¹ Manual labor, which pagans in general contemned as a dishonorable thing, is not at all contemptible, but rather prescribed by the law of nature, ennobled by the example of Christ and the Apostles, and therefore is for everyone a highest ornament.

¹ St. Thomas, II-II, q. 187, a. 3. Encyclical letters of Leo XIII concerning the condition of workers: Rerum novarum, 15 May 1891. Ed. Genicot, Theologiae moralis institutiones, Louvain: Polleunis and Ceuterick, 1902, I, n. 365. S. Weber, Evangelium und Arbeit, Freiburg: Herder, 1898.

67. Preliminary notions.* 1. The name of labor is taken in a broader and a stricter sense: in the broader sense it is understood as any occupation, whether it is exercised by body or mind, whether it is useful to others or useless; in the stricter sense it is understood as human activity, both bodily and spiritual, by which goods in some way profitable are produced.

In the former sense even prayer, both vocal and mental, exercises of piety, works of mercy toward the neighbor, and things of this kind are counted by the name of labor, in general any human activity, with only that excluded which is undertaken merely for the sake of delight. In the latter sense only productive and gainful labor is called labor, which is useful to the laborer himself or to others or to society, and therefore is also called "social labor."

2. There are some who contend that on all and individual men who are fit for this there has been imposed a natural and divine precept of laboring, not indeed always with productive and gainful labor, but nevertheless with serious and constant labor, ordinarily undergone through the greater part of the day. Although there does not exist a divine precept directly obliging all and individual men to labor, nevertheless there exists a universal precept of labor for the human race, so that labor pertains to the duties of human life; but indirectly labor is prescribed more or less to all and individual men.

3. To labor there belongs a. social moment, since it begets temporal prosperity, perfects culture, and increases the comforts of life; b. moral moment, since it is a means of exercising virtue and self-denial; c. supernatural moment, since it renders us like Christ our Savior, who was in labors from His youth.

68. Whence the obligation of labor arises. 1. From several reasons there exists a true obligation of laboring, which binds each one more or less.

a. From the precept of conserving life. The obligation of laboring certainly arises from the duty of conserving life by ordinary means: for since most men lack the means necessary for preserving life either simply or fittingly unless they acquire them for themselves by continual labor, and since labor is a means equally ordinary and necessary for this end, all who from another source do not have a sufficient abundance of goods by which they can honorably nourish themselves are bound by the obligation of undertaking labor.

a. The precept of laboring indeed requires that man by labor proportioned to his powers acquire for himself the necessary means by which he can lead a life fitting to the dignity of human nature; but it by no means requires that he procure for himself a more abundant supply of things, by which he can also enjoy the comforts and luxuries of those nations which are chiefly praised for material culture and progress.

b. Just as those who already have the things necessary for conserving life are immune from the precept of laboring insofar as it arises from this head, so those are immune from the same who are nourished by the piety of others, even if they could acquire the necessary livelihood for themselves by their own labor, as religious who live by begging: for labor is not prescribed for its own sake, but as a means necessary for preserving life; therefore for those who receive the necessities of life from elsewhere and do not indulge idleness, the precept of seeking them by their own labor ceases.

c. Besides the obligation of preserving one's own life, other precepts induce a necessity of labor in many men, which cannot be observed without manifold labor, such as duties of piety of parents and children, duties of religion of clerics, etc.

b. From the obligation of avoiding idleness. Idleness exposes man to the imminent danger of falling into various sins: for with experience as witness, this is the condition of corrupted human nature, that an idle life is defiled by very many vices, which Sacred Scripture signifies by these words: idleness has taught much malice;¹ but the only means of avoiding idleness is labor; therefore man is bound, for avoiding the dangers of sinning which arise from idleness, to apply himself to some honorable labor.

It is clear that any labor whatever suffices for fulfilling this obligation, even if it is useful to no one, as the anchorites teach us by their example. But certainly occupation which consists in mere games and recreations does not suffice: for with experience as witness, those who are intent upon hunting merely after delights and pleasures are no less defiled by vices than those who are given to idleness.

2. Whether from positive divine precept. Although labor is especially fitting to human nature² and ennobles and perfects it, while on the contrary idleness and sloth are unbecoming to man, nevertheless it cannot be affirmed that a divine precept of labor, especially gainful labor, independent of all other obligations, has been enjoined in Sacred Scripture upon absolutely all men.

a. A natural precept of laboring is demonstrated neither from the innate inclination to working, nor from the destination of the human race to culture, which otherwise it cannot attain except by tireless labor of men, nor from tranquility of soul, which labor produces, while on the contrary idleness generates disgust. But the highest fittingness and utility of labor and the natural destination of men for working are rightly inferred from these reasons.

b. There are indeed many testimonies of Sacred Scripture, both of the Old and New Testament, by which labor is extolled with the highest praises and earnestly commended,³ but none by which labor itself as such is strictly prescribed.

a. The words of Genesis: In the sweat of your face you shall eat bread⁴ do not signify that no man can licitly obtain those things which are necessary for life except by arduous labor, but indicate the punishment imposed upon the human race because of sin: namely, that the human race, which before sin in the earthly paradise would have obtained in abundance the necessities for nourishing life by easy and pleasant labor, afterwards as punishment for sin would obtain them only by arduous labor. In a similar way the words are to be understood: in sorrow you shall bring forth children.⁵

b. The words in Job (5:7), man is born to labor, and the bird to flight, have an entirely different sense; for labor from the context signifies hardships and pain, so that the sense is either this: as the bird is born for flight, so man is born for pain; or this: as the bird is incited by nature to fly, so man by the inclination of nature is incited to sin, from which hardships and pains arise.⁶ Outside the context, the cited words have this sense: as the bird is incited by natural instinct to flying, so man is incited by natural inclination to motion and labor.

c. But the words of St. Paul: If anyone is not willing to work, neither let him eat,⁷ are to be understood concerning those who, since they were doing nothing but indulging idleness, wished to live at another's expense, namely that these are not even worthy of food.⁸

3. Whether from the obligation of contributing to the common good. Serious labor of men, especially that which is expended in cultivating arts and sciences, indeed contributes much to promoting the prosperity and culture of human society; wherefore to those who enjoy an abundance of necessary things, labor of this kind can never be commended enough. But man is not held by strict obligation to contribute by his labor to the progress of culture. Nor can any argument be brought forward by which it is demonstrated that individual men are strictly obliged, according to their powers, to contribute to promoting social progress. For the rest, what individual members of society ought to contribute from obligation to the common good and therefore to procuring and promoting the temporal prosperity of society, the precepts of charity and the precepts enacted by public authority for the common good determine.

¹ Ecclus. 33:29.

² Gen. 2:15.

³ Prov. 22:29; 31:13 ff.; Eccles. 11:6; 9:10; Eph. 4:28; 1 Thess. 4:10; 2 Thess. 3:10, 12.

⁴ Gen. 3:19.

⁵ Gen. 3:16.

⁶ Cf. Knabenbauer, Commentarius in librum Iob, Paris: Lethielleux, 1886.

⁷ 2 Thess. 3:10.

⁸ B. Justiniani, Explanationes in omnes B. Pauli Ap. epistolas, on this place. C. Estius, Commentaria in omnes B. Pauli epistolas, on this place.

69. On the right to labor. With the obligation of laboring is connected the right to labor, which socialists interpret badly. The social and economic conditions of our time bring it about that from time to time very many workers lack labor and therefore also necessary sustenance. Therefore socialists proclaim a right to labor, by which right either private men or the republic are held to provide for workers lacking labor at any time the occasion of laboring and of gaining wages by which they can live. Concerning this matter it is useful to note these things:

a. Each one has a right of laboring, that is, he has a right of seeking licit labor for himself by just means and of exercising it, and therefore he has the right of demanding that he not be impeded by others in the exercise of this right. This right is founded on another right, that of conserving and perfecting life, for which end economic labor in general is altogether necessary.

Therefore an injury is inflicted upon one willing to labor if he is impeded from seeking and exercising labor as he wishes, which is done by socialists especially in strikes. But upon civil power falls the obligation of protecting the right of laboring of him who does not voluntarily yield his right.

b. No one has a right to labor, that is, a right of demanding that another, whether a private person or the republic, provide or procure labor for him, even if he lacks the means necessary for sustenance. For he who lacks labor and at the same time sustenance cannot by right demand from the neighbor that he provide labor for him, though from charity the neighbor can sometimes be bound to this: the obligation of supplying gainful labor in every case is opposed to the right of property. But neither is the political power bound to provide or procure labor for him, since it does not pertain to its office to procure the temporal good of individuals.

c. But if the multitude of those who lack labor is so great that from it the common good suffers detriment, the public power is bound from legal justice, lest the common good be brought into danger, to procure for them the occasion of laboring.

Note. To the right and obligation of laboring corresponds the right and obligation to religious days of rest. For neither can the life of the body be preserved safe, nor the salvation of the soul be placed in safety, unless at stated times rest is granted to the body, so that the soul through prayer and contemplation of religious truths may look after eternal salvation. For this reason God prescribed: Six days you shall work ... but on the seventh day is the Sabbath of the Lord your God; you shall not do any work on it.¹

¹ Ex. 20:9-10.

125. On the cooperation of innkeepers. Innkeepers can cooperate in the sins of others chiefly in three ways:

1. By furnishing forbidden foods. a. It is not licit voluntarily to offer forbidden foods to guests: for this would be to invite them to sin.

b. It is licit to serve meats on prohibited days to those asking for them, because it would be too hard and dangerous to ask individuals whether they have a legitimate cause; but if it is established that they are not excused, meats can be supplied only from a grave reason of notable damage, as if otherwise the gathering of guests would be notably diminished.

c. Hence if they foresee that there will be guests who ask for prohibited foods, they can set the table with licit and illicit foods; and if they foresee that no one will ask for fasting foods, they can prepare only meat foods. But they are bound to admonish the guests that they can receive fasting foods, and they ought to serve such foods to those asking.

In a private family in which a table is provided for outsiders for a paid price, it is not licit without a special cause to cooperate in violating abstinence; therefore even to those asking, forbidden foods cannot so easily be supplied. Yet a moderately grave cause excuses this cooperation if the sin cannot be prevented by denied supplying.

2. By serving wine. a. It is never licit spontaneously to offer wine to one who is foreseen as going to become drunk from it; for this supplying would be formal cooperation.

b. It is licit from the sole cause of profit to serve wine to guests flowing in indiscriminately, although it is foreseen in a confused way that some of them will sin by drunkenness, quarrels, and blasphemies, both because the sins cannot be prevented (for wine will be supplied to them in other taverns), and because the innkeeper would undergo grave damage; for since sins of this kind ordinarily happen in taverns, he would suffer a great loss of guests.

c. But in a particular case it is not licit to serve wine which he asks for to a guest who will become drunk, from the sole cause of profit nor because of the guest's indignation; but for cooperation in a determinate and certain sin to be licit, a graver cause is required, for example fear of a quarrel, blasphemy, or notable damage from the diminution of guests.¹

3. By proposing evil newspapers. a. It is not licit to expose newspapers which are altogether evil, namely which almost always are opposed to faith or good morals, although they may be asked for by many who on that account will leave the inn; for the damage of the innkeeper, although grave, cannot be a sufficient cause for permitting the spiritual ruin of many which would follow from it. It is added that newspapers of this kind are also prohibited by ecclesiastical law.²

b. Newspapers which only more rarely contain something that is opposed to faith or good morals can be supplied to those asking in a separate place if otherwise they would suffer notable damage.

c. Only if it is established by experience that almost all guests ask for those papers and otherwise would leave the inn, can they be publicly proposed, provided good newspapers are also exposed at the same time. Thus in greater cities it can scarcely any longer be prevented that papers of this kind are now publicly exposed by innkeepers.

¹ Cf. Ethel-Bierbaum, Theologia moralis, 2nd ed., I, pr. 1, n. 17.

² Constitution Officiorum ac munerum, n. 21.

493. 1. One receiving or furnishing recourse is said to be he who knowingly cooperates in the damage of the neighbor by furnishing security to the damager. This can happen in two ways: either by receiving another's thing or by protecting the author of the damage.

It belongs to the nature of one receiving that by his manner of acting he influence the will of the damager and determine it either to inflict damage again or to retain the thing taken away.

a. Therefore these are not receivers: alpha. those who receive criminals at home as friends and blood-relatives, or by reason of office as innkeepers, or to avert grave damage from themselves; beta. those who defend thieves or criminals in judgment in those things in which they themselves could defend themselves.

b. But these are receivers: alpha. innkeepers who receive thieves into lodging and conceal them lest they be captured; beta. tavern-keepers who accept from sons under family power money or other things secretly taken from their parents; gamma. parents who do not impede the thefts of sons and in this way add courage to them for repeating thefts.

2. The receiver is bound to repair damages of which he himself is the efficient cause; therefore if the one furnishing recourse brought it about that damage was inflicted or that the thing taken away was retained.

718. 1. From universal precepts, which are common to all men or at least to all the faithful, particular precepts of God or of the Church must be distinguished, which refer only to certain persons, namely to those who have embraced a determinate state of life.

2. State in general is called a constant mode of living. Therefore two elements concur to constitute a state: a certain mode of living and constancy in it.

a. In order that a certain mode of living be called a state in the strict and proper sense, it is required that it be immovable or unchangeable, and indeed from an obligation which he who lives in that state cannot cast off at his own will.

Of this kind is the matrimonial state, which is immutable by reason of the matrimonial bond; the priestly state, by reason of the sacramental character and by reason of the solemn vow of chastity; the regular state, by reason of religious profession.

b. In a broader and improper sense a certain condition of life is called a state, which a man cannot easily change at his own will. Its certain immutability arises not from obligation, but from external circumstances.

Of this kind is the state of merchants, officials, physicians, craftsmen, who, although they cannot easily change the condition of life from which they ordinarily take necessary sustenance, nevertheless absolutely can renounce it.

Note 1. We are accustomed also to speak of the state of the just and sinners, of the blessed and the damned; but in this case not a mode of living, but a mode of existing is called a state. Therefore in German we call their condition not so much Stand but rather Zustand.

Note 2. State differs from office, which is not named from the habitual obligation or liberty of the person, but from the acts to be exercised by a determinate person, as the office of judge, physician, confessor, etc.²

The particular precepts to be explained in this place refer to the state of laymen and to the state of clerics; for concerning other states there is treatment either expressly in canon law, as concerning the state of regulars, or in other parts of moral theology, as concerning married persons.

Book First. On the Precepts of Laymen

The precepts which look here do not affect all laymen, but only certain ones because of the special office which they exercise. These precepts are customarily called obligations of state (Standespflichten). Nevertheless there can be discussion here not of all particular offices, but only of the principal ones, of which kind are the offices of judge, plaintiff, defendant, advocate, witness, and physician.

¹ St. Alphonsus, l. 4, n. 140-292; Lugo, De iustitia et iure, disp. 37-41; Elbel-Bierbaum, Theologia moralis, 8th ed. (Paderborn: Typographia Boni Fac., 1894), II, pr. 7; Ballerini-Palmieri, Opus theolog. mor., 3rd ed. (Prato: Giachetti, 1900), IV, n. 224-614; Genicot, Theologiae moralis institut., 8th ed. (Brussels: Dewit, 1909), II, n. 1-62; Berardi, Praxis confessariorum, 3rd ed. (Faenza: Novelli, 1898), III, n. 1-186.

² Cf. Ballerini-Palmieri IV, n. 9.

719. Notions. 1. A judge is a public person constituted by legitimate authority to pronounce right.

He pronounces right either by deciding in a civil process a matter disputed between parties, or by imposing in a criminal process a suitable penalty on a delinquent.

2. An ecclesiastical judge and a secular judge are distinguished according to the diverse authority by which he is constituted; a civil judge and a criminal judge according to the diverse matter in which he judges.

a. A judge who, either from the disposition of the law or by the litigants themselves, is constituted to settle a controversy existing between them, is called an arbiter.

b. From modern law in criminal causes sworn judges are customarily employed, who are only judges of fact: for they pronounce sentence only concerning the truth of the crime which is objected to the accused, or concerning his culpability; judges of law then decree the penalty.

We must treat: a. of the qualities of the judge; b. of the obligations of the judge; c. of the judicial sentence.

720. Qualities of the judge. In order that a judge can duly perform his office, he must have knowledge, jurisdiction, and integrity.

a. He must have sufficient knowledge, lest he be exposed to the danger of harming those whose causes he conducts. Therefore he must know the laws in force, according to which judgment must be instituted in the causes which are customarily brought to his tribunal.

a. A judge destitute of sufficient knowledge cannot be absolved unless he either leaves the office or acquires the due knowledge for himself and meanwhile abstains from the function, if he can, or at least strives to forestall the damages of others by seeking the counsel of one more learned, if he cannot abstain altogether.

b. A judge who, knowing his own lack of skill, conducts a cause is bound to repair the damages which the injured party has suffered.

c. If he has made an error to the damage of the litigant (even inculpably), he is bound (if he can without infamy) to warn him, so that he may provide for himself by appeal or another way.

b. Jurisdiction; for if this is lacking, he pronounces an invalid sentence (unless jurisdiction is supplied), and he can sin gravely, because he injures the right of the competent judge, whose power he usurps, and the right of the defendant, against whom he unjustly employs coercive force.

Therefore if a secular judge handles ecclesiastical causes in his own forum or drags ecclesiastical persons to his tribunal, he acts invalidly, sins gravely both against justice and against religion, and sometimes incurs excommunication.¹ Nevertheless today, through concordats, it has happened in most places that secular judges can licitly judge not only civil causes, but under certain conditions also criminal causes of ecclesiastical persons. Where this faculty has not been granted through concordats, it must be sought in individual cases; and indeed, in order that a cleric can be summoned, from the ordinary; in order that a bishop can be summoned, from the Apostolic See.² Genicot rightly judges that a judge who omits to seek this license ordinarily does not sin gravely where he is commanded by civil law to conduct causes of this kind. In the same way an ecclesiastical judge sins because of usurped foreign power if he judges merely temporal causes.

c. Integrity, by which in all things he preserves justice and is not bent to injuring right by respect of persons, by the passion of hatred or love, or by prayers or gifts.

¹ To this belongs the twofold excommunication (I, 6, 7) from the constitution Apostolicae sedis.

² Holy Office, Jan. 23, 1886.

721. On the acceptance of gifts. 1. It is not lawful for a judge to demand gifts from litigants as a stipend for judicial action or for a sentence to be rendered: for the judge is bound from office to dispatch causes brought to his tribunal and to render a just sentence; but it is repugnant to commutative justice that a price be received for a thing already otherwise due from justice.

If a judge, from a contract for rendering an unjust sentence, received a gift, before the sentence has been rendered he is bound to restore it, but after the sentence has been rendered he can retain it, unless either positive law has declared the contract concerning receiving the gift invalid, or he himself has been condemned to restitution, because he actually furnished the promised thing (n. 538). But if from a contract for rendering a just sentence he received a gift, he must return it even after the sentence has been rendered.

2. It is not lawful for a judge to receive gifts from litigants as presents offered from mere liberality, unless they are of small moment. For in order that every danger of corruption in the judge be cut off, the acceptance of gifts is prohibited both by natural and by positive law. It is prohibited by natural law, because one accepting gifts exposes himself to the danger of rendering an unjust sentence: for presents and gifts blind the eyes of judges.¹ But in positive law, both ecclesiastical and civil, this prohibition is contained in express words.² Small gifts, however, are not judged to have the force of enticing a judge to an unjust sentence.

If a judge accepted a prohibited gift offered from mere liberality, he can retain it both from natural law and from positive law, because neither invalidates the donation. Positive law indeed is preceptive; therefore one accepting prohibited gifts sins, but he is not bound to restitution unless he has been condemned to make it by the sentence of a judge. What has been established particularly concerning ecclesiastical judges, canon law teaches.³

¹ Ecclus. 20:31.

² C. Statutum 11, de rescriptis in 6 (I, 3); cf. Deut. 16:19; l. 18, Dig. de officio praesidis. With Roman law all recent codes prohibit judges the acceptance of gifts.

³ Cf. Aichner, Compendium iuris eccles., 9th ed. (Brixen: Weger, 1900), p. 756 ss.

722. Obligations of the judge. The judge from justice, both legal and commutative, must conduct causes with due diligence and with justice: for by the quasi-contract which he enters into, in accepting the office with political power and in accepting the cause with the parties, he obligates himself to this.

1. Diligence, which must be employed in conducting causes, demands first that he employ that care which by the prudent judgment of prudent persons is necessary for the gravity of the cause; then, that he not prolong causes without necessity so long that damages arise for the parties.

If from excessive delay of a cause, and that gravely culpable, damages have arisen to a party, he is bound to repair them; and if from gravely culpable negligence he pronounced a false sentence, he is bound to restitution toward the injured party.

2. Justice, which he must observe in conducting causes, demands that he institute process and render sentence according to the laws in force, provided they are just: for he has been constituted to render sentence according to law. If he violates laws, he sins against legal justice, unless at the same time he acts against the strict right of another.

a. Therefore he injures commutative justice and is bound to restitution if in civil causes he does not give to litigants the right which belongs to them from law; likewise if in criminal causes he imposes penalties greater than legal ones. But if he unjustly frees a defendant from a pecuniary fine, he violates not commutative justice but only legal justice.

b. It is not lawful for a judge to suggest to one of the litigating parties that which the party can allege for himself, because this would be to act the part of an advocate, which is not lawful for a judge, who by his own office must judge only according to the things alleged and proved.

723. On the judicial sentence. The judge must render sentence according to juridical knowledge, which he acquired from judicial acts, or according to the things alleged and proved, not according to private knowledge: for he acts as a public person, and therefore must proceed according to public knowledge.

a. Therefore he must absolve him whom by private knowledge he knows to be guilty, if he has not been juridically convicted, so that he acts against justice and is bound to restitution if he condemns him.

b. But if by private knowledge he knows an innocent person who juridically has been proved guilty:

a. First he is bound to attempt all that he can in order to free the innocent person from undergoing the penalty, because from charity he is bound to avert a grave evil of the neighbor, especially an unjust one; and very rarely, says Lugo, can it happen that a judge cannot free him whom he certainly knows to be innocent.¹ But if he can rescue him by no means, practically, at his pleasure, let him absolve or condemn him, since the matter is much controverted among theologians.

b. For some teach that it is lawful for a judge to render sentence against an innocent person in all causes in which there is question of imposing a penalty in external goods, such as a pecuniary penalty or deprivation of office, over which goods public authority has power in view of the common good. For in this case public authority deprives a subject of his goods for the common good, which demands that the judicial order be preserved, unless natural right is violated, and gives the judge power of condemning the innocent. But if there is question of imposing a penalty in goods over which society has no power, such as the penalty of death or imprisonment, it is not lawful for a judge to pronounce sentence against an innocent person: for since society has no power over the life or liberty of an innocent person, it cannot confer on the judge the power of condemning the innocent.² Others, however, with St. Thomas, hold that the judge can always pronounce sentence according to the things alleged and proved, even if there is question of imposing the most grave penalty of death, because the judge is a public person, who must proceed according to public knowledge.³ But it must be demonstrated that it is not against the law of nature, and therefore not intrinsically evil, to condemn an innocent person, even if he is legitimately proved harmful. Besides, this question at the present time is not of great moment: for since almost everywhere there are sworn judges, this case can occur only where jurors affirm someone guilty whom the judge knows to be innocent.

¹ Lugo, De iustitia, disp. 37, n. 41.

² Cf. Lugo, disp. 37, n. 42 ss., with whom Laymann, Lessius, St. Alphonsus (n. 208), and others hold the same.

³ Cf. St. Thomas, II-II, q. 64, a. 6, ad 3; q. 67, a. 2.

724. On the force of a judicial sentence. 1. A certainly just sentence of a judge produces obligation in conscience: for it is like a precept of a legitimate superior in a particular case, which obliges in conscience.

a. A sentence of a judge in a penal cause produces an obligation of obedience, because penal laws are to be observed from obedience which is owed to a just law (from legal justice); wherefore a fine imposed by the sentence of a judge must be paid from obedience.

b. A sentence of a judge which defines a strict right, for example that an heir must pay a legacy, imposes an obligation of commutative justice with the burden of restitution.

c. In a doubtful cause, whether the doubt is of fact or of law, anyone can stand by the sentence of the judge with a safe conscience: for it belongs to the judge to resolve doubts.¹

2. A certainly unjust sentence cannot produce obligation in conscience. And this indeed holds in every case, whether the sentence is false only in itself or even juridically from the order of judgment not being observed, whether the judge pronounced sentence in good or bad faith.

Therefore he who by a certainly unjust sentence of a judge has been deprived of his property can, if no other means is available, recover his property by hidden compensation; and he who as a litigant in good faith obtained property by an unjust sentence, for example an inheritance, is bound, once the injustice of the sentence is known, to restore it to the legitimate heirs; but he is not bound to compensate expenses, because he acted in good faith.²

3. If the sentence is doubtfully just, an appeal can indeed be interposed, but the sentence itself must be observed, not only in the external forum but also in conscience: for in doubt the sentence of the judge must be presumed just.

¹ Marres, De justitia, 2nd ed. (Roermond: Romen, 1889), I, n. 18.

² Lugo, disp. 37, n. 187.

725. On a judicial sentence in a doubtful cause. If a cause is doubtful, whether by doubt of fact or doubt of law, one must distinguish.

A doubt of fact is had if it is doubted whether the defendant committed the crime, contracted the debt, etc., because on each side there are only probable reasons; a doubt of law is had if it is doubted in what sense the law according to which judgment must be rendered is to be understood, because it is explained probably by doctors on either side.

a. In criminal causes and in causes in which a penalty is to be imposed, favor must be shown to the defendant, that is, the defendant must always be absolved, because he cannot be punished unless the crime is certainly established.

b. But in civil causes concerning a disputed matter one must again distinguish: if one is in certain possession of the disputed matter, the matter must be adjudged to him until the other party sufficiently proves his right. But if neither party is in certain possession of the disputed matter, and a. probability on each side is unequal, the matter must be adjudged to him whom the greater probability favors, from proposition 2 condemned by Innocent XI.¹ If b. probability on each side is equal, the judge can advise an amicable composition, or even adjudge the matter to one whom he prefers.

a. It is the more common opinion, which St. Alphonsus holds (n. 210), that the matter must be adjudged to the possessor until the other party certainly proves his right, because the certain right of possession cannot be struck down except by another certain right. But others judge that the matter must be adjudged to the possessor so long as on each side there are equally probable reasons: for in an equal cause the right of the possessor is better; but if the plaintiff has greater probability, the matter can be adjudged to him, because he has the greater right for himself, which strikes down the presumption which the fact of possession furnishes to the other.

b. The reason why the judge must adjudge the matter to him whom the greater probability favors is this: because the judge has been constituted by supreme authority so that in the better way in which he can he may investigate and follow the truth, and therefore assign right to the parties according to the merit of the cause; but he would fail in this office if he favored that party which has a lesser appearance of truth and a greater danger of error.² But if in this case the less probable right of the other is injured, supreme power by reason of the common good (that lawsuits may be ended) demands that the injured person yield from his right.

c. From natural law nothing prevents the judge from dividing the matter among the litigants according to the proportion of probability, whether on both sides it is of equal or unequal probability; but from positive law he must follow the positive laws of tribunals, which establish that the disputed matter must be adjudged to one or the other party.

d. If the causes of the litigants are equally probable, it is not lawful for the judge to accept money in order to favor one before the other;³ indeed this manner of acting is also unjust, because the judge doing these things furnishes nothing besides that which from justice he already must furnish.⁴

¹ I probably think that a judge can judge according to an opinion even less probable. Proposition 2 condemned by Innocent XI.

² Lugo, disp. 16, n. 99; Ballerini-Palmieri IV, n. 578; Lugo, disp. 37, n. 114 s.

³ This proposition (26) was condemned by Alexander VII: When litigants have equally probable opinions for themselves, the judge can accept money for rendering sentence in favor of one before the other.

⁴ Cf. Lehmkuhl, Casus consc., I, 496.

726. On a judicial sentence rendered according to an unjust law. 1. If a law is unjust because it is contrary to the laws of ecclesiastical immunity, from which the Church can dispense, the judge must seek from ecclesiastical authority the faculty of judging such a cause, unless it has already been granted. The faculty sought is easily granted, lest a good and upright judge be forced to leave office; but he must forestall public scandal which can arise from use of the faculty.

2. If the law is unjust because it is contrary to divine or natural laws, it is not lawful to render sentence according to that law, because the matter is intrinsically evil; wherefore the judge would have to leave office rather than conduct a cause of this kind.

a. A sentence rendered according to an unjust law either commands a dishonorable thing, as if it pronounces that those who are joined only civilly must cohabit, or imposes a penalty on the innocent. Now a sentence of this kind must be called intrinsically evil, even if there is question only of imposing a penalty; wherefore it is not lawful for the judge, in order to avoid his own grave damage, to impose even a light penalty on an innocent person, unless from the at least presumed consent of him who must undergo the penalty. For this reason it can be called lawful that a judge who cannot abstain from sentence without his own grave damage impose a fine on a priest who assists those about to marry in church before civil marriage.¹

b. There are some who try to demonstrate that a sentence rendered according to an unjust law is lawful, because a judge rendering sentence only declares what the wicked law establishes; but to declare this is not evil. Nevertheless the force of a judicial sentence is altogether different: for it itself produces a new obligation or new right not existing before, so that a judicial sentence is customarily called a particular law.²

¹ Genicot II, n. 5.

² St. Thomas, II-II, q. 67, a. 1.

727. Obligation of a judge who rendered an unjust sentence.

a. If he did this with grave fault (whether from iniquity or from lack of skill), he is bound to revoke the sentence if he can, even with great inconvenience, and if he cannot, he must repair the damages.

b. If he did this inculpably (from error or forgetfulness), he is bound to revoke the sentence if he can without great inconvenience, because he is bound to impede the evil which from his action is going to come upon another; if he cannot, he is bound to nothing. But if from gravely culpable negligence he does not revoke an unjust sentence which he can conveniently revoke, the whole damage must be imputed to him and he is bound to repair it.

c. If he imposed a penalty greater than just, he injured commutative justice and is bound to restitution. A penalty is also judged greater than just if, although it is contained within the limits of the law, nevertheless, considering the circumstances of the cause and the practice of tribunals, it manifestly exceeds measure.¹

d. If a judge has unduly freed someone from a pecuniary fine to be paid from the law as punishment of an offense, he is not bound to restitution toward him to whom the fine had to be paid: for he to whom from law the fine is to be paid does not have a strict right to the fine before the sentence of the judge, whether he is the fisc or some private person.²

¹ Genicot II, n. 5.

