D. Bonaventure in Pharetra Lib. 3. cap. 3. §. De Detractione, still it is not the proper taking away of life, but of a good inferior to life itself, namely reputation, which outweighs riches, according to Proverb. 22; and accordingly it binds more to restitution than the taking away of an eye, as the Saintly Doctor again enjoins in speculo animae, cap. 1. Most follow this doctrine, as in Fagundez cap. 15 et Dianam part. 2. Tract. 5. resol. 29 et 30.

There is, moreover, a question there in Diana: whether one who falsely defamed someone is held, if need be, to swear that he spoke falsely. They answer affirmatively: Caietanus and Aragon 2. 2. quaest. 62. artic. 2, where also Sylvius quaestione 22. tractat. 32. cap. 20. num. 245, Turrianus disp. 52. dub. 1, Salon de Iust. tom. 1. quaest. 62. art. 2. controv. 3, Carbo de restit. quaest. 18, Villalob. in summa, Tom. 2. tract. 11. diff. 37, Tanner. 2. 2. disp. 4. quaest. 6. dub. 6. num. 141, Diana ibi, Fagundez Lib. 8. cap. 15, Navar. cap. 18. num. 45, Pet. Navar. Lib. 2. cap. 4. num. 137, Sotos de Iust. Lib. 4. quaest. 6. art. 3, Faustus in speculo, disp. 21. quaest. 21, Bassaeus num. 9. Nay, they add — Molina tom. 5. disp. 41, Ioan. de la Cruz in Direct. pract. 1. punct. 7. art. 2. dub. 5, Soto, Aragon, and Salon — that he must, if need be, even bring witnesses.

I WONDER, however, that the Doctors so crowd headlong into binding consciences; for, as Faventinus observes in 4. dist. 15. quaest. 3. disp. 53. cap. 1. num. 32, the ancient Theologians — such as S. Bonaventure in the places adduced and elsewhere, Alensis part. 2. quaest. 129. memb. 6, D. Thom. quaest. 62. art. 2. ad 2, Scotus loco cit. — require only a simple retraction. But the modern Zealots superadd a most heavy burden, which perhaps they themselves do not touch with a finger.

The Doctors bring forward a certain SMOOTH manner of restoring reputation. For since to say one lied is an arduous act, they teach that the reputation is to be restored by praising the defamed man before those who had heard the detraction. Thus Caietanus 2. 2. quaest. 62. art. 2, Soto de Iustitia, lib. 4. quaest. 9. art. 3. ad 4, Villalob. in summa, Tom. 2. tract. 11. diff. 37. num. 4, Tannerus 2. 2. disp. 4. quaest. 6. dub. 4. num. 143, Valentia quaest. 4. puncto 5 and quaest. 17. puncto 2, Fagundez in octavum praeceptum, Lib. 8. cap. 15. num. 3, Lessius Lib. 2. cap. 11. dub. 10, Aragon. 2. 2. quaest. 62. art. 2, Faustus in speculo confess. disp. 21. quaest. 74. num. 6, Diana loco cit. Whatever they may bring to the contrary: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Navar. lib. 2. cap. 4. num. 370, Faber n. 46, Sylvius 2. 2. quaest. 62. art. 2. quaeritur 22, Fillucius Tom. 2. tract. 31. cap. 10. num. 246.

IT IS ASKED second: whether the defamer, not being able to restore the reputation, can, and ought, to make satisfaction with money.

They AFFIRM that he is held: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Filliuc. Tom. 2. tract. 32. cap. 10. n. 239, Turrianus 1. 2. tomo 2. disp. 53. dub. 7, Faber in 4. disp. 53. cap. 4. num. 122, Malderus 2. 2. tract. 7. cap. 7. dub. 8, Navarrus cap. 17. num. 19, Bannes 2. 2. quaest. 62. art. 2, Sylvest. verbo Detractio, quaest. 4, Navar. lib. 2. cap 4. num. 416, Lessius Lib. 2. cap. 11. disp. 11, and others as in Bassaeum num. 7.

