Restitution after fornication, seduction, rape and adultery

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.

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.

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.

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.

Recall what was said concerning defloration and fornication in the sixth precept of the Decalogue, n. 421 and 425, etc.

728. 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. - St. Lig., n. 640. - Elbel, n. 220, etc. - Recall what was said above, n. 628.

II. Even for temporal damage which has followed from shameful intercourse, nothing, except the education of offspring, ought to be restored when the woman consented to the solicitation; because injury is not done to one knowing and willing. - St. Lig., n. 641.

III. If a deflowerer violated a girl by force, fraud, deceit, or threats, he is held to repair all damages thence befalling her or her parents, because he is the efficacious and unjust cause of these damages ¹. - St. Lig., ibid. - Elbel, ibid.

¹ All agree, so De Lugo, Disp. 12, n. 11, that the deflowerer is held in conscience to compensate all those damages; which compensation ought to be made either by taking her as wife, or by increasing the dowry, or by otherwise procuring that she marry as well as she would have married if she had not been deflowered. But whether and when an option can be permitted either to the deflowerer of offering either of the two, or to the deflowered woman of demanding either of the two, see apud the same Lugo (l. c., from n. 12).

729. Questions. - Q. 1. Whether a violator is held to marry the girl violated under a promise of marriage?

Resp. First Sentence affirms. The reason is that the innominate contract, I give so that you may give, etc., is then perfected when delivery of the thing is made, or the performance of the work is furnished, and then the reason and force of the laws which invalidate shameful pacts cease; for the obligation which is then contracted by the other party is not shameful, nor does it drive one to a shameful thing. - St. Lig., n. 642 ², and others most commonly.

² It can certainly seem strange that St. Alphonsus (cited n. 642) proposes the question concerning the obligation of the deflowerer both if he truly promised marriage and if he fictitiously promised it; and yet he does not introduce even one word concerning the first part of the question, but dwells solely in asserting the obligation of marriage, although the promise was fictitious. But perhaps to that wise man it seemed superfluous to discuss the hypothesis of a true promise; both because the very clear arguments which he brought forth, whether from reason or from authority, for proving the obligation of marriage, even if the deflowerer had fictitiously promised marriage, a fortiori proved it when a true promise had acceded, and when therefore, since the nature of the matter plainly persuades that on the woman's part also a counter-promise of marriage intervened, truest espousals are had; and because that prior part was so beyond controversy in the schools that not a single one of the Doctors could be alleged who dared not only to impugn that doctrine, but even to call it into doubt.

And indeed this very rare and therefore astonishing consensus of Theologians equally with Canonists in that doctrine manifestly shows in what place that second sentence, which the Author subjoins, namely the sentence of certain more recent writers - which you might better call an abnormal aberration - is to be held; and this all the more because those persons have persuaded themselves that a paradox of this kind is very clearly confirmed from the nature of a contract involving some shameful condition, as if indeed the contract of espousals which intervenes there ought or could also be called shameful! But indeed would it not be like a prodigy that all the Doctors of Theology and Law down even to our age had been so blind that in a matter plainly obvious and pertaining to the first elements of natural right, concerning which besides none of them failed to inquire most subtly and diligently and to dispute at length, they should so shamefully stumble? But should not this very thing move those more recent men at least to suspect that they have wandered away from the right path?

I have said that St. Alphonsus confirmed the obligation of contracting marriage by the strongest force of authority, even if a merely fictitious promise had intervened. But this also must be added: whatever probability some have seemed to attribute to the opposite sentence rests only upon the empty show of false allegations.

And indeed, 1. for that opinion Schmalzgrueber (Lib. 4, Tit. 1, n. 32) alleges St. Antoninus, Gabriel Biel, Barthol. De Ledesma, Bonacina, Martin Perez, and Wiestner, by whom he was deceived (Lib. 4, Tit. 1, n. 20) and from whom he borrowed both the thesis and most of these allegations. - But Gabriel Biel (In 4, Dist. 28, q. 1, art. 2, Concl. 5), Mart. Perez (De Matrim., Disp. 2, Sect. 4, n. 3), Bonacina (De Matrim., Disp. 1, q. 1, p. 2, n. 9), and St. Antoninus (Sum., Part 3, Tit. 1, Cap. 19, § 1) affirm this only concerning the fictitious promise of a man who notably exceeds the condition of the woman; which conclusion, as is plain, does not touch the matter. 2. The Salmanticenses (De Matrim., Cap. 1, n. 33) asserted that that opinion is called probable by Dicastillo, as St. Alphonsus also intimates (Lib. 3, n. 642, § 2). - But Dicastillus (Lib. 2, Tr. 2, Disp. 7, Dub. 9, n. 155-156) speaks of a mere fictitious promise without defloration; and this likewise does not touch the matter. 3. Peter De Ledesma also asserted that this opinion is called probable by certain persons, which both Dicastillus (l. c., n. 128) and Sanchez (De Matrim., Lib. 1, Disp. 10, n. 2) intimate; and besides the accustomed St. Antoninus and Biel, he alleged Tabiena (V. Matrim., II, n. 8), and attributed to Francisco De Victoria that he said (Sum., n. 254) that the opposite is not proved sufficiently. - But Tabiena (l. c.) discusses only him who fictitiously CONTRACTS MARRIAGE and afterward has copula; which case is foreign to ours. Victoria, however (l. c.), does not treat of defloration with a fictitious promise of marriage, but raises the question about him who contracted with someone, uttering words outwardly and not having consent inwardly: whether it is marriage? And after he responded that from St. Thomas it is not certain that he is held to marry her, he subjoins the words alleged by Peter Ledesma: Nor do those who say that he is held to marry her prove it sufficiently; which words, as is plain, were not said for our matter.

Therefore we have one alone from the Theologians, Ioan. Praepositus, whom St. Alphonsus also intimates, l. c.; Diana (Tom. 2, Tr. 6, R. 149) indeed skillfully brings him forward as the only one for that opinion, because he had noticed that others were brought forward wrongly. But Praepositus (De Matrim., Q. 9, Dub. 4, n. 48) uses a sophistical argument, which Schmalzgrueber also intimates (l. c.), namely that the deflowerer is not held by reason of the promise, which was fictitious, but only by reason of the damage, which can be compensated otherwise than by marriage. Sophistically, I say. For the obligation arises from the injury which you do to another when you deny that under whose condition you both demanded and received that which the other furnished under that pact alone; which injury can in no way be repaired unless the other receives that under whose condition he gave his own.

** Whatever things have been said in this Note, all, as is plain, contribute to confirming the sentence of St. Doctor Alphonsus. Nevertheless the VV. seek in it what they may reprehend, and - at which indeed you may wonder - they go so far that they undertake to defend with their powers the cause of those whom St. Doctor refutes. Therefore through twenty columns (pages 361-371) the VV. 1. indeed contend that in the Note the opinion of certain more recent writers is unjustly represented as an abnormal aberration and an immense paradox; 2. they contend that in the Note the weight either of the reasons or of the authority which militate for the same opinion is too much attenuated; 3. finally they contend that elsewhere, namely in the Note which is subjoined below at n. 760, Q. 6, a certain incident pertaining to history is less rightly set forth.

We reserve this last accusation to be weighed where there will be speech about this alleged Note. Now concerning the two prior heads.

As to what pertains to the first, one must respond briefly: I deny the supposition; and the reason is most manifest. For the VV. (page 361) suppose that the question there is about a fictitious promise. Thus they: We shall weigh whether concerning the proposed question the consensus of Theologians and Canonists is so astonishing that the negative sentence is truly to be judged an immense paradox and, as below the distinguished Professor, namely P. Ballerini, will say, an abnormal aberration: namely, that there is no obligation of marrying the girl violated UNDER A FICTITIOUSLY GIVEN PLEDGE OF MARRIAGE. But, I subsume, in the Note, as is plain to the reader, that astonishing consensus of Theologians and Canonists, and therefore also the immense paradox and abnormal aberration of more recent persons thinking the contrary, is said not of the hypothesis of a fictitious promise, but of the hypothesis of a true promise, and when therefore espousals truly intervened through mutual promise. Therefore the supposition must be denied, on which nevertheless the VV. again insist (page 363).