² St. Alphonsus, l. 4, n. 196.

728. On jurors. Sworn judges are called by this name from the oath which they emit, that they will perform their office duly. They are not employed except in criminal causes. Their office is, from their intimate persuasion, to judge concerning the existence of the crime and concerning the guilt or innocence of the accused; the judge properly so called then decrees the penalty according to law. But the culpability which they must affirm or deny is understood as formal culpability (Zurechnungsfahigkeit), namely a crime committed with moral fault. They are never held to render a reason for the sentence which they pronounce; wherefore the danger of abuse is clear unless the jurors are men of most upright conscience.

1. He who is assumed to the office of sworn judge can follow it with a safe conscience, provided he has the will never to affirm guilt unless it is certainly established concerning it.

Since jurors are ordinarily citizens not instructed in juridical knowledge, who nevertheless sometimes must render judgment in a difficult and intricate cause, it can be asked whether it is lawful for them to perform this office. But if they strive to have a mind empty of disordered affections and diligently attend in judicial actions, it can scarcely happen that they judge an innocent person guilty. But because it is not lawful for jurors to affirm guilt unless it is certainly established concerning it, it can more easily happen that they absolve a delinquent; but this is to be imputed not to the jurors, but rather to the mode of judging through jurors instituted by civil authority.

2. Since a juror from law must affirm only that of which he is intimately persuaded, it is not lawful for him to affirm guilt unless it is certainly established concerning it, even if by this reason sometimes a delinquent is absolved.

3. They must acquire for themselves from the judicial acts the intimate persuasion according to which they pronounce their sentence, yet they are not prohibited from also using private information.

The reason for the first is that it belongs to the nature of a judicial sentence that it rest on the things alleged and proved in judgment; the reason for the second is that the law itself furnishes them this faculty by commanding them to render sentence according to intimate persuasion: for intimate persuasion cannot arise so long as private knowledge stands opposed.

4. Therefore if by private knowledge they certainly know that the accused is innocent, they must free him, because they cannot have persuasion that he is culpable; and if by private knowledge alone they know that he is guilty, they must likewise free him, because from the judicial acts, from which one cannot abstract, the defendant is not proved.

Berardi (III, n. 108) contradicts this last opinion, which Lehmkuhl (I, n. 807) and Ballerini-Palmieri (IV, n. 593) defend, because criminal law does not permit nor can it permit that a juror draw intimate persuasion from private knowledge alone; Berardi thinks that the law of the criminal code must be understood so that a juror can declare guilty him concerning whose guilt he has intimate persuasion, even if he drew this only from his own private knowledge.

735. An advocate (causidicus) is one who undertakes the defense of some party's cause in judgment. Similar is the office of the procurator, who in the name of the litigant protects the cause in judgment.

The obligations of an advocate as regards sufficient knowledge and due diligence in conducting causes agree with those things which were said above concerning the judge. Therefore if he undertakes a cause for conducting which he knows himself unequal, and by his lack of skill or care inflicts damage on his client, he is bound to restitution, unless the client, conscious of this lack of skill, nevertheless had recourse to him. There remain the obligations which refer to the justice of the cause, to fidelity toward the client, and to a just price.

736. On the justice of the cause to be defended. 1. Concerning a civil cause. a. He cannot undertake a civil cause which he certainly knows to be unjust; but he can undertake a doubtful cause, even that for which the lesser probability stands: for it often happens that a cause which at the beginning seemed doubtful or less probable is shown in the course of the process to be more probable or even certain.

b. If in the course of the process he certainly knows the injustice of the cause undertaken, he must abandon it; nor in this case can he advise a composition, which cannot have place except in a doubtful cause: for he would inflict damage on the opposing party. If from the will of the client he nevertheless pursues an unjust cause, he is bound to repair the damage inflicted on the other party, like a mandatary of an unjust action.

c. In defending a cause he cannot use anything except just means, lest he induce the judge to render a false sentence; but he can conceal those things by which his own cause could be impeded, because he does not deceive the other party but permits him to be deceived. If he wins by unjust means, for example by bringing false or abrogated laws, by producing false witnesses, by bringing false documents, etc., he is bound to repair the damage inflicted on the injured party; primarily indeed if he acted without the mandate of the client, but secondarily if he acted from the mandate of the client.

He can be bound from charity to warn the opposing party concerning circumstances which could help his cause but which he himself either does not know or does not attend to; by justice he is by no means bound.

2. In a criminal cause he can defend the defendant, even if he certainly knows him to be guilty, provided he abstains from all fraud, deceit, and illicit means: for since the defendant is not bound to punishment unless convicted, by the right of defense he can take care that the force of the proofs be weakened and that certain demonstration of the crime be impeded.

It is never lawful to use a false document in judgment. To determine the malice of this thing one must distinguish.

a. If the right of the client is not yet certain, it is a sin against truthfulness and against justice, because by an unjust means he impedes the other party from obtaining a sentence favoring him.

b. If the right of the client is certain and the document previously existing was lost, the substitution of a new document is a lie, but it is not a sin against justice. Indeed, if the right of the client is certain, even if the document which is brought forward to defend the certain right is wholly fabricated, a sin against justice is not committed, but against truthfulness by lying.

c. In either case, however, one can sin against charity, because those acting thus expose themselves to the danger of undergoing a most grave penalty if the fraud is detected;¹ indeed the lie, according to Lehmkuhl (I, n. 824), is gravely harmful against the public good.

¹ Ballerini-Palmieri IV, n. 608.

737. On fidelity toward the client. a. He is bound to examine the cause diligently and to warn the client about the cause, namely about its injustice, certainty, or probability, and to declare to him the state of the cause, if he himself demands this or if it changes notably, lest he be induced to useless expenses. If he omits this with grave fault, he is bound concerning the damages which come to the client from this omission.

An advocate who does not warn the client concerning a doubtful cause and loses it must repair the damage of the client if it is established that he would not have pursued the doubtful cause; but he is not bound to repair the damage if it is doubtful whether the client would have conducted the cause, because in this case the damage inflicted is not established.

b. He is bound to employ at least ordinary industry, both that he win in the cause and that he finish it quickly; and if from gravely culpable negligence damage arises to the client, he is bound to repair it.

c. It is not lawful in the same cause to help the opposing party, for example to communicate depositions of witnesses or other acts to him, or to manifest the secrets of the client to him.

738. On fees to be demanded. a. For a cause which he has conducted, he can receive a just stipend, but it is not lawful for him to demand anything beyond a just stipend. Wherefore if the stipend has been assessed by competent authority, one must stand by it; but if none has been assessed, it must be determined by the judgment of prudent men.

b. The law by which the stipend is assessed can be penal, or preceptive from legal justice, or preceptive from commutative justice. Only in this last case is he who violated the law by taking a fee greater than just bound to restitution.

c. He is bound to conduct the causes of the poor gratis according to the precept of charity; and therefore a. he is bound to help those who are in extreme necessity under grave obligation and with his own grave inconvenience; b. those who are in grave necessity, under grave obligation indeed, but not with grave inconvenience; c. finally those who are in common necessity, under light obligation, if he can conveniently do so. Therefore it suffices if he furnishes them some help or counsel when he is free from other labors.

d. He is not bound to provide help spontaneously, but only to those who implore his help; by repelling those asking he sins against charity if he foresees that because of this they will suffer grave damage.

750. Cleric (kleros - lot), chosen into the lot or part of the Lord, is a Christian man who has been specially deputed to the service and worship of God. The name cleric is taken more broadly and more strictly. More broadly it signifies any Christian man who has been specially deputed to divine worship and service, whether this deputation happens through the reception of orders or through religious profession. Therefore in this sense all religious are comprehended by the name cleric, not excepting lay brothers and nuns. More strictly it signifies only those who by some ecclesiastical order or at least first tonsure have been deputed to the divine ministries.

In favorable matters the name cleric is taken in the first sense, but in odious matters in the second; in this same stricter sense there is also discussion here concerning the precepts or obligations of clerics.

Note. Since canonists treat expressly of the obligations of clerics, let it suffice in this place to speak: a. of vocation to the clerical state; b. of the divine office; c. of the obligation of spending superfluous goods on the poor.

753. Its nature. The divine office is the public prayer of the Church. Public prayer of the Church can happen in two ways: either because the Church prays through itself, or because it prays through determinate persons. It prays through itself when the members of the Church, coming together in such number and condition that they represent the Church, pray; it prays through determinate persons when ministers deputed by the Church for this pray in its name. In this case the formula of prayer is prescribed by the Church itself.

In the first times the Church poured forth public prayer through itself: for the faithful were accustomed to come together to perform prayer in common (to sing psalms and hymns and read sacred Scriptures). But afterwards, when, because the number of the faithful had increased, this was impossible, she deputed her ministers, namely ecclesiastical persons, who would pour forth prayers in the name of the whole body of the Church; but the divine office is the formula of praying prescribed by the Church for this end.¹

¹ Cf. Bouquillon, Institutiones theologiae moralis specialis (Bruges: Beyaert, 1880), I, n. 226 ss.; Suarez, De virtute religionis, tract. 4, l. 4, c. 1, n. 11; S. Baumer, Geschichte des Breviers (Freiburg: Herder, 1895).

754. Its fruit. 1. From recitation of the divine office a twofold fruit comes forth: one from the work of the minister operating, or of the person reciting; the other from the work of the Church operating, for which the minister performs an embassy before God and in whose name he prays.

2. This fruit is impetratory, propitiatory, and satisfactory, and as regards substance it is the same whether the office is recited by a holy minister or a wicked one: for the malice of the minister does not obstruct the efficacy of the prayer of the Church itself.

3. Four kinds of persons receive the fruit arising from the work of the Church operating: a. the one reciting himself; b. those for whom the reciter especially intends to pray; c. the faithful who have founded benefices with the burden of reciting the office; d. all the faithful, for whom the Church intends to pray.¹

¹ Cf. Bonacina, Operum, tom. 1, tract. De horis canonicis, disp. 1, q. 4, punct. 2, n. 1 ss.

755. Its parts. The divine office is called by this name because it was instituted by the Church for praising God. It is also called the canonical hours, because through the sacred canons it was prescribed for certain hours of the day. The canonical hours are numbered as seven: Matins with Lauds, Prime, Terce, Sext, None, Vespers, and Compline. Of these, Matins with Lauds and Vespers are called the greater hours; the rest, the little hours. Moreover the night office is distinguished, which consists of Matins with Lauds, and the day office, which consists of the little hours, Vespers, and Compline.

Article Second. On the Obligation of Reciting the Divine Office

The obligation of reciting the divine office arises from a threefold title: a. from sacred order; b. from religious profession in an order bound to choir; c. from an ecclesiastical benefice. Only the first must be spoken of in this place.

756. On the obligation itself. All clerics constituted in major orders, from the precept of the Church, are held daily to recite the divine office, either publicly or privately.

1. All clerics constituted in sacred orders are held, even the suspended, excommunicated, interdicted, etc.: for the reason of the obligation, namely sacred order, always remains in them. But those constituted in minor orders are not held to the divine office unless they have obtained an ecclesiastical benefice, because they are bound to this by no law or custom.

Clerics constituted in major orders who by dispensation of the supreme pontiff return to the lay state are exempted from the obligation of reciting the office. Although the excommunicated, etc., cannot pray in the name of the Church, nevertheless they are held to the recitation of the office, lest they gain advantage from their malice and because they do not lose the clerical state.¹

2. There indeed exists a written law which binds priests (at least if they are pastors) to reciting the divine office;² but the obligation which extends to all clerics constituted in sacred orders is taken from ancient and universal custom, which has obtained the force of law.³

3. The obligation begins on the day on which the subdiaconate is received, and indeed from that part of the office which (morally) corresponds to the time at which the order is received: for as soon as sacred order is received, the reason of the obligation is present and therefore the obligation itself.

a. Therefore he who is ordained in the morning before the ninth hour must begin from Prime; he who is ordained after the ninth hour or around midday is held to recite the office of that day from Sext.

b. He who recites the hours before ordination, which he is held to recite only after ordination, satisfies his obligation and is not held to recite them again. For although in general the principle is true: a precept cannot be satisfied at a time at which it does not yet urge, nevertheless there are some precepts which can be fulfilled a little before they urge, namely those which are of such a kind that the prescribed work can be placed before the precept urges.⁴

¹ Tamburini, Explicatio decalogi, l. 2, c. 5, section 1, n. 4; D'Annibale, Summula th. mor., 5th ed., III, n. 153.

² C. Presbyter 1 and C. Dolentes 9, De celebr. miss. (III, 41); cf. can. Presbyter 2, dist. 91.

³ Const. Quod a nobis of Pius V (July 9, 1568); Lessius, De iust. et iure, l. 2, c. 37, n. 45.

⁴ Cf. Lugo, De eucharistia, disp. 16, sect. 2, n. 39 s.; Tamburini, Explicatio decal., l. 2, c. 5, section 5, n. 9.

757. How great and of what kind it is. 1. The obligation of reciting the divine office is from its kind grave, because its end, namely divine worship, is grave, and the thing prescribed conduces greatly to the intended end. Therefore he who omits the entire office of one day or a notable part of it without an excusing cause sins gravely.

2. An entire little hour or a quantity of office equivalent to it is judged a notable part; a light part is judged one which is less than a little hour. For the recitation of an entire hour, by the judgment of prudent persons, is judged to conduce notably to the end intended by the Church. Moreover the Church intends that the whole time of the day be dedicated to the divine majesty by the fact that at determinate hours of the day a peculiar worship is shown to God; but by the omission of an entire hour this end piously intended by the Church is gravely injured.

a. Entire, and this must be taken strictly, so that therefore he does not sin gravely who does not omit the hour entirely. Yet he who recites only a very small part of the hour, for example only Deus in adiutorium, etc., or only the prayer, or only the hymn, is judged to have omitted it entirely: for a little is reckoned as nothing.

b. Therefore it is grave: a. to omit an entire nocturn with its lessons; b. after omitting the rest, to recite only a very small part of one little hour; c. to omit nine lessons with their responsories, but not, as it seems, to omit three lessons with their responsories; d. to omit from several hours so much that the omitted parts equal a little hour, provided the omitted parts are from the principal parts of the office, because the omitted parts of one daily office coalesce into one. Hence to omit the Pater, Ave, and Credo in the course of the office, as often as they would have to be recited, does not seem to be grave; but to omit the third part of a psalm in any hour is grave.

c. To omit the Vespers of Holy Saturday is not mortal, because this matter is light both in itself and with respect to the whole office.

3. The entire office of one day is enjoined by the Church by one precept; therefore he who decides to omit the entire office commits one sin by this act of the will and by the subsequent omission.

4. The obligation of reciting the office is affixed to the day and expires with the day, so that afterwards it neither must nor can be supplied.

758. Obligation of restoring fruits because of neglected recitation. But if beneficed persons, after six months have passed from obtaining the benefice, culpably omit to recite the divine office, they must restore the fruits of the benefice according to the proportion of the omitted part.

a. The obligation of restoring does not arise from justice, but from the precept of the Church imposing a penalty for neglected recitation. The law establishing this penalty, issued by the Fifth Lateran Council under Leo X,¹ is more accurately declared by Pius V, the great reformer of the divine office.²

b. It obliges beneficed persons after six months from obtaining the benefice; therefore he who in the first six months omits recitation of the office indeed sins against the law of the Church, but is not bound to restore the fruits.

c. It obliges before the sentence of a judge: for without recitation "he does not make the fruits his own." Nor therefore is he bound to restore by the law of nature, but only by positive law, which by these words impedes the beneficed person from making the fruits his own; therefore by the law of nature he must restore this as another's property.³

d. Restitution must be made to pious causes; but if the beneficed person himself is truly poor, he can apply to himself the fruits to be restored.

Whether restitution can be supplied through alms which the beneficed person makes from the fruits of the benefice. It cannot be supplied through alms which he had made before; but it can be supplied through alms which he made after the omission, even if he was forgetful or unaware of the obligation.

e. If the omitted part does not reach grave matter, there is no obligation of restoring except under light obligation, even if the fruits corresponding to the omitted part constitute grave matter: for since the obligation of restoring has the nature of penalty, a grave obligation is not contracted except because of theological fault, and that grave (n. 434).

f. A simple beneficed person who has no other obligation besides recitation of the office must restore all the fruits; but a beneficed person with cure, or one who has besides another obligation and fulfills it, for example celebration of Mass or service of the church, must restore the part which corresponds to the obligation of the divine office.

Because in benefices with cure the greater part of revenues is received in compensation of other offices, not for recitation of the breviary, a bishop or pastor who fulfills his pastoral offices will scarcely have to restore a tenth part of revenues because of neglected recitation of the breviary.

g. The obligation of restoring urges for individual days, indeed for individual hours omitted. Therefore he who on one day omits the whole office is bound to restore the fruits corresponding to that day; he who omits Matins and Lauds only, half the fruits of one day; he who omits the remaining hours, the other half; but he who omits one of these hours must restore the sixth part of this half, or a twelfth part of the fruits of one day.⁴

Therefore the opinion of certain doctors cannot be admitted, which establishes that he who within a year omits the office for eight or ten days is not bound to restitution, because these are light matters which God, since he is a most liberal lord, does not attend to.

¹ Constitution Supernae, May 5, 1514.

² Constitution Ex proximo, Sept. 20, 1571.

³ Proposition 20 condemned by Alexander VII: Restitution imposed by Pius V on beneficed persons not reciting is not owed in conscience before a declaratory sentence of a judge, because it is a penalty. Cf. Ballerini-Palmieri IV, n. 344.

⁴ Cf. constitution Ex proximo of Pius V, Sept. 20, 1571; Mazzotta I, tr. 2, disp. 1, q. 2, c. 1.

779. On the obligation itself. A grave obligation of religion is incumbent on clerics of expending on pious causes the benefice goods which remain over after honorable support.¹

1. That clerics are held under grave obligation to expend superfluous goods for pious uses is established from the will of the Church explicitly prohibiting that any beneficed persons whatsoever increase their relatives or household members from the revenues of the Church, unless they are poor, to whom for this reason they may distribute ecclesiastical things, which are God's, as to the poor.²

The very nature of the goods demands that the Church impose this obligation on beneficed clerics: for goods are offered by the faithful to God in order that they may be spent for his worship; but they are accepted by the Church in the name of God and must be administered as goods of God; therefore the Church accepts those goods with the obligation of administering them as goods of God for the end on account of which they have been given by the faithful.

2. That smallness of matter is given in this precept is manifest; but what matter expended for profane uses is grave must be determined by the judgment of prudent persons, with account taken of the revenues of the benefice and of the person of the beneficed cleric. Yet that is certain, that a much greater quantity is required here for grave sin than in theft, since clerics do not take what belongs to another, but badly spend what is their own.

¹ Cf. Benedict XIV, De synodo, l. 7, c. 2; Hollweck, Das Testament des Geistlichen (Mainz: Kirchheim, 1901), p. 27 ff.

² Council of Trent, sess. 25, c. 1, De reform.

780. On honorable support. 1. To determine honorable support, attention must be paid to the quality of the person; wherefore honorable support is not equal in all: for a bishop requires more than a canon, a canon more than a pastor, a weak and unhealthy man more than a robust and healthy man, a noble cleric more than a cleric of lower condition.

In order that a cleric proceed with a safe conscience in this matter, let him attend to the practice of others who stand in the same grade and are of timorous conscience.

2. To suitable support belong not only food, clothing, and habitation, but all those things which are customarily expended under the title of moderate support. Therefore from benefice goods a cleric can:

a. Exercise fitting hospitality, not only toward poor travelers, but also toward friends and visitors.

b. Pay both his own debts and the debts of his relatives, even though contracted for a profane end, if neither he himself nor his relatives can pay them from elsewhere.

c. Aid his relatives and household members who are poor, so that they can live decently according to their state.

d. Supply to a relative the means for learning letters or other arts.

e. Endow poor sisters, so that they can honorably marry according to their state.

f. Support his offspring, both legitimate offspring whom perhaps he had begotten before entrance into the clerical state, and spurious offspring whom he begot afterward.¹

¹ Laymann, l. 4, tr. 2, c. 3, n. 3 ss.; Ballerini-Palmieri IV, n. 432 ss.

781. From the virtue of religion. 1. This obligation arises from the precept of the Church; and since this precept is imposed on clerics from the motive of religion, they commit the sin of sacrilege against religion if they spend superfluous goods for profane uses.

a. The benefice goods themselves indeed lose their proper holiness when they pass from the ownership of the Church into the ownership of clerics, and they become profane goods; but the Church transfers the action which it commands to that virtue from whose motive it commands it. But, account being taken of the origin of these goods and of the intention of pious faithful persons desiring that their donations be spent for the worship of God and for pious causes, the Church from the motive of religion enjoins on clerics the precept that they not spend them except for pious uses.

b. There are those who say that clerics are held to expend superfluous goods from justice.¹ But this obligation would arise either from this, that clerics do not acquire ownership in benefice goods, or from this, that the Church obliges clerics from justice to expend them; but from neither source does an obligation of justice arise: for clerics acquire true ownership in superfluous goods; and that the Church has added an obligation of justice cannot be demonstrated by a sufficient argument.²

2. If it is established that a cleric has badly spent superfluous goods, these things must be noted concerning the obligation of the cleric and of those who illicitly accepted the goods:

a. The cleric is not held to restitution of those things which he badly spent, because in spending he did not injure justice.

b. The donee is not held to expend on the poor those things which he illicitly received from the cleric, even if he himself (although in bad faith) induced the cleric to make the donation, because neither he nor the cleric violated justice, unless by unjust means he induced the cleric to make the donation.

c. The heir or legatee who received ecclesiastical goods from a cleric is likewise not held to expend them on pious causes, unless he prevented the cleric from making a will or by unjust means induced him to make a will in his favor, because the obligation of expending superfluous goods is not real but personal, which does not pass to heirs.³

Note. The things just noted hold concerning goods which are certainly ecclesiastical. But for the most part it will be difficult to demonstrate whether the goods of clerics, especially those left by inheritance, are truly ecclesiastical. What must be presumed in doubt was said above (n. 381 c).

¹ Navarrus, Roncaglia, Laymann, etc.

² Cf. Lehmkuhl I, n. 900.

³ In Austria the civil code, sec. 761, establishes that the goods of a cleric dying without a will are divided into three equal parts, of which one yields to the Church, another to the poor, and the third to relatives.

782. As to the mode of expending, a. it is not required that a cleric immediately spend those goods on pious uses, because this is prescribed by no law; but he can spend them in that way which he judges more apt and more useful for the end. For sometimes it will be more useful to preserve the goods for accomplishing some notable work which redounds to the glory of God and the salvation of souls.

Nevertheless when necessity urges, namely if the poor are present who are placed in extreme or grave necessity, it is not lawful to preserve the goods, but aid must be brought to those in need. In like manner they must be spent during life when there is danger lest after death they be carried off by the fisc or by friends and relatives.

b. Nor is a cleric held to spend them on the poor or for the utility of that place where the benefice is situated, unless poor persons are there placed in extreme or grave necessity, because no reason appears why, outside the case of necessity, they must be distributed to the poor of that place.

783. On pious causes.¹ 1. Pious causes are called all those works which either by their nature or by the disposition of the faithful serve a supernatural end.

Any end is called supernatural which intends religion or the worship of God and of the saints, or Christian charity or the spiritual or temporal utility of the neighbor, according as suits the character of the Christian religion.

2. Works of three kinds can be distinguished with the end (of the work) considered:

a. Some which by their nature have a supernatural end, such as the sacrifice of the Mass, prayers, churches, religious houses, confraternities, etc.

b. Others which by their nature have a merely natural and profane end, such as a theater, a society instituted for performing gymnastic exercises, etc.

c. Others which by their nature are indifferent to a supernatural and temporal end, such as the support of the poor, both of those who lack the necessities of life and of those who lack the necessities of their state, schools, hospitals, orphanages, etc.

Works which by their nature are indifferent are converted into pious causes by the pious intention of donors or founders; but works which by their nature are profane cannot be converted into pious causes by the intention of donors or founders.

3. In order that some disposition (donation, legacy, testament) be judged to have been made for pious causes, both things are required: that the end of the one operating (donating, etc.) be supernatural, and that the work at least from the end of the one operating become supernatural.

a. If the work in whose favor the disposition is made is pious by its nature, the disposition is judged to have been made from a supernatural motive.

b. If the work by its nature is ambiguous and the intention of the one operating is not established from elsewhere, attention must be paid to these things:

a. If the whole work has been committed to the administration of the Church or at least subjected to her governance, it must certainly be reckoned among pious causes.

b. From the fact that some work, for example a hospital, is administered by laypersons alone with every intervention of the Church excluded, it does not yet follow that there is question of a profane cause, unless it is established that it was erected from a merely philanthropic motive.

c. In doubt whether there is question of a pious or profane cause, favor must be given to the pious cause.

Note. Ecclesiastical penalties are treated in the separately issued fascicle.

¹ Since mention of pious causes occurs rather often, as when restitution is said to be made to pious causes, or when there is discussion of the value of a testament and legacy to pious causes or of expending superfluous goods on pious causes, it is helpful to define the notion of a pious cause.

127. On the power delegated to regulars. 1. Regulars, by force of the privilege of the supreme pontiffs, can in their churches or oratories, both by themselves and through other priests, distribute the Eucharist to any of the faithful, even on the day of Easter; for the old law by which the administration of holy communion in their churches was prohibited to regulars on this day¹ has now been abrogated.²

a. On that day there had been prohibited not only the distribution of the Eucharist by which the faithful would satisfy the precept of annual communion, but also that which they received for the sake of devotion. The prohibition remains of receiving prescribed holy communion in churches of regulars, whether on Easter day or on any other day, unless by contrary custom the prohibition has been removed. But it is permitted to receive holy communion for the sake of devotion in non-parochial churches, especially those of regulars, on any day whatever, even on Easter day.

b. Religious can provide prescribed holy communion, both on Easter day and on other days, to all the faithful in those regions where the precept of receiving paschal holy communion in one's own parish has been derogated by contrary custom. Moreover, they can provide it to all those who participate in the privilege of exemption, such as, besides novices, familiars, i.e., those laypersons "who are of the family of the regulars and their continuous table-companions," among whom resident students are to be numbered.

2. a. "In every clerical religion the right and office belongs to superiors of ministering Viaticum and extreme unction to sick professed members, novices, and others staying day and night in the religious house by reason of service, or education, or hospitality, or ill health."

b. In houses of nuns the ordinary confessor, or the one who takes his place, has the same right and office.

c. In a lay religion this right and office belongs to the pastor of the place or to the chaplain whom the Ordinary has substituted for the pastor.³

Although it is not licit for regulars publicly to carry holy communion to the sick, because publicly carrying the Eucharist through the streets is a proper parochial right, nevertheless they can licitly give holy communion to them privately, as it is licit for priests (n. 132).

¹ S. C. C., 31 Jan. 1682.

² S. C. C., 28 Nov. 1912.

³ Cn. 514.

439. The Minister of Extreme Unction is every priest and only a priest, which was expressly defined by the Council of Trent;¹ for St. James had said that the priests of the Church should be brought in, who should pray over the sick man.

1. Every priest can validly confer the sacrament of extreme unction; for to administer this sacrament validly jurisdiction is not required, but only the power of order, which belongs to every priest, even one excommunicated, suspended, or degraded.

2. The ordinary minister is the parish priest of the place in which the sick man lives; but in a case of necessity, and with the at least reasonably presumed permission of the same parish priest or ordinary, any priest can administer this sacrament.²

a. The simply reserved excommunication which up to this point a regular incurred who, outside a case of necessity, administered this sacrament without the permission of the parish priest or ordinary, has been removed by the new Code.

b. In a case of necessity, namely if the parish priest is absent, or unjustly refuses to minister the sacrament, or is bound by excommunication or suspension, any priest can, from the presumed permission of the bishop, and from charity also ought, to administer this sacrament.

3. To regulars and to those who are of their household extreme unction is conferred by the regular superior, or by him whom he shall have deputed. Regulars can administer this sacrament also to those who remain in their house day and night for the sake of hospitality or infirm health.³

¹ Sess. 14, c. 3 and can. 4, De extr. unct. Cn. 938, 1.

² Cn. 938, 2.

³ Cn. 514, 1.

IN the preceding volume we have treated of the duties which are incumbent on all-men, or at any rate on all Catholics, by the natural, divine, and ecclesiastical law. Some special duties, however, arise from the nature of the state in which one is placed or of the office which one holds. Thus a judge or a doctor has as such certain special obligations as well as the cleric or the religious. The confessor should know all the obligations of his penitents, and so moral theologians usually treat in this place of the special duties of judges, doctors, clerics, and religious. We will follow their example in this Book and treat in the first part of the special obligations of certain laymen, in the second of those of clerics, and finally of those of religious.

A JUDGE is defined to be a public person appointed by lawful authority to apply the laws to the settling of disputes between litigants and to the punishment of criminals.

He is said to be a public person because he is appointed by public authority, not chosen like an arbitrator by the litigants themselves, and, moreover, he is guided in his official capacity not by his private knowledge and ideas but by the evidence given in the case and by the laws which he administers. Case law, or judge-made law, in English jurisprudence, is no exception to this rule, for it is but the authentic interpretation and application of the common and statute law to concrete cases made in court by the judges of the superior courts.

A cause in which the private rights of the litigants are to be adjudicated upon is called a civil case or action; if the cause is one in which an offender is tried for the commission of a crime it is called a criminal case or action.

By his very position and the nature of his office a judge is bound to pass a just sentence according to law in the cases brought before him, and so he must possess the requisite qualifications for this and set about it in the right manner, He must have a competent knowledge of the law which is to be his guide and which he is called upon to apply, and he must use at least ordinary diligence to get at the merits of the case before him. He must not allow his judgement to be influenced by such improper motives as fear or favour; his sentence must be dictated by a sense of even-handed justice. He must observe the rules of judicial procedure applicable to the case, and he must have the requisite authority or jurisdiction for dealing with it.