OTHERS, however, as in Diana resol. 50 citata, propose with probability that it can be done. Thus Villalob. Tom. 2. tract. 11. diffic. 39, Sotos de Iust. Lib. 4. quaest. 6. art. 2, Aragon 2. 2. quaest. 62. art. 2, Valentia disp. 5. quaest. 6. puncto 5, Couar. lib. 1. variar. cap. 2. num. 8, Molina tract. 4. disput. 25, Sà V. Infamia, num. 7, Sylvius 1. 2. quaestio 62. art. 2. Quaeritur 22, post Rebell. — Sotum, Richardum, Adrianum, Caietanum, and others as in Fagundez Lib 8. cap. 14. num. 11, asserting also Couar. reg. peccatum, p. p. num. 6 et Lib. 1. var. resol. cap. 2. num. 8, Cordubam quaest. 33. art. 2, Lopez p. p. Instruct. cap. 116, Salonium 2. 2. quaest. 62. art. 2. controv. 13, Rodriquez 2. part. summa, cap. 45, Rebell. Lib. 2. quaest. 10, the Gloss on cap. Ecclesia sanctae Mariae extra, ut lite pendente nihil innovetur, Malderum de Iust. tract. 7. cap. 2. de restit. famae, dub. 8, Tannerum disp. cit. num. 150, and others adduced above. Add Bassaeum num. 7, who says it can be done in equity if the defamer is poor.

The OPINION of the Seraphic Doctor, in my judgment, is that this compensation cannot be made. Thus the authorities cited, to whom add Caspensem disp. 10. sect. 5. num. 37, and Tanner judges it probable.

The rationale of D. Bonaventure, in nearly all the places cited and ad cap. 10. Ecclesiast., is this: Restitution is an act of Justice, reducing to equality according to commutation through compensation of what was taken away; but money, or other goods of fortune, are not proportionate to compensating reputation: Therefore. The minor is proved by Proverb. 22, Melius est nomen bonum, quam divitiae multae, and Ecclesiasticus 41, Curam habe de bono nomine: hoc enim tibi magis permanebit, quam mille thesauri pretiosi. The authors of our opinion use this rationale, from which it also follows that, conversely, one is not held to restore with goods of a higher order of life. Thus it is laid down in cap. offi. II., de poenit. et remiss, and the Doctors commonly cite it as in Fagundez in octavum Praeceptum Lib. 8. cap. 13 and Diana part. 2. Tract. 3. resol. 30 — even if the defamed man is a noble defamed by a VILE man. The reason has already been given. IT WILL BE ASKED third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

YOU WILL ASK third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

They answer AFFIRMATIVELY: Turrianus 2. 2. Tom. 2. disp. 53. dub. 8, Sotus de Iust. Lib. 7. quaest. 10. art. 2, Molina de Iust. tract. 4. disp. 29, Lessius Lib. 2. cap. 11. dub. 11. num. 70, Bannes 2. 2. quaest. 62. art. 2, Azor. Tom. 1. Lib. 6. cap. 9, Fillincius Tom. 2. tract. 40. cap. 4. num. 91, Suarez tom. 4. disp. 34. sect. 1, Villalob. Tom. 2. tract. 11. diffic. 36, Valentia tomo 3. disp. 5. quaest. 17. puncto 2, Malderus 2. 2. tract. 7. cap. 1. dub. 4, Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 3, Ioan. de la Cruz part. 8. quaest. 2. art. 2. dub. 3, Salonius 2. 2. quaest. 62. art. 2, who state this opinion to be common among the more recent Thomists; Fagundez also defends it in octavum praeceptum, Lib. 8. cap. 2. num. 7, and Bassaeus V. Detractio 1. num. 11.

Caietanus teaches the CONTRARY opinion, 1. 2. quaest. 62. art. 2, Navar. de restit. Lib. 2. cap. 4. num. 234, Graffius lib. 2. cap 137, and others; and many of the adversaries hold this opinion probable, as Tanner. 2. 2. disput. 4. quaest. 8 dub. 7. num. 138, Ioan. de la Cruz, and others, with whom Diana subscribes, part. 2. Tract. 5. resol. 23.

The OPINION of D. Bonaventure is that this man sins mortally. His rationale, which the Moderns use as in Diana and Fagundez, is that reputation is blackened even before one or two. Wherefore Jesus Christ in Matth. 18 grants that one or two be called to correct someone when the obstinate man refuses solitary correction; otherwise he commands it to be done inter te, et ipsum solum. For one man could be harming, even if prudent, and of the sort Christ desires to help in reproving the fallen. For he wills that suitable men be chosen to raise up the fallen; and indeed reputation is often more harmed if it is said to one weighty person than if to many of the common people; but especially if the defamed man depended upon him. Thus the Saintly Doctor defines this question at those words of Ecclesiasticus 10, Si mordeat serpens in silentio, nihil eo minus habet, qui occulte detrahit, from which he elicits a new argument; for the striking is deadly even when secret before one whom he defames, for he compares this to the striking of a venomous serpent.

They OBJECT that the prudent man would not reveal it. It is answered, as I said, that it makes no difference. Next, who made you the guarantor of this?