But from this false supposition the VV. fall into another likewise false supposition, as if, namely, the prior part of the Note looked to Authors who in any way thought against St. Alphonsus in the question of fictitious promise; wherefore on this account the VV. dwell through ten columns (pages 365-370) in describing these Authors. But it is plain that that part of the Note in no way pertains to these authors. And if indeed they desire to know who are the more recent writers who declined to that paradox, let them go to the editions of this Compendium of P. Gury, all which preceded the sixteenth - printed at Lyons in the year 1865, but at last emended by Roman cares - not excluding also the one which came forth from the press of Propaganda Fide; there they will find this paradox proposed as the more probable sentence. Let them also go to the Moral Theology of Em. Gousset, where they will find these things written (Vol. 1, n. 1015): He who has seduced a person by the promise of marriage, is he obliged to marry her? According to the opinion of the greater number of theologians and canonists, he is obliged to marry her, whether the promise was feigned or whether it was sincere. He is held to this in the first case, generally, not by virtue of his promise, since it does not oblige, but rather by virtue of the injury which he has done to the person by deceiving her through a false promise. He is likewise held to it in the second case, because, they say, the condition having been fulfilled, the promise becomes absolute and by that very fact obligatory. But since this question falls under that of contracts made under an illicit condition, we regard the promise in question as null, as consequently not being able to produce any effect: "Every condition of a thing contrary to good morals," says article 1172 of the civil Code, "is null and renders null the agreement which depends upon it." Now, such evidently is the agreement of him who promises to marry a person if she consents to commit the sin of fornication. This sentiment is more favorable to good morals than the contrary sentiment; St. Alphonsus de Liguori himself admits it: "It is useful to note," he says, "that it would be very useful for avoiding sins of this kind if promises of marriage for obtaining defloration, even perhaps confirmed by oath, were declared invalid by Bishops." This is also the thought of M. Carrière, and of the author of the Reasoned Examination on the Commandments of God. These, therefore, and not others, are the more recent writers who drew forth an immense paradox against the unanimous sentence of the Doctors. And let these things be enough concerning the first head of accusation.

As to the other head of accusation, the VV. 1. object that Gabriel Biel says nothing about the condition of a man notably exceeding the condition of the woman. - Resp. Let the antecedent pass; and I deny the consequence. For in the text of Biel which they themselves describe (page 364), not even a word occurs concerning a promise of marriage, whether true or fictitious. Therefore Biel is alleged against the doctrine of St. Alphonsus fruitlessly and foreign to the matter, because he in no way touches the question.

2. The VV. object that according to Bonacina (l. c., n. 5) a man is not held to marry a virgin or widow of good reputation whom he deflowered by a fictitious promise of marriage, when... there is no danger of infamy. Hence the VV. reproach that this was omitted in the Note. - Resp. 1. In the context of Bonacina this is an exception from the common doctrine which he himself also defends, just as he himself excepts if the man is of a notably exceeding condition. But an exception from the most known maxim confirms the rule to the contrary. 2. Bonacina through this exception speaks openly contradictory things. For he had premised these things (n. 4): Nor will he satisfy by endowing the aforesaid virgin or widow, if she is not content with a dowry. The reason is both because the promise was not concerning a dowry, but concerning marriage; and because, since she has fulfilled the contract "I give that you may do," it is also equal that the one fictitiously promising fulfill it on his part, lest he should bring back advantage from his own delict. But those reasons exclude, indeed destroy, the force of the little reason upon which that exception rests. 3. Add to these that Bonacina in that exception either did not sufficiently explain his mind, or certainly seems to have fallen asleep. For of the eight authors whom he there alleges, omitting now Lessius and Filliucius as having nothing which touches the matter, the six remaining make the question concerning a fictitious promise made to a woman already corrupted, and therefore they either excuse from the obligation of marriage, or allege those excusing, because proportion is lacking between the thing accepted and the thing promised. Therefore the objection of the VV. concludes nothing from the manifold cause.

3. The VV. object (page 365), as regards Martin Perez, that it is passed over in silence in the Note that he in the preceding Sect. 3 denied the obligation of one fictitiously promising to marry the deflowered woman. - Resp. He denied it relying upon three false allegations, and likewise upon a limping parity drawn from a diverse case; let it pass.

4. Against what is said in the prior part of the Note, that all the Doctors of Theology and Law down to our age have agreed in a matter plainly obvious and pertaining to the first elements of natural right, the VV. object (page 365) that there are several more recent Authors who hold the negative sentence, or at least judge it probable. - Resp. It has already been said above that this instance of the VV. labors under a false supposition; because the words of the Note look to the case of a sincere mutual promise, which constituted true espousals; but they heap up Authors discussing a fictitious promise.

With the same fault of arguing the VV. write (page 368): Now let us see who those others are who conspicuously abuse, etc.; these words of theirs accuse what below, in the Note to n. 760, Q. 6, is read thus: These things should have been set forth a little more diligently, after certain others conspicuously abuse that fictitious probability - concerning no effect of a shameful contract after the placing of the work - which some have seemed to attribute to this opinion, for defending that immense paradox concerning there being no obligation of marriage as regards him who has violated a girl under a given pledge of marriage. Here, as is plain, the speech is not about a fictitious promise, but about a sincere promise of marriage. And this is confirmed evidently from this, that there the speech is soon introduced concerning the desire of certain persons that, by episcopal law, promises of marriage for obtaining defloration should be judged invalid, even perhaps PROMISES CONFIRMED BY OATH; which also we saw a little before in the words of Em. Gousset. Nevertheless, behold, the VV. even here suppose that in this place the discussion concerns a fictitious promise; and after they have shown (pages 368-369) that neither Schmalzgrueber, nor Wiestner, nor Henry of St. Ignatius in his condemned work, nor Collet, nor Henno, nor Concina, nor Amort, in the question of a FICTITIOUS promise, used the argument drawn from the null value of a shameful contract, they conclude that labor in the Notes concerning the value of a shameful contract was therefore in vain. Thus they (page 369): If therefore the distinguished Professor, namely P. Ballerini, set forth the question of a promise for a shameful thing more diligently for this reason, that he might oppose the immense paradox and abnormal aberration of certain more recent writers, he certainly could have spared himself useless labor. But would that he had set forth the question more diligently, alleged the Authors correctly and faithfully, and not heaped undeserved injuries upon his adversaries. Since all these things are clearly built upon a false supposition, let the candid reader judge also from this what must be defined concerning Vindications of this kind.

What now matters is that it remains to inspect here what force those things have which the VV. have heaped together so that they may conciliate weight and probability for the opinion which, in the present question, exempts one fictitiously promising from the obligation of marrying the deflowered girl. In this matter this wondrous scene is offered to our eyes, as we have said, in which we see the VV. so carried away by desire and zeal for attacking an imaginary adversary that they do not doubt, in whatever way they can, to attribute strength to that opinion whose opposite they themselves proclaim true, and which St. Alphonsus also, whom they undertake to vindicate, professes to be altogether to be held. But the matter can be dispatched briefly; for just as Schmalzgrueber and Wiestner, so also most others were moved by the putative authority of certain persons to attribute some probability to that opinion.

Second Sentence of certain more recent writers denies, from the general principle concerning contracts invalid on account of a shameful condition, concerning which it will be said below, where we shall speak of contracts in general.

Q. 2. Whether a violator is held to anything toward the parents of the violated virgin, if she herself freely consented to the sin?

Resp. More probably negatively, because no strict right of theirs was violated; nor can they impede the daughter from being able to cede her own right as regards temporal damages. - St. Lig., n. 641. - Billuart. - Lugo.