If in any of these points the judge is culpably at fault, he sins against justice and is bound to make good the damage which he causes. Moreover, inasmuch as judges ordinarily take an oath of office, he will also sin against the sanctity of his oath. A judge who should allow himself to be bribed to give an unjust sentence would not only be bound in conscience to repair the injustice done, but he would be liable to severe punishment for his offence. Even if he were to take a bribe for delivering a just sentence, he is bound in conscience to restore what he received. For, as his office binds him in justice to give sentence according to the merits of the case, such a service is no ground for special reward or-payment, nor a just title for retaining a special reward or payment if he has received any.

The judge, as we have seen, must pass sentence according to the evidence before the court, not according to his own private knowledge or views. He may know privately that an accused man is guilty, but he must not condemn him unless his guilt has been proved by the evidence. But what if the judge knows for certain that an accused man is innocent, and yet, according to the evidence available, he has been proved guilty? In such a case as this the judge must, of course, use all the means in his power to bring out the innocence of the accused party, or remit the case to another court, But supposing that he has done all in his power to avoid condemning the innocent man, and nevertheless the jury have found him guilty, and by law it only remains for the judge to pass sentence according to the verdict. Is he allowed to do so?

This question was disputed among theologians. Some, with St Thomas, taught that he might condemn the innocent man, for the witnesses were then guilty of injustice, not the judge, who did his duty in passing sentence according to law. Others denied that this is lawful, for to condemn the innocent, especially if there is question of a death sentence, is intrinsically wrong. Others distinguished, and taught that it is indeed unlawful to condemn an innocent man to death even when, by judicial process, he has been proved to all appearances guilty, but that when there is question of a fine or imprisonment which may be suffered without sin, the judge may pass sentence according to the law, for this is for the public good. Practically, therefore, according to the principles of English jurisprudence the judge may lawfully pass sentence even of death in such a case, but he is bound afterward, by making representations to the proper authority, to do what he can to clear the innocent party.

When the evidence in a criminal trial is not conclusive, the defendant must not be condemned, for a man is presumed to be innocent until he has been proved conclusively to be guilty.

In a civil action, when the rights of the parties are not certain, but only probable, the judge is bound to adjudicate in favour of him who has the more probable right, taking into account possession and all the other circumstances in the case.

If there is equal probability on either side, the parties should come to a compromise, or, as some hold, the judge may decide in favour of either party.

The judge is bound to pass sentence according to law, for this is presumed to be just. It may, however, happen that particular laws are unjust, as when the seal of confession is not respected or divorce is permitted. May a Catholic judge pass sentence in accordance with such laws as these ¹ The judge may sometimes obtain permission to pass sentence according to a law which is unjust merely because it is against the laws and rights of the Church. In order to make the position of Catholic judges tenable the Church will sometimes cede her rights in such cases or grant jurisdiction to try a case which of itself belongs to the ecclesiastical courts.

Thus Cardinal Gasparri deduces from a decree of the Holy Office, December 19, 1860, that jurisdiction has been granted to judges in England to try cases where there is question of judicial separation of married people.

If the law commands what is contrary to the natural or divine law—as, for example, to give evidence as to what has been declared in confession—it is intrinsically wrong to obey such a law, and no Catholic judge may apply it.

If the unjust law only imposes a fine or imprisonment, some theologians maintain that even then it may not be applied by a Catholic judge. Others, however, hold that for grave reason—as, for example, if no Catholic could otherwise accept the office of judge—sentence may be passed according to such a law. The person unjustly condemned must patiently submit for the public good, especially as he would not escape even if Catholic judges refused to execute the law.

The unjust sentence of a judge imposes no obligation in conscience, and of course the aggrieved party may have recourse to all available remedies which the law allows for redress. If none is available the public good will usually require patient submission to the wrong. If there is a doubt about the justice of a sentence, presumption favours the judge, and obedience must be yielded, as in the case of a just sentence, which has the force of the law which it applies.

¹ Gasparri, De Matrim. 2, n. 1165.

What has been said concerning the moral obligations of judges is applicable in due proportion to those who have similar functions, such as arbitrators, referees, and jurymen. An arbitrator differs from a judge in that he is chosen by the parties to the dispute to settle their claims. If the submission to arbitration and the decision of the arbitrator be in writing, the sentence is final, and will be upheld by English courts unless it is evidently corrupt or obtained by unlawful means.¹

Referees are officials or experts to whom the-court entrusts some special question for inquiry or decision, and sometimes the cause itself, if it be complicated and not suitable for trial in the ordinary way. They are bound to act according to the terms of their commission and the rules drawn up for their guidance, ‘The report or award of a referee, unless set aside by the court, has the force of a jury’s verdict.

A jury is a body of men selected and sworn to inquire into certain matters of fact, and to declare the truth upon evidence to be laid before them. They are therefore bound to form the best judgement in their power as to the facts of the case laid before them, and truthfully and fearlessly to give their verdict. If any one of them has any private knowledge of the facts of the case, he is not precluded from communicating it to the others, and he should do this if justice or charity require it.

¹ Cf. Can. 1930.

AN advocate is one who undertakes to assist litigants by his advice and help and by pleading their case before the judge. For the purposes of moral theology we may neglect the technical differences between barristers and solicitors in English law.

As the advocate acts in the name of his client he may in general do what his client is allowed to do, and he must not do what it would be wrong for his client to do. He may not undertake a cause which is manifestly unjust; otherwise he will be guilty of sin, and bound to make restitution for all the damage that he causes. If in the course of the trial it becomes manifest that his client’s cause is a bad one, he must inform his client of the fact and refuse to proceed with the case. However, it is not necessary that the advocate should be certain that his client is right; it will be sufficient if his cause is probably just, for it may be expected that the doubtful rights of the parties will become clear in the course of the trial. In a criminal action the advocate may always defend the accused by lawful means whether he be guilty or not. If he is guilty, the defence of his advocate cannot do any serious harm, and will at least help toward the merciful administration of justice. The prosecution of an accused person may not be undertaken unless his guilt is practically certain, for otherwise there will be danger of injuring the character of an innocent person and of exposing him to vexation without just cause.

From the decree of the Holy Office, December 19, 1860, in answer to the Bishop of Southwark, it is clear that in England an advocate may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority, a Catholic advocate may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living, but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which flow therefrom.

With reference to the duties of the advocate toward his client, he must, of course, have the requisite knowledge and skill to undertake the case according to the reasonable expectations of his client, and he must exercise due care and diligence in the execution of the duty which he has undertaken. If in these respects he is culpably negligent, he will be guilty of injustice and bound to make restitution for the harm he does. Furthermore, if his client has no case, and no chance of success in the suit, the advocate must make this known to him; he must avoid useless delays, keep the strictest faith with his client, and use only just means to gain his cause.

English law will not enable a barrister to institute legal proceedings for the recovery of his honorarium if it is withheld. This, however, does not prevent the obligations of a contract existing between an advocate and his client, so that as the former is bound in justice to do his part for the latter, so is the client bound in justice to recompense his lawyer according to the terms which were explicitly or implicitly agreed upon, With regard to solicitors the law sufficiently provides against extortion in the matter of fees.

By the general law of charity a lawyer should be prepared to give his assistance for the love of God to the poor who cannot pay the usual fees. Indeed, if an accused person has no one to defend him, the judge will usually request someone to undertake the office.

English solicitors frequently fulfil the functions of notaries public, and as such receive all acts and contracts which must or are wished to be clothed with an authentic form, confer on such acts the required authenticity, establish their date, and prepare and attest instruments going abroad.

THERE are other persons connected with the administration of justice besides judges and lawyers, and they have special moral obligations of their own. A word must be said about the moral duties of prosecutors, defendants, and witnesses. By canon law the accusation of delinquents in an ecclesiastical criminal trial is reserved to the Promotor of Justice, but as a general rule anyone who has full use of his senses may prosecute according to English law. Nobody should undertake a prosecution when greater evil than good would follow from it, or when there is not moral certainty as to the guilt of the accused. Otherwise it may be done for the sake of the public good, and there may be an obligation to do it, as when one’s office compels one to undertake the task, or the defence of the innocent or the public good require it, or a precept of obedience command it. Thus by ecclesiastical law heretics and priests guilty of solicitation in the sacred tribunal are to be denounced to the Ordinary.

The defendant in a criminal trial is not himself subjected to examination according to English law, unless he offers himself voluntarily to give evidence, and then he may be examined like a witness. In canon law the accused is examined, and the question arises whether he is bound to tell the truth. According to Canon 1743: “ The parties are bound to answer the judge when he interrogates them legitimately, and to tell the truth unless there is question of a crime committed by themselves.”

The defendant may in self-defence make known the secret crime of a witness against him, if it really conduces to his defence; but of course he may never impute false crimes to anybody. A criminal may not defend himself against lawful arrest, for that would be to resist lawful authority, but he is not compelled to deliver himself up to justice, and it is not a sin to escape from justice if he can do so without violence, The law prescribes that he shall be kept in durance, not that he shall voluntarily remain in custody. A criminal lawfully condemned to death is not obliged to save his life by escape or other means if he can do so; he should submit to the execution of the sentence passed upon him, and may do so meritoriously.

Charity or obedience may impose an obligation to give evidence in a court of justice. If serious harm can be prevented by offering one’s self as a witness, there will as a rule be an obligation to do so, and obedience imposes the obligation when one is summoned by lawful authority.

A witness is bound by his oath and by obedience due to lawful authority to tell the truth in answer to the questions lawfully put to him. How far he is privileged when examined concerning what he knows under secret, we saw when treating of the Eighth Commandment of the Decalogue. He is not bound to incriminate himself, nor, of course, may the seal of confession ever be broken (cf. Can. 1755).

The canon law laid it down that two witnesses of unsuspected character were necessary and sufficient evidence of any fact alleged in a court of justice. A solitary witness was not usually sufficient or admissible evidence of a crime, and in keeping with this the theologians decided that a solitary witness should not declare what he knew of a crime, inasmuch as he was not lawfully interrogated. English law, however, with most modern systems, admits one witness, if credible, as sufficient evidence of a fact, and so as a rule there will be an obligation on such a one of answering according to his knowledge when questioned lawfully in a court of justice (cf. Can. 1791).

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

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

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

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

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

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

THE sacredness of the duties which a cleric has to perform, and especially the service of the altar, require in him an internal holiness so that he may perform his duties worthily. ‘‘ Let them therefore be holy, because I also am holy, the Lord, who sanctify them.”¹ ‘This holiness must show itself in the exercise of all Christian virtues so that the cleric may be an example to those whom he is called upon to instruct and guide on the way to heaven. As the Council of Trent said: “ There is nothing which is so constant a lesson in piety and the worship of God as the life and example of those who have dedicated themselves to the divine service. For since they have been taken from worldly affairs and placed in a higher position, the faithful look upon them as models for their imitation. And so it becomes the clergy who have been set aside for the service of God so to order their lives and morals that in their dress, demeanour, walk, speech, and everything about them, nothing may be seen but what is serious, modest, religious spirit. and breathes the Let them avoid even slight defects, which in them would not be slight, so that their actions may win the veneration of all.”² This holiness of life is very frequently inculcated on the clergy in the councils and synods.³ Their occupations, if worthily performed, are means of sanctifying them and uniting them with God, and, moreover, the Church does what she can to secure the same end by prescribing the daily recitation of the divine office, and spiritual retreats at stated times (Can. 125, 126).

¹ Lev. xxi 8.

² Sess. 22, c. 1, de Ref.

³ 1 West., d. 24; 4 West., d. 12.

Great personal sanctity becomes the cleric, and is required if he is to perform his duties worthily. It is a disputed question among theologians whether the inferior clergy are as such in a state of perfection. It is allowed by all that bishops are in the state of practising perfection, inasmuch as they are in a permanent condition of life which is devoted to procuring the sanctification of those committed to their charge. Religious, too, by their vows assume the obligation of aiming at perfection, and in religious life find the means of acquiring it. Both bishops and religious, then, are in the state of perfection. St Thomas and many other theologians deny that the secular clergy inferior to bishops are in the state of perfection, properly so called. The chief reason is because their condition of life has not the permanence required for a state in the technical sense, and although they are occupied in labouring for the sanctification of others, like bishops, yet they do this rather as officials and helpers of bishops, not entirely in their own name and of their own authority. As the learned Suarez admits, the controversy is rather about words than things, and we may accept his conclusion that because the higher secular clergy are bound by vow to continence, and partake also in the duties of bishops, they may be said to be in an inchoate state of acquiring and practising perfection.¹

¹ Suarez, De Rel. 3, lib. 1 c. 17.

THE celibacy of the clergy rests on a positive enactment of ecclesiastical law which, nevertheless, supposes the doctrine of Christ and his Apostles about the excellence of virginity and its superiority to marriage. From the first ages of the Church it was felt that there was an incongruity between the Christian priesthood, with its duties of offering up the eucharistic sacrifice, and of whole-hearted devotion to the service of God, and the use of marriage. The example of our Lord and the counsels of St Paul told powerfully in the same direction. Already in the fourth century the law of celibacy existed which was formulated by Leo the Great in his letter to Anastasius written about the middle of the fourth century: “ Although,” he says, “ those who are not clerics may freely give themselves to marriage and the procreation of children, yet for the exhibiting of perfect chastity marriage is not allowed even to subdeacons, so that those who have wives should be as those who have them not, and those who have them not should remain single.” All the more stringently, he goes on to say, does the same law bind the higher clergy, deacons, priests, and bishops. This law was frequently inculcated by subsequent Popes, re-enacted in many ecclesiastical synods, and at latest in the Second Council of the Lateran (1139) marriage of the higher clergy was prohibited under pain of nullity. By ecclesiastical law, then, clerics in sacred orders are bound to observe perfect chastity, and marriage attempted by them is null and void. This law is known to all who aspire to sacred orders, and so those who choose the clerical state voluntarily embrace the law of continence. Indeed, a vow of perfect chastity is by ecclesiastical usage annexed to the reception of sacred orders, so that all who are ordained subdeacons, by the very fact of receiving ordination, take a solemn vow of chastity. The discipline of the Eastern Church is somewhat milder. Clerics belonging thereto may marry before the reception of sacred orders, and if they have already done this (Can. 132, 1072) they may keep their wives, except bishops. Even in the East clerics in sacred orders cannot contract a valid marriage.

There is a dispute among theologians as to whether the obligation of celibacy, which binds clerics in sacred orders, should be ascribed immediately to ecclesiastical law or immediately to a vow of chastity tacitly taken when sacred orders are received according to the precept of the Church. The question is not of great practical importance, for in any case the obligation of celibacy is derived ultimately from ecclesiastical law, which binds all clerics in sacred orders to the observance of perfect chastity. The violation of such a law, at any rate by external act, is not morally different from a violation of a vow of chastity. The more common and more probable opinion is that the obligation of celibacy is derived immediately from a vow of chastity which every subdeacon takes tacitly according to the precept of the Church when he receives the first of the sacred orders. Tacit profession even of the essential vows of religion was admitted in certain cases until it was altogether abrogated by a decree of Pius IX dated June 12, 1858. Boniface VIII decided that the vow of chastity thus tacitly taken by subdeacons is solemn, and that it annuls subsequent marriage if attempted.

A man who was married but whose wife is dead may be promoted to sacred orders. ‘‘ Men who have a wife” are prohibited from receiving orders according to Canon 987, 2; and Canon 132, sec. 3, lays down that a married man who, without a dispensation from the Holy See has received holy orders even in good faith is prohibited from the exercise of the same.

Ever since about the sixth century clerics have had a special dress of their own to distinguish them from laymen. It is their uniform, like that of soldiers or sailors, and is a perpetual reminder to them that they should always conduct themselves as becomes their profession. At first the clerical dress was introduced by custom, and then sanctioned by positive law. On this point the Council of Trent (sess. 14, c. 6, de Ref.), after saying that although the habit does not make the monk, yet clerics must always wear the dress suited to their order, so that by the decency of their dress they may make manifest the goodness of their moral character, goes on to prescribe under pain of suspension that all in sacred orders and beneficed clerics should wear the clerical dress suited to their order and dignity, according to the ordinance and command of their bishop. “ Let all clerics wear a decent ecclesiastical dress according to the lawful customs of the place and the precepts of the local Ordinary ” (Can. 136).

The common law of the Church therefore imposes on all the clergy the obligation of wearing the clerical dress, and it leaves to bishops the task of making further regulations on the point suitable to the circumstances of the country. In England, the Fourth Synod of Westminster (d. 11, nn. 12-14) decreed that the Roman collar was always to be worn, that the dress must be of black or dark material, and that in the house or church the cassock should be worn. The Third Plenary Council of Baltimore (n. 77) made the same regulations for the United States, except that the wearing of the cassock in the house or in the church is prescribed, not merely declared to be especially becoming.

The clerical tonsure is also prescribed by the common law of the Church, but it has not been reintroduced into England since the Reformation, nor is it in use in the United States. However, the obligation of not wearing hair on the face is laid down in the Fourth Synod of Westminster (doc. cit.). On this point Canon 136 prescribes: “Let them wear the tonsure or clerical crown, unless this be against the received manners of the people, and let them use a simple and ordinary care of the hair.”

All religious are bound by these and similar obligations of clerics according to Canon 592.

These laws of themselves bind under pain of mortal sin which, however, would not be committed if there were good cause for doing what they forbid, nor if they were neglected without contempt or grave scandal for a short time. Theologians consider that the clerical dress would have to be neglected for more than three or four days in order to sin grievously, and a much longer time would be required for a grave violation of the law concerning tonsure. Venial sin, of course, is committed by breaking the law without legitimate excuse even for a short time.

ALL who are in sacred orders, all beneficed clergy, and all religious orders which have solemn vows and keep choir, are bound every day to recite the divine office, otherwise called the canonical Hours, or the breviary. This obligation is now enforced by positive ecclesiastical law in Canons 135, 1475 (sec. 1), 610, 413.

The obligation of saying the office begins for secular clerics with the reception of the subdiaconate, or the lawful and full possession of their benefice. The obligation as it affects religious is primarily incumbent on the superior, whose duty it is to provide for the saying or singing of the divine office under pain of grave sin. Each religious is bound to assist in choir unless lawfully excused, and if one who is solemnly professed is absent he must recite the office in private.

Religious under simple vows should be present in choir, but if they failed to be present they are not obliged to say the office in private, unless, of course, they be in sacred orders.

The obligation of saying the divine office for all who are bound by it is grave, so that a mortal sin is committed by wilfully and without lawful excuse omitting it or any considerable portion of it. According to theologians, one of the little Hours or any portion of the same length is to be reckoned considerable, so that its culpable omission will be a grave sin. Anything less than this will be only venial. A beneficed cleric not only sins by neglecting his office, but he loses his right to a proportional amount of the fruits of his benefice, and if he has already received that amount he must restore it to the fabric of the church or to the diocesan seminary, or give it to the poor (Can. 1475, sec. 2).

When two or more say the office together, the psalms may be said in alternate verses, one side listening while the other is reciting its verse. The rest listen while the lessons are said or sung by those appointed to the task.

Although the canonical Hours as said at different periods and in different churches have always been much the same in substance, yet in many details there has been considerable variety. Pope Pius V desired to introduce greater uniformity in the method of saying the divine office, and for this purpose he issued the Roman Breviary, and made its use obligatory on all who were bound to the office under pain of not satisfying their obligation. He abolished the use of other breviaries with the exception of such as dated back more than two hundred years. The divine office, therefore, must be recited according to the form of the Roman Breviary, and in Latin, the liturgical language of the Church.

Offices proper to particular countries, dioceses, and religious orders, are allowed to be inserted in the breviary and said only by the authority of the Apostolic See, and when a proper office has been thus granted it becomes obligatory on the grantees unless it was expressly conceded as permissive.

Pius V took away the obligation, which existed according to the rubrics of the breviary, of reciting the Little Office of the Blessed Virgin, the penitential and gradual psalms, and the Office of the Dead; but though he took away the obligation, still he exhorted those bound to the divine office to recite them, and granted indulgences to such as followed his exhortation. The recitation of the Litany of the Saints on the feast of St Mark, and on the Rogation Days, forms part of the office.

The office to be said on any particular day is indicated in the calendar drawn up and approved by the proper authority. It is a matter of obligation under pain of venial sin to adhere to the calendar, even if it seem to be wrong, unless it is manifestly against the rubrics or decrees of the Sacred Congregation of Rites. A reasonable cause, however, even though it be not a very grave one, will suffice to excuse the substitution of one office for another. If a wrong office has been said by mistake or inadvertence, there is no obligation to say the correct one; but if this is notably longer, some portion should be said to make up the difference.

The calendar to be followed is that of the church, diocese, or religious order to which one belongs. If absent from one’s place of domicile for a time, the general rule is that one’s own calendar should be followed; but in the case of regulars who recite the office in choir, a regular living for a time in another monastery should conform to the calendar of the place where he resides.

In each day’s office the order of the Hours should be observed at any rate under pain of venial sin. But here also any reasonable cause of some weight will excuse the saying of the Hours out of their proper order. If the time has arrived for anticipating Matins and Lauds for the next day, these may be said without any special reason even though the office of the day has not yet been finished, for each day’s office is independent of any other.

The divine office is a vocal prayer imposed on the clergy by the Church. It is not sufficient to run over it with the eyes or mentally; the words must be uttered and formed without. mutilation by the lips, though it is not necessary to produce an audible sound. The different Hours must be said without interruption as one continuous prayer under pain of venial sin, from which any reasonable cause will excuse. The recitation may be interrupted between the several Hours, between Matins and Lauds, and for the space of a few hours even between the Nocturns of Matins. Provided that the whole office be said within the natural or ecclesiastical day, whatever interruptions may have taken place, the obligation will be substantially fulfilled, and when an interruption has been made within an Hour, or even in the middle of a psalm or lesson, there is no obligation to repeat what has already been said.

As was said above, the divine office is the task of the day, and provided that the whole of it is said within the day, reckoning from midnight to midnight, the cleric will have fulfilled his duty substantially so as to be excused at least from mortal sin. The rubrics, however, which in this matter bind under venial sin, assign certain times of the day for the saying of the Office. Matins and Lauds should be said before Mass, Prime and Terce should be said before midday, Sext and None are said in the interval between midday and Vespers, Vespers and Compline are said when the sun is midway between the zenith and sunset. All the little Hours may be said before midday, and during Lent, beginning with the first Sunday, Vespers are also said before midday.

Matins and Lauds of the following day may be anticipated on the previous evening. The normal time for anticipating begins with the hour of Vespers, but a special privilege is often granted by which Matins and Lauds of the following day may be begun at 2 p.m. throughout the year. Indeed, there does not seem to be any necessity for a special grant, for a custom has been introduced, by the very common practice of good priests, of anticipating throughout the year after two o’clock. A cleric may safely follow this custom.

Permission to anticipate is a privilege which no one is bound to use; the obligation of the day’s office only begins at twelve o’clock.

The breviary contains rubrics directing that certain prayers be said on bended knee; these rubrics, however, do not bind when office is said privately out of choir. In private the office may be said in any place or in any position that is compatible with the due reverence to God which should be shown in prayer.

The obligation of saying the breviary is imposed by ecclesiastical precept, and the question arises what internal dispositions are necessary while reciting the office in order to satisfy the positive precept of the Church. Does one who is voluntarily distracted while saying the office satisfy his obligation, or must he repeat what he said with voluntary distractions ? It is not a question of what is required that prayer may be pleasing to God—voluntary distractions while praying are certainly venial sins—but the question is, what sort of attention is required by the law of the Church under pain of not fulfilling the obligation imposed by the law ?

Attention, which is an act of the mind adverting to what is being done, must be distinguished from intention, which is the will to do something. At least, a virtual intention to say the office is required that the act may be voluntary, such as the law prescribes. Theologians distinguish between internal and external attention. The former consists in directing the mind to God, or in thinking of the sense of the words uttered, or in being careful to pronounce them correctly, and it is certain that any of these forms of internal attention is sufficient to satisfy the precept. External attention means the abstaining while engaged in prayer from any external occupation which is incompatible with internal attention. Thus one who curiously examines a painting while praying, or intently listens to what someone is saying, has not external attention.

It is a disputed point among theologians whether this external attention is sufficient in order to satisfy the precept of saying the office, or whether there must be in addition internal attention. In other words, they dispute whether one who is voluntarily distracted but apparently devout while saying the breviary satisfies the law, or whether he must repeat what he has said with wilful distractions.

Although, of course, all should strive after internal attention, and sin is committed if voluntary distractions are admitted while praying, yet it is probable that external attention is sufficient to satisfy the positive law of the Church. For the Church does indeed prescribe prayer, but there is prayer in a real sense when one says the breviary with the intention of fulfilling his obligation, and with decorum and a devout demeanour, even though he is thinking of something else the while. If voluntary distractions destroy the essence of prayer, involuntary distractions will do so likewise, and yet it is impossible to avoid involuntary distractions altogether. This milder opinion is especially of use in order to calm scrupulous and anxious souls.¹ 9. As the obligation of saying the divine office arises from positive law, it does not bind when it would entail serious inconvenience. On this ground one who is sick, or who cannot say his office without causing a serious headache, is excused. Moreover, other occupations, undertaken for the good of our neighbour and such as cannot be neglected without his loss, will be a sufficient excuse for omitting the office, when both duties cannot be fulfilled. And so missionaries, who are all day long occupied in hearing confessions and preaching, are excused from the office which would interfere with their work, Even when there is not a sufficient cause to excuse of itself from the law, a dispensation may be lawfully obtained from the competent authority, if there be good cause for it. The Pope can grant a dispensation to any cleric, a bishop can dispense in particular cases with those of his diocese, and a regular prelate has similar powers for his own subjects. Wider powers are also granted as a special privilege by the Holy See. The faculty of saying fifteen decades of the rosary instead of the office is frequently granted to missioners who are lawfully prevented from saying the office. The meaning of which is that there must be some difficulty in getting in the office, but it need not be so great as would of itself excuse altogether from the obligation. Inasmuch as the office is composed of several portions which are usually said separately, there will be an obligation to say any such portion if it can be done without serious inconvenience, even though it be impossible to say the whole,

¹ Lugo, De Eucharist. 22, n. 25.

In general, clerics are forbidden to do anything which is unbecoming their state of life or which interferes with the due discharge of their duties—“‘ No man being a soldier to God entangleth himself with secular businesses,” says St Paul (2 Tim. ii 4). They are expressly forbidden to indulge in games of chance for money, to carry arms unless there is good reason to fear attack, to hunt with hounds, to enter inns and similar places without necessity or some good reason approved of by the Ordinary of the place (Can. 138).

Similarly, they are forbidden to practise medicine or surgery without leave of the Holy See, to act as public notaries, except in the ecclesiastical court, to hold public offices which involve the exercise of lay jurisdiction or administration.

Without leave of their own Ordinary they should not undertake the agency for property belonging to laymen, nor secular offices which entail the duty of rendering accounts; they should not exercise the office of procurator or advocate except in the ecclesiastical court, or when a cause of their own or of their church is being tried in the civil court; they should take no part, not even as witnesses, without necessity in a lay criminal trial.

Clerics are forbidden to go surety even with their own property without consulting the local Ordinary.

They are forbidden to offer themselves for the post of Members of Parliament or to accept it without leave of their own Ordinary and of the Ordinary of the place where the election is held (Can. 137, 139).

Clerics are forbidden to retain in their houses or in any way to be familiar with women about whom any suspicion can arise.

They may live under the same roof only with those women of whom natural ties allow no suspicion to be entertained, such as mother, sister, aunt, and so forth, or whose good character and mature age make them free from all suspicion.

The judgement as to whether the retaining or being intimate with women, even with those on whom suspicion does not usually fall, can in any particular case create scandal or be a danger to morals, belongs to the Ordinary of the place, whose duty it is to forbid such retaining or intimacy to clerics (Can. 133, sec. 4; West. d. 11, n. 3).

Canon 140 forbids clerics to be present at spectacles, dances, and pageants which do not become them, or when their presence would cause scandal, especially in public theatres.

“The word spectacula,” says Fr. Ayrinhac, ‘ comprises all theatrical representations and likewise such exhibitions as horse-races, bull-fights, prize-fights, etc., at least if it be taken in its most general sense.”” Dom Augustine gives a similar definition of the term.

Provincial legislation often makes this general law more precise. Thus 4 West., d. 11, n. g is as follows: “ We strictly prohibit ecclesiastics who have received sacred orders from being present at stage representations in public theatres or in places temporarily made use of as public theatres, under the penalty to transgressors of suspension to be incurred ipso facto, as has hitherto been the rule in all parts of England, with reservation to the respective Ordinaries.”

Clerics, therefore, are forbidden to be present at public not at private theatricals by this law. Custom in England makes an exception with regard to those exhibitions which are given by mere children.

Clerics are forbidden to enter military service, unless they do so with the leave of their own Ordinary in order that they may be free the sooner, and to aid in any way civil war and disturbances of public order (Can. 141).

Clerics are forbidden to trade in person or through another, whether in their own interest or in that of others (Can. 142).

The trading which is forbidden to clerics and all religious is trading in the strict sense of the term. In this sense to trade is to buy commodities, not for consumption, but with the intention of selling them again at a higher price without changing their nature. So that it is not trading in the strict sense to sell the produce of one’s own land, nor to sell what was bought for consumption but was found to be unsuitable, nor to sell without profit to the poor, nor to sell a picture painted by one’s self with colours bought in the market. However, certain transactions which have the appearance of trading are sometimes forbidden on account of the danger and scandal which they are apt to cause.

It is not illicit trading to invest money in Government stock or other bonds which bear interest, though it would be unlawful speculation to invest money with the intention of selling out at a profit if the price rises. Although it is forbidden to clerics to act as directors or to take part in the management of industrial and commercial companies, yet it is probable that a cleric may lawfully invest money in such enterprises as are honest merely with a view of getting interest on his investment. He only buys the right to receive interest on his money, much in the same way as if he invested it in Government stock.

The prohibition against trading binds under pain of grave sin if the matter be considerable. However, trading implies a habit, and so in the opinion of many divines to trade once in a way, even in a considerable quantity, would not be a mortal sin.

Canon 2380 prescribes that clerics and religious who violate the law against trading be punished by the Ordinary according to the gravity of the fault.

MENTION has several times been made already of benefices, and in this place moral theologians usually treat of the special obligations in conscience of beneficed clergy. - An ecclesiastical benefice is a juridical entity founded or erected in perpetuity by competent ecclesiastical authority, and it consists of a sacred office and the right to receive the income from the dowry annexed to the office (Can. 1409).