ANOTHER doubt arises: whether the detractor is held to restitution of damages in the goods of the man's household, and in other things, lost on account of his ruined reputation.

A DISTINCTION must be made. For if he defamed him falsely, he is held to full restitution of all damages. Thus commonly with Lessio Tom. 1. Lib. 2. cap. 12. de detract. dub. 19. numero 101.

Sayro lib. 11. cap. 3. de restit. bon. exter. num. 17, Soto lib. 4. de Iust. quaest. 6. art. 3. ad 4, Pet. Navar. lib. 2. de restit. cap. 4. disp. 4. num. 375, Navar. summa Lat. cap. 18. num. 47, Salon 2. 2. quaest. 62. art. 2. controv. 20; and it is clear from cap. si culpa, de iniur. et damn. as Fagundez notes in octavum Praeceptum, lib. 8. cap. 24. num. 5, who observes that this opinion is to be understood of goods already existing in possession; but as regards goods in hope — say, if on account of the defamation he was impeded from some dignity — he says the matter must be judged by a prudent man.

HE ADDS, moreover, that even one who defamed of a true crime is not held to restore goods in hope in full, but well those already acquired. Thus also Navar. summa, cap. 18. num. 45, Sayrus lib. 11. cap. 3. de restit. bon. exter. num. 20, Lessius Tomo 1. lib. 2. cap. 12. de detract. et contum. n. 19 et num. 109, Petrus Navar. de restit. cap. 4. dub. 6. num. 384, and Salon. supra.

XXIX. Fr. Leonard Lessius, Book II, chap. 2, doubt 22, no. 135: “If you have unjustly defamed another who had previously defamed you, you are not bound to restitution towards him, if he is unwilling to make restitution to you; but you may use compensation, equality nevertheless being preserved as far as may be.”

XXXI. Fr. Luis de Molina, On Justice and Right, Vol. IV, disputation 49, no. 5: “When one has unjustly defamed another, and is unwilling, as he was bound, to restore that reputation to him, then the man unjustly defamed, who had not inflicted a loss of reputation upon the other, could compensate in money the loss of reputation in which he stands; and that not only by not paying an old and occult debt, so far as would be judged sufficient in equality for a competent compensation of the reputation in which he stands, but also by secretly taking from what belongs to the other as much as would be enough for the same compensation: provided that no scandal intervene, and that he could not otherwise conveniently obtain the restitution of his reputation; and lastly provided that all the conditions required intervene, that occult compensation of a debt may lawfully be made in the forum of conscience.”

Titia, a Protestant, asked Paul the priest to receive her into the Catholic Church. Paul, however, found that she was very well instructed, and that the sole difficulty she felt was whether she was bound to disclose to her husband the truth concerning the paternity of her only daughter. For she knew with certainty that the daughter was not her husband’s, although he believed her to be his, but was born of adultery. It is very probable that, on account of her age, Titia will have no other offspring, in which case the only daughter will succeed to the property of her mother and to at least a large part of her husband’s property. Hence it is asked:

1. By what right do children succeed to the property of their parents?

2. To whom, by whom, and what kind of restitution is to be made on account of adultery?

3. What is to be said of the case?

1. By what right do children succeed to the property of their parents?

According to the common opinion, children have a natural right to succeed to the property of their parents, though this right may be determined and modified by positive law, or by the will of the parents, and even be altogether taken away for good reason.¹

1 Lehmkuhl, vol. i, no. 1141.

2. To whom, by whom, and what restitution is due for adultery?

Adulterers are bound jointly and severally to make restitution for all the damage which follows to others from the adultery on account of the illegitimate child being supposed to be legitimate. This, however, supposes that it is known for certain that a child is illegitimate, and this can seldom happen if the husband is living maritally with his wife. If he is not living with her, both he and others will know that the child is illegitimate, and so there will be no damage done which has to be repaired; for the merely personal injury which adultery inflicts on the adulterer’s consort is irreparable.

3. The case. Titia is not bound to make known her sin to her husband, and she should not do it. More harm than good would come of it. The case says that she is certain that her child is illegitimate, though her husband thinks it is his. On this hypothesis she should make up, out of her own property, the damage which her husband’s property incurs on account of his treating the child as his, unless he does this out of affection for the child, and not precisely because it is his. In practice, the illegitimacy will either be doubtful, and then Titia will be strictly bound to nothing, or her husband will know it, and then whatever he spends on the child will be given to it knowingly, and no restitution will be due to him, or to others, for this.¹

1 St. Alphonsus, book iii, no. 651.