730. • Q. 3. To what is the violator held toward spurious offspring?

Resp. 1. If he oppressed the mother by force, he is held to all expenses of nourishment and education. The reason is plain from what has been said. Nevertheless, in his defect the mother must undertake care of the child, although she has admitted no fault, because she is the mother. But then she retains recourse against the corrupter, who is held to compensate her for all expenses which she incurred on occasion of that offspring.

Resp. 2. But if the woman consented to the sin:

1. From Roman Law the mother is held to nourish the infant for three years, and afterward the father ought to provide for him.

2. From Gallic law nothing is expressly established. Jurists, however, acknowledge that parents are equally and in solidum obligated at least to nourishing and educating children legally recognized. They elicit this from art. 203. But even if the children were not recognized, nevertheless by natural law the same obligation lies upon them. - Carrière, n. 1371. - Gousset, n. 1016. - See Casus, n. 737 and following.

The obligations of each adulterer must be considered according to various circumstances, namely according as the adultery was, or was not, plainly voluntary on each side, whether damaging to the family or not.

731. Principles. - I. Each adulterer is held in solidum to repair all damages of the family, if the crime was voluntary on each side, because the whole is to be imputed to each. Hence 1. those must be restored all the expenses which the husband sustained in nourishing and educating the offspring; 2. if the illegitimate son has already received the inheritance along with the legitimate children, compensation must be made to these pro rata. - St. Lig., n. 659.

II. The adulteress, if she has paraphernal goods, ought to restore from these to the husband and children injured, through manual gifts, through contract, testament, legacies..., etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and labor more diligently, insofar as her state permits.

III. If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repairing the whole damage from what was said above, n. 728.

732. Questions. - Q. 1. Whether the woman is held 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 without danger of death, or of perpetual hatred, or of other grave evils; 2. because even through this she could repair the damage only with difficulty, especially since the son is not held to give faith to his mother. Some except the case in which the mother is of ruined reputation ¹, etc. - St. Lig., n. 653.

¹ But an exception of this kind labors under another inconvenience. For if the son is not held to believe the sole testimony of his mother, much less will he be held to give faith to the testimony of one woman, who besides is of ruined reputation.

733. • Q. 2. What is to be said in doubt whether the offspring is the husband's or the adulterer's, or is from this adulterer rather than from another?

Resp. to the first. More probably the adulterers are held to nothing, because the damage is not certain. - St. Lig., n. 657. - Lugo, D. 13, n. 17, and several others, against others who say that restitution must be made pro rata.

Resp. to the second. Each adulterer is held pro rata to restitution according to the more common sentence, which seems to be held. The reason is that the damage is certain, and it is certain that it was brought about by one or the other; but each one is an efficacious and unjust cause of the uncertainty, which impedes compensation from being exacted determinately from one. Moreover the innocent person ought not to suffer from this uncertainty. - Lacroix, n. 337. - Lugo, n. 19. - Roncaglia, c. 2, qu. 3.

Nevertheless St. Lig., n. 658, dissents, because, as he says, a certain burden cannot be imposed where the obligation is doubtful ². Nevertheless he excepts if the second adulterer adverted, at least implicitly, that he would be the cause of that uncertainty. Likewise if the adulterers perpetrated the adultery from common counsel.

² ** What the Doctors thought concerning this controversy will certainly be understood with difficulty by one who forms a judgment about the matter merely from the allegations produced by St. Alphonsus. For for his own sentence, which he calls more probable, he reports the Doctors thus (Lib. 3, n. 658): Thus, he says, Sanchez, Cons. Lib. 4, C. 3, Dub. 1, n. 5; Disp. 15, n. 20; Zachar., that is, Croix, Lib. 3, P. 1, n. 704, with Gob., Less., Fill., and Bon., and Salm. ibid., that is, de Restit., C. 3, n. 32, with Sot., Trull., Lop., etc., against Dicast., Mol., and others. And indeed in the first edition, in the year 1748, St. Doctor after the Salmanticenses had added Lugo also for his opinion; but then in other editions we see the name of Lugo removed, although without his name the allegation Disp. 13, n. 20 was retained, which empty allegation is seen also in the recent Turin and Ratisbon editions of the year 1846. But that the name of Lugo was removed by St. Alphonsus himself is suggested by this: that afterward he himself, l. c., alleges Lugo (Disp. 13, n. 24) against himself, as if Lugo there established that adulterers are held to support pro rata of the doubt; which nevertheless is itself less exact. For there Lugo, on the contrary, inclines toward the sentence which denies the obligation of nourishing the offspring, although he admits in the adulterers an obligation of restoring to the husband and legitimate children at least as to part for the damage inflicted upon them from adulterine offspring.

But to come to the remaining allegations, St. Alphonsus, as we have seen, cites for himself Zacharias, that is, Croix, Lib. 3, P. 1, n. 704. But behold, the same St. Doctor a little later, l. c., writes: Nevertheless Croix himself, Lib. 3, P. 2, n. 337, with Lugo, n. 24, speaking of adulterine offspring, says absolutely with Illsung that adulterers are held to support pro rata of the doubt. How, therefore, does St. Doctor allege Croix for himself, when, by his own admission, Croix says absolutely that adulterers are held to furnish support? Nor is it permitted to conjecture that the question of St. Alphonsus, who treats generally of restitution of damages, differs from the thesis of Croix, who perhaps speaks of support alone. For 1. Croix, Lib. 3, P. 1, n. 704, which place St. Alphonsus cites for himself, asks namely by whom the offspring is to be supported; 2. in the other place, P. 2, n. 337, he speaks also of restitution of the hereditary part subtracted from the legitimate children. What certain thing, therefore, can be deduced from this? St. Doctor then brings forward Gobat, but he does not indicate the place; and perhaps he took this allegation from Croix, Lib. 3, P. 1, n. 704. But indeed 1. Gobat is there alleged by Croix not concerning the present question, but concerning another; 2. in the present question, however, Gobat (Quin., Tr. V, Cap. 28, n. 58) calls the sentence of Molina, against which he is cited by St. Alphonsus, most probable.

Then St. Alphonsus brings forward Bonacina also for himself. But the Salmanticenses themselves (Tr. 13, C. 3, n. 31), whom St. Doctor alleges, report Bonacina for the opposite sentence. And in fact Bonacina (De Matr., Q. 4, Punct. 15, n. 10) has these things: When two adulterers have known one and the same married woman, who conceived at that time when the husband was absent, each one is held both to restore for his part, etc. Thus Azor, Rebell., Molina, and others.

St. Doctor adds the allegation of Sanchez, which seems to have been taken from the Salmanticenses. But this seems to touch the matter even less than the others. For Sanchez asks (Cons. Lib. 4, C. 3, Dub. 1) who are called natural children, who spurious. But he infers (ibid., n. 3) that those whom someone had from a concubine outside the house are not to be called natural if the father does not recognize them as sons; otherwise, if he has always recognized them as sons. These things, as is plain, pertain nothing to the present question.

As regards the allegation of Soto, in the first place this argument would prove too much; since in whatever hypothesis Soto (De Iust., Lib. 4, Q. 3, art. 2, ad fin.) denies that the adulterer is held from justice to any restitution. In truth, he says, I do not plainly see why an adulterer would be held to any restitution from justice. This opinion Sayrus also refutes with others (Lib. 8, C. 3, n. 20-21).

But Lopez (Instr., P. 4, C. 90), to whom here must be added Villalobus (Sum., Part 2, Tr. 11, Diffic. 34) and Sayrus (l. c.), does not define that two adulterers are held to no restitution, but these only say that neither of them is held to have that offspring as his own. But that this sentence does not exclude the obligation of restoring is plain both from the nature of the matter and from fact. From the nature of the matter indeed, because the obligation of restitution is not sought here from this, that each adulterer ought to believe the offspring to be his own, but from another reason, which also the Author intimates in the text. From fact, moreover, because in reality the Doctors reconcile each sentence in such a way that they teach each as true. Thus, besides those alleged, Molina also (Part 4, Disp. 103, n. 3), and Trullench (Lib. 7, C. 9, Dub. 7, n. 5), whom therefore the Salmanticenses (l. c., n. 32), and after them St. Alphonsus, allege undeservedly for the opposite sentence.