The dowry of a benefice consists either of property whose ownership belongs to the juridical entity itself, or of certain and due payments made by some family or moral person, or of certain and voluntary offerings of the faithful, which belong to the rector of the benefice, or stole fees, as they are called, within the amounts fixed by the diocesan tax or lawful custom, or of choral distributions with the exception of a third part of them, if the whole income of the benefice consists of choral distributions (Can. 1410).

When he has lawfully taken possession of his benefice, every beneficiary enjoys all the rights both temporal and spiritual which are annexed to the benefice (Can. 1472).

Although the beneficiary may have other property besides what is derived from his benefice, he can freely use and enjoy the fruits of his benefice which are necessary for his decent support; but he is bound by the obligation of spending what remains over on the poor or on pious causes, but a Cardinal can dispose even by will of all the fruits of his benefice (Can. 1473).

We shall speak first of the duties of certain secular persons, then of the duties of clerics, and finally of the duties of religious.

What should be said of a superior who would promote undeserving persons to ecclesiastical benefices?

(a) As regards guilt, it is a mortal sin to confer a benefice on one who is unworthy, or even (when there is question of a benefice to which the care of souls is attached) on one who is less worthy (see Canon 459, Sec. 1).

(b) As regards restitution, there is an obligation of reparation to the community, when it is made to suffer loss, and of compensation to an individual who is passed over in spite of his strict right (see three preceding paragraphs).

Judges and Executioners in Canon Law.—According to the law of the Church (Canon 984, nn. 6, 7), those who pass the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ “when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly” (I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv. 7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastisement.

The Office of Judge.—Judgment is the proper act of justice (1727) and therefore when exercised under due conditions it is not only lawful, but virtuous. The exercise of public judgment belongs to the judge, who is a person vested with authority to decide litigated questions in civil or criminal cases.

(a) Thus, in the strict sense, a judge is the official who has public authority to preside over tribunals of justice, in which major matters are tried and a formal procedure is followed, and whose function it is to direct the course of the proceedings and to settle questions of fact or of law that arise.

(b) In the wide sense, a judge is any person who has lawful authority to pass an obligatory sentence in criminal or civil matters. The name may be applied, then, to those who preside over a tribunal in which minor or urgent questions are considered and treated summarily (justices of the peace, police magistrates, etc.); to those who do not preside over a tribunal, but who are attorneys at law appointed as officers of a court to pass on some issue of a pending proceeding or suit (referees); to those who act as assistants of the presiding judge, by determining the truth of alleged facts in civil cases, or the innocence or guilt of an accused in criminal cases (trial jurymen); to those who are chosen, by the parties to the dispute or by a court, as substitutes for the ordinary courts provided by law, to hear and settle, without legal formalities, the matter in controversy (arbitrators).

Classes of Courts.—There are various classes of courts and therefore various kinds of judges.

(a) Thus, according to their relative dignity and jurisdiction there are higher and lower courts, courts of the first, second and last instance.

(b) According to the cases they try, courts are either civil (in which redress of private injuries is sought) or criminal (in which the community prosecutes public wrongs).

(c) According to the law which they use courts are ecclesiastical or secular.

(d) According to the form of procedure used and the remedies applied, courts in the United States are divided into courts of common law, courts of equity, probate, admiralty, and military courts.

Jurisdiction.—Authority is necessary in a judge, for judgment is a binding decision that may be executed by force, and this supposes that he who pronounces the judgment is the superior of the person on whom the judgment is passed, Hence, he who acts as judge when he lacks jurisdiction acts invalidly (unless jurisdiction is supplied, as in common error for an ecclesiastical judge, in Canon 209), and offends against the rights of another judge and of the person on whom he passes sentence. Examples would be secular judges acting in ecclesiastical cases or ecclesiastical judges acting in temporal cases.

The Qualifications of a Judge.—(a) Mentally, he must be endowed with knowledge of the law and with prudence, so as to be competent to pronounce correctly on the questions that are brought to him for decision; for, as being the authorized interpreter and custodian of the law, he is bound by quasi-contract with the community and with those who appear before him to be competent for these offices. If a judge realizes that he is incompetent in these ways, he must either resign his office, or make up for his deficiency by study or consultation with those who are more learned than himself. A juryman, being a layman to the law, is not expected to have the mental equipment of a lawyer; but it is his duty to give his attention to the statements, arguments and testimony and to the instructions of the judge.

(b) Morally, the judge must be a lover of justice, whether commutative, distributive or legal; for the proper office of the judge is to apply the law to particular cases and to declare officially the mutual rights and obligations of litigants who are before him. He must not be a respecter of persons, one who is moved for or against a man on account of rank, position or wealth, nor one who is swayed by fear or favor, by popular outcry or personal ambition. Not only legal but also commutative justice obliges him to perform his duties conscientiously; for in taking his office he enters into a quasi-contract with the community to execute his functions faithfully and well, and similarly by trying a case he engages that those before him will receive evenhanded justice. A juror should be a conscientious person who is openminded and free from prejudice for or against those on whom he has to vote.

Conduct of a Judge.—A judge must be above suspicion, since respect for the courts is the very life of the State. But there is good reason to suspect a judge who judges in his own case, or in a case in which he will be naturally inclined to favor one side. Hence the duty of abstaining from certain things.

(a) Thus, he should avoid business, social and political activities that will give ground for belief that he uses his office for the promotion of private interests.

(b) He should not act in a case in which his own advantage or the advantage of his friends might appear to conflict with the duty of strict impartiality, as when he has personal litigation in the court, or when a near relative of his is party in a controversy, or when one of the contestants is his personal or political friend or enemy, etc. Canon 1613 of the Code forbids a church judge to act in the case of a person related by blood or marriage in the direct line or in the first and second degrees of the collateral line, or of a person for whom he is guardian or administrator, or in cases in which he had previously acted as advocate or proxy, or from which he stands to profit or lose.

(c) He should refrain from conduct that would tend to arouse doubts of his impartial attitude, such as incivility to counsel or witnesses, unexplained rulings that have the appearance of arbitrariness, private interviews or dealings with one of the parties before him in ways calculated to influence his action.

Accepting Gifts from Litigants or Others.—May a judge take money or other goods from those whose interests are submitted to him, such as litigants or lawyers in his court or their friends?

(a) If the goods are extorted by threats or pressure or unjust vexation, the judge is guilty of robbery, since he forcibly takes that to which he has no right.

(b) If the goods are given as payment for the judge’s services during the trial, the judge sins against commutative justice in receiving payment for services already due, since his salary comes from the community and obliges him to administer justice without charge to those who seek it. Neither is it lawful to take money as compensation for trying one case before another, or for hastening a case, or for giving unusual diligence to a complicated case, or for deciding for one side when the evidence is equal on both sides. But the law could permit a judge to collect his expenses from both parties if the trial necessitated a personal outlay of money (e.g., for travel or hire of assistants) and there was no public fund to defray these costs.

(c) If the goods are offered as bribes, in order that the judge may be influenced to act against justice, it is clear that grave injustice is done both to the community and to the party who is injured.

(d) If the goods are given as free gifts, with no condition attached, some think they may be lawfully accepted, if there is little probability that they will influence the judge (e.g., because they are small or given after the trial has ended). But others hold, and it seems more correctly, that both natural and positive law forbids this. Natural law forbids because of the danger (“Presents and gifts blind the eyes of judges, and make them dumb in the mouth, so that they cannot correct,” Ecclus., xx. 31), and because of the mistrust and scandal that will result. It is incorrect to suppose that small gifts and gifts offered after sentence would not have influence, for the contending parties would soon come to vie with one another in making gifts, while judges would begin to think about the gratuities that might be looked for at the conclusion of a trial. Canon Law forbids all ecclesiastical judges and all who assist in court to accept any gifts whatever that are offered in connection with the trial (Canon 1624), and the civil law provides severe penalties for bribes offered as gifts.

(e) If goods are given as a mere alms or from civility or hospitality (e.g., food and drink such as is usually offered to a guest or visitor), it does not seem unlawful in itself to accept them, but, since there is a danger of suspicion and scandal, even this should be avoided.

Obligation of a Judge to Restore Goods Received in the Above-Mentioned Ways.—(a) If retention of the goods is contrary to the reasonable wishes of the person who gave them, restitution is necessary. Hence, the judge must give back money that was extorted and the payments made by private parties for the exercise of his official duties.

(b) If retention of the goods is contrary to law, restitution is also necessary. Hence, if a judge has taken a bribe, he must give it back, because the agreement is null, and he cannot lawfully keep his part of the compact by acting contrary to justice. The same is true when the law voids the contract whereby he received the goods, or when a court decree obliges him to return a free gift bestowed upon him.

(c) If retention of the goods is not contrary to the will of the giver nor to the law, restitution is not necessary. Hence, if a judge has received a pure gift and no corruption was intended or practised, he sinned in taking it, but the donation was valid and there is no obligation to return it. And even though he has taken a bribe, and in consideration of it has acted against justice, it seems there is no natural obligation to make restitution to the party who gave the bribe, since the latter has received a consideration for his payment, but the judge is held to indemnify the injured party.

Duties of a Judge in the Course of a Trial.—(a) The purpose of the investigation is to discover the truth in the matter before the court, and consequently it is the duty of a judge to give a case the study and attention it deserves.

(b) The method of procedure is intended to secure a fair hearing for both parties and so to expedite business that the litigants will not be harmed by needless delays. The judge should therefore observe the necessary and customary forms of law, while avoiding waste of time and unnecessary interruptions. “It is not the custom of the Romans,” said Festus to the Jews who asked him to condemn Paul, “to condemn any man, before that he who is accused have his accusers present, and have liberty to make his answer, to clear himself of the things laid to his charge” (Acts, xxv. 15).

Duties of a Judge at the Conclusion of a Trial.—(a) The sentence must be just, that is, it must be based on the law and the evidence. Even though a judge does not personally approve of a law, thinking it unwise or unnecessary or over-severe, he should nevertheless enforce it; for he is appointed, not to change or reform, but to apply the law, yet so, however, that the spirit is not sacrificed.

(b) Sentence must not be relaxed as a rule, for otherwise the rights of the State or of the party winning the case will be harmed. But there are times when the public good or some other sufficient reason calls for relaxation, and in such cases judges have the power to refrain from passing sentence or to suspend or respite a sentence already announced. The defeated party should be allowed the opportunity which the law grants him for seeking a reversal of the judgment.

Sentence Passed under a Law Manifestly Unjust.—(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).

(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.

May a Catholic Judge Grant a Decree of Divorce?—-Apart from scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.

(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.

When Evidence Is Contrary to Personal Knowledge of Judge.—(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.

(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.

When the Judge Is the Unjust Cause of Damaging Evidence.—In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.

Practical Conclusions about the Three Controverted Opinions Given Above in 1951.—(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.

(b) In a case tried according to civil law, it seems that the whole controversy is today very often of little practical importance; for court decisions are now frequently left to jurymen, and these men must either have no private certainty before they are admitted to their office (as is the case in the United States), or they have the obligation of using private knowledge in casting their vote and of communicating it to fellow-jurors during the deliberations (as is the case in some other countries). Hence, the moral question whether it is lawful to decide according to private knowledge against the public evidence largely disappears. But when a case of the kind now considered does occur, the position of the civil law also agrees, it seems, with that of St. Thomas: “Neither the judge nor the jury can consider a private fact of which they have a merely personal knowledge, however important may be its bearing on the issue, unless it has been brought to their attention by evidence properly produced in open court” (Robinson, Elementary Law, Sec. 334). But the lightest penalty allowed by the law should be imposed in such a case. If a judge were privately certain that a jury verdict was unjust, he could offer his own testimony or appeal to the pardoning power.

The principle that a judge must be guided only by his public knowledge applies also to other officials who are required to follow the results of a public investigation, but not to those who are required to act according to their best knowledge, whether public or private.

(a) Thus, public knowledge must be the guide of those who are ministers of a court and on whom it falls to execute its decrees; for they are the instruments and subjects of the president of the court. If they have private information of a material and relevant kind, they should disclose it as witnesses.

(b) Private knowledge that is opposed to and more reliable than public knowledge must be the guide of those who are supposed to act according to the most trustworthy knowledge they have. Hence, a superior who has the power to make appointments to office should disregard the votes of his advisors, if he can prove that they are wrong in their opinions about a nominee for office. He may confirm or annul their choice according to his honest conscience.

When Guilt Is Doubtful in Criminal Cases.—In a criminal case or a case in which punishment is inflicted, if the guilt of the accused is doubtful, the sentence should be for acquittal; for no one should be condemned unless his guilt is morally certain (see 1728 sqq.).

(a) Thus, according to Canon Law, an ecclesiastical judge who is not certain that sentence for the plaintiff will be just, must declare that the latter has not established his case and must dismiss the defendant, though exception is made for cases that have the favor of law (such as marriage, liberty, testaments, Canon 1869, n. 4). Canon Law places the burden of proof on him who makes an assertion, and it rules that the defendant is to be acquitted if the plaintiff or accuser fails to prove, even though the person on trial says nothing (Canon 1748).

(b) According to the civil law the rules on evidence also favor the accused in cases of doubt. He must not be held guilty unless the State has proved affirmatively and beyond reasonable doubt every material allegation in the indictment. In capital cases the evidence of guilt must be equivalent in weight and conclusiveness to the direct testimony of two competent and reliable witnesses. A reasonable doubt in the mind of a juryman is one for which he can give himself an adequate and satisfactory reason (Robinson, Elementary Law, Sec. 608).

Doubt in Civil Cases.—In civil cases, if it is uncertain after the investigation for whom the decision should be given, the following rules seem to be just:

(a) if the parties are unequal in claim, the decision should be for the one whose claim is more weighty; for the judge is appointed by society to investigate the truth of a controversy and to decide according to the merits of the case. Thus, decision should be for the party Whose arguments are of at least equal strength—but who has legitimate possession (for “possession is nine points in law”), or whose case enjoys the favor of the law (e.g., in Canon Law, the cases of widows, wards, minors), or for the party whose case is stronger and more probable. Innocent XI condemned the proposition that a judge may decide for the side whose arguments are less probable (Denzinger, n. 1152);

(b) if the parties are equal in their claims, some think that property in dispute should be equally divided between the contestants, others that the parties should be persuaded to compromise, or, if this is impossible, that the decision may be given for either one of them. But if positive law regulates the manner of proceeding in such a case, its provisions should be followed. Thus, in Canon Law, if a judge is in doubt as to which one of two competitors has possession, he may grant it to both of them indivisibly, or he may command them to deposit it with a sequester, pending the settlement of the dispute (Canon 1697).

What should be decided when the defendant has possession with probable title and the plaintiff has more probable title?—(a) If the possession is not certain, or not certainly legitimate, decision should be for the plaintiff, for uncertain possession does not create any presumption of right and hence the more probable case prevails.

(b) If the possession is certainly legitimate, the common opinion is that decision should be for the defendant; for certain possession is not overcome by more probable, but only by certain arguments for the plaintiff. Some authors, however, believe that the judge should decide for the plaintiff, since possession prevails only when the arguments are of equal strength on both sides; or at least that he could decide for him, since it is probable that the plaintiff by presenting a more convincing case has sufficiently established his right to eject the defendant.

The Standard by Which a Judge Should Weigh the Evidence.—(a) When the proving force of an argument is settled by the law itself, the legal rule should be followed. Thus, in Canon Law certain kinds of proofs are expressly declared to be demonstrative (e.g., a public instrument not contested, Canon 1816), while other proofs are held to be insufficient or only of partial value (e.g., certain kinds of testimony, Canon 1756). Likewise in civil law public documents are prima facie evidence, oral interpretation of a written document which contradicts its language is not admitted, etc.

(b) When the proving force of an argument is left to the discretion of the judge, he must follow his conscience, that is, he must sincerely and impartially decide to the best of his ability the value of the argument, whether it is decisive, or likely, or Weak. Thus, in judging circumstantial evidence a juryman must use his own common sense and intelligence in determining whether the premises are doubtful or the inference illogical; in estimating testimony a judge must bear in mind the quality of the witnesses and the character of their testimony.

The Moral Obligation of a Judicial Sentence that Is Certainly Just.—(a) It is binding in conscience; for it is merely the application of law to a particular case, and law obliges (see 377). (b) It obliges in virtue of legal justice when the case is only penal, and hence he who is fined by court is held as a duty of obedience to pay the fine; it obliges in virtue of commutative justice when the case is about a strict right, and hence if the court requires an heir to pay a legacy, the latter must make restitution for neglect of this duty (see 1728).

The Moral Obligation of a Judicial Sentence that Is Certainly Unjust.—(a) If the sentence is unjust because it is the application of an unjust law, it produces no obligation in those cases in which the judge cannot lawfully apply the law (see 1949); for an unjust law does not oblige in conscience per se, but only per accidens (see 377, 461). (b) If the sentence is unjust because it is not based on the law or the evidence, or because the trial was not conducted fairly, it produces no obligation per se, but there may be an obligation per accidens, as when scandal or great public disturbance will otherwise result. Hence, one who through plain injustice is deprived of an inheritance has the right to occult compensation (see 1928), while the other party is bound to restitution of the inheritance (unless he is in good faith or has prescribed) and also to damages, if he went to law in bad faith.

The Moral Obligation of a Judicial Sentence in Case of Doubt.—(a) If the doubt is about fact or law, not about the right of the judge to give sentence (see 1955 sqq.), the sentence may be safely followed; for it is the office of the judge to settle doubtful matters, and to promote the common welfare by ending litigation. Thus, in doubtful criminal cases the judge sometimes acquits a guilty man, and in doubtful civil cases he sometimes awards property to one who has no right to it; but these sentences are not unjust, since they are based on rules which long experience has shown to be necessary for the public welfare. (b) If the doubt is about the justice of the sentence, there is an obligation of conscience to observe the judgment, since the presumption favors the judge. Were this not so, the authority of tribunals of justice would be at an end, for almost everyone who loses a case thinks that he has been treated unjustly. But one may enter an appeal, where this is allowed by law.

When a Judge Is Bound to Restitution.—A judge is bound to restitution when he causes unjust damage to the community or to litigants (see 1762 sqq.), and hence he must either recall his unjust act, or repair to the best of his ability the harm done. But the conditions for unjust damage must be verified (see 1763).

(a) Thus, the judge’s act must be objectively unjust, that is, in violation of a strict right under commutative justice. This happens when he conducts the trial unjustly (e.g., when he neglects the essential procedure, tries without an accuser, and the like) or when he passes unjust sentence (e.g., condemns without proof of fact or crime, or in spite of evidence for innocence, votes for acquittal when there is no reasonable doubt of guilt, imposes penalties that are insufficient or excessively severe, or awards property to one who to his knowledge has no right to it).

(b) The judge’s act must be efficaciously unjust, that is, it must be the real cause of the loss sustained by the other person. Hence, there is no duty of restitution if loss does not result (e.g., if the party who is in the right wins in spite of unfairness on the part of the judge), or if loss cannot be traced to the judge’s action (e.g., when a judge is not entirely impartial in his charge to the jury, but his words do not influence them, as they would have given an unfair verdict anyway).

(c) The judge’s act must be subjectively unjust, that is, the judge must be seriously responsible for the damage on account of his culpable ignorance, negligence, or malice. Even though he has made mistakes through excusable inadvertence or error, he becomes seriously responsible for damage, if, foreseeing it, he does not do what is in his power to avert it (see 1769).

When a Judge Is Not Bound to Restitution. A judge is not bound to restitution, however, for violations of virtues other than commutative justice.

(a) Thus, charity is offended, but not justice, if the judge has personal hatred against a person before him, but does not permit this to influence his conduct or decisions.

(b) Legal, but not commutative, justice is offended, if the judge is negligent about exemplary damages, provided the common good does not suffer; for there does not seem to be any strict right to the fine before sentence has been given. This is disputed, however, by some moralists, who hold that the judge is under contract with the community in this matter, and hence that he offends commutative justice, if he is habitually and to notable amounts indulgent about fines.

The Defendant.—The party who is required to make answer to the charges of the plaintiff or prosecutor is known as the defendant or the accused. We shall now speak of the ways in which he may be guilty of injustice, and shall consider the following cases: (a) the defendant in civil cases; (b) the accused in criminal cases who is innocent; (c) the accused in criminal cases who is guilty.

The Duties of the Defendant in Civil Cases.—(a) Before Sentence.—If the cause of the plaintiff is clearly just, the defendant as a matter of justice should recognize the claim and withdraw from the case. But a defendant may take exception to arguments offered by the plaintiff which, though actually valid, are not juridically made.

(b) After Sentence.—If the cause of the plaintiff is clearly just but loses in court, the defendant is obliged in conscience to pay the claim, even though the plaintiff does not appeal the case; he is also obliged in conscience to indemnify the plaintiff for the expenses of litigation, if the latter lost the case on account of unjust means employed by the defendant.

The Duties of One Who Has Been Arrested on a Criminal Charge.—(a) If the accused person is innocent, he may take to flight or even offer positive resistance, provided he does no injury to those who attack him, and public scandal or disorder does not result from the resistance. This is according to natural law, which permits one to use self-defense against unjust aggression; but since the positive law requires the accused to submit to arrest that is not manifestly unlawful and empowers the officers to employ force against those who resist, it seems that generally the accused should permit himself to be taken under protest, if he cannot escape.

(b) If the accused person is guilty, he may take to flight, since he has not yet been sentenced as guilty nor officially deprived of his liberty; but he may not offer resistance to those who are sent to apprehend him, since their aggression against him is not unjust. The accused person, if not yet convicted, may even use indifferent means to escape from prison, such as sawing his way out or eluding the vigilance of the guards; but he may not employ sinful means, such as bribery of officials.

Duty of the Accused to Plead Guilty, if Questioned by the Judge.—(a) If the accused is innocent, he may not plead guilty, as is clear. If to escape most grave evils he did plead guilty, he would be guilty of lying (if under oath, of perjury), but not of self-defamation; for, as the owner of his reputation, he has the right to sacrifice it in order to escape greater evils. Neither would he be guilty of suicide, according to some, if the death penalty were the consequence of the confession; for his purpose would be to avoid what he dreaded more than death.

(b) If the accused is guilty, he must reply truthfully, if the judge has the right to ask the question; for if the judge has the right to question, the accused has the obligation to answer, even though unpleasant things will befall him in consequence.

(c) If the accused is guilty, but the judge has no right to ask about his guilt (that is, if the judge does not question juridically or according to law, or if he questions from a false presumption of guilt), or if the accusation cannot be proved juridically, the accused is not obliged to answer. He may keep silence or evade the truth, but it is not lawful to lie.

Legal Right of a Judge to Question a Prisoner about His Guilt.—(a) According to older legislation a judge had this right, and could enforce it by torture, when the common good was involved and the guilt of the prisoner was likely on account of infamy or manifest indications of crime or half-proof of guilt. In itself, this practice was not opposed to natural law and had some good results; but it was open also to many abuses. Some moralists teach that a judge cannot impose a grave obligation of confessing guilt in capital or similar cases, if the accused has otherwise a hope of escape and no great evil is likely to befall the common interests by reason of an acquittal. They argue that human law cannot oblige so rigorously as a rule.

(b) According to modern civil legislation the right of exacting a confession is denied to a judge. Thus, according to American law no person may be compelled “in any criminal case to be a witness against himself” (Constitution, Article V). In American law the plea of not guilty is not a lie, even though the accused knows that he is guilty, for, as everyone understands, the plea means either that one is innocent or that one is using the privilege of not confessing. Neither is it considered a lie to say that an unprovable charge is a calumny, for an accusation that cannot be proved juridically is juridically a calumny.

(c) The general law of the Church rules for ecclesiastical processes that, when the judge questions the parties-litigant, they are obliged to answer and to confess the truth, unless the question is not legitimate (e.g., questions about irrelevant or privileged matters, or questions made in a captious or leading manner), or the answer would incriminate the parties themselves (Canon 1743). Neither is an ecclesiastical judge permitted to put an accused in a criminal case under oath to tell the truth (Canon 1744). An instruction of the Holy Office of 1866 required that the guilty party in a case of solicitation should confess, but the instruction was directive rather than preceptive. Particular law (e.g., the statutes of a Religious Institute) might perhaps prescribe confession by an accused, but most Constitutions of Religious Institutes bind only under penalty, and, as for the rest, an ecclesiastical superior could at most advise, but could not impose, confession by an accused.

Rights and Duties of Accused in Conducting His Own Defense.—(a) In Reference to Judge or Attorneys.—The accused, if questioned, may not conceal the truth by lies, ambiguities, or half-truths, since these are evil means, nor may he use evasion if he is lawfully interrogated. But if the question put to him is unlawful, he may evade an answer. It is commonly held that lies told in giving testimony or evidence are not necessarily mortal sins, as there may be no perjury committed or grave harm done another by reason of them (e.g., when an innocent man “doctors” a paper and thereby without harming anyone escapes from an unjust sentence).

(b) In Reference to the Opponent or His Witnesses.—The accused has the right to disclose secret but real crimes of the accusers, when this is an exercise of his legal right of taking exception to the witnesses as incompetent, or of his natural right of clearing himself of the charge against him. It makes no difference whether the evidence of the accusers is true or false, whether given according to the order of law or not. But he must not go beyond the limits of moderate self-defense (see 1826). Innocent XI condemned the proposition that it is probable that calumny may be used without mortal sin as a defense of one’s justice or honor (Denzinger, n. 1194).

If the accused objects secret crimes of the opposition, he must beware of injustice or uncharitableness. (a) Thus, it is unjust to disclose crimes that cannot be proved, or that are irrelevant (e.g., it may be irrelevant to prove that the person who testifies that the accused committed murder is himself a fornicator, but it would be relevant to show that this witness is a liar, or dishonest, or an enemy of the accused), or that need not be revealed (e.g., if the witness’s testimony can be overcome by showing that the witness is weak-minded or under obligations to the opposition, it is not necessary to defame him).

(b) It is uncharitable to disclose a crime, if the witness will suffer far more from this defamation than the accused would suffer from the testimony. If, however, the witnesses are giving false evidence of their own accord, they take the risk of revelations by the defense.

Rights and Duties of an Accused Who Has Been Found Guilty.—(a) Appeals.—It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.

(b) Escape from Prison.—If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).

(c) Resistance to Sentence.—If the sentence is unjust, resistance is not unlawful per se, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

Jail-Breaking and Restitution.—If one does not sin by jail-breaking, is one bound to restitution for the damages connected with the escape?

(a) If the damages are not caused by, but only follow accidentally on the flight (e.g., escape of other prisoners, dismissal of guards), there is no obligation to make restitution for them; for the flight would not be the efficacious or the unjust cause of such damages.

(b) If the damages result from the flight as from their efficacious and unjust cause, there is an obligation of restitution (see 1763), as when a prisoner, in order to escape, does needless damage, or damage out of all proportion to the evil from which he seeks to escape. But ordinary property damage, such as a hole cut in a wall, does not seem unjust, if there is no other way to get out.

Reliability of Witnesses and Testimony.—A witness in court is a person who declares during a judicial proceeding that he knows some statement, deed or omission in reference to the matters at issue. The testimony of witnesses has proving force only in so far as these persons appear to have knowledge of the matters on which they testify and appear to be truthful. Hence, certain kinds of witnesses and certain kinds of testimony are unreliable.

(a) Thus, a witness is unreliable either through his own fault (e.g., if he is regarded in his community as below the standard in truthfulness, or has the reputation of being a calumniator) or without his own fault (e.g., if his powers of observation or his memory are subnormal, or he is devoted or hostile to or dependent on one of the contending parties). It is a duty, indeed, to presume good of a person in whom the opposite does not appear, if he is the only one whose interests are concerned; but when there is danger to a third party, one must be on one’s guard (see 1744). Hence, St. John admonishes not to believe every spirit (I John, iv. 1).

(b) Testimony is unreliable because of the number of the witnesses (e.g., one witness is often legally insufficient to prove, especially in graver matters), or the quality of their evidence (e.g., because in substantial points a witness contradicts himself or is contradicted by his co-witnesses, or because there are signs of collusion or conspiracy), or the counter-evidence of the opposition.

Obligation of Freely Appearing as a Witness.—(a) There is an obligation of commutative justice to offer testimony, if one is under contract to do this, as when one is hired as a detective or agent to gather evidence against lawbreakers.

(b) There is an obligation of legal justice to testify, even at the cost of serious inconvenience, if the testimony is necessary for averting a serious evil that threatens the common welfare. A person who knows of a plot against the peace of the State should bring this to the notice of the authorities, even at the risk of his life. But a person who knows that a crime has been committed, is not bound to give witness about it, if the escape of its author will not be a serious detriment to public or private welfare (e.g., if one knows that an apparent case of suicide was really a homicide committed by accident).

(c) There is an obligation of charity to testify (but not at the cost of serious inconvenience), if the testimony is necessary for averting a serious evil that threatens a private person. A person who can prove that the evidence which is about to hang an innocent man is false should testify for the accused, unless the testimony will bring an equal evil upon himself.

Obligation of Appearing under Lawful Citation to Give Testimony.—(a) He who avoids citation (e.g., by flight into another jurisdiction, by concealment of his person when the subpoena is being served), more probably does not violate legal justice by this act, since a precept that has not been received cannot be violated. (b) He who disregards citation offends legal justice, since the summons to appear has a claim on his obedience. But it does not seem that he violates commutative justice, unless the party for whom he could testify has a strict right to the testimony.

Obligation of Witness to Answer Truthfully.—A witness who is questioned legitimately (i.e., by one who has the authority to question him) and juridically (i.e., according to the form and order prescribed in law) is obliged per se to answer according to the truth as he knows it, for one is bound to obey a superior when he gives a lawful command. But there are exceptions to this rule per accidens, that is, when a higher law exempts one from the necessity of divulging a certain matter, or when the question asked refers only to what one knows juridically. In all these cases the witness may answer that he does not know, for he has no knowledge that he may, or should, or must use.

(a) Thus, the natural law permits reticence when a revelation would work notable damage to the witness or those closely related to him, for the command of a superior does not oblige under such great inconvenience. This supposes, of course, that the revelation is not required in order to prevent a great harm to the commonwealth or a far greater harm to a private person than that which threatens the witness. A person who knows that he will be assassinated if he testifies against a powerful criminal is not ordinarily bound to make the sacrifice. Canon and civil law excuse witnesses from making disclosures that would expose them to prosecution or penalties (see Canon 1755, Sec. 2, n. 2).

(b) The natural law commands reticence when a revelation would be injurious to divine, public or private rights.