There remain Lessius (Lib. 2, C. 10, n. 40) and Filliuccius (Tr. 32, C. 8, n. 223). But these in no way weigh this controversy concerning uncertainty between two adulterers, but only establish the question generically concerning the case in which someone merely has a doubt whether he himself is the father. But that this does not exclude a diverse sentence concerning the case about which we are treating is manifestly plain from this: that Bonacina, Molina, Lugo, Trullench, etc., establish those same general principles as Lessius and Filliuccius, and yet consequently did not think that the same sentence was to be held concerning our case. And the reason for a diverse sentence according to the diversity of the case is not obscure: namely, as we have already intimated, the obligation of restitution is not sought from this, that one or the other adulterer is certainly judged to be the father.

Finally, what the suffrage of the Salmanticenses is worth can be judged from this, that their whole furnishing consists of the allegations here weighed.

St. Alphonsus adds (l. c., n. 650) that the opinion which he follows is called common by Lugo, Disp. 13, n. 19. But in fact here Lugo asserts precisely the opposite. The common sentence, he says, certainly affirms that each one must concur in part toward support, etc.

But as regards intrinsic reasons, St. Alphonsus is not far from admitting the force of the argument which is used by the patrons of the opposite sentence, and which is set forth thus apud Croix (Lib. 3, P. 2, n. 337): The reason is that although one who doubts whether he caused unjust damage is held to nothing, which is the argument of St. Alphonsus, nevertheless here each one, by common work, is the cause of the uncertainty itself, which unjustly impedes the due restitution from being able to be exacted from one determinate person, and into this damage each consented by willing copula of itself causative of damages of this kind, as Ills. argues, n. 97, etc. And Dicastill., Reding, Pettschacher, Illsung, Mezger, etc., apud Babenstuber (Tr. 7, Disp. 5, art. 3, § 3, n. 38), and Elbel (Theol. Sacr., Part 3, Conf. 18, n. 452), indeed urge this reason excellently. Moreover St. Alphonsus does not deny the force of the argument, but merely requires that the adulterers had foreseen this damage; and what sort of foresight this ought to be, the same St. Doctor teaches (De Act. hum., n. 10), where he postulates that the agent, in placing the cause, advert at least in a confused way that an effect of this kind would follow from that cause. Indeed these words are not to be accepted as if the agent ought to know that that effect will certainly follow from his action, but thus: that if the effect follows, the agent knows that the effect must be attributed to his action. Therefore, although it is uncertain whether the woman will conceive from the adultery, or whether death will follow from the explosion of arms, nevertheless if either offspring follows from adultery, or death follows from the explosion of arms, no one doubts that the effect must be ascribed to the cause placed. Moreover, since from the adultery perpetrated either the conception of offspring, or the uncertainty about which there is speech, if perhaps another adulterer has approached the adulteress, are effects of this kind, which follow not by accident, but of themselves from the adultery of each, an excuse can certainly be pretended with too much difficulty, that no foresight of the damage that followed, not even implicit, preceded. Otherwise even the adulterer would seem to be excused who had thought absolutely nothing about offspring to follow from his own crime, or even who had persuaded himself firmly that no offspring would follow from that adultery. But over excuses of this kind there prevails the fact that whoever undertakes a crime also explicitly or implicitly takes upon himself the burden of consequences of themselves coming from it. Hence we see it done that, although so many most grave Authors have treated this controversy accurately on every side, nevertheless Pettschacher alone, whom Elbel and Babenstuber afterward followed in some way, produced this exception in passing.

Q. 3. Whether a son is held to believe his mother, even when she swears, that he is illegitimate?

Resp. Negatively, because from right and common sense no one is held to believe one witness, even of the most approved faith. Otherwise, however, if besides the testimony of the mother evident indications were to accede, for example, the absence of the father for a long time. - St. Lig., n. 654. - Laymann. - Roncaglia.

734. • Q. 4. Whether, if adulterers or wealthy fornicators have sent offspring to a foundling hospital, they are held to reimbursing the expenses?

Resp. It is controverted. First Sentence, the more common and more probable, affirms. The reason is that foundling hospitals were instituted for the sake of infants, not indeed of parents; nor is it to be presumed that their founders wished to exempt the rich from paying expenses. - Lugo, D. 13, n. 3. - Billuart. - Bouvier, de Restit., p. 2, art. 2. - Carrière, n. 1373. - Rousselot, opusc. de sexto praec.

Second Sentence denies, because foundling hospitals were erected for all infants indiscriminately who are cast off by parents. Nor is it an obstacle that subsidies are furnished by the Government or by the Municipality for these little ones; because these are generally assigned for abandoned little children, without attention being given to the parents. Moreover, hospices of this kind were instituted for this end, that illegitimate infants might be freed from the danger both of eternal and of temporal death, to which they would be especially exposed unless they were received in those pious places. For how many impious and barbarous parents has fear of infamy driven either to procuring the abortion of their offspring, or to bringing death upon it? Besides, the children of the rich incur such danger no less than the children of the poor. - Thus St. Lig., n. 656, who thinks this sentence more probable.

Nevertheless the patrons of this sentence also agree that in practice the parents must be earnestly exhorted to give something to the foundling hospital, at least by title of penance.

735. • Q. 5. How much must be given to the hospice, according to the patrons of the prior sentence ³?

³ Since the second sentence also is sufficiently probable, indeed in the judgment of St. Alphonsus is more probable, this question seems useless; because the Confessor cannot impose the obligation of paying something as owed from justice; but if the speech is about alms to be freely given, the quantity seems to be permitted to the judgment of the one giving.

Resp. No certain rule can be defined. For the solution of the question depends upon various circumstances of things and places, upon the prolonged life or upon the premature death of the offspring. But scarcely, they say, a sixth part of children reaches the age of twelve years, and often it is unknown to the parents whether they live or not. Whence, they conclude, it will be enough if the parents pay 200 or 150 francs to the foundling hospital pro rata of the doubt. - Bouvier, ibid. - See Casus, n. 743 and following.

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.

It is impossible to make restitution for lost bodily integrity (virginity) because the damage done is beyond repair. But reparation can and must be made for material injury arising from illicit cohabitation.

1. If both parties have freely committed fornication together, neither has a valid claim to restitution, because “scienti et volenti non fit iniuria.”¹ If a woman has been dishonored by means of fraud, trickery, violence, or grave threats of cruelty, mutilation or death, she is en- titled to full reparation of the damage inflicted upon her reputation, station, or fortune, and eventually to compensation for the injury to her health resulting from ill-treatment or excitement.² A man who has seduced an honorable woman, especially if she was a virgin, is bound under pain of mortal sin to employ all the means at his command to lead her back to the path of virtue. Such means are: advice, warning, a good example, prayer, and, eventually, marriage. If a secret sin of unchastity committed by a woman has become public through the fault of the seducer, the latter must repair the damage resulting to her.³ Equity requires that an apology be made to the injured parents, if they are not themselves to blame for the sin of their daughter; but there is no strict obligation to this effect.⁴

¹ Cfr. H. Busembaum, S. J., Medulla Theologiae Moralis, III, tr. 5, c. 2, dub. 6, a. 4: “Restitution is not binding precisely for virginity alone. Hence, if the defloration remained secret, or did not prevent her from marrying equally advantageously, the deflowerer is bound to nothing. Likewise he is bound to nothing if he deflowered one who consented, without force, fraud, or promise of marriage, because no injury was done. If he bent a virgin by importunate entreaties, he is bound to restore nothing, because she still consented freely, unless perhaps the entreaties were such as to be equivalent to force and coercion: for example, if they were joined with threats or reverential fear, e. g., if he was her master or a man of great authority.”—Cfr. St. Alphonsus, Theol. Mor., l. IV, n. 642, dub. 2.

² St. Alphonsus, Theol. Mor., l. III, n. 641: “If anyone violates [a virgin] by force, threats, or fraud, he is bound to repair for both the girl and her parents all damages to honor and fortune. Hence he is bound to increase her dowry so that the girl may marry equally well as if she had not been violated. . . . But if he himself wished to marry her, while the girl rejected the marriage, he is bound to endow her fully. . . . And the same must be said even in doubt whether the girl had previously been corrupted by another or not, because she is presumed intact until the contrary is certainly proved. Likewise, if a man has intercourse with a secretly corrupted girl or with a widow of honorable reputation and, through his unjust intercourse, they suffer loss of reputation; but otherwise, if the intercourse remained entirely secret, for then he would be bound to nothing.” Ibid., n. 642, dub. 1: “What if a virgin unjustly violated afterwards marries equally well? The answer is that the violator is bound to nothing unless, before the marriage, a dowry was awarded to the girl by judgment or agreement; for otherwise he is bound to furnish nothing: not for the violation of virginity, which is irreparable, nor for damage, since none followed. . . . If the woman is ill-treated by her husband because of the known defect, the deflowerer is bound to compensate the woman.”—Cfr. Ex. XXII, 16 sq.; Deut. XXII, 25; Ehrlich, Randglossen zur hebr. Bibel, II, 316.

³ St. Alphonsus, l. c.: “If the man afterwards defamed the girl by making the deed public, then in justice he is bound to make good to the girl and her parents every damage arising from the defamation, as Laymann and the Salmanticenses rightly observe.”

⁴ Ibid.: “If the virgin freely consents, it is commonly held that the deflowerer is bound to restore nothing to her. But the first doubt arises whether in that case he is bound to make satisfaction for the injury to the girl’s parents. There are two probable opinions. The first denies it. . . . The reason is that if the girl herself, since she is mistress of her own body, inflicts no injury on her father when she consents to defloration in exercise of her right, much less does the deflowerer inflict one. She alone will sin, and consequently the violator also, against the filial duty owed to her father, and also against obedience if she had an express prohibition from her father concerning such a crime, as Lugo says. The second opinion, however, affirms it. And St. Thomas holds the same (S. Th., 2a 2ae, qu. 154, art. 6, ad 3), who says: ‘The [deflowerer] inflicts injury upon the girl’s father, and hence according to the law he is liable to a penalty to him,’ namely from Deut. XXII, 28 sq., where deflowerers, if they had been brought to judgment, were bound to pay the girl’s father fifty shekels. Yet this, St. Antoninus rightly observes, has place only after the judgment of a judge. Moreover, the aforesaid second opinion holds that both the girl and her deflowerer sin in two ways, namely against chastity and justice; and that the deflowerer is bound to restore to the father the honor taken away through some sign of honor, a request for pardon, or something similar, unless it is presumed that the father would not want such satisfaction. The second doubt arises whether the violator of a consenting girl is bound to restore to her parents the loss of property coming upon them because of the dowry which they must increase in order to settle their daughter in marriage. Azor and Corduba and others affirm it. But Scotus, Suarez, Sanchez, Lessius, Lugo, etc., very commonly deny it. The reason is that, just as the girl, since she can freely reject marriage, does not injure her parents if, by consenting to her defloration, she renders herself less fit for it, so neither does the deflowerer injure them by violating her with her consent.” (Ed. Gaudé, II, 116).

a) Restitution is of strict obligation in cases of criminal assault or rape (stuprum), and by this term moralists understand not only an act of violence which the assaulted person was unable to ward off, but in which she was given no other choice but to suffer violation or risk bodily ill-treatment, mutilation, or perhaps even death.

In some dioceses rape is a reserved case subject to canonical penalties.⁵

⁵ A. Vermeersch, S. J., De Castitate, Bruges, 1919, p. 323. Cfr. can. 2357, § 1; 2359, § 2.

b) The claim of having been “seduced” does not in itself entitle a woman to restitution. Seduction is not necessarily accomplished in one act or in a single moment in which it would be possible to deprive the will of its freedom. It usually extends over some time, in which reason and conscience have a chance to assert their influence and put a chaste and conscientious woman on her guard. Probably most women who pretend to have been seduced were willing victims.⁶ At any rate, in its subtler form, seduction is traceable to the coquetry of the female as much as to the passion of the male.⁷ A man may fancy he is seducing a woman when in reality the woman is seducing him. And even when religious motives are given no room for play, an ordinarily good woman can with a little reflection realize that, while dallying with the seducer, she is embarking on a dangerous course and that, if actual “seduction” follows, it will be her own fault as much as the man’s.⁸

⁶ Gen. XXXIX, 7–18 (Putiphar’s wife); cfr. XXXVIII, 13 sqq. Homer, Odyssey, I, 55 sqq. (Calypso and Ulysses); Iliad, VI, 160 sqq. (Anteia and Bellephoron).—Elbel-Bierbaum, Theol. Mor., Vol. I, 3rd ed., 223 sq. (Casus non fictus, sed vere factus).

⁷ 2 Kings XIII, 11–17. (Amnon’s rape of Thamar).—Cfr. St. Jerome, Epist., XXII, n. 12 (Migne, P. L., XXII, 401).—Prov. VII, 5–27.

⁸ Linsenmann, Moraltheologie, pp. 612 sq.

“That a weak and poorly developed woman should be abused by a strong man against her will is credible,” says a medical writer; “but when both are in good health and in the possession of ordinary strength, such a thing is improbable, and a contrary statement deserves no credence unless the circumstances are exceptional. A woman may be attacked and abused against her will by two or more men; . . . but one man unaided is hardly able, under ordinary conditions, to overpower and rape a grown-up, healthy, and fully developed woman who is in the full possession of her strength and free to use it in offering resistance.”⁹

⁹ J. Maschka, Handbuch der gerichtlichen Medizin, Vol. III, pp. 136 sq.

2. If a birth results from an act of fornication to which both parties freely consented, both are equally and in solidum bound to rear the child.

a) If the sin was committed through violence, grave fear, trickery or fraud, or if the woman was made incapable of offering resistance by intoxicating liquor or other similar means, or if consent or resistance on her part was morally impossible on account of mental weakness or extreme youth, the guilty aggressor is alone liable for the support and education of the child and, moreover, bound to marry the woman, or at least provide for her and the child to the best of his ability.¹⁰

¹⁰ Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 371: “If offspring has been born, a distinction must be made: 1. If the virgin freely consented, by natural right each parent is bound proportionately and in solidum for the expenses of education until the offspring can provide for itself; 2. If she was overpowered, the deflowerer alone is bound to bear the expenses of education; yet in his default the girl must supply them, since she is the mother of the offspring, but she then retains an action against her violator, who is obliged to restore the whole damage. Furthermore, both parents ought to acknowledge the offspring conceived or already born as their own in the manner of a legacy and, through subsequent marriage, to endow it with legitimacy, lest it remain disgraced and be deprived of inheritance and due education. This obligation ceases, however, if a grave disadvantage stands in the way or if the girl was deceived or overpowered, since she is not bound to enter marriage with her violator. Finally, for practice I observe: When the deflowerer is to compensate the damage with money, it is expedient that he agree upon the amount of the sum with those who suffered the damage and pay the sum at one time, lest perhaps a dangerous association be continued or payment of the debt be omitted.”—Noldin, II, pp. 494 sqq.

When necessary, it is licit to garnishee a portion of the man’s wages or salary for the benefit of the woman whom he has violated and of her illegitimate child.