Matters Regarding Which a Witness Should Not Testify.—There are certain cases in which natural law forbids a witness to make known a fact about which he is questioned.

(a) A witness may never testify to matters known to him only from Sacramental Confession, for to break the seal of confession is an injury to the rights of God. In an ecclesiastical process a priest may not testify from Sacramental knowledge, even though he has the penitent’s permission (Canon 1757, Sec. 3, n. 2).

(b) A witness may not testify as a rule to matters that are known to him only in a confidential way, such as the communications between lawyer and client, physician and patient; for the public interest as well as the interest of individuals requires that generally there be security against defamation for those who give their confidence to others, especially if they are in great need of professional assistance. Privileged communications are recognized both in Canon Law (Canon 1755, Sec. 2) and in civil law. But knowledge obtained as a secret may be used when this is necessary in order to avert a great evil that threatens the public welfare or the welfare of an innocent person, whether this person be the giver of the secret, or a third party, or oneself; for to oblige to secrecy in these cases would be to throw protection around crime. Thus, a lawyer may make disclosures of confidential knowledge, if this is necessary in order to defend himself against the false accusations of a client, or to prevent a crime which the client intends to commit.

(c) A witness may not testify to matters about which he has unjust knowledge (e.g., by wire-tapping, by unjust coercion, by intoxicating another person, by reading private papers without permission), for, as the knowledge was unjustly acquired, it cannot be justly used (see 2420).

"Not without great sorrow of mind, or rather horror, have the Fathers of this Provincial Synod learned that certain legislators of this region have very recently proposed that a Court of divorce be established, whose office would be to pronounce divorce from the bond on account of adultery. For besides the fact that such a law, which may God avert, would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant or can be ignorant how many and how great evils flow from such divorce, which render it most hostile to civil society. For under the hope of future divorce marriages are contracted imprudently, quarrels are provoked, and, what the soul shudders to say, adulteries themselves; the bond of charity between families yields place to irreconcilable hatred; fortunes are placed in danger; the whole of society is scandalized. Finally, what will become of the children whose parents have obtained divorce? But We, whom God has placed as watchmen in this part of His Church, wish our diocesan faithful always to remember that no one can, with conscience safe: 1. cast a vote for such a law; 2. in such a Court of divorce, act the parts of plaintiff, or of judge, or of notary or chancellor, or concur formally or in any other way; nevertheless We do not intend to condemn those who, compelled, would bear testimony concerning the very fact of adultery." Fourth Provincial Council of Quebec, year 1868, Collectio Lacensis, Vol. 3, col. 748.

"The law of the Swiss Confederation issued concerning civil status and civil marriage sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and henceforth, are to be treated in the tribunals of laymen according to the norm which is established in civil causes, and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recently issued law, by which marriages even of Catholics can, under certain very slight reasons, be perpetually broken and dissolved as regards the bond; so that spouses of this kind litigating, after a sentence of divorce of secular judges has been issued, can pass, if they wish, to contracting other marriages. Therefore it is asked:

Fifth doubt: Whether Catholic judges and advocates in lay tribunals of this kind can with safe conscience undertake and defend matrimonial causes, or know and judge them?

Sixth doubt: Whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of marriage as to be dissolved or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, as the civil law in this case expressly orders and urges the judges to judge and declare?

In discussing this question it must not be forgotten that the secular tribunals, whose office it is to judge civil causes, are the same ones to which by the new law it belongs to know and judge matrimonial causes. Therefore, if it has been forbidden to Catholic judges to take part in tribunals of this kind, we shall experience, to the great harm of citizens, that these tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

Resp. To the fifth and sixth. As regards judges, let recourse be had in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Feria III, place IV, 22 May 1860, to the doubt: Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking dissolution of the bond? The response was: Provided that the Bishop is certain of the uprightness of the advocate, and provided that the advocate does nothing which turns aside from the principles of natural and ecclesiastical law, it can be tolerated. And to another doubt: Whether it is lawful to act the parts of advocate and plaintiff when the end of the suit is a simple separation without any sentence drawing with itself the nullity of marriage? The response was: Provided for in the preceding. And Feria IV, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics in that forum act the parts of plaintiff and advocate; and provided that there are just causes of separation in the judgment of the Bishop. And if he has any doubt besides, let him have recourse, setting forth all circumstances and dispositions of the law." S. I. C. 3 April 1877, to the Bishop of St. Gall. Archiv fur Katholisches Kirchenrecht, etc., edited by Dr. Friedrich H. Vering, Mainz, 1878, p. 294 ff.

"After the divorce laws had recently been restored among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely, whether it was right for lay judges in causes concerning separation of spouses, whether concerning the bond or only concerning habitation, to pronounce law; whether for advocates and procurators to handle causes of this kind before lay judges; whether for those to whom it belongs by law to appoint official defenders, as they call them; finally, whether for syndics (commonly maires) to pronounce divorce.

The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely weighed, on Feria V, place IV, on the day 25 June 1885, judged that this must be decreed:

Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as pertaining to ecclesiastical judges alone; and provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each approach his own Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through him to the Apostolic Penitentiary.

The Most Holy Father ratified this decree; and therefore it is made known to all Archbishops and Bishops in France for their norm by these letters, which otherwise are not to be published."

"By certain Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in the French Dominion concerning the law of civil divorce, it is thus decreed: Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office. It added conditions, of which the second is this: Provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law. It is asked: 1. Whether the interpretation spread through France and even given to print is right, according to which there satisfies the aforesaid condition a judge who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that he intends in mind to break only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard only those things? In other terms, whether a sentence thus issued can be said not to be repugnant to divine or ecclesiastical law? 2. After the judge has pronounced that there is place for divorce, can the Syndic (in French, le maire), himself also intending only the effects and the civil contract, as is set forth above, pronounce the divorce, although the marriage is valid before the Church? 3. Once divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living? - Resp. To the 1st, 2nd, and 3rd doubt, in the negative." S. I. C. 27 May 1886.

"A woman, separated from her husband by force of a sentence as regards bed, would wish to undertake a certain public office for sustaining life. But the government does not allow this unless she asks for divorce. She would wish to ask, but, in her intention, always with the bond saved. The Parish Priest, who is also her confessor, asks whether she can be admitted to the sacraments, and for light or counsel concerning the rest, as below. Resp. To the penitent woman, in the case, nothing else is to be advised except that she abstain under grave obligation from seeking divorce." S. Poenit. 5 Jan. 1887, to a Parish Priest of France.

"Most Reverend Monsignor. I have reported to the Most Eminent Major Penitentiary the case of the Syndic of that Diocese, who by force of his office would have to assist at the civil marriage of a certain person who is already bound in the face of the Church, and by command of the praised Eminent one I must signify to you that the named Syndic cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even if it should follow afterwards that he must resign. From the Sacred Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the Sacred Penitentiary." To an Italian Bishop.

"14 September 1876. Prince, ... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, according to the orders of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium, and that, consequently, nothing is modified in that country in what touches the matter of divorce. + Dominic, Archbishop of Thessalonica, Apostolic Nuncio." To the Minister of Foreign Affairs at Brussels. Cf. Nouvelle Revue Theolog. Vol. 18, p. 73.

"1. Whether marriages can be declared null and invalid in the external forum, when their nullity is known in the forum of conscience, but cannot be proved in the external forum? - 2. Whether the aforesaid spouses can be admitted to another marriage, as long as the impediment of their prior marriage remains occult, and the nullity of their aforesaid marriage has not been proved in the external forum? - 3. How one must act with those who have passed to other nuptials, although the impediment of their prior marriage remains occult and cannot be proved in the external forum? - 4. Whether it is lawful for spouses of this kind, if there is no scandal and none is feared, to remain in their later marriage, although the nullity of the prior has not been proved in the external forum? Resp. To the 1st, in the negative. To the 2nd, in the negative. To the 3rd, in the external forum the second marriage is to be held as null. To the 4th, in the external forum it is not lawful; nevertheless the spouses are to be admonished that they make the impediment known, and let the Apostolic Vicar use the faculty of dispensing." S. C. de P. F. 11 Feb. 1804.

"... Whoever diligently considers the genuine tradition concerning celibacy and continence of the clergy will certainly find that, even from the first centuries of the Catholic Church, if not by a general and explicit law, at least by morals and custom, it was established that not only Bishops and Presbyters, but also clerics constituted in sacred orders, should inviolate preserve virginity or perpetual continence. For the same dignity of the sacred ministry, to which almost divine offices are attributed, seemed to demand this: that those who were to immolate and even to produce the immaculate victim, which itself is holiness and purity, should shine either with the splendor of virginity or with perpetual continence. Moreover, the very ample tradition of the Holy Fathers shows that the Apostles were either virgins or perpetually continent after marriage; whence they themselves also chose no other successors for themselves than those who had cultivated virginity or professed inviolate continence. Here there is no need to linger over what the Roman Church, Mother and Mistress of the others, taught by the example and institutions of the Apostles, did, since it never abandoned that obligation of preserving chastity, propagated it salutarily through the whole western Church, and finally sanctioned it by an inviolable law. But also among the Orientals, celibacy or continence of clerics, besides the fact that it was always in the greatest honor, was religiously observed from the most ancient time, especially in churches where discipline flourished by the diligence of Bishops. Indeed Epiphanius, a man distinguished in holiness and doctrine, and one who knew very well the discipline of the Eastern Church, in the exposition of the Catholic faith (n. 21), affirms in express words that 'the Priesthood chiefly consists from the order of virgins, or if not... from those who are continent from their wives, or who live in widowhood after one marriage.' For in the beginning, as Jerome speaks (book against Jovinian), 'because the Church was being formed as rude from the Gentiles,' some were assumed to the priesthood who had already been joined in marriage, but either continently in widowhood, or they led life as though they did not have wives. Whence the same Epiphanius (heresy 59) expressly acknowledges how 'the holy preaching of God does not receive into Deacon, Presbyter, Bishop, and Hypodeacon a man of one wife still begetting children, but him who has contained himself from one wife or has lived in widowhood, especially where the ecclesiastical canons are sincere.' Nor does the contrary custom or nonobservance of some particular church stand in the way at all, when discourse is being instituted concerning the discipline of the Eastern Church; for the same Epiphanius aptly continues: 'But you will say to me: altogether in certain places Presbyters, Deacons, and Hypodeacons still beget children. But this is not according to the canon, but according to the mind of men.' Wherefore it cannot be doubted that in the time of Epiphanius clerics, from Hypodeacon to Bishop, cultivated celibacy or continence. This can also be most aptly confirmed by the testimony of Jerome, who, because of long residence in the East, had known most perfectly the customs and discipline of that Church. Moreover, the holy Doctor opposes to Vigilantius, most hostile to clerical continence, besides other arguments, the fact of the universal Church: 'What will the Churches of the East do, what those of Egypt and of the Apostolic See, which receive clerics either as virgins or continent; or if they have had wives, cease to be husbands? These finally were the tradition of the universal Church, these were the customs, where the prior discipline flourished.'

Certain of the Greeks think and too confidently assert that Bishops in the East observed continence of their own accord, constrained by no law, which they say was first sanctioned in the Trullan Synod. But besides the clearest testimonies of the Fathers, even Justinian himself, who disposed laws long before the Trullan Canons, and who professes that he is the executor of prior Canons, repeatedly inculcates that Bishops be chosen either from the order of monks, or indeed from the clergy, but those who either do not have a wife or at least do not live with her (Book 1, Code, On Bishops and Clerics, law 4; Novel 123, chapters 14, 29). Moreover, the same discipline flourishes among the eastern Sects which had defected from unity even before the times of Justinian; for all agree in this, that Bishops be chosen celibate (consult the Jerusalem itinerary of John Catovicus, who testifies to this in express words concerning the Nestorian Chaldeans and concerning the Maronites).

It happened quite otherwise as regards Presbyters and other clerics. For what in the time of Epiphanius was the nonobservance or lax custom of some particular Church, in the course of time began so to take root and be propagated that finally it invaded almost the whole eastern Church; and, custom growing strong, what had been permitted only to Cantors and Readers was also attributed to Presbyters and to other clerics constituted in sacred orders: namely, that they might live with wives whom they had taken before sacred ordination. Indeed, the heat of a laxer discipline in some Eastern Province advanced so far that some even after the reception of sacred Orders presumed to attempt marriage; which nevertheless by each law, namely Ecclesiastical and Caesarean, and indeed before the Trullan Canons, was severely disapproved and prohibited under most grave penalties, as even the laws themselves of Justinian clearly show. For the aforesaid Emperor complains gravely concerning certain clerics who, despising the sacred Canons, had presumed to attempt nuptials after ordination (Code, book 1, title 3, On Bishops and Clerics, section Sacris Canonibus). Indeed the sacred Canons severely forbade, under penalty of privation of the sacred ministry, that any of the Presbyters, Deacons, and Subdeacons could be married after an ordination of this kind. Whence, the same Justinian continues, 'just as such things are prohibited by the sacred Canons, so also according to our laws the thing itself is prohibited'; and, heaping civil penalties upon canonical ones, he decrees that sons received from such a wicked conjunction are illegitimate, as if they had been born from an incestuous marriage: 'so that they be understood neither as natural nor as illegitimate or spurious, but as altogether and from every side prohibited, and unworthy of the succession of their begetters.' Thus far Justinian. And although in ecclesiastical laws, as Benedict XIV most rightly says, there has been left to the lay power only the glory of obeying, not the authority of commanding, nevertheless in the matter of which there is question, the Emperor speaks relatively to the sacred Canons. (Instruction Eo quamvis tempore, 1 May 1745.)

Nor does it stand in the way that the Provincial Council of Ancyra, canon 10, permitted Deacons, if at ordination they had declared that they could not contain, to contract marriage even after Orders had been received. For granted that that Canon had the force of a concession for the Province of Ancyra, it certainly could not change the discipline of the Eastern Church, and in reality it did not change it, as Epiphanius, Jerome, and other Fathers testify together in clear words, and the Emperor himself most openly maintains. (Authentics, collection 9, title 4, Novel 123, chapter 14: He who ordains not being able, at the time of ordination, to permit a Deacon or Subdeacon to take a wife after ordination, etc.) Wherefore even the Trullan Synod itself, canon 6, generally decrees under penalty of deposition that it is wholly lawful to no Subdeacon or Deacon or Presbyter to contract nuptials after ordination (Canon 6, Council in Trullo: Since in the Apostolic Canons, canon 27, it is said that, of those who are promoted to the clergy without having taken a wife, only Readers and Cantors can take a wife; and we, observing this, decree that henceforth it is lawful to no Hypodeacon, or Deacon, or Presbyter at all to contract after his ordination. But if he shall have dared this, let him be deposed, etc.); whence also the Canonists of the Greeks freely acknowledge that the Canon of the Council of Ancyra was wholly abrogated by the Quinisext Council (Balsamon, Zonaras, Aristenus, and others. Const. Arcudius, book 7, chapter 37, and Benedict XIV, Instruction Eo quamvis tempore).

Since these things are so, anyone easily sees how alien that custom is from the genuine discipline of the Eastern Church, namely, that hypodeacons contracting marriage after an ordination of this kind should be promoted to higher orders, since this is wholly abhorrent even to the Trullan Synod itself.

Wherefore His Holiness, to whom it is supremely dear that the customs of that Province, every corruption having been removed, be arranged according to the norm of a purer eastern discipline, cannot but follow with deserved praises Your Excellency's repeatedly confirmed proposal, namely, henceforth to admit no one to sacred Orders, unless he is either altogether celibate, or one who before the hypodeaconate, according to eastern custom, has taken a legitimate wife. Here, therefore, let Your Excellency and the other Prelates of that Province, remaining in the proposal, stand firmly; here cling..." Instr. S. C. de P. F. 24 March 1858, for a certain Province of the Greek rite.

"Since in some Missions the custom of using the talar garment, especially when Priests proceed in public, has not up to this time been diligently observed by all; indeed, in some places even graver abuses in this matter have begun to be introduced, this Sacred Congregation commands that all ecclesiastical men, mindful that it is altogether fitting for Clerics to show gravity and moderation even in habit, should wear talar garments, whether of white or black color, according to the custom of the region and the Indults of the Sacred Congregation, at least in public, and that every evasion or pretext in obtaining this be removed. But if, compelling necessity or the cause of a journey through rough places, they are forced to put off the aforesaid habit, let them at least use that garment which in no way at all is unbecoming to priestly modesty." S. C. de P. F. 8 Sept. 1869, to the Apostolic Vicars of India.

"From the decree of the Lateran Council under Leo X, augmented by St. Pius V in the year 1751, beneficiaries are bound to restore the fruits of the benefice according to the proportion of omission of the Office, six months having elapsed from the day of possession of the Benefice. For in the aforesaid Council, session 9, section Statuimus, it is said thus: We also establish that anyone having a benefice, if after six months, the benefice having been obtained, he has not said the divine Office, with a legitimate impediment ceasing, does not make the fruits his own according to the proportion of the omission of recitation of the Office and of time. Then St. Pius V in his Constitution 186, which begins Ex proximo Lateranensi, issued in the year 1571, sanctioned thus: We establish that he who has omitted all the canonical hours on one or more days loses all fruits of the benefice which correspond to that day or those days; but he who has omitted Matins only, half; he who has omitted the other hours, the other half; even if someone assigned to choir, not reciting, should be present with the others at all canonical hours, and should pretend that he has made fruits and distributions, perhaps otherwise assigned by presence alone according to statute, custom, or otherwise, accrue to himself. Let him also understand that, besides the loss of fruits and distributions, he has committed grave sin. Likewise, he who in the first six months has not said the Office, unless a legitimate impediment excused him, should understand that he has committed grave sin, etc. Moreover, restitution of this kind is certainly owed before the sentence of a judge, as is clear from the condemned proposition 20 of Alexander VII, which said: restitution imposed by Pius V upon Beneficed clerics not reciting is not owed in conscience before the declaratory sentence of a judge, because it is a penalty." St. Alphonsus, bk. 3, nn. 663, 666, 672; bk. 4, n. 151.

"Whether those professed of simple vows, which must be premised to the profession of solemn vows according to the Encyclical Letter of 19 March 1857, are bound to the divine Office? - Resp. That they are not bound to private recitation of the divine Office; nevertheless they must be present at choir, as those solemnly professed." S. C. over the State of Regulars, 6 Aug. 1858; S. C. EE. and RR. 24 March 1882. Cf. Acta S. Sed. Vol. 15, p. 250 ff.; Vol. 16, p. 292.

"Whether nuns in general are strictly obligated under grave obligation, by force of their profession, to recitation of the divine office proper to their Institute. - Resp. In the affirmative as regards nuns professed with solemn vows according to a rule approved by the Apostolic See in which a burden of this kind is imposed. If, however, such a burden is not imposed in the rules, let the Orator consult approved authors regarding the obligation which can arise from custom. But where the vows are simple, they are not bound." S. C. EE. and RR. 19 April 1844.

"From the Sacred Congregation of Rites there have come to light some historical Lessons of the Roman Breviary and of the Proper of Saints of the Supreme Pontiffs, reformed entirely or in part. Lest any opening to equivocation be open in this matter, it is judged opportune to declare that modifications of this kind were approved and published by the same Sacred Congregation only for this purpose, that they must be inserted in new editions of the Breviary and of the aforesaid Proper, to be duly completed; by no means, however, so that those who recite the Canonical Hours according to editions already existing are obligated to assume them." S. R. C. 14 Dec. 1883.

A doubt having been proposed concerning private recitation of the Office of the Dead on 2 Nov. and of the Litanies on the day of St. Mark and the three days of Rogations, as regards Premonstratensian religious living outside the Monastery, concerning which the Statutes of the Order are silent, "whether they are otherwise bound under any sin to private recitation of this kind, the Sacred Congregation of Rites judged that it should rescript: In the affirmative, that is, they are bound, as all who have the burden of reciting the Canonical Hours are bound." 4 Aug. 1877.

"His Holiness willed and commanded that to the other praises of the Blessed Mary in the Litany of Loreto, this also be added henceforth in the universal Church in the last place, namely: Queen of the Most Holy Rosary, pray for us." Decree for the City and the World, S. R. C. 10 Dec. 1883.

"Whether it is lawful, under the title of special devotion, to add some versicle to the Litany of the Saints or the Litany of Loreto, or to sing or recite in churches new Litanies, concerning whose approval the Ordinary is in no way certain? - Resp. In the negative; and let the decrees of the Sacred Congregation be entirely observed, and let Ordinaries take care to collect and forbid any formulas whatever, both printed and manuscript, of Litanies concerning whose approval there is no certainty. And since the discourse is concerning Litanies, since it has come to the knowledge of the Sacred Congregation that in some churches, especially on the occasion of the Prayer of Forty Hours, little books are used in which either the names of particular Saints are seen to have been added, or one or another versicle is lacking in the prayers; therefore the Sacred Congregation, adhering to the Instruction of Clement XI, section 24, commands that no other little books be used except those printed by the press of the Reverend Apostolic Camera, or entirely conformable to the same." S. R. C. 31 March 1821, General Decree.

"The Decrees which forbid every addition in Litanies are to be observed." S. R. C. 14 Aug. 1858.

According to the General Decree of the same Sacred Congregation (of Rites), 31 March 1821, it is not lawful, under the title of special devotion, to add some versicle to the Litany of the Saints; nevertheless, if not some versicle, is it lawful to add the name of some Saint, and even of several Saints, especially if they are held as Patrons of the Diocese? Resp. In the negative in all things, according to other Decrees of the S. R. C., 27 Sept. 1873.

"All Litanies except the most ancient and common ones, which are contained in Breviaries, Missals, Pontificals, and Rituals, and except the Litanies of the Blessed Virgin which are customarily sung in the sacred House of Loreto, are not to be published without the revision and approval of the Ordinary, nor are they to be recited publicly in churches, public oratories, and Processions without the license and approval of the S. R. Congregation." S. C. of the Index, 23 April 1860. Add to the praised Litanies, from the S. R. C., 12 Aug. 1862, the Litanies of the Most Holy Name of Jesus.

"That custom of inserting between the first and second part of the Angelic Salutation these words: Blessed Jesus, Savior of the world, I ask God that He give us to know Jesus, to believe in Jesus, to hope in Jesus, to love Jesus, to imitate Jesus, is altogether to be abrogated by you and to be prohibited by mandate of this Sacred Congregation. Indeed, nothing is contained in that prayer which is not holy and pious; but to divide the Angelic Salutation, which obtains such authority in the Church, and to mix between its first and second part another formula of praying, which has not been received by the Church, the Sacred Congregation judges is not to be tolerated." S. C. de P. F. 19 April 1784, to the Apostolic Vicar of Sutchuen. Cf. Gardellini, n. 1157.

Cf. On the Sixth Precept of the Church, N. 489.

"At what hour is it lawful to begin the private recitation of Matins with Lauds on the evening of the preceding day? Resp. That private recitation of Matins with Lauds of the following day can begin when the sun holds the middle course between noon and sunset." S. R. C. 16 March 1876.

"Whether the aforesaid response is to be understood in such a way that he would not satisfy his obligation who recited Matins with Lauds on the evening of the preceding day before the sun held the middle course between noon and sunset? Resp. Let approved authors be consulted." S. R. C. 13 July 1883.

A regular Bishop must recite the Office of his Diocese, not of his Order. S. R. C. 11 June 1605. Cf. Gardellini, n. 265.

"Beneficed clerics are always bound to the office of their own Church; but simple priests can conform themselves to the office of the place where they are staying. For wanderers it is more advisable that they use the calendar of their own diocese, because otherwise great confusion of offices would arise." S. R. C. 12 Nov. 1831.

"Whether Clergy ascribed to some parish church, yet not obligated to choir, nor enjoying a Benefice, and Clergy living only under the same Parish and not attached to another Church, are bound to recite the particular Offices of that Parish...? Resp. They can, but are not bound; and therefore they fulfill the burden of the Canonical Hours by conforming themselves in the recitation of the Office to the Diocesan Calendar." S. R. C. 20 Sept. 1806.

"Whether secular Priests, who are considered to be ascribed to some Church because they celebrate Mass there, hear Confessions, or exercise any other sacred Ministry, can recite the Office of the Patron or Titular of the same Church, who is not Patron of the City or place, so that there may be uniformity among those Priests and the Pastor and Vice-pastors of the Church, who celebrate the Feast of the Titular of the same double rite of the first class with Octave, even if there is no obligation to choir? Resp. According to other decrees, in the negative; for they ought not to be considered, but truly to be ascribed to the strict service of the Church, as is the Parish Priest and Vice-parish Priest." S. R. C. 7 Dec. 1844.

“This Sacred Congregation of Bishops and Regulars, having maturely weighed the present condition of the Church, which is prevented almost everywhere from unfolding its external action over ecclesiastical matters and persons, and having also considered the lack of means suitable for the regular organization of Courts, resolved expressly to grant to local Ordinaries the faculty of being able to employ more economical forms in the exercise of their disciplinary jurisdiction over clerics. But so that the whole order of justice may remain safe and intact and the canonical regularity and uniformity of proceedings may be preserved, it judged it opportune to issue the following norms, to be observed by the Courts. “I. The pastoral burden of caring for the discipline and correction of clerics dependent upon him rests upon the Ordinary, by watching over their manner of life and using canonical remedies to forestall and eliminate disturbances of order among them.

“II. Of these remedies, some prevent; others repress and bring a cure. The former are directed to preventing evil from occurring by removing incentives to scandal, voluntary occasions, and proximate causes of delinquency. The latter have the end of recalling delinquents so that they may come to their senses and repair the consequences of the crime committed.

“III. The application of these remedies belongs to the conscience and prudence of the Ordinary, according to the prescriptions of the canons and the gravity of the cases and circumstances.

“IV. Spiritual exercises, admonitions, and precepts are numbered especially among the means which preserve.

“V. These provisions ought to be preceded by a summary knowledge of the fact, which is to be recorded by the Ordinary so that he may be able to proceed further insofar as there is need and to render the superior authority more certain in the case of lawful recourse.

“VI. Canonical admonitions are made either in a paternal and secret form—even by letter or through an intermediary—or in legal form, yet in such a way that their execution is established by some act.

“VII. Insofar as the admonitions prove fruitless, the Ordinary directs the Court that a corresponding precept be enjoined upon the delinquent, in which there is declared what is to be done or omitted by him, with the threat of a corresponding ecclesiastical penalty which he shall incur in case of transgression.

“VIII. The precept is intimated to the accused by the Chancellor before the Vicar General, or before two ecclesiastical or lay witnesses of proven integrity.

Ҥ 1. The act is signed by the parties present and also by the accused, if he wishes.

Ҥ 2. The Vicar General can add an oath of preserving secrecy insofar as the nature of the title in question prudently requires it.

“IX. With respect to penal means, the Most Reverend Ordinaries are to note that by the present instruction no derogation has been made from the solemnities of trials commanded by the sacred canons, Apostolic Constitutions, and other ecclesiastical dispositions, insofar as these can be applied freely and effectively; rather, the economical forms are intended to provide for those cases and Courts in which solemn proceedings either cannot be employed or do not seem expedient. The extrajudicial remedy from an informed conscience for occult crimes, which the Holy Council of Trent decreed in session 14, chapter 1, On Reformation, to be employed, also preserves its full force, together with those rules and reservations which the Sacred Congregation of the Council has constantly observed for the interpretation of the said chapter in many resolutions, and especially in Bosnia and Sirmium, 20 December 1873.

“X. When it is necessary to proceed criminally, whether by reason of an infraction of a precept, common crimes, or a violation of the laws of the Church, the proceeding can be conducted in summary forms and without the formalities of a trial, the substantial rules of justice always being observed.

“XI. The proceeding is instituted ex officio, or in consequence of a petition and complaint, or of information obtained in another manner by the Court, and is brought to completion with this intention: that the truth be uncovered with every diligence and prudence, and that knowledge arise both of the crime and of the guilt or innocence of the accused.

“XII. The conduct of the proceeding can be committed to some upright and suitable ecclesiastic, with a Recorder present.

“XIII. Each Court needs a fiscal procurator for the protection of justice and law.

“XIV. Insofar as the work of the Court’s summoners is not available for intimations or notifications, it is supplied by their delivery being carried out by a qualified person who shall attest to the fact; or by transmitting them under registered cover through the postal office, in those places in which this system has become established, requesting proof of delivery, receipt, or refusal.

“XV. The basis of the criminal fact can be established by a statement contained in the proceeding and confirmed by authentic information, by extrajudicial confessions, or by depositions of witnesses; and, with respect to the title of transgression of a precept, it is established by a new presentation of the decree and of the act of intimation completed in the manners stated in articles VII and VIII.

“XVI. To establish specifically the culpability of the accused, legal proof is required, which ought to contain such elements that it demonstrates the truth, or at least induces moral certainty, with every reasonable doubt to the contrary removed.

“XVII. Persons whom it is expedient to examine are always heard separately.

“XVIII. Witnesses for proof or for the defense, whenever legal obstacles do not stand in the way, ought to be heard under oath, which can be extended, if necessary, to the obligation of secrecy.

“XIX. The examination of absent witnesses or of those dwelling in another Diocese is to be requested by way of assistance from the ecclesiastical authority of the place, a statement of the fact being transmitted to it; and the authority requested responds to the petition while observing the norms of the present instruction.

“XX. Whenever witnesses are indicated concerning facts or circumstances essentially useful to the merits of the case, who cannot be subjected to examination because it is judged unsuitable that they be summoned or because, having been summoned, they refuse, mention of them is made in the acts, and care is taken to supply their deficiency through depositions of other witnesses who know, by report or in another manner, that which is sought.

“XXI. When whatever is necessary to establish the fact and the responsibility of the accused has been collected, the latter is summoned for examination.

“XXII. In the summons, unless prudence forbids it, the accusations brought against him are set forth to him in full so that he may be able to prepare to respond.

“XXIII. But when, because of the character of the accusations or other circumstances, it is not prudent to disclose them in the act of intimation, it is indicated therein only that he is being summoned for examination so that he may excuse himself in a case which concerns him as accused.

“XXIV. If he refuses to appear for trial, the summons is repeated, in which a suitable peremptory term is fixed for him, and it is signified to him that, if he still refuses to obey, he shall be regarded as contumacious and shall in fact be considered as such insofar as, without a proven lawful impediment, he should also disregard this intimation.

“XXV. If he appears, he is heard in examination; and insofar as he makes allegations of some importance, these ought, as far as possible, to be exhausted.