If a woman has had voluntary intercourse with two or more men and it is consequently uncertain who is the father of her child, no one is obliged to make restitution, unless the civil law provides otherwise; for when a duty is doubtful, no certain burden may be imposed.¹¹

¹¹ St. Alphonsus, Theol. Mor., l. IV, n. 658: “This opinion, considered in respect of reason and speaking absolutely, is more probable, for no one is bound for damage unless it is morally certain that he was its cause.”—Cfr. A. Lehmkuhl, Theol. Mor., Vol. I, 12th ed., n. 997; IDEM, Casus Consc., Vol. I, 2nd ed., n. 714 sqq.—Noldin, II, p. 495.

If in case of rape several men have been guilty and there is consequent uncertainty with regard to the paternity of a child, all are obliged to make restitution pro rata.¹²

¹² Lehmkuhl, Theol. Mor., Vol. I, p. 683; Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 376, p. 6: “What if, between two adulterers who have known the same woman, it is doubtful whose offspring it is? The answer is: The first and more common opinion teaches that each is bound for support in proportion to the doubt, because each inflicted a certain injury and some damage, namely either illegitimate offspring or uncertainty about the author who would be bound to pay. Moreover, the innocent party ought not to suffer from this uncertainty. The second and more probable opinion asserts that neither is bound to anything, because no one is to be bound to payment and restitution so long as the debt is not established; hence no one is bound to support offspring which is not established to be his. Nor does an injurious action suffice, but in addition damage certainly following from it is required. Yet the reasoning of the first opinion is persuasive in two cases: 1. Against the second adulterer, who, knowing that adultery was committed by the other, perceives that by his second adultery he becomes the cause of uncertainty because of which compensation cannot be demanded from the first adulterer; 2. If they committed adultery by common counsel. Such awareness and such counsel will be very rare. The aforesaid answer applies also to fornicators.”

b) The sin of fornication, committed with mutual consent, violates no strict right of the families of the respective participants, but it constitutes a gross violation of the respect and charity due to them. This damage the guilty parties should repair by making an apology and giving satisfaction, which they can do by faithful compliance with their duties. Parents, superiors, or teachers who seduce their subjects to fornication, possibly with a view of pecuniary profit (lenocinium), incur the same guilt and responsibility as those who command others to sin (mandantes).¹³ They are guilty of negative co-operation if they grossly neglect their duty towards their charges.

¹³ V. supra, concerning coöperation in evil.

c) In some countries a woman cannot recover damages if it can be proved that she had sexual intercourse with several men. The admission of this principle (exceptio plurium, as it is called), seems a hardship for the mother and her child, and gives unscrupulous men an opportunity to escape responsibility for their sins by causing others to have sexual intercourse with a seduced woman. But experience shows that to exclude this principle would promote blackmail and immorality. If the legal consequence of exceptio plurium is admitted, every intelligent girl that commits fornication with one man, knows that she will lose her claims against him if she takes up with another, and thus her will-power is strengthened and she is saved from sinking to lower depths. The illegitimate child will at least have a mother, who, though she may have sinned, is not a professional harlot or a blackmailer who runs after rich men to secure a “father” for her child.

Under the Code Civil Napoléon a suit for damages against the father of an illegitimate child was impossible because search for the father was forbidden.¹⁴

¹⁴ Art. 340: “La recherche de la paternité est interdite.”—Cfr. W. Beringer, Das uneheliche Kind und seine Mutter, Metz 1903; A. Bebel, Die Frau und der Sozialismus, 37th ed., Stuttgart 1904.

3. When a child is born of adulterous intercourse, the wrong-doers, if they sinned freely, are both bound to provide for the child and make compensation for the loss ensuing to the husband or wife (provided he or she did not consent), and to his or her legitimate offspring.¹⁵ If the crime of an adulteress has remained unknown to her husband, and he is compelled to support the child, unaware that it is not his, though her guilt is grave and she is bound to make adequate restitution, she may nevertheless conceal her crime in order to preserve her good name and the domestic peace,¹⁶ and, under certain circumstances, she has the duty of safeguarding the interests of the adulterine child.¹⁷ But she is also bound to make compensation for the damage inflicted upon her husband and legitimate offspring, either from her own means, or if she possesses no property of her own, by increased diligence, economy, and reduction of her personal expenses.¹⁸

¹⁵ St. Alphonsus, Theol. Mor., l. III, n. 651; Gury, Comp. Theol. Mor., Vol. I, n. 702: “Each adulterer is bound in solidum to repair all damages coming upon the family, if the crime was voluntary on both sides, because the whole must be imputed to each. Hence: 1. All expenses which the husband made in supporting and educating the offspring must be restored; 2. If the illegitimate son has already received an inheritance with the legitimate children, compensation must be made to them proportionately.”

¹⁶ St. Alphonsus, Theol. Mor., l. III, n. 653 (ed. Gaudé, II, 130).—Gury, Comp. Theol. Mor., Vol. I, n. 703: “Is a woman bound to reveal her crime if she cannot repair the damage in another way? The answer is negative, speaking generally. The reason is: 1. Because commonly this revelation cannot be made without great disgrace to the woman and often without danger of death or of perpetual hatred and other grave evils; 2. Because even if such a means were employed, she could repair the damage only with difficulty. They commonly make an exception if the mother is of ruined reputation.”

¹⁷ Linsenmann, Moraltheologie, pp. 613 sq.: “If no other proofs are given, the child may not, merely because of the testimony of the mother, be denied the right of legitimacy; pater est, quem nuptiae demonstrant.”—Cfr. Gury, Comp. Theol. Mor., I, n. 704: “Is a son bound to believe his mother, even when she swears that he is illegitimate? The answer is negative, because by law and common sense no one is bound to believe one witness, even one of the most proven fidelity. It is otherwise, however, if besides the mother’s testimony evident indications are present, e. g., the father’s absence for a long time.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 654 (ed. Gaudé, II, 132).

¹⁸ Gury, Comp. Theol. Mor., I, n. 702: “If the adulteress has paraphernal property, she must make restitution from it to her injured husband and children through gifts by hand, by contract, testament, legacies, etc. If she has none, let her administer the household more diligently and be more sparing in private expenditures; let her work more diligently, insofar as her state permits.”

a) If an adulteress conceals her crime in confessionali until she is near death, when it is impossible for her to make restitution, she should not be compelled to reveal her sin to her husband, because the reputation of a wife and mother is a more valuable possession for her husband and children than the temporal good of which they will be deprived in consequence of being ignorant of her sin.¹⁹

¹⁹ C. 9, de Poenit. et Rem., V, 38: “Just as penance is not to be denied to a woman who, unknown to her husband, conceived offspring through adultery, although she fears to confess this to her husband, so neither is it to be denied to her who substituted another’s offspring for her own, . . . but suitable satisfaction must be enjoined upon her by a discreet priest.”

b) If a man, by the use of force or serious threats, compels a married woman to commit adultery with him, he is the sole cause of the resulting damage and alone bound to make restitution and to provide for the support and education of the child.²⁰ In case there is doubt whether the child belongs to him or to the woman’s lawful husband, the adulterer is not obliged to make restitution, for according to the principle, “Pater est, quem nuptiae demonstrant,” a child is regarded as the offspring of the mother’s lawful husband unless the contrary is proved.²¹

²⁰ Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 374: “When an adulterer has extorted the woman’s consent by force, fear, or fraud, he alone is bound to repair the whole damage. The reason is that then he alone is the cause of the whole damage.”

²¹ St. Alphonsus, Theol. Mor., l. II, n. 657 (ed. Gaudé, II, 133).—Gury, Comp. Theol. Mor., I, n. 703.—Code Civil Napoléon, a. 312: “L’enfant conçu pendant le mariage a pour père le mari.”—J. Maschka, Handbuch der gerichtl. Medizin, III, 4 sqq.

c) If a woman has had adulterous intercourse with two or more men besides her husband, and it is uncertain which of them is the father of her child, none is held to restitution, since the mother is the cause of the uncertainty. But if a conspiracy existed between the men, they are bound to make restitution in solidum. If those that came later were aware of the woman’s previous relations with others, they are bound to make restitution pro rata dubii and in solidum.²²

²² Aertnys, Theologia Moralis, Vol. I, 7th ed., l. III, n. 376, qu. 6; Lehmkuhl, Theologia Moralis, Vol. I, 11th ed., n. 1190: “When several adulterers have approached a woman at about the same time suitable for generation, and it is not known whose the offspring, certainly adulterine, is: if they acted by common counsel, or if they merely knew or gravely suspected that others had already been admitted, I think that they are all bound, in proportion to the doubt, to repair the damages that will arise to the husband or legitimate children. For they all posited a cause which of itself is apt either to procreate offspring of a certain father or to produce uncertain and doubtful paternity, and therefore to produce uncertainty concerning the one from whom the husband and others who suffered damage could seek complete reparation of certain damage. But producing this uncertainty is an unjust and damaging action. Therefore, from this injustice, whose effect they knew could arise from their own action, they are bound to repair the damage; nevertheless, since the same injustice is not present just as if the certain author were established, each must repair only in proportion the damages that will arise; he is not bound in solidum.”

d) He who commits his illegitimate child to a public foundling asylum, is not bound in justice to make restitution of the money expended for its support, because such institutions exist for all children, rich and poor, which are exposed to danger. Since, however, foundling asylums are not intended to relieve wealthy people of the care for their offspring, it is surely a matter of equity that the expenses be repaid in such cases.²³

²³ Cfr. St. Alphonsus, Theol. Mor., l. III, n. 656 (ed. Gaudé, II, 133); Gury, Comp. Theol. Mor., I, n. 705.

e) Adultery is a canonical ground for demanding a separation a mensa et toro. The guilty party loses the ius petendi debitum coniugale, which may, however, be recovered by express or implied condonation on the part of the innocent party. The least that can be expected of a husband or wife who has been guilty of adultery is that he or she humbly confess his or her sin, ask for forgiveness, and sincerely promise to be faithful in future. Genuine penitence can usually repair the scandal given, at least in its more serious consequences.

Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 1022 sqq., 146 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 640 (ed. Gaudé, II, 115 sqq.).—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 494 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 242 sqq.—T. Slater, S. J., A Manual of Moral Theol., Vol. I, pp. 416 sq.—A. Lehmkuhl, S. J., Theol. Mor., Vol. II, pp. 680 sqq.

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.

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.

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.

Here it is a question only of adultery from which offspring has been born and damage has followed; for personal injury alone inflicted on a spouse cannot be repaired by money (cf. n. 928).

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.

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.

382. The goods of marriage, formally considered and in the strict sense, are spouse and children. In these someone can suffer injury insofar as harm is brought to their chastity:

1. in a spouse indeed through adultery, which is defined as the violation of another's bed, and is carnal copula with the spouse of another;

2. in one's girls, of whom one has custody, through stuprum strictly so called, which is the illicit defloration of a virgin living under paternal authority. Similarly

3. through stuprum broadly so called, which is carnal copula with an unmarried woman in some way unwilling, or the oppression of any honorable woman, even not a virgin or not a minor: injury can be inflicted on this woman by reason of future marriage and by reason of offspring perhaps to be born.

These sins, as being sins of lust, are explained in the treatise on chastity; yet because they contain a certain injustice, under this respect they are considered in the present place in order to restitution.

383. Stuprum is unjust or not, according as unjust means are employed or are not employed. In the present place, however, an unjust perpetrator of stuprum is considered as one who by an unjust means oppressed or seduced an unwilling honorable woman. It is required

a) that he has used some unjust means whatever, namely, force, fear, fraud, deceit, or deception. Whence by these words are understood not only violent oppression of the woman, whether in the state of wakefulness or in the state of sleep or drunkenness, but also threats unjustly inspired, very importunate prayers, for example, of a superior, on account of which from shame she would not dare to dissent, touches and kisses brought by force even if afterwards she consents, fear of infamy from the fact that the man would not wish to leave, deceptions or fictitious promises especially of marriage, and other things of this kind by which the woman, as if unwilling, is induced to copula; - but not flatteries, gifts, mere prayers or accustomed persuasions, because they contain nothing unjust;

b) toward an honorable woman, whether she is a virgin, or widow, or merely unmarried, provided that by public estimation she has preserved good reputation and is held chaste; otherwise no damage of itself is inflicted on her.

384. Principles. - I. An unjust perpetrator of stuprum

a) on account of the stuprum itself: of himself is held to restore nothing, unless the judge imposes compensation on him;

b) on account of temporal damage (inability or difficulty of marrying, defamation of the girl and dishonoring of the parents, syphilitic infection, etc.), if it was inflicted by him:

1. Toward the woman or also the parents: from justice he is held to repair all damages that have followed both to the woman, especially a virgin, and to her parents, provided that from such an action they come upon them of themselves and consequently are judged to have been foreseen in confusion: for he is an unjust damager. But he ought to repair even by marrying the woman, if he promised even fictitiously, or if the damage cannot otherwise be repaired, and greater evils are not prudently feared; - otherwise by dowering her or increasing a dowry, taking care that she can marry according to her condition, concurring toward her support, etc., according as damage was inflicted and it is possible to compensate it. Therefore:

a) He is not held to marriage 1. from an invalid promise, by reason of the promise, but only by reason of deceit to be removed; 2. nor from invalid espousals as such, since they are void in both forums (can. 1017, § 1), but insofar as they were an instrument of fraud and deception; 3. nor if the girl had already been dishonorably corrupted, because to enter marriage with such a woman is esteemed much more than that which the perpetrator of stuprum received from her; 4. nor if she pretended herself a virgin and herself deceived; 5. nor if from the circumstances, as from the tenor of the words or too great inequality of condition, she could easily have understood that the promise was not serious, because then deception was not present but she deceived herself; - not however on account of a diriment impediment, in which dispensation is usually granted.

b) The obligation of marrying ceases: 1. if the woman has freely renounced her right or has fully condoned the injury; 2. if she has fornicated with a third party, because faith should be broken with one breaking faith; 3. if from the marriage greater evils would follow: enmities, scandals, an unhappy outcome.

c) Compensation is not owed if the woman in fact has suffered no damage, namely 1. if she has already married well according to her state; 2. if she has entered religion; 3. if she could not or would not have married; 4. if she has been defamed because she herself indiscreetly manifested the stuprum; 5. if she has already died by premature death. - Unless, however, an agreement has already been entered into; and therefore if the corrupted woman has already received something, she can retain it.

2. Toward offspring born, if the father is certain, he ought to provide from justice for the whole support and education, according to the condition of the mother, until the offspring can suffice for himself; - if the father is uncertain, because several have had copula, he is held to restore for the rate of doubt, at least if by common counsel or knowingly they acted thus, because he is a voluntary cause of the uncertainty of the father, which is already a great damage for the mother and offspring; otherwise it is not certain that he is held to restore anything, since the mother is rather the cause that it cannot be established concerning the father.

II. A perpetrator of stuprum who is not unjust:

1. Toward the girl or parents, of himself is held to restore nothing: not to the girl, because to one knowing and consenting no injury is done; not to the parents, because the daughter is not held from justice to impede this damage from her parents; - per accidens he is held concerning damage following from infamy, if he himself has manifested the delict.

2. Toward offspring born, if the father is certain, he is held from piety to half the support of the offspring, according to the condition of the mother, even if civil law prohibits inquiry concerning an illegitimate father; but he is held in solidum with the mother, so that, if she provides nothing, he ought to provide for the whole. But if there are several uncertain fathers, he is held to half the support by proportionate part, at least if by common counsel or knowingly they acted thus; otherwise it is not certain that he is held to restore anything.

Thus considered under natural law alone. In some regions civil law, or a civil judge when asked, is accustomed to determine the quantity of support to be paid by the illegitimate father,¹ which then has force in conscience.