“XXVI. Thence one proceeds to the formal presentation of the criminal fact and of the conclusions reached for holding the accused guilty and as having incurred the corresponding canonical penalties.

“XXVII. Since in this manner the accused has full knowledge of that which appears against him in the acts, beyond being able to respond, he can also avail himself of the right of defending himself personally.

“XXVIII. He can also, if he requests it, obtain the fixing of a term for presenting a defense by a memorial in writing, especially when, because of the provision of article XXIII, he was unable to be prepared with responses for his excuse.

“XXIX. When the proceeding has been completed, the investigating officer makes a summary of its essential conclusions.

“XXX. On the day on which the case is proposed, the accused has the faculty of causing himself to be represented and defended by another priest or a lay advocate previously approved by the Ordinary.

“XXXI. Insofar as the accused refuses to appoint a defender, the Ordinary provides by appointing someone ex officio.

“XXXII. The defender cautiously obtains knowledge of the proceeding and its summary in the chancery so that he may be prepared to carry out the defense, which can be presented in writing before the proposal of the case. He also is subjected to the burden of sworn secrecy insofar as it seems to the Ordinary that the nature of the case requires it.

“XXXIII. The proceeding and its summary are then transmitted to the fiscal procurator so that he may discharge his office ex officio; each is delivered to the Ordinary, who, having obtained full knowledge of the case, appoints the day on which it is to be discussed and resolved, taking care that the accused be informed of this.

“XXXIV. On the appointed day the case is proposed before the Vicar General, with the fiscal procurator, defender, and Chancellor participating.

“XXXV. After the opinion of the fiscal procurator and the arguments of the defense, sentence is pronounced, the dispositive portion being dictated to the Chancellor with explicit mention, in case of condemnation, of the canonical sanction applied to the accused.

“XXXVI. The sentence is intimated to the accused, who can interpose an appeal to the superior ecclesiastical authority.

“XXXVII. For the appeal, the norms established by the Constitution Ad militantes of Benedict XIV of happy memory, 30 March 1742, and the others issued by this Sacred Congregation in the Decree of 18 December 1835 and the Circular Letter of 1 August 1851, are observed.

“XXXVIII. Appearance for making an appeal is to be made within a term of ten days from notification of the sentence; when that term has elapsed without effect, the sentence itself is found in a state of execution.

One must treat of the state 1º of laymen, 2º of clerics, 3º of regulars.

Can there be an invincibly erroneous conscience concerning the precepts of natural law? - "It is certain that in the first principles of natural law, as also in the proximate conclusions and certain obligations of one's own state, invincible ignorance is not given, because by the very light of nature such things are known to all, except to him who closes his eyes lest he see them.... On the contrary, however, the unanimous opinion of theologians is... that in mediated and obscure conclusions, or those remote from the principles, invincible ignorance is indeed given and must be admitted." L. 1. 1. n. 8. 170 seq.; Struggl tr. 3. q. 1. n. 10-13; S. Th. Quodl. 3. a. 36, De Verit. q. 17. a. 2; De Malo q. 3. a. 8; Rom. 2:14. 15. In the first principles of natural law, for example: good is to be done, evil avoided; the highest good is to be loved, evil detested; what you do not wish for yourself, do not do to another; thanks are to be given to benefactors, etc. In proximate conclusions, for example: God is to be worshiped, parents are to be honored, theft is not to be committed, etc. In remote conclusions, for example: private revenge is not to be exercised, abortion is not to be procured, etc. Eternal law, existing in the divine mind, most perfectly exhibits the order of things. Natural law, which is the application of eternal law, exists in the human mind. Therefore natural law, by the very fact that it is manifested through human reason, falls short of the highest perfection of eternal law.

Hence it happens that not always what we think and judge, in more difficult matters, corresponds to the rules of the divine mind, and remains obscure and unknown to us. Whence that thing, although materially and in itself it pertains to natural law, nevertheless does not pertain formally and as regards us, since it has not been sufficiently promulgated to us by the natural light. - Wirceburg. De Actib. hum. c. 1. a. 3.

Must a law be extended from case to case because of identity of reason? - "Penal laws are not to be extended from case to case." L. 1. 6. n. 689. For hatreds are to be restricted. R. I. 49 in 6. - Likewise invalidating laws or laws granting some right cannot be extended from case to case; for then the act lacks value, or has force only from the positive will of the legislator. C. I. beginning, Dispos. etc. a. 4. - It must likewise be denied as regards other laws, even if the same reason runs; a fortiori if there is only a similar reason. For not the reason of the law, but the will of the legislator, duly intimated to the subjects, has the force of law and obliges. For the legislator can well dispose concerning one thing and not concerning another. Hence the common axiom: The reason of the law is not the law; and the end of the precept does not fall under the precept. L. 20. 21 de Legib.; S. Th. 1. 2. q. 100. a. 9 ad 2; L. 1. 3. n. 273. But "to act contrary to the end of the law is a certain disorder, which does not seem to be excused from all fault." L. 1. 3. n. 1030. - But if it is not licit of itself to extend a law from case to case, a fortiori it is not licit to extend a privilege from persons to other persons, from things to other things. C. 27 de Praeb. in 6; Reg. 28 de R. I. in 6; L. 14. 15. 16 de Legib.

Except nevertheless whenever otherwise something manifestly absurd or inequitable would follow, and the legislator could manifestly be accused of injustice, imprudence, ignorance. Thus by the Constitution Decori of S. Pius V, nuns are prohibited from going out of the monastery, except because of a great fire, or epidemic, or the sickness of leprosy. Therefore they will also be able to go out for another similar cause, for example flooding of the monastery, collapse, attack of robbers.

But this is chiefly had in the following: 1. In correlatives, for example, between husband and wife, betrothed man and betrothed woman; whence if the husband because of the adultery of the wife is admitted to divorce from bed, the wife also enjoys that right because of the adultery of the husband; if the betrothed woman is freed from betrothal because of the long absence of the betrothed man, C. 5 de Spons., similarly he is freed because of the absence of the betrothed woman. For then the legislator, expressly willing one thing, is judged to have implicitly willed the other also. 2. In things equated by law, such as presentation, postulation, election to a benefice; eggs and milk foods by reason of abstinence. What the law disposes in these matters concerning one, it is judged to dispose the same concerning another. And thus, if the more worthy is to be elected, the more worthy is also to be presented; if eggs are permitted, milk foods also are permitted. R. I. 53 in 6. 3. In connected things, of which one cannot stand without the other. Therefore he to whom a case is committed can also compel the parties to appear. C. 5 de Off. Deleg. 4. In things contained: for in the whole the part is contained; thus he who can make a testament can also make legacies; those to whom marriage is prohibited are also prohibited betrothal. L. 16 de Sponsal.

And these things have force even if the question concerns a penal law. Nor then does the rule have force: Hatreds are to be restricted, favors broadened. For that proceeds only when the disposition of the law is extended from interpretation of congruity, not when it must be extended from interpretation of necessity, which ought not so much be called extension as mere comprehension. And certainly extension of law is of two kinds: one necessary, the other congruential. The former is altogether required for justice or rectitude; but the latter not so, but is only voluntary, because although the law can justly comprehend many other things, nevertheless a lesser comprehension suffices for the justice of the law and the property of the words, with the reason of the law also being preserved. Now the general rule about not broadening penal laws must be understood of voluntary interpretation, that is, without which the prudent disposition and justice of the law can still be preserved; not of the necessary extension of law, which is required so that justice or equity may be preserved. And thus, a heretic is irregular. Therefore also an apostate. L. 12 de Legib. - L. 200, 1. 3. n. 293. 1027; Ithur. Cas. 53.

As it is necessary to extend a law when its reason is manifest, L. 12 de Legib., so also it is necessary to restrict it when similarly its reason is manifest; because the thing itself about which the question is concerned requires restriction; because otherwise something unjust or absurd would follow; because the case is altogether rare and foreign to the mind of the legislator; because otherwise the law would become too hard and severe. L. 18. 25 de Legib.

Does a law founded on presumption always oblige? - To presume is to opine; and presumption is a probable conjecture of an uncertain thing, that is, a judgment likely arisen from certain signs or indications. It is either of man or of law. The former is placed wholly in the estimation of a good man, and does not pertain here: for it is a private act. The latter is introduced by laws, and therefore without express law it is not to be admitted. For the law itself conjectures or orders one to conjecture. - Presumption of law is twofold: one of danger, the other of fact. Of danger, when the legislator, noticing from those things which frequently happen that something is not done or omitted without danger, forestalling dangers of this kind, forbids the former or commands the latter. Of fact, when, holding something as certain to have been done because it is commonly accustomed to be done so, from that supposed fact, as if it had really been done, he constitutes rights and obligations. This latter, if in law it receives contrary proof, is usually called of law; but if not, of law and by law. - On presumption of danger, for example, rests the law which forbids reading books of an unapproved edition, contracting marriages with non-Catholics; of fact, the law which holds that one was baptized who, born from Christian parents among Christians, grew up in Christian fashion, C. 3 at the end de Presb. non bapt. Of law, for example, that the man is the father whom marriage shows; of law and by law, for example, is that those who contracted marriage in a prohibited degree, denunciations having been disregarded, did not ignore the impediment. C. ult. de Cland. despons.; Trent sess. 24 de R. M. C. 5; Sanch. De Matr. l. 8. d. 25. n. 32; De Iustis l. 3. c. 16. n. 11. - C. 30 de Spons.

Thus a law which rests on presumption of danger always obliges, even if the danger ceases in the present matter. The reason is that the law does not cease as long as the end of the law has not ceased adequately. On the contrary, a law which rests on presumption of fact, if the fact does not really underlie it, does not oblige in the forum of conscience. Hence the axiom: Presumption yields to truth, whether it be only of law, or of law and by law. For although a presumption of law and a presumption of law and by law is taken for truth, it is not on that account truth itself. For this reason, notwithstanding a presumption of law and by law, a regular who, coerced by force, made profession, even after five years is not obligated by it; a debtor absolved by the sentence of a judge, even after this has passed into res judicata, remains a debtor. But as long as it does not appear manifestly that the presumption rests on a false fact, it is held as truth in each forum. - C. I. 1349 seq.; C. G. 1350 seq.; C. H. 1249 seq.; S. Th. 2. 2. q. 88. a. 9; Schmalz. l. 2. t. 23. n. 1; L. 100. 150. 151; Ithur. Cas. 39. n. 25. 26, Cas. 53. n. 23; Wirceburg. c. 4. a. 5.

What are the privileges of clerics and churches? - 1. The privilege of forum, by which they are exempted from lay magistrates in civil and criminal matters. C. Nullus 2 de For. comp. This privilege belongs to clerics constituted in sacred orders, beneficiaries, and others, whether regular or secular, if nevertheless these latter, i.e., simple clerics, "wear the clerical habit and tonsure, serve some Church by command of the Bishop, or are engaged in some school or University by license of the Bishop, as on the way to receiving major orders." Trent, s. 23, c. 6 de R.; s. 25, c. 20 de R. Wherefore ecclesiastics enjoy exemption concerning their persons, and cannot be judged and punished by a lay court. They also enjoy the privilege of exemption from military service and other civil offices which are by no means fitting for a cleric. Pr. 32, Syll. - They likewise have exemption, says St. Alphonsus, 20, as regards their own goods, both ecclesiastical and acquired in whatever other way; whence in respect of these they are not held to pay any tax. - But various Concordats and legitimate customs must be attended to. Indeed, as regards taxes to be paid, these are paid everywhere; nor is any protest had against them. Wherefore this privilege at least de facto is not in force. - Schmalz., l. 2, t. 2, n. 80 ff.; Bened. XIV, de Syn., l. 12, c. 6, n. 5; L. 18 ff.; A. S. S., vol. 2, p. 128, 431, 584. Judges compelling laymen to drag ecclesiastical persons to their tribunal incur excommunication reserved in a special way to the Supreme Pontiff. C. Apostolicae Sedis. Cf. vol. 2, n. 1170.

2. The privilege of C. Odoardus 3 de Solut., namely that a cleric debtor not be condemned beyond that which he can give, and therefore with sustenance left to him, if because of poverty he cannot pay his debts, until he has come to a richer fortune. E. M.

3. The privilege of canon, namely of the Lateran Council, A.D. 1139, under Innocent II, by which those who strike clerics incur by the fact itself excommunication reserved to the Roman Pontiff, C. of Pius IX, Apostolicae Sedis de Censuris. And notorious strikers of clerics, so that the fact cannot be hidden by any tergiversation, nor excused by any suffrage, are excommunicates to be avoided. Extravag. of Martin V, Ad evitanda. From these privileges are despoiled clerics who have been really degraded; jesters, goliards, or buffoons; likewise those exercising the base trade of executioners, butchers, or taverners; married men not wearing clerical habit and tonsure, or, if unmarried, falling into the manner of laymen; if, having been admonished three times, they have not come to their senses within a suitable term, C. Clerici un. de Vit. et hon. cl. in 6; Clem. Dioecesanis 1 de Vit. et hon. cleric.; clerics involving themselves in tyranny or enormity, having laid aside the clerical habit, C. Perpendimus 23 de Sent. excomm.; bigamous clerics, who have taken two legitimate wives or a widow, C. Altercationis un. de Dig. in 6; C. Clerici de Cler. coniugat. in 6: cf. Trent, s. 23, c. 6 de R.; Schmalz., l. 5, t. 39, n. 218; clerics constituted in minor orders who lay aside the clerical habit, S. C. Imm., 25 Sept. 1860, to the Ordinaries of the Pontifical Domain; clerics ordained to minor orders, when the See is vacant, within a year from the day of vacancy, unless they have been constrained by occasion of an ecclesiastical benefice received or to be received. Trent, s. 7, c. 10 de R. L. 24; l. 6, n. 827; E. M.

4. To churches, public Oratories, the Episcopal Palace, Houses of Regulars, and Hospitals in which there is a public Chapel, immunity belongs as regards the asylum of delinquents, excepting the cases comprehended in the Bulls of Gregory XIV, Cum alias, and Benedict XIV, Ex quo divina. All delinquents, provided they are Christians, although heretics, or interdicted, or enclosed in prison, who, having broken prisons, have fled to the aforesaid sacred places, enjoy this immunity, except however the cases excepted in law. Public robbers, ravagers of fields, homicides, heretics and rebels against the person of the Prince, those falsifying coins, etc., are excepted. But just as ecclesiastical superiors can extract their own subjects from a Church, so also, if need be, they can grant the same license of extracting to the secular court. Here also various Concordats and various customs of places must be attended to. L. 25 ff.; Schmalzgr., l. 3, t. 49, n. 88 ff.; E. M.

260 bis. What are the privileges of Cardinals? - They are the following: 1. Of hearing confessions everywhere on earth, even of religious of both sexes, and of absolving from all sins and censures, except only censures reserved in the most special manner to the Apostolic See, and those which are annexed to the revelation of the secret of the Holy Office. 2. Of choosing for themselves and their familiars a Priest for receiving confessions, who, if he lacks jurisdiction, obtains it by the law itself, even as regards sins and censures from which the same Cardinals can absolve. 3. Of celebrating, or of permitting others to celebrate before them, Mass on Thursday of Holy Week and three Masses on the night of the Nativity of the Lord. 5. Of celebrating Mass in any private chapel without prejudice to one using an indult. 5. Of enjoying a personal privileged altar daily; likewise a portable altar, in any decent place, according to their prudent judgment, even at sea, with due cautions observed. 6. Of gaining in their own chapels indulgences for the acquisition of which the visitation of some church or public shrine of the city or place in which the Cardinals are actually staying is prescribed; their familiars also can enjoy this privilege. 7. Of blessing everywhere, by the sign of the cross alone, with all indulgences customarily granted by the Holy See, rosaries and other prayer chaplets, crosses, medals, statues, scapulars approved by the Apostolic See, and of imposing these, without the burden of inscription. 8. Under one blessing, of erecting in churches and even private oratories in which Mass can be celebrated, and in other pious places, Stations of the Way of the Cross with all indulgences which have been imparted to those performing an exercise of this sort; and also of blessing for the faithful, who by reason of infirmity or another legitimate impediment cannot visit the sacred Stations of the Way of the Cross, images of the Crucified with the application of all indulgences annexed by the Apostolic See to the devout exercise of the same Way of the Cross.

9. Of wearing, in the manner of Bishops, a cross before the breast even above the mozzetta, and of using mitre and pastoral staff. 10. Of blessing the people everywhere in the manner of Bishops, but in the City only in churches, pious places, and assemblies of the faithful. 11. Of performing pontificals with throne and baldachin in all churches, the Ordinary having been forewarned if the church is a cathedral; but in the City they do not have the right of throne except in the church of their title. 12. Of enjoying the honors customarily paid to local Ordinaries wherever they betake themselves. 13. Of preceding all Prelates, even Patriarchs, indeed the Pontifical Legates themselves, unless the Legate is a Cardinal residing in his own territory; but a Cardinal Legate a latere precedes all others. 14. Of granting an indulgence of two hundred days in places or institutes and for persons of their jurisdiction or protection; likewise in other places, but to be gained only by those present, each time. 15. Of performing consecrations and blessings of churches, altars, sacred furnishings, abbots, or other similar things, except the consecration of sacred oils, everywhere, with those things observed which must be observed. From the Audience of His Holiness, on the 20th day of December, A.D. 1911, Our Most Holy Lord Pope Pius X graciously deigned to grant that the Cardinals of the Holy Roman Church may use the privileges which precede, even before the promulgation of the Code. - PETER Cardinal GASPARRI.

What are the principal privileges of Regulars? - As regards communication of privileges. All regular orders communicate in the privileges of other orders, whether mendicant or not. L. l. 4, n. 60. "These mendicant religions communicate in the privileges of the other religions, or congregations, or monastic or non-monastic colleges... And this holds even if in a privilege granted to another religion or congregation there is a clause that it is not to be communicated... Both lay brothers, for they themselves are truly religious, and novices enjoy privileges of this sort... religious promoted to the episcopate also enjoy them, provided there is not question of things by which, if Bishops used them, some prejudice would come to religion, as would be dwelling in a monastery, giving a vote." L. 9. - Male tertiaries who live collegially enjoy the privileges of Orders. S. C. EE. et RR., 20 Dec. 1616; Bizzarri, Collect., 1885, p. 569 ff. Nuns enjoy the same privileges (understand favorable ones) of which they are capable, as religious of the same order. The reason is that since they themselves live under the same rule, they are part of the order, and therefore deservedly ought to enjoy the privileges of the order. Hence an abbess can dispense in fasts, office, etc., according to the privileges granted to the prelates of her order; because, although she herself cannot dispense by herself on account of defect of spiritual authority, she can nevertheless do this by commission of the prelate, which is presumed to have been made to her as soon as she was elected abbess. L. 10; l. 4, n. 60, 63. As regards women of the third order and their privileges, cf. Collectan. S. C. de P. F., n. 445; Benedict XIV, Not. 29, 105, n. 59 ff. - As regards secular Franciscan tertiaries, cf. Constitution of Leo XIII in Ferraris, Supplementum, v. S. Franciscus Assis., etc.

More recent Institutes of simple vows are excluded from this participation in privileges. Nevertheless the Carmelite Sisters of France obtained it by special Decree of S. C. EE. et RR., 23 Mar. 1869, so that they participate in the spiritual graces of the Carmelites of solemn vows, exemption excluded. Ferraris, Supplementum, v. Carmelitae, n. 9. Privileges granted to some place or person, not as to a particular person, but as to a member of a community, are understood to be granted also to other places and religious of the same dignity and grade, both of that order and of others which have communication, namely when the same or a similar reason applies. L. 11. Privileges are not communicated: 1. When they are odious or contrary to proper statutes, so that they prejudice the good or common observance of religion. 2. When they are granted to some private person, or to some congregation, but for a determined time, or through particular Briefs, or on account of a particular reason which has no place in the others, or concerning an exorbitant thing which is usually granted with difficulty and is worthy of special commemoration; or, from the General Decree of S. C. R., 20 Mar. 1706, concerning those things which regard Masses and offices. 3. Likewise the privilege of receiving sacred orders from any Bishop is not communicated. Benedict XIV, C. Impositi nobis, 27 Feb. 1747, par. Quod vero. Privileges granted to religious families by Canon Law or by the Holy See are understood to be granted in such a way that they do not prejudice the legitimate power of superiors. Wherefore the same Prelates can from a just cause take away, at least as to liceity, or limit for subjects the use of privileges. L. 6; l. 4, n. 64; E. M.

As regards interpretation of privileges. - Privileges "which are granted to some order, convent, community, or to another pious cause, all are to be interpreted not only broadly but even most broadly, even if they are contrary to Common Law or to some third party. For privileges granted to communities are all presumed to be remuneratory of services furnished, and therefore all are held as favorable." L. 8.

Bishops and other secular Prelates are prohibited from juridically and authentically interpreting the aforesaid privileges. If any doubt arises, let judgment be made concerning it among skilled men, or let the Apostolic See be consulted. Generals of religions for the whole order interpret privileges not only doctrinally, but also juridically and authentically, so that all subjects are held to stand by their interpretation, when they interpret either laws and customs, or privileges. The same power was given to other regular Prelates, even immediate ones, but let them proceed prudently and from the counsel of skilled persons, so that for the forum of conscience they may be able, by Apostolic Authority, to interpret and declare authentically and juridically all the said things. L. 6.

As regards exemption. - Regulars have the privilege of exemption from the jurisdiction of Bishops, which they cannot renounce, C. Cum tempore de Arbitris. Wherefore regular Prelates have in their churches and monasteries quasi-episcopal jurisdiction, both as regards persons and as regards places. - The privilege of exemption is enjoyed not only by professed and lay brothers, but also by novices and tertiaries who stay within the cloisters; likewise, as regards censures, sacraments, and burial, by servants of regulars, who actually serve and reside within the cloisters of monasteries as, so to speak, of the family and perpetual table companions, no otherwise than the lay brothers themselves. Trent, s. 25, c. 11 de Reg. This exemption is not universal, but has several exceptions, especially for men, as regards delicts committed by regulars living outside the monastery, as regards hearing confessions of seculars, as regards the celebration of Masses; and for nuns, as regards enclosure. Trent, s. 6, c. 3 de R.; s. 22, Decr. de Observ., etc.; s. 25, c. 5, 9, 14 de R.; Gregory XV, B. Inscrutabili, 5 Feb. 1622; Clement VIII, B. Suscepti muneris, 23 Feb. 1596; Benedict XIV, de Syn., l. 9, c. 16. Likewise it has no place when subjection to the jurisdiction and laws of the Ordinary is necessary for avoiding scandal or for procuring the common good. Schmalz., l. 1, t. 2, n. 38. "But all exempt persons, both secular clerics and any regulars whatsoever, even monks, when called to public processions, are to be compelled to come, except however those who live perpetually in stricter enclosure." Trent, s. 25, c. 13 de Reg. Monasteries are not to be erected without the permission of the Bishop of the place. Trent, s. 25, c. 3 de Reg. Besides, permission of the Supreme Pontiff is required, which is required also for abandoning monasteries already built. C. un. de Excess. praelator. in 6; Benedict XVI, C. Instaurandae, de Syn., l. 9, c. 1, n. 9; Leo XIII, C. Romanos Pontifices, VIII Id. Maii 1881; Ferraris, v. Regulares, art. 2; L. 72, 74, 82, 83, 91.

The Bishop proceeds also against exempt persons, in causes of faith, as an Apostolic delegate. And in causes of faith of this sort, which pertain to the Holy Office, Regular Prelates cannot involve themselves; and whether they themselves or other religious, not denouncing to the Holy Office, or impeding superiors, subjects, or confreres who are heretics or suspect concerning the faith from being denounced to the same Holy Office, incur excommunication. Commonly speaking, it is certain that regulars who dwell in mission residences are exempt from the jurisdiction of the Ordinary, although they are few in number; and, outside mission places, both the persons and the monasteries and churches of regulars are exempt from the visitation of the Bishop, provided that at least twelve or six religious dwell in them; indeed only three suffice at present for Italy. S. C. EE. et RR., 26 Mar. 1897. But except: 1. Churches of seculars whose pastor is a religious. 2. Churches of regulars, if they are parishes, yet only as regards those things which look to the parish and to the pastor, insofar as he carries out that office. Cf. Benedict XIV, C. Firmandis, 4 Nov. 1744; Leo XIII, C. Romanos Pontifices, VIII Id. Maii 1881; Benedict XIV, de Syn., l. 3, c. 2, n. 1; A. S. S., vol. 38, p. 147.

The Bishop can oblige secular confessors, and also regulars, to the conference of Cases of Conscience, if they do not have it in their own Convents. In England and Scotland, all Rectors of Missions, Vicars, and other religious men, missionaries, who inhabit hospices and small Mission houses, must attend the conferences of the clergy from the cited Constitution of Leo XIII, Romanos Pontifices. Regulars in mission places, deputed to the care of souls, can be recalled by their superiors, or removed by the bishop, according to equitable judgment, no cause assigned by either, Benedict XIV, C. Firmandis; but if the regular superior recalls them, he must propose others to be substituted, with the Bishop approving, S. C. de P. F., 27 July 1882. Insofar as they are religious, they are subject to Regular Superiors; but insofar as they exercise the care of souls, to the Vicar Apostolic. S. C. de P. F., 18 Jan. 1886. Likewise the goods of religious are exempt from the jurisdiction of the Bishop. But administrators of monasteries of nuns must render an account to the Bishop of the administration of goods. L. 79, 80, 81; Benedict XIV, Inst. 29. As regards more recent Institutes of simple vows which have already been approved by the Holy See, the Bishop can demand no account of the administration of goods which those same Institutes possess, Leo XIII, C. Conditae a Christo, VI Id. Dec. 1900. They render this account every three years to the S. C. of Religious. Cf. A. S. S., vol. 25, p. 622 ff.

Constitution of Leo XIII, Romanos Pontifices, VIII Id. Maii 1881. Some heads of controversies concerning Bishops and Regular Missionaries of England and Scotland are defined. The aforesaid Constitution was then extended to many other places, to all Latin America, Plenary Council of Latin America; to the Philippine Islands, Secretariat of State, 1 Jan. 1910; to all the provinces of the Canadian Dominion, S. C. Cons., 14 Mar. 1911. It is disputed whether regulars can have recourse to the Bishop for obtaining graces. Many deny it, founded on this, that such recourse implicitly says a desertion of exemption. Others better affirm with Schmalz., l. 2, t. 2, n. 149, and Bouix, de Iud., vol. 1, p. 256, and teach that recourse to the Bishop is licit in those things which pertain to gracious jurisdiction, of which sort is absolution from sins and censures; dispensation in vows, oaths, irregularities; in laws of recitation of the breviary, fast, etc. But they require a threefold condition, namely: 1. that the Pope or his legate cannot easily be approached; 2. that the superiors of the order lack the faculty of dispensing; 3. that there is permission of the prelate, at least presumed. Cf. 263. But there is no doubt that regulars can use Lenten indults, which are rather given by the Holy See and promulgated by Bishops, unless they are prohibited by a special vow. S. O., 20 Dec. 1871. - E. M. Modern Institutes approved by the Holy See also enjoy exemption as regards internal government. Cf. cited Leo XIII, Conditae a Christo, A. S. S., vol. 28, p. 499 ff.

As regards irregularity. - "Regulars can dispense with their subjects in all hidden irregularities in which Ordinaries can dispense with their diocesans. And they can do the same with seculars." L. 104. "They can besides dispense with subjects in any irregularity, either on account of delict or on account of defect," namely those which are usually regularly dispensed. L. 105; Frassinetti, Comp., 6th ed., vol. 2, n. 681. In the cited place the Holy Doctor soon descends to particular cases, concluding: "Finally regulars can dispense with their subjects in all inabilities and penalties contracted by reason of delict... even if those are reserved to the Pontiff." Cf. L. l. 7, n. 355, 358, 364, 396; Lehmkuhl, 11th ed., vol. 2, n. 834.

As regards indulgences. - "All professed regulars enjoy the indulgences granted to any religious order," L. l. 4, n. 64, namely according to the Brief of Leo X, Dudum per Nos accepto, 10 Dec. 1519, and the Brief of Paul V, Romanus Pontifex, 23 May 1606, indulgences exclusively proper to each order being excluded from this communication, S. C. Indulg., 25 Apr. 1735; Theod. a Spiritu S., p. 2, p. 88 ff., p. 114. "It must be noted that the privilege of a privileged altar is not communicable by general communication of privileges, from the Decree of S. C. Indulg., dated 5 Feb. 1748, and approved by Benedict XIV on 2 Mar. of the same year." L. l. 6, n. 339. More recent nuns of simple vows, in France, of ancient religious orders, from a special indult, "can gain all indulgences which were granted to the religion or Institute of other nuns emitting solemn vows, according to the respective Institute or rule." S. C. Indulg., 10 July 1843; S. Poenit., 12 July 1847.

But Institutes of Tertiaries dwelling in Community and emitting simple vows participate in all Indulgences directly granted to the First and Second Orders, provided they are legitimately aggregated to the Orders. S. C. Indulg., 28 Aug. 1903; E. M., de Stat. part., n. 248.

It must further be noted that personal privileges and indulgences in churches of regulars vanish when the religious have been driven out, although some religious remains in the church as chaplain or custodian. But real privileges, such as the right of burying, when a religious is left there under the name of chaplain or custodian, must be exercised by him. S. C. C., 29 May 1841; 29 Aug. 1864; 16 Sept. 1871; S. C. Indulg., 24 May 1819; A. S. S., vol. 1, p. 287; vol. 4, p. 228; vol. 7, p. 34. - E. M.

281 bis. Secular Tertiaries of St. Francis, by force of the Apostolic Letters of 5 May 1909 and the Rescript of 17 May 1909, enjoy communication of all Indulgences and spiritual fruits with the First and Second Order of St. Francis, the extension then having been made to General Absolutions. S. O., 12 June 1913, A. A. S., vol. 5, p. 306 ff. Secular Franciscan Tertiaries reciting in place of the canonical hours twelve Our Fathers, Hail Marys, and Glory Bes cannot by this recitation alone satisfy all other obligations, as regards prayers, which they have contracted from enrollment in other pious sodalities. S. O., 11 June 1913. Third Orders proceeding collegially, in their own habit and under a cross, always and everywhere have precedence over any Sodalities whatsoever. S. R. C., 18 Feb. 1899; E. M.