¹ Thus the German Code (a. 1708 sq.) establishes that the illegitimate father is held to furnish suitable support up to the child's 10th year. Cf. Austrian Code, a. 166-171; Spanish Code, a. 143; Swiss Code, 8. 317-319. The French Code imposed no obligation of support upon the illegitimate father, since it prohibited inquiry concerning the illegitimate father (a. 340); - but in Belgium, by the law of 6 Apr. 1908, this was changed somewhat; in France by the law of 16 Nov. 1912, likewise in the Netherlands in the year 1909 (Dutch Code, a. 344).

385. Remarks. - 1. From piety and charity there is an obligation of acknowledging the offspring, and of legitimating it through marriage, unless graver inconveniences stand in the way.²

² Cf. C.C., a. 331 and 334.

2. In the case in which the perpetrator of stuprum is going to compensate damage by money, it is expedient that he agree concerning the amount of the sum with those who have suffered damage and that he soon pay the whole sum, lest perhaps dangerous commerce be continued or payment of the debt be omitted.

3. Vermeersch wisely warns, Th. M. II, n. 633: "Before he declares the obligation of making restitution or advises the manner,... let the confessor weigh all things well... For crafty women know how to entice an inexperienced young man in such a way that he considers himself the seducer while he merely falls into a snare prepared by women. But when the sin has been committed, they complain that they have conceived from him, when either they are not pregnant at all or have sinned with several. Then the money which someone has given for impeding disclosure of the matter or for redeeming the vexation of accusers and barkers is easily converted into an argument of guilt, so that it furnishes occasion for long-lasting servitude."

386. Adultery, besides the malice of fornication by which someone approaches one not his own,

1. imports an injury inflicted on the other spouse, from the fact that someone approaches another's woman: this injury and disgrace and infamy, which the husband suffers, must of itself be repaired by satisfaction from justice as much as can be done, by seeking pardon, showing sorrow, furnishing favors, especially by honoring; nevertheless

a) if this would not be pleasing to the husband, or if the adultery has remained secret, it is better to omit this satisfaction, lest quarrels or graver things be caused;

b) if the husband is the adulterer, satisfaction does not seem to have to be made on account of the disgrace of the wife, because the wife is commonly judged to perceive no infamy and no disgrace from the adultery of the husband;

2. it imports besides temporal damage to be repaired, in the case in which offspring also has certainly been born from adultery, namely,

a) the expenses which the husband had in the birth, nourishment, and education of another's offspring, unless this offspring compensates by labor, because then there is no damage;

b) the gifts and inheritance of the father (or ascendants) handed over to this offspring, by which the legitimate children are unjustly deprived;¹ but if no legitimate offspring is present, restitution must be made to those heirs to whom the goods of the husband otherwise would fall. - Yet detriments which come merely per accidens are not to be restored, from the fact that other blood-relatives or friends give or leave certain things to the adulterous child which otherwise would have come to the legitimate children.

¹ The same holds of itself concerning the maternal inheritance, at least for the legitimate portion; unless civil law disposes otherwise. Namely the German Code, a. 1705, and Swiss Code, a. 324 and 461, concede to illegitimate offspring the right of taking inheritance from the mother and her blood-relatives; the Austrian Code, a. 754, only inheritance from the mother. More conformably to principles, the French Code, a. 762, and Spanish Code, a. 845, exclude adulterous offspring from every legal hereditary succession, and concede to him only support.

Thus if the offspring is morally certainly adulterous; for in doubt, offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom the nuptials demonstrate. Nor must restitution be made as long as it is uncertain that the action was efficaciously damaging. But if the offspring was certainly conceived from adultery, it is asked to what the adulterer is held, whether he used unjust means or did not use them.

387. Principles. - I. The adulterer who by force, grave fear, deceit, or another unjust means has brought the wife to copula, from justice is held by himself alone to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole cause of these truly, efficaciously, and formally unjust.

II. The adulterer who has not used an unjust means, but who obtained consent from the wife altogether freely, from justice is held in solidum with the wife to repairing damages inflicted upon the husband and children; because both together are the unjust, efficacious, and culpable cause of them.

III. Several adulterers who, from copula had at a time apt for conception, can be the father of adulterous offspring, are held to reparation by proportionate part of the doubt, at least those who acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father; - otherwise it is uncertain whether they are held to restore, since the mother is rather the cause that it cannot be established concerning the father.

Let it be noted that the adulterous woman alone sometimes is held to repairing damages which occur by reason of inheritance; namely, if she could easily have removed the child so that he would be nourished outside the family, for example, in a foundling home or hospice, and the adulterer did whatever he could to obtain this: for then he withdrew the cause of damage and did not sin against the family, and the adulteress alone efficaciously caused the damage.

388. The manner of restitution in practice often is difficult, on account of the danger of suspicion by which the peace of the family would be disturbed. Hence the following things come to be noted especially:

1. An adulterous man can make restitution by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to a prudent estimation.

2. An adulterous mother can make restitution: 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 accustomed expenses, caring more diligently for the family estate, and living more sparingly as much as can be done according to her condition, to which, when another means is lacking, she is even held; d) by applying to the adulterous offspring the alms which she can make according to her state, or by seeking an alms from the husband for a poor blood-relative; e) by secretly taking, as far as she safely can, from the goods which are going to come to the adulterous son or have already come, and by compensating the legitimate children with them; f) or also, by prudently giving to the illegitimate son the counsel of religious life.

3. If it is possible for the adulterous offspring to be educated in a hospice or foundling home without suspicions arising, care must be taken that it be done in this way, since thus the expenses of education are greatly limited and the division of inheritance is avoided. Nor is there an obligation of making restitution to the hospice, except in the case in which it is supported by the public expenses alone of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Regularly, even if it is necessary for avoiding damages or for making restitution, the mother is not held to manifest her crime: she is not held, namely, with danger to 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 blood-relatives and of graver discord, - nor without hope of fruit, when manifestation will profit nothing, whether because the son will not believe his mother, or because he will not make restitution since it is foreseen that he cannot or will not wish to do this. - Yet she would be held if those dangers of death, graver infamy, and indignation and scandal were absent, and the son were judged likely to believe the mother and to make restitution.

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.

First indeed I say, that she is not bound to make known her crime at the peril of life or reputation. So Navarr. in man. cap. 16. num. 43. Covarr. reg. peccatum at the beginning. Cajetan 2. 2. question 62. art. 6. and others whom he adduces; and Fagundez follows lib. 4. cap. 5.

The reason is that this disclosure, if it is necessary, will certainly be for restitution; but one is not bound to make restitution with damage or loss of a good of a higher order.

Add that this disclosure would be in vain; for the son is not bound to believe it.

I say secondly, however, that she is bound, when she can repair the damage, by leaving her goods to her legitimate children, when she can do so without disclosure.

Next she is bound to persuade her son to enter Religion, in which he will not succeed to the goods. But if the mother has made herself known with so many circumstances that he without doubt believes himself illegitimate, he is bound to restore the inheritance to others. He is nevertheless foolish if he believes it, since he was born under the appearance of marriage and is legitimate according to public fame, which prevails over the private, as we have in Leg. filium, ff. Qui sunt sui iuris.

I say further, that she is not bound to expose herself to the peril of reputation or life, even if the gravest damage befall the other children, as if a principality or kingdom were lost. The reason is that reputation and life are of a still higher order. For a good name is better than great riches. Proverbs 22. Hence Ecclesiasticus 41: Have care of a good name, for this will remain with you more than a thousand treasures precious and costly; And it is the common opinion, as Fagundez says cap. 5. num. 15.

In doubt, however, the adulteress is not bound to make good the damage to her legitimate children, nor to support, dower, or make heir her son, etc.

But if she certainly acknowledges her offspring to be hers, she is bound to restore support for three years and from the third part of her goods, and to make good the damages inflicted on the other children.

On the mutual obligation of spouses I shall treat in part 3, Tract. de matrim. disp. 9.

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.