What are the obligations of the depositary? - 1. The depositary cannot, per se, use the deposited thing. The reason is that the thing is given to him for custody, not its use conceded. Use of the thing can be judged permitted only if it can reasonably be judged that the owner of the thing consents to it, e.g., if by use the thing is exposed to no danger, nor made worse; if someone has deposited money not closed nor sealed. Wherefore, if the owner is unwilling, the owner must be compensated for the use made of the thing, if from this the depositary has become richer. C. I. 1846, 1852; C. G. 1930, 1936; C. H. 1767, 1770; C. A. 958, 961, 965; C. B. 698; C. L. 1437, 1438; Lugo d. 33. n. 4. - But he who truly uses another's thing at his own risk, even if he knows the owner is unwilling, acquires for himself what he gains thence by his own industry. By his own industry, since a thing consumable by use does not bear fruit by that use, but is destroyed. By his own industry, for fruits produced by the thing itself must be returned with the thing itself. C. I. 1852; C. G. 1936; C. A. 958, 961. But C. B. 698 and C. H. 1770 say that if the depositary uses deposited money, interest is owed from the day of use. L. 748.

2. The depositary must take that care of the deposited thing which he takes for his own things. L. 32 h.t.; L. 1 § 5 de Oblig. et action.; C. I. 1343; C. G. 1927; C. H. 1766; C. A. 961, 964; C. B. 690. - This obligation is stricter if the depositary offered himself to receive the deposit; if he stipulated a fee for the deposit; if the deposit was made for the convenience of the depositary alone; if an agreement intervened that he is liable for any fault. C. I. 1844; C. G. 1928; C. H. 1182, 1766; C. L. 1435, 1451. If the deposit is made for the depositor's favor alone, the depositary is bound only to furnish against fraud and grave fault, which is equated with fraud. L. Quod Nerva Dig. Depositi. If the deposit is also made for the favor of the depositary, as when he receives a stipend or fee, the depositary is liable even for slight fault, though not very slight fault. L. Depositum Dig. Depositi § 8 coll. § ult. Inst. de Locat. et cond. Except sailors, innkeepers, and stable-keepers, who are liable even for very slight fault, but not for fortuitous event or greater force. L. Et ita Dig. Nautae etc. Yet Laymann, de Deposito n. 1, with others, judges not improbably that this, namely that they are liable for very slight fault, is not valid in the forum of conscience before the sentence of the judge. - St. Thomas 2. 2. q. 62. a. 6; L. 750. According to C. I. 1867; C. G. 1953; C. H. 1784; C. A. 1316; C. B. 701, innkeepers and stable-keepers as depositaries are liable for theft or damage inflicted, if the theft was perpetrated or the damage inflicted by servants or persons placed over the direction of the inn, or by outsiders who frequent it. The depositary is held by no obligation if anything happens by prevailing greater force, unless he had already previously delayed returning the thing requested by the depositor. C. I. 1845, 1868; C. G. 1929, 1954; C. H. 1182, 1784; C. L. 1435, 1436; C. A. 964, 965. Exception for the internal forum, if the thing would have perished equally and at the same time and danger with the owner, because then that delay was not the cause of the loss. According to C. A. l.c., the depositary is not liable for a fortuitous event, even if the more precious deposited thing could have been saved by damage to his own thing.

3. He must return the deposit as soon as it is sought, if this can be done. L. Depositum § 22 Dig. Depositi. The reason is that the deposited thing is for the convenience of the depositor alone; and accordingly there can per se be no cause for retaining the deposit. Per se; for accidentally it sometimes must not be returned, as if it is demanded for one's own or another's harm. L. Depositum § 39 Dig. Depositi. But the thing is to be restored whenever the thing is asked back, even if perhaps a day was established in the contract for restitution. But before the established day, the depositary regularly cannot restore the thing except from a just cause. C. I. 1860; C. G. 1994; C. A. 462, 963; C. H. 1766, 1775, 1776; C. B. 695, 696; C. L. 1448. If a deposit has been made by a person who can contract obligation with a person who cannot contract it, the depositor has only a vindicatory action for the deposited thing if it exists with the depositary, or otherwise an action of restitution up to the concurrence of the quantity which has been turned to the utility of the depositary. C. I. 1842; C. G. 1926; C. L. 1433. 4. The depositary must restore the deposited thing to him who deposited it. If nevertheless he understands the thing to be stolen and knows its owner, he must warn this owner, after establishing a suitable space of time in which he may himself demand it back; but if this owner has been negligent, the depositary is freed from every obligation by restoring the deposit to him from whom he received it. Therefore the thing is regularly to be restored to him who deposited it, even to a thief, if the owner, having been summoned, has failed. L. 31 h.t.; C. I. 1853, 1854; C. G. 1937, 1938; C. H. 1771; C. L. 1441, 1442. Cf. here 1343, 1351. When the depositor has died, the thing is to be restored to the heir. If there are several heirs and the thing is divisible, his part is to be returned to each; but if the thing is indivisible, all must agree as to the mode of receiving the thing. L. 1 § Si pecunia 36 h.t.; C. I. 1855; C. G. 1939. When the depositary has died, the thing is to be restored by the heir. But if the heir in good faith has sold the thing, he is bound to return only the price, or his action to it, if not yet paid. C. I. 1851. 5. Restitution must be made by him with whom the deposited thing was, and in that place in which the thing is found without bad fraud of the depositary. L. 12 § 1 h.t.; C. I. 1859; C. H. 1774. According to C. G. 1943, in that place in which it was deposited. According to C. B. 697, in that place in which it was to be guarded. 6. The depositary, as also the borrower, cannot compensate to themselves debts from deposit, from commodatum, and precarium. Thus according to positive law. L. ult. C. de Commodato; L. Si quis C. Depositi; C. Bona fides de Deposito; C. I. 1289; C. G. 1293, 1885; C. H. 1200, 1747. Nevertheless, if someone retained the thing under this title, he would indeed sin against legal justice, but by no means against commutative justice. By natural law, "it is probable," says Lessius 1. 2. c. 27. n. 16, "that compensation has place in the forum of conscience when no other reason is available for obtaining the thing owed to oneself." But if the depositary finds that the deposited thing is his own, he is held by no further obligation. C. I. 1861; C. G. 1946; L. 753.

What is the power of the Church to institute feast days? The Church enjoys the power of instituting feasts and of commanding their sanctification under grave obligation to all the faithful, as one which has received from Christ all power in order to the spiritual good of the faithful. The Pope alone can proclaim feasts for the universal Church, because he alone enjoys jurisdiction over the universal Church. Bishops also can institute feast days in their own diocese; for they have the faculty of making laws in their own diocese. Yet from C. Conquestus ult. de Fer. Bishops are forbidden to establish new feasts without consulting the clergy and faithful. But whether at present Bishops can still institute new feasts, the first opinion affirms, provided they are instituted in honor of Saints, not of Blesseds, with the counsel of some clerics employed; yet they are admonished that they should strive to abstain. Urban VIII, C. Universa, 13 Sept. 1642.; Bonac. tom. 2, d. 6, q. un., p. 1, n. 3 seqq. The second opinion denies it from the Response of the S. R. C. 23 June 1703, n. 2113. And a Bishop certainly could not institute new feasts in those places in which, with Governments or the Bishops themselves requesting, the Holy See willed, by determining the number of feasts, to establish a uniform manner for all of sanctifying feast days. Bouix de Iur. Liturg. p. 4, c. 4.; E. M. Cf. following number.

What is a judge? - A judge, as regards his nominal definition, is the same as one saying the law. As regards his real definition, a judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice, by rendering judgment or sentence between two litigating parties, by an authentic declaration and application of the laws. By declaration and application, not merely speculative, which pertains to jurists, but practical and obligatory, and by compelling that it also be observed. S. Th. 2. 2. q. 60. a. 1, 6; q. 67. a. 3. "We think that he says sentence who pronounces something with that mind, that according to it he wishes them to depart from the whole controversy." L. 19. de Receptis etc. Dig.

There are several divisions of judgments, among which especially the following division is to be attended to: into civil, criminal, and mixed. Civil is that in which the plaintiff seeks what is of interest to himself. Criminal is that in which there is question of punishing a crime. Mixed participates in both, when, for example, by the crime of homicide or theft public justice is injured and damage is inflicted on private persons. Into petitionary and possessory. Petitionary is the judgment in which there is question of the property or ownership of a thing, or quasi-ownership, or of a right in the thing or to the thing. Possessory is the judgment in which there is question only of the possession or quasi-possession of a thing. Hence a twofold action is also distinguished, petitionary and possessory. Into summary and full or solemn. In a summary judgment only those things are to be observed which belong to natural law: namely that there be present a judge, plaintiff, and defendant, and that citation of the parties, necessary proofs, and legitimate defenses not be lacking. Clem. Saepe contingit de Verbor. significatione. But in a full judgment all formalities prescribed by positive law must be observed. Marchant, Inst. Can., l. 2, t. 1, note 2; Barbosa, de Iudiciis, n. 7.

And thus the Apostolic Signatura proceeds in a criminal case, with procedural rules observed. "In other judgments it can proceed, the truth of the matter alone having been inspected, nevertheless always with the adverse or defendant party, or the party whose interest it is, cited, and with a suitable peremptory term fixed for the parties to present their rights." Constitution Sapienti consilio, canon 41, title 2.

What qualities are required in a judge? - In a judge there are required knowledge of law and prudence, by which he may know how to discharge his office rightly. The first reason is that anyone, generally speaking, is bound to know those things which pertain to his proper office, and without knowledge of which he cannot exercise it rightly. Besides, speaking in particular about a judge, it belongs to a judge to define and determine that which is just. But this cannot be done without knowledge of natural and positive law. The second reason is that it belongs to the judge to apply the dictum of the law to a particular business; and consequently, for his judgment to be right, it must be rendered "according to the right reason of prudence." S. Th. 2. 2. q. 60. a. 2 and 1 ad 1; Lugo, de Iust. et Iur., d. 31, s. 1.

You will resolve: Not ordinary nor mediocre knowledge of laws and prudence is required in a judge, so that he may be able to weigh intricate cases and to examine by his consideration all circumstances both of law and of fact. One seeking or accepting the office of judge, the same is true of a physician, surgeon, etc., for which he is unworthy, so that it is probable that notable damage to the neighbor will follow from it, sins mortally. A judge lacking necessary knowledge ought not to be absolved, unless resignation of the office has been made, or unless he has a firm purpose of resigning, or at least of acquiring it by diligent study, and meanwhile abstains from judging, or at least uses the counsels and work of one more learned; for otherwise he would expose his neighbor to the danger of damage. But he must resign altogether if there is no hope that by studying he will ever become fit. He must diligently examine cases and weigh well the reasons of the adverse parties. L. 195; l. 1, n. 170.

How ought a judge to exercise his office? - A judge is bound to fulfill his office duly with incorruptible integrity, with no acceptance of persons. The reason is that one accepting the office of judge is obliged to this by quasi-contract with society. Wherefore, acting otherwise, he will be guilty of violated justice, both legal and also commutative. Eccl. 7, 6; Deut. 1, 16, 17; C. Cum aeterni 1. de Sent. et re iud. in the Sixth; R. 12 de R. I. in the Sixth; S. Th. 2. 2. q. 63. a. 4.

What must a judge furnish, so that he may fulfill his office duly? - He must furnish two things. The first is to judge cases and to expedite them quickly, nevertheless with the delay prescribed by the laws observed. For a judge is bound by office to render to each one his own right. But he rather injures right if he either omits to judge a case, or illegitimately hastens or delays sentence without a just and proportionate cause. Hence he sins mortally against his office by omitting the judgment of a case, or by very notably anticipating or delaying it without a sufficient excusing cause; and moreover he is bound to compensate the damages to the injured party which followed from the unjust omission, anticipation, and delay of judgment, because he is their unjust cause. C. Iurgantium 2. de Sent. et re iudic.; Trent, sess. 24, c. 20 de R., sess. 25, c. 10 de R.; L. 196. The other is to render legitimate judgment. For a judge is the interpreter of justice and animated justice. But judgment is the definition or determination of the just, or of right. And in Deut. 16, 18 it is said: You shall appoint judges and magistrates in all your gates, that they may judge the people with just judgment. R. 26 de R. I. in the Sixth; L. 13 de Iudic. C.; L. ult. de Iure Fisci C.; L. 44 de Decurion. et de fil. eor. C.; L. 58 de Excusat. ff.; Nov. 83; S. Th. 2. 2. q. 60. a. 1, 2.

What is required for rendering a legitimate judgment? - Three things are required. The first is jurisdiction, without which, speaking in itself, there is mortal sin, and the sentence is null, unless there is a colored title and the error is common. But by canon law someone obtains an external forum by reason of domicile, thing, contract, or delict. C. Licet 20. de For. comp.; C. Cum quidam section 1 de Except. in the Sixth; C. Novit de Iudic.; C. 35 Quicumque cause 11, q. 1; C. 1 cause 3, q. 7; L. Barbatius Dig. de Offic. praetor.; S. Th. 2. 2. q. 60. a. 6; q. 67. a. 1; Lugo d. 37, s. 2, 3; Sanchez, de Matr., l. 3, d. 22.

The second is right process, for example, that the defendant be cited and heard, unless perhaps sometimes it is expedient, when the crimes are public, atrocious, and there is danger in delay, to punish immediately those apprehended in the very act of crime. Testimonies and documents offered in judgment must be followed. Likewise all other formalities of public judgments established by the laws are to be observed. For as the judge proceeds by public authority, so also he proceeds by public knowledge. L. 193; S. Th. 2. 2. q. 67. a. 3; Lugo d. 37, s. 6, 7; C. In causis 19. de Sent. et re iud.; CC. Si legitimus 1, Evidentia 9 de Accusationibus; Clem. 2 de Sent. et re iud.; title de Ord. iudic. C.

The third is that he proceed from an inclination and intention of justice, according to the laws and the right norm of prudence. For if he does not proceed from an inclination of justice and according to the laws and prudence, the judgment is unjust and depraved. C. Sententia 1 de Sent. et re iud.; L. 14 de Iudic. C.; S. Th. 2. 2. q. 60. a. 2; L. 194; Decretals l. 2; Trent, sess. 13, c. 17 ff. de R.; sess. 24, c. 20 de R.; sess. 25, c. 6, 10 de R.

Note: Cases to be treated are some ecclesiastical, concerning sacred things or things annexed to them; others civil, concerning profane things; others are mixed. The former are directly of the ecclesiastical forum, the latter of the secular forum, unless they are cases of clerics, and indirectly also of the ecclesiastical forum, and the latter are of mixed forum, when the rights are at once civil and ecclesiastical; and in these there is place for the Rota. To the Rota are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. As regards ecclesiastical cases, once a supplicatory petition for obtaining a matter, whether pertaining to grace or to justice, has been brought and received by some office of the Roman Curia, no one for any reason is permitted of his own accord to approach another office for the same end; but the consent of the office itself with which business has begun is necessary, or a decree of the Consistorial Congregation, by which permission is given for transferring the business. Matrimonial cases pertain to the Church; and except in the case of the Church's toleration, lay judges cannot take cognizance of them.

The process concerning the validity of marriage must be instituted according to the Constitution Dei miseratione of Benedict XIV, November 3, 1741, and the Instruction of the S. C. C., August 22, 1840, unless the impediment is clear, for example, the impediment of bond; for then the Bishop, with the intervention of the defender of the bond, will be able to declare the marriage null. The tribunal in matrimonial cases is constituted of the judge, the chancellor, and the defender of the bond. Besides the plaintiff and the defendant, there are present witnesses of the seventh hand, indicated by the husband and wife, and they are seven persons joined to them by blood or affinity, if they can be had; or otherwise seven neighbors of good reputation who can testify, seven on the part of the man and seven on the part of the woman. Nevertheless others are not excluded who know the matter and are worthy of trust.

A dispensation from a ratified but non-consummated marriage is to be obtained exclusively from the Supreme Pontiff. In this cause the Bishop cannot, without a special faculty obtained from the S. C. of the Sacraments, institute the process in this cause. But in other causes the Bishop is the competent judge in first instance. Constitution Sapienti Consilio, A. A. S. v. 1, p. 7 ff.

Rota: To it are devolved all contentious cases, not greater ones, which are conducted in the Roman Curia, civil as well as criminal, with the judicial process observed. But cases are treated in a disciplinary manner by the Congregations themselves to which they pertain by reason of the matter. The Proper Law must be observed by the S. R. Rota, which is appended to the praised Constitution Sapienti consilio. In it are established the constitution of the Tribunal, its competence, and the mode of judging. Moreover, in judgments the Rules approved by the Supreme Pontiff Pius X on August 2, 1910, and promulgated on October 25 of the same year, are to be observed. Finally, those things also are to be observed which pertain to it in the Constitution Sapienti consilio and in the Order to be observed in the Roman Curia. "Each Auditor of the Sacred Rota, after nomination, before he undertakes the office of judge, before the whole College, with one of the notaries of the sacred tribunal standing by, who will draw up the act, will take an oath concerning the office to be fulfilled duly and faithfully." "The same oath will be taken by each of the assistants of the Auditors and the ministers of the tribunal before the Dean of the Sacred Rota, with one of the notaries likewise standing by." Canon 7, title 1, Proper Law, A. A. S. v. 1, p. 21. "In a criminal matter, in spiritual causes, and in others, when from the revelation of some act prejudice can come upon the parties, or secrecy has been imposed by the tribunal itself, the Auditors, assistants of the Auditors, and ministers of the tribunal are held to the secrecy of office." Canon 8, title 1, ibid. "Auditors who have violated secrecy, or who from culpable negligence or deceit have brought grave detriment to litigants, are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the Apostolic Signatura, confirmed by the Most Holy One, they can be punished. "The ministers of the tribunal and procurators who have done similar things likewise are bound concerning damages; and at the instance of the injured party, or even by office, by judgment of the rotal College, according to the measure of damage and fault, they can be punished." Canon 9, title 1, ibid. Moreover, according to the Rules to be observed in judgments of the S. R. Rota: If it concerns a criminal case, the Promoter of justice must assist the Instructor.... But in causes regarding the bond of marriage, or the validity of religious profession or of sacred ordination, the intervention of the Defender of the bond is required according to the norm of the Constitutions Dei miseratione and Si datam.... It will belong to the Instructor in criminal accusations to assign to the accused a defender, who is to assist him even in the period of instruction, if he does not have an advocate, nor can sufficiently attend to his own defense by himself. Title 4, c. 1, sections 108, 109. From the same Constitution Sapienti consilio, the Proper Law of the S. R. Rota and Apostolic Signatura, if, after a case has been introduced, the plaintiff wishes to renounce the instance, or the lawsuit, or the acts of the case, this will always be permitted to him. Canon 34, title 1.

Sacred Congregations: "In cases to be conducted before the Sacred Congregations by the path of administration and discipline, the joinder of issue having been removed, the hearing of witnesses excluded, and no writings of patrons received, the question will be held; nevertheless the parties whose interest it is will always be heard, and the documents produced by them will be examined." Order to be observed in the Roman Curia, Special Norms, chapter 3, article 2, number 7.

Once a question has been instituted in a disciplinary manner before one Sacred Congregation, it is no longer lawful to institute a strictly judicial action. Pius X, Constitution Sapienti consilio, Order to be observed, special norms, c. 3, a. 2, n. 10.

Council of Trent: Council of Trent, sess. 25, c. 6 de R., establishes that in exempt Chapters, at the beginning of any year, the Chapter is to choose two from the Chapter, by whose counsel and consent the Bishop, when he proceeds outside visitation, is bound to proceed both in forming the process and in the other acts against anyone from the capitulars. But one vote belongs to both adjuncts, and one of them can accede to the Bishop. Lugo, Resp. Mor., l. 5, d. 23.

How one must proceed in causes of those defecting from Religion you have in the Council of Trent, sess. 25, c. 19 de Reg.; in causes of clerics who are concubinarians, ibid., c. 14 de Ref.; in causes of exempt persons, ibid., sess. 7, c. 14 de R.; in criminal and civil causes, ibid., sess. 7, c. 14 de R., sess. 24, c. 5, 20. Cf. also various decrees issued concerning this matter, Ferraris, supplement, v. Processus in causis clericorum; E. M. "It is unlawful for clerics, even those having lay power, to condemn the guilty to the penalty of death, from C. Continentia 2 de Cler. percuss. Yet the Pope can dispense in this. And Bishops themselves, or similar persons, having temporal dominion of some place, can licitly commit their power to laymen for cases of blood." L. 1. 3, n. 378; l. 7, n. 566; S. Th. 2. 2. q. 64. a. 4. A lay judge cannot drag ecclesiastical persons before his own tribunal unless this is permitted by Canonical Dispositions, Concordats, approved custom, or at least toleration. For this would be against the privilege of forum.

A judge sins by fraudulently inducing the defendant, or contrary to the order of law, to betray himself, or by using some knowledge unjustly extorted.

How must right process be instituted? - In a civil case the process must be instituted at the petition of the plaintiff. Plaintiff is so called from action. Action is the right of pursuing in judgment what is owed to oneself. Hence he who proceeds in judgment by actions is called plaintiff.

But it is necessary that he be able to stand in judgment; that he have an action in judgment according to the laws; that he manifestly prove what he seeks. Proofs are made by examination of laws and facts, by sentences given in other similar cases, by presumptions, by sworn witnesses, by writings, by the sworn confession of the party. C. I. 1312 ff., 2142; C. G. 1315 ff., 2275; C. L. 2404 ff. But actions are repelled on the part of the defendant by exceptions, which he himself likewise is bound to prove. "Exception is so called as a certain exclusion, which is customarily interposed against the action of any matter in order to exclude that which has been brought into the intention or condemnation." L. 2 de Except. Wherefore one exception is of fact, another of law. By the former the fact is excluded, for example, the loan received. By the latter the law is excluded, for example, if a homicide, not criminal, was committed in order to defend oneself.

Other proofs having been omitted, either an interrogatory or an oath can be tendered to the defendant. If an interrogatory is tendered, the defendant must answer, and if he has not answered, it will be taken as confessed. C. I. civil procedure 216 ff. But an oath is twofold, decisory and supplementary. A decisory oath is a certain species of settlement for ending a lawsuit, and therefore it is tendered by one party to the other. Hence, if the defendant does not furnish the oath, he is condemned; likewise, if the plaintiff does not furnish the oath tendered to him, he is condemned. But if the defendant furnishes it, even if he is perjured, he is absolved. C. I. 1364 ff.; C. G. 1358 ff. Namely, he is absolved, even if perjured, in the external forum, but he is not freed from obligation in the forum of conscience; for the settlement was made by oath, not by perjury. The oath is tendered concerning one's own fact, and also concerning the fact of another, if there is a presumption that it is known by the one swearing, and if it is necessary for expediting the case to know that fact. A supplementary oath is one which is tendered by the judge to complete proofs, but not to the defendant himself in a criminal case. C. I. penal procedure 232. Cf. L. 11 de Act. rer. amot. ff. As regards the forum of conscience, the judge cannot tender it to one who probably will perjure himself, without injuring charity and justice. For it is in his power to tender it or not. C. I. 1314 ff.; C. G. 1366 ff. Cf. Rules of the S. R. Rota, title 4; L. fin. de Iureiur. ff.; C. L. 2520 ff.

In a criminal case from Roman Law, and also from more recent law as regards the very substance of the matter, the process can be instituted in three ways: 1. By way of accusation, when there is some accuser who promises that he will prove the crimes objected. 2. By way of denunciation, when the one reporting the crime does not wish to assume the burden of proving. 3. By way of inquisition, which the magistrate institutes.

In the accusatory process the whole case is conducted between the accuser and the accused. The accuser objects the crime; the accused responds, denies or confesses the fact, and if he confesses he is as condemned. Witnesses are all examined before both, and orally. For no one is to be condemned unheard and without witnesses. Formerly the defendant was tortured on the rack, so that full proof might be made from his confession. But by present laws no one can be compelled to bear testimony against himself. Then the sentence of innocence or guilt is pronounced, and punishment is imposed by law on the guilty person. If the accuser has failed in proof of the crime and from malice has brought someone into danger of grave penalty, formerly he suffered a similar or talion penalty. Today an action of calumny and defamation is granted against the accuser. S. Th. 2. 2. q. 68. a. 4; Deut. 24, 19 ff.; Decretal de Calumniator.

The way of denunciation falls back into inquisition. For when the matter has come to the knowledge of the magistrate through denunciation, either from one lodging complaint, or from an informer, or from ministers of public order, then he begins to inquire into the delict and the delinquent. He can inquire into the delict from the slightest indications, but into the delinquent only from grave ones. Once the inquisition has been completed, the delinquent is subjected first to summary examination, then to ordinary examination. Then the criminal process is instructed before him, and witnesses are examined in it. If from it the defendant is proved guilty, he is condemned; if he is proved innocent, he is absolved; if neither is established from the acts and proofs, he is dismissed.

Moreover, inquisition is threefold. The first is general, namely when it is asked in general whether the laws are observed, whether there are transgressors. The second is special, when inquisition is instituted concerning a certain crime and concerning a certain person as its author. The third is mixed, when either the person alone or the crime alone is special, for example, whether Titius is guilty, or who killed Caius. L. 197; S. Th. Quodl. 11, a. 13.

Therefore by whatever way the process is instituted, there is always some accuser, whether a private or public person, whether physical or moral. Accusation can be both formal and virtual. Hence the evidence of the fact, public infamy, or notoriety of the crime supplies the place of the plaintiff or accuser. In judgments three persons are required: judge, plaintiff, defendant. For judgment is an act of justice, which is not toward oneself, as are the other virtues by which man is ordered in himself, but is toward another, ordering man to another. S. Th. 2. 2. q. 67. a. 3.

By canon law a previous admonition of the defendant is often required, for example, in causes of clerics who are concubinarians, and where excommunication is to be inflicted. Trent, sess. 25, c. 3, 14 de R.

Decretals l. 2; L. Qui crimen C. de iis, qui accusare non possunt; L. ult. C. de Accusat. et inscript.; Sanchez, Cons., l. 6, c. 2, proem.; Lessius, l. 2, c. 29, n. 106; Lugo d. 27, n. 75; E. M.

The rack: It is a kind of torment, namely a wooden machine put together in the manner of a horse, cavalletto, upon which those concerning whom there was inquiry about some crime were stretched out and tortured, so that full proof might be made from their confession.

What concerning general inquisition? - A judge, without any special occasion having been given, from his office alone can institute a general inquisition, in which nevertheless his power does not extend to eliciting hidden delicts, concerning which there is no report, or which turn to the damage of no one. The reason for the former is that this is necessary for the republic, and no injury is done to anyone. And although the crimes of some persons may be uncovered, this occurs accidentally, beyond intention, and the common good prevails over that inconvenience. The reason for the latter is that otherwise the reputation of the neighbor would be injured directly and in itself; and this right, speaking in itself, neither the judge nor society itself has. Then the greatest inconveniences of scandals, quarrels, etc., would follow, and public peace would be disturbed. Wherefore, for the common good of society itself, always speaking in itself, it is more profitable that delicts remain hidden than that they be made public, so that scandal may be removed, lest others be stirred up by the example of others to perpetrating similar crimes. Nevertheless always except cases of imminent danger of common or private damage, in which the judge can and must inquire even concerning secret delicts. C. Perniciosa 1. de Off. iud. ord.; L. 198.

199; Lugo d. 38, s. 6; Lessius, de Iust. et Iur., l. 2, c. 29, dub. 13; S. Th. Quodl. 11, a. 13; 2. 2. q. 33. a. 7.

What concerning special inquisition? - "For a judge to make a special inquisition, there must, at least regularly, precede infamy, or something equivalent, which gives a just cause. The reason is both because otherwise he would defame without cause, and because a judge must proceed from public knowledge, which he does not have except through accusation, or the confession of the defendant, or evidence of the fact, or through infamy; for which two witnesses are not sufficient, who swear that they have seen the crime committed, because it is still hidden, but it is required that rumor be spread through the greater part of the community, that is, of the city, neighborhood, or monastery, and that it not have arisen from slanderers, although in this matter it is safe to follow the common practice of good men and republics." L. 801.

Regularly; for again there are excepted cases, namely if there is imminent danger of common damage, or of grave damage to another person, or if it concerns graver crimes, homicides, thefts, and other things disturbing the republic, and if there is some suspicion arising from indications not slight, lest delicts left unpunished provide occasion for wicked men to disturb the republic by their crimes and to injure the innocent. Wherefore the judge must then use great prudence, and have regard to persons, and until he sees whether the matter can be proved, he must take information in such a way that reputation is injured as little as possible. Hence, if he sees that it cannot be proved, he must desist. Lessius, l. 2, c. 29, dub. 15.

But lest meanwhile the defendant be able to corrupt witnesses or himself flee, the judge can command that he be enclosed in prison. But this cannot be done without grave delict and grave indications. Lev. 24, 12. Indeed by common Law it is provided that an innocent citizen not be enclosed in prison; and likewise to defendants the faculty is given, pledges having been furnished, of enjoying liberty until they have undergone judgment, unless they are accused of greater crimes with a great presumption of delict. S. Th. 2. 2. q. 14. a. 3; Quodl. 11, a. 13; Lugo, l. c.; CC. Accedens 23, Qualiter et quando 24, Cum oporteat 19, Inquisitioni 21 sections 1-2 de Accusationibus; Trent, sess. 25, c. 6 de R.; C. I. penal procedure, l. 1, title 1, c. 2, title 2, c. 1-4.

What concerning mixed inquisition? - Mixed inquisition also is licit; namely, when the crime is manifest and the author is unknown, it is lawful for the judge to ask in general who committed it; nevertheless not in particular, for example, whether Peter did it, unless some infamy and manifest indications have preceded. The former part is clear both from the practice of all even fearful judges and from the contrary inconveniences; for crimes and delicts would easily be multiplied. But the latter part is established from this, that this would be to defame the neighbor without legitimate cause. L. 189, 200.

Hence the same Holy Doctor, 201, says that "it must be noted that prelates cannot inquire against religious in doubt whether sufficient indications are present... for inquisition, because in doubt their reputation possesses, which would then be stained by inquisition. Understand, however, unless danger of common damage is imminent; for then the right of religion prevails"; or also if grave damage of a private person is imminent, whose certain right prevails. This, as is clear, is general and not proper only to religion. Lugo, l. c.

Note: If it concerns inquisition that is not judicial, unto penalty, but paternal, unto the amendment of the defendant, there is indeed a broader faculty in this matter, as is established from common practice itself. For Bishops and regular superiors in visitation, which ordinarily they make only paternally, are accustomed to investigate even in particular concerning clerics and religious: how they conduct themselves, how they themselves are content with others and others with them, whether they observe the laws, etc. But even this paternal inquisition, if it is not made about all according to custom, but about one or another in particular, cannot be made unless some special reason is present and due caution is observed, lest anyone thereby be defamed. Otherwise an investigation of this kind becomes vicious and reprehensible, because it degenerates into detraction, "and because it generates scandals and provides occasion for hatreds and dissensions. For men bear it with difficulty when their deeds are scrutinized by others, and by its very nature such an inquisition inflicts injury on the neighbor, whose honor it opposes, and the estimation which all desire to have as best concerning themselves." Diana t. 7, tr. 4, res. 25, n. 3.

Can a judge condemn a defendant whom by private knowledge alone he knows to be guilty, or an innocent person who is juridically proved guilty? - R. To the first: Negatively. For a judge judges as a public person, and therefore he must follow public knowledge and proceed according to the things alleged and proved, especially in favor of the defendant. Besides, the judge would then proceed without an accuser, which is against justice and against the order of public judgments. S. Th. 2. 2. q. 67. a. 2, a. 3; L. 207. But, speaking not of an inferior judge, but of the Prince himself, and of civil causes and the removal of offices, etc., Lugo observes, d. 37, s. 5, n. 54: "perhaps the Prince has greater power for this, that from private knowledge he can sometimes condemn a defendant not convicted; for since the republic has greater dominion over these things and can dispose of them in order to the public good, it can more easily happen that it is expedient for the public good to take goods or an office from someone because of the testimony of the Prince alone. But an inferior judge cannot do the same; "for he cannot dispense in the law of a superior, especially in a matter of such great moment." Lugo, l. c., n. 50.

R. To the second: "One whom the judge privately knows to be innocent, if he has juridically been proved guilty, the judge is bound by every means to free, if he can, for example, by impeding the accusation, drawing out the judgment, opening the prison, if he can do so without a greater evil, or remitting the case to a superior." L. 208; S. Th. 2. 2. q. 64. a. 6 ad 3; q. 67. a. 2 c.

But if the judge by acting thus can accomplish nothing toward freeing the innocent person, then there are three opinions, all probable. The first opinion, of the Angelic Doctor, teaches that the judge can always in any case whatsoever render sentence according to the things alleged and proved. The reason is that the judge does not judge as a private person, but as a public person. Therefore in judging he must follow not private knowledge, but public knowledge. "He must follow them (the proofs introduced) in judging." 2. 2. q. 67. a. 2 c. Moreover, the common good requires that the order of law be preserved intact in judgments. Finally, "if a judge knows that someone is innocent who is convicted by false witnesses... he does not sin by rendering sentence according to the things alleged, because he himself does not kill the innocent man, but those who assert him to be guilty." 2. 2. q. 64. a. 6 ad 3.

The second opinion, very probable to St. Alphonsus, denies that in any case whatsoever the judge can render sentence against him whom he certainly knows to be innocent. The reason is "because to condemn the innocent is intrinsically evil; just as it would be to compel a woman to live with him whom she privately knows not to be her husband." L. 208.

The third opinion, of Lessius and Lugo, distinguishes between criminal cases in which there is question of the penalty of life or mutilation, and civil cases or criminal cases in which there is question of a monetary penalty, or of simple detention, or of exile or deprivation of offices. In the former it denies that it is lawful for the judge to condemn the innocent. In the latter, however, it grants that this is lawful. The reason for the former part is that it is evil in itself to kill or command someone to be killed without authority. But the judge has no authority over the life of an innocent person, since society itself lacks such authority. The reason for the latter is "because the republic has authority of disposing concerning the fortunes of its citizens and transferring them from one to another, as it has been expedient for the public good; as is clear from the laws of usucaption. But here there seems to be a just cause, both lest the form of public judgments be perverted with scandal of the people, and because a reason does not offer itself for averting the inconvenience of this man. Therefore it can establish that the judge in such a case follow the public form of judgments, even if from this it happens that he must despoil of fortunes one whom privately he knows to be innocent or to have a good case." Lessius, l. 2, c. 29, dub. 10, n. 84; Lugo d. 37, s. 4, n. 42 ff.; C. Inquisitionis suae de Sent. exc.; Ithur. Cas. 34; L. 1. 6, n. 999, 1502; E. M.

Moreover, in modern Codes jurors judge concerning the crime, and the judge only renders the sentence of the law by which the penalty is sanctioned. If the judgment of the jurors does not rest upon the acts and proofs, Carriere, de Iust. et Iure, n. 2, n. 753, thinks that the judge can render sentence against the innocent man, "since he does not have to pronounce concerning the innocence or guilt of the accused, but only concerning the application of the penalty." But if the judgment of the jurors has evidently been rendered not from the acts and proofs, but rashly from malice or from ignorance, the judge cannot render sentence against an innocent man; for although he has been declared guilty, nevertheless he has not been proved guilty. C. Italian Penal Procedure, a. 509.

Does the sentence of a judge oblige in conscience; and to what is the judge bound who has rendered an unjust sentence? - R. To the first: Affirmatively, if it is certainly just. The reason is that a legitimate precept of a superior obliges in conscience. But the sentence of a judge is compared by law to the precept of a superior, commanding or prohibiting some matter in a certain particular case. "The sentence of a judge is as it were a certain particular law in some particular fact." S. Th. 2. 2. q. 67. a. 1 c. From this the Angelic Doctor deduces that "just as a general law must have coercive force... so also the sentence of a judge must have coercive force." Similarly, as a general law must have the force of obliging, so also the sentence of a judge must have the force of obliging.

R. Negatively, if it is certainly unjust. For just as one is not bound to obey him who does not have authority of commanding, so much more one is not bound to obey him who abuses authority by commanding unjust things. C. Inter ceteras 9 de Sent. et de re iud.; S. Th. 2. 2. q. 60. a. 6 c. ad 4. Wherefore someone can secretly compensate himself, unless the other has justly prescribed. It is said negatively, that is, not to oblige in conscience, "because in the external forum, where not so much the truth of the fact as juridical proof is regarded, the sentence pronounced is to be observed, in order to avoid scandals and inconveniences (if indeed they are present and cannot otherwise be avoided); nor, after the term has elapsed within which it was lawful to appeal, is an action granted to him, the law so establishing, both as a penalty for sluggishness and on account of the public good, that there be an end of lawsuits." L. 215.

R. Affirmatively, if it is doubtfully just. The reason is that presumption favors the superior or judge, and in practice there would be very grave inconveniences, and there would never be an end of lawsuits. Besides, obedience must be given to a superior legitimately commanding. But in the case of the aforesaid doubt and probability, the superior or judge still commands legitimately. Moreover, he certainly possesses the right of urging execution, of which he cannot be despoiled unless the opposite certainty of injustice is present.

But it is permitted to appeal from the sentence of an inferior judge to a superior judge, even if the sentence is only probably unjust; and once appeal has been interposed, the sentence rendered ceases meanwhile. The reason is that that inferior sentence of itself is neither absolute nor simply definitive, but only if it is accepted as such and no appeal is interposed. But after the sentence has passed into a matter adjudged, it is now absolute and definitive, and it must be stood by even in the forum of conscience, even in doubt whether it is just. C. Cum super 17 de Sent. et re iud.; C. L. 2502 ff.; Lugo d. 37, s. 15, n. 185 ff.; S. Th. 2. 2. q. 69. a. 3; Quodl. 4, q. 8, a. 14. Cf. n. 86.

The sentence of a judge is one thing when interlocutory, concerning an incidental question; another when definitive, concerning the principal controversial case. And one is a sentence of absolution of the defendant, another of condemnation of the defendant, another of dismissal because the crime has not been proved. But a condemnatory sentence is one thing simply condemnatory, another declaratory of crime and penalty.

The commands of the praetor, spoken between two parties, are called interdicts. In several cases interdicts were given by the Praetor, but especially the Praetor interposed his authority in ending lawsuits concerning possession or quasi-possession. Inst. 4 de Interdictis.

Generally speaking, appeal in suspensive effect is not given as regards merely disciplinary decrees, but only in devolutive effect. Benedict XIV, Constitution Ad militantis, March 30, 1742.

R. To the second: If the judge from inculpable error has rendered an unjust sentence, he is bound to revoke it, if he can do so without grave inconvenience. The reason for the assertion is that he is bound by office to impede the evil of the neighbor, "otherwise, if, while he can, he does not impede his error, that will now be imputed to him as conserving it, which before, because of inculpable inadvertence, was not imputed." Lugo d. 37, n. 3. Nevertheless he is not bound to sustain grave inconvenience, since justice was not formally injured, nor in the quasi-contract of accepting an office or munus is anyone judged to be obliged also that he correct inculpable errors with notable inconvenience to himself. R. 23 de R. I. in the Sixth. If by deceit, or by culpable great imperitia, he rendered an unjust sentence, he must revoke it, if he can, even with grave inconvenience to himself; and he is bound to repair all damages coming from it to the injured party. For he is the unjust, efficacious, culpable cause of such damage, and therefore he is bound to reparation. L. 195, 214; C. Tum ex litteris 5 de In integr. restit.; C. B. 839; C. L. 2401 ff.

14 bis. Note: There are various grades of judgments. Three grades are regularly constituted in judgments: first instance, appeal, and recourse to the supreme Curia.

From the Constitution Sapienti consilio, the Sacred Roman Rota judges in first, in second, and in last instance. Cf. canon 14. Moreover, "it also sees concerning recourses for restitution in entirety from any sentences whatever which have passed into a matter adjudged and cannot find a remedy before the judge of second instance, according to the title de Rest. in integr.; provided nevertheless that it does not concern a matter adjudged from a sentence of the Sacred Roman Rota: and in these it judges both concerning form and concerning the merit." Canon 14, section 4, title 1.

Besides the Sacred Roman Rota there is the Supreme Tribunal of the Apostolic Signatura, which takes cognizance and judges concerning suspicion against some Auditor, concerning violation of secrecy, concerning damage inflicted by Auditors from an act of theirs null or unjust in judging, concerning a complaint of nullity against a rotal sentence, concerning a petition for restitution in entirety against a rotal sentence which has passed into a matter adjudged. Canons 35, 37, title 2.

Is a judge, gravely negligent or unjust in executing a case and rendering sentence, bound to restore not only to the injured party, but also to the treasury, for example, if without cause he remitted a monetary fine which by law he ought to have imposed on the defendant? - Busembaum and others probably affirm. The reason is that he is the unjust cause of the damage which the treasury suffers. But others also probably deny this, if the defendant has not yet been condemned to the fine. "The reason is that before sentence no right to the penalty is acquired by the treasury; hence, if the judge unjustly absolves the defendant, he sins against legal justice, not commutative justice." L. 196, 238. That is, the judge from his office must coerce the guilty, but so that others not offend, not so that the treasury or private persons may become richer. Except if from the unjust remission of penalty damage would come to a private person or to the republic; for by force of his office he is bound to impede that. S. Th. 2. 2. q. 67. a. 4 ad 3; L. l. c. and n. 237; Lugo d. 37, s. 8, n. 97. Cf. 61.

Must a judge judge according to written laws? - R. Affirmatively. "Augustine says: In these temporal laws, although men judge concerning them when they institute them, nevertheless when they have been instituted and confirmed, it will not be lawful for judges to judge concerning them, but according to them.... Judgment is nothing other than a certain definition or determination of that which is just. But something becomes just in two ways. In one way from the very nature of the thing, which is called natural right; in another way from a certain agreement among men, which is called positive right.... But laws are written for the declaration of each right, yet in different ways. For the writing of law indeed contains natural right, but does not institute it; for it does not have force from law, but from nature. But the writing of law both contains and institutes positive right, giving to it the force of authority. And therefore it is necessary that judgment be made according to the writing of law; otherwise judgment would fall short either of the naturally just or of the positively just." S. Th. 2. 2. q. 60. a. 5; Inst. l. 3, t. 17; L. Rem non novam C. de Iudiciis; C. 1 de Sent. et de re iudic.

You will resolve: An inferior judge, speaking in itself, ordinarily cannot relax or diminish a penalty, even if the plaintiff or accuser consents, unless sometimes epikeia dictates that something else is necessary for the good of the republic, or unless the judge justly interprets the will of the superior, or unless another just cause is present, in which the end of the law rather than the bark of the words is to be attended to. The supreme judge himself cannot do this without a just cause, whence, acting otherwise gravely, he would sin, because he would render delinquents more bold, and thus would concur in sin. Nevertheless in all things the chief account is of justice and equity rather than of strict law. L. 8 de Iudic. C.; S. Th. 2. 2. q. 66. a. 6 ad 2; q. 67. a. 4; q. 60. a. 5 ad 2; 4 d. 46, q. 1, a. 2, q. 2; Lugo d. 37, s. 8.

Speaking in itself; for practically today penalties are determined by the laws themselves, and their limits, of maximum and minimum penalty, are defined, which judges cannot exceed. C. I. penal 1.

A judge can supply those things which have been omitted by the litigating parties and their advocates, and which are of law. But those things which are of fact he regularly ought not supply, for otherwise he would assume to himself the office of the contending parties. But he can supply even these if the fact is known from the public acts of the judgment, or if the fact is both manifestly and publicly known, if it concerns public good, miserable persons, the good of the soul, or a pious and religious cause. L. 1 Ut quae desunt adv. part. etc. C.

What must the judge do when the law is not clear, but obscure, and on both sides there are opposed probable opinions? In criminal matters the defendant is to be favored, both as regards the existence of the crime and as regards the infliction of penalties. The reason is that according to the rules of Law: In doubt no one is presumed evil unless it is proved; when the rights of the parties are obscure, the defendant is to be favored rather than the plaintiff; hates should be restricted and favors should be expanded; in obscure things the minimum is to be followed; in penalties the more benign interpretation is to be made; it is more satisfactory that the crime of the guilty be left unpunished than that an innocent man be condemned. R. 49 de Reg. Iur. in the Sixth; L. Absentem 5 de Poenis; L. 25 de Probat.; S. Th. 2. 2. q. 60. a. 4; Elbel, de Actib. human., 197 ff.; C. L. 2515.

In civil cases, probability of fact and probability of law must be distinguished. A doubt of fact, for example, is: whether the man was master of himself when he made the testament; whether Titius committed such a delict, falsified writings, etc. In such a doubt sentence must be rendered according to the Rules of natural and positive Law: In doubt a fact is not presumed, but must be demonstrated; in doubt the deed is presumed, or presumed to have been rightly done, which had to be done by law; in doubt one must stand for the validity of the act; in doubt one must stand for him for whom presumption stands; once evil, always presumed evil; ignorance of fact, not of law, excuses; in obscure things we inspect what is more likely, or what is usually accustomed to happen, etc., de Reg. Iur. in the Sixth.

A doubt of law is when it is doubted what the law commands in such a case, whether the law is extended or not extended to it, etc.; and on both sides there are probable opinions. In such a doubt of law, either no one possesses the thing, or someone is possessor of the thing.

In the first case, that no one possesses the thing, if it is doubtful to which of the parties the law favors more, or if, without doubt, the law equally favors the parties, there is a twofold opinion. The first opinion holds that the thing must be divided. The reason is that the judge is not the master of things, but the declarer of law in a particular case, and consequently the distributor of things not according to his pleasure, but according to the rights of the parties; and therefore, if the rights are equal, he must divide the thing equally between them. The other opinion holds that "the judge indeed does better by trying to reduce the parties to concord, yet absolutely he can choose one from among them (equally more probable opinions)... because the judge by the debt of his office is bound only to investigate the truth diligently, so that he may judge according to it; but in our case he judges most probably that this is the truth, and that this man has right: therefore he can judge for him with that equal probability." Lugo d. 37, s. 10, n. 115. And indeed, since each party then has, according to a probable opinion, an entire right to the thing, the judge will well be able to conform himself to one of these opinions, and he inflicts no injury on the other party. Nor is it valid to object that by judging the truth to be for one party the judge exposes himself to the danger of deviating from the truth and of depriving the other party of his right. For the judge cannot avoid this danger. For the danger is equal if he judges for the other party. But if he divides the thing, "then the danger will be more certain; for then it will be not only probable but most certain that the true owner is deprived of his thing as to the half part: therefore it is better to undergo that probable danger with a probable judgment concerning the justice of him for whom sentence is rendered, than most certainly to deprive the owner of his thing as to the half part." Lugo l. c. n. 118. This latter opinion is consonant with present laws and practice, and is confirmed by canon law and Roman law, so that in equal right the causes of marriage, dowries of widows, wards, and other pious causes always prevailed. L. 1. 4, n. 410.

But if, in the same case, that no one possesses the thing, a truly more probable opinion in a question of law favors one party, and a less probable opinion favors the other party, the common opinion holds that the judge must render sentence for that party for whom the more probable opinion stands. The reason is taken, first, from proposition 2 condemned by Innocent XI: "I probably judge that a judge can judge according to an opinion even less probable." But from this condemned proposition it follows only that the judge cannot render sentence for the less probable opinion, but by no means that he must render sentence for the more probable opinion and cannot divide the thing among the parties according to the proportion of probability. The reason is taken, secondly, from this, that the judge is constituted by the republic so that he may define the matter according to the merits of the case and according to the opinion which seems to him more conformable to law; for otherwise he would be an accepter of persons. But neither does this reason truly prove the assertion.

For if he must judge according to the merits of the case, he must divide the thing according to the proportion of greater or lesser probability. But that he is constituted by society so that he may render sentence for the more probable opinion, by ascribing the whole right to that party, is indeed asserted, but it is not established. Only this can be asserted, and is established in itself: namely, if the thing cannot be divided according to the proportion of greater or lesser probability, but the whole is ascribed to one party, because this is, for example, the practice of tribunals, then surely it is to be attributed to him who has the greater probability. But this practice of tribunals could be rendered honorable under a twofold head: 1. if it concerns a far greater probability, because then moral certitude is almost had, which often is difficult to distinguish from great probability; 2. if, while the judge ascribes the whole thing to one party, he frees the other from all expenses of the judgment and from reparations of damages, because then an equitable compensation is had. Therefore the better reason seems to be that which was just brought forward for the case of equal probability, namely because there is less danger of injustice, and the judge, as interpreter of justice, is bound to choose an opinion at least less dangerous, since a certain one cannot be had.

And this opinion again corresponds to present laws and practice.

In the other case, that someone possesses the thing, while equal probability of right stands on each side, the thing is to be adjudged to the legitimate possessor; for by reason of possession his right prevails absolutely. This is confirmed from R. 65 of Law in the Sixth: "In equal delict or cause, the condition of the possessor is the stronger." But if unequal probability is had, the first opinion holds that the judge is bound to adjudge the thing to him who has the greater probability for himself, although he is not the possessor. For first, possession in itself does not bestow a right of property, but only detention of the thing, until someone is legitimately despoiled; but the right of property is greater for the other party. Moreover, the dispute is about the property itself, not about the simple detention of the thing, which is extrinsic to it. Therefore, as in the case of greater probability, with no one possessing, greater probability prevails, so also it prevails in the case of possession. For that presumption of property which arises from possession is destroyed by greater probability of right. Besides, R. I. 65 in the Sixth evidently has force in an equal case, not in an unequal case. The other opinion holds that the judge cannot despoil the possessor. The reason is that legitimate possession, with human morals considered, speaking in itself, argues a morally certain right, even of property itself; for men are not accustomed to be negligent in guarding their own things. And upon this reason the law of prescription is founded, which is had by the very possession of the thing. Legitimate possession; for it would be otherwise if the possession itself were not certain, or not certainly legitimate. Moreover, legitimate possession, besides the very fact of possession, requires two things: title and good faith. Title is donation, inheritance, purchase, and similar things, through which ownership of some thing is customarily acquired. This title must be at least reasonably presumed. But good faith is the judgment by which, on account of such a title, someone prudently believes the thing to be his own. "And therefore judges commonly adjudge things to those having the more probable right, because in the external forum the good faith of the possessor can be proved only with difficulty." L. 210; l. 1, n. 47. Lugo d. 37, s. 10; Ithur. Cas. 34; Viva on proposition 2 condemned by Innocent XI; E. M.

Can a judge render sentence when the law itself is certainly unjust and inequitable? - If it concerns a civil law contrary only to ecclesiastical laws in which the Supreme Pontiff can dispense, as, for example, is the law of ecclesiastical immunity, the judge can and must, if judgment must be rendered, speaking in itself, seek the due faculty from the Holy See, or from the Bishop of the place, according to the various laws and various cases that occur. But he will easily obtain this faculty, since it is especially expedient for the good of society that there be honest judges in it. The reason for seeking the faculty is the usurpation of the rights of the Church which otherwise would be had, and the public scandal to be guarded against.

If it concerns a civil law contrary to divine and natural laws, then either the judge must command something directly against this right, or he must only apply some penalty. The first is evidently not lawful, and thus he ought rather to relinquish his office than to oblige by military force a concubine to remain at home with her lover. Thus also it is not lawful to render a sentence of divorce according to the law, namely, by which the bond of marriage is dissolved, power being granted to the spouses to enter new nuptials. For this is openly against natural, divine, and ecclesiastical right. For as it is inequitable to execute an inequitable matter, so it is inequitable to command its execution. S. Th. 2. 2. q. 60. a. 5.

The other seems to some also altogether illicit, because it is intrinsically evil to condemn an innocent person, namely when the law itself is evidently unjust, whose transgression is punished. But to others it seems that it can be excused. For to decree some temporal penalty is not always evil in itself; and there is present a most grave reason on the part of the judge, lest he be compelled to renounce his office, and on the part of consenting society, for which it is better that judges be good rather than bad, scandal always having been removed, either from approved custom and the practice of the fearful, or from due faculty previously sought. And thus he can decree a fine because of the omitted formality of civil marriage, which the Church tolerates in this sense, scandal always having been removed, as was said.

But although there is question only of decreeing a penalty, one must distinguish between penalty and penalty. For if it concerns the penalty of death, for example, mutilation, etc., since neither the person himself can yield his right, nor can society by its authority sanction such a penalty, it is altogether inequitable to impose it. "For positive right has place where, as regards natural right, it makes no difference whether it is done thus or otherwise." S. Th. l. c.

But if it concerns some monetary penalty, or another similar one, since anyone in this matter can yield his right, and society can consent, the judge surely can impose some slight penalty of this kind, lest he be compelled to renounce his office with grave damage to himself and to society itself. Consent is then reasonably presumed. Yet this also seems to be limited to the case in which it does not concern a law directly against nature, although it is rather harsh and not sufficiently just. For since the sentence of a judge is not any declaration whatever, but an authoritative one, authoritatively to confirm a law against nature, even by determining a monetary and slight penalty, is against nature. It is against nature to condemn to death a Christian who refuses to adore idols; it is against nature to condemn him to a penalty and fine, even of only five small coins, because he did not wish to genuflect before an idol. Certainly of such a judgment it cannot be said that it is a "definition or determination of the just or of right," nor can it be said of the judge that he is "interpreter of justice" or "animated justice." S. Th. 2. 2. q. 66. a. 1; a. 5 ad 1; q. 67. a. 3; E. M.

Can a judge licitly receive gifts? - It is wicked for a judge to receive gifts of grave moment, which indeed seem at least indirectly in some way to be exacted, or in which some danger of corruption is to be seen. But it does not seem that receiving only slight little gifts, offered altogether spontaneously, in which there is no danger of corruption, and which are not even indirectly exacted, can be reproved. The reason for the first part is that it is wicked to receive those gifts for a just sentence; for this must be rendered from office.

Likewise it is wicked to receive them for an unjust sentence, because this is not to be rendered. Besides, this is positively prohibited in Deut. 16, 18, 19, and in Canon Law, C. Statutum 11 de Rescriptis in the Sixth, section Insuper. It is also prohibited by Civil Law, by which every corruption of magistrates through gifts and promises is punished with grave penalties, both in those corrupted and in those corrupting. L. 18 Dig. de Offic. praesid.; C. I. penal 171-173. The reason for the second part is that, since they are offered from courtesy alone, they would be refused almost discourteously. This is confirmed by Canon and Roman Law, ll. cc.; for it is said that perhaps food or drink offered by mere liberality can be received, which can be consumed in a few days. Cf. also C. Cum ab omni 15 de Vit. et honest. cler.; C. I. 1458; Lugo d. 37, s. 11; S. Th. 2. 2. q. 71. a. 4 ad 3. Cf. n. 40.

If against the prohibition made a judge has received gifts, is he bound to restitution? - If the judge received gifts from litigants by donation, he is probably not bound to restitution before sentence. For "the aforesaid laws and others are understood either only for the external forum, or concerning restitution as a penalty of crime, for which a sentence is always required, even if not one inflicting the penalty, at least one declaratory of the crime." L. 216. But if he received by agreement for rendering a just sentence, that is, for furnishing that which by justice he owed, he is bound to restitution. The reason is that whatever is already owed by office, and therefore by justice, cannot be the matter of a contract. Much more, however, is he bound to restore those things which he extorted by force, threats, or unjust vexation. Likewise, if he received by agreement for rendering an unjust sentence, he certainly is bound to restitution before he renders such a sentence; but once the sentence has been rendered, he can retain it, since the sin has already been committed, and there is no sin in retaining the thing received; but since what had been promised and was not owed has been furnished, then the innominate contract is verified: I give so that you may do. And thus also "on account of fornication... a woman can retain for herself what has been given to her." S. Th. 2. 2. q. 62. a. 5 ad 2; Lugo l. c.; C. I. penal 171-174.

Can a judge at least receive money for expediting someone's case before another's? - "Laymann says that, considering natural law, he does not dare condemn this, because that new obligation which he undertakes is worthy of a price. But the Salmanticenses, n. 66, more truly contradict, because a judge from justice is bound quickly to expedite the cases of those who have equal right to expedition; unless he should undertake an extraordinary labor, to which by force of his office he would not be held." L. 196. Lugo also absolutely reproves this, d. 37, n. 136, for "whenever from justice he is held disjunctively to do something gratis, he cannot receive anything for the election of this part."

When litigants have for themselves equally probable opinions, can a judge receive money for rendering sentence in favor of one rather than the other, according to the opinion reported above? Cf. 18. - R. Negatively; for this proposition is proposition 26 condemned by Alexander VII. The reason is that "he would receive a price for a thing not worthy of a price; for from justice he owed to render sentence for one: but the determination to that part, although it makes the sentence more useful to me, nevertheless does not add labor, or anything on the part of the judge worthy of a price. Just as, if someone from justice owed to give a dowry to one of two virgins, he could not ask anything from her for choosing her. But the reason a priori is that it is repugnant to owe from justice to give an entire thing to one of two, and yet to be able to ask a price for it; for then it would not be given entire to one of the two, although from justice he is held to give it entire. Therefore he cannot, with justice preserved, subtract anything; otherwise he could receive as price half of the thing to be given, which would be manifestly against justice." Lugo d. 37, n. 119.

What are arbiters? - Arbiters are said to be those who are spontaneously chosen or admitted by both opposed parties, after the manner of judges, for settling some lawsuit. The pact by which the faculty of settling the lawsuit is attributed to them is called a compromise. By this pact the adverse parties by mutual consent promise that they will execute whatever shall be established by the arbiters. But from the sentence of arbiters, according to C. I., it is lawful to appeal, otherwise than from common Law, S. Th. 2. 2. q. 69. a. 3 ad 2. But the compromise can be drawn up either by public act or by private writing, according to C. I.; otherwise it is null. Dig. l. 4, title 8; Decretals l. 1, title 43; C. I. civil procedure, preliminary title, c. 2; Lugo, Resp. Mor., l. 6, d. 21.

Women are prohibited from being chosen as arbiters, because it befits them to be mindful of their modesty, and therefore they ought not to mix themselves in manly offices. L. fin. Cod. de Recept. arb.; C. Proc. I. 10. They are excepted if by law, custom, or privilege they obtain some civil jurisdiction. C. 4, l. 1, title 43 of the Decretals.

Commitment to arbiters cannot be made by private persons in those causes which directly pertain to the right of a Superior, as criminal and penal causes, or to the public good, as, for example, a cause of invalidity of marriage, of religious profession, etc.

Arbiters according to the Italian Penal Code 207 are held as public officials as regards the effects of penal law.

The sentence of arbiters, in the common tongue, is called a lodo. "If someone has been made arbiter concerning his own matter, he cannot say sentence, because he would order himself to do something, or prohibit himself from seeking something; but no one can command himself or prohibit himself." L. 51 de Receptis arb. Dig.

What is the office of arbiters? - Arbiters, whoever they may be, once admitted by the different parties, properly enjoy the office of judges, and carry out all their functions, just as if they had been designated by public authority. The reason is that someone can subject himself to the judgment of another, although that other is not his superior. If this is done by two litigants, so that the lawsuit may be settled, an arbiter is had, who therefore, although not from public authority, nevertheless is constituted judge from a private pact. But private pacts, like public laws, oblige in conscience. C. H. 1820; S. Th. 2. 2. q. 67. a. 1 ad 2.

You will resolve: Since arbiters fulfill the offices of judges, they have almost the same rights and the same obligations. Wherefore they can instruct the case brought before them, defer the matter to another more opportune time, hear witnesses, and finally, after sentence has been rendered, settle the lawsuit absolutely. They ought not undertake a lawsuit for judging which they do not have sufficient learning; otherwise they sin against commutative justice and contract an obligation of restitution, if in fact by erring they inflict damage. Arbiters are bound to judge according to the laws of the region, because they are assumed after the manner of judges, unless the parties have granted them the faculty of composing the matter according to equity and the good. For then, according to natural equity, they must promote the advantage of each party. They must take the greatest care against acceptance of persons, namely lest, abstracted by hatred, aversion, or excessive affection, they render sentence against the rules of equity. C. B. 319.

Note: For the sentence of arbiters to have force in the external forum, it is necessary to fulfill the conditions placed in the Codes of various nations. C. I. civil 1742, 1764 ff.; civil procedure 8 ff.; C. G. civil 1989, 2044 ff.; civil procedure 1003; C. H. 1821; C. A. 1391.

What are jurors? - Jurors, so called because of the oath which they furnish concerning rightly exercising the office entrusted to them, are men selected from the foremost citizens to undertake some part proper to judges. They are employed only in criminal causes, and their office is to pronounce judgment concerning the existence of the fact and the culpability of the accused; but then the judges decree the penalty according to the law. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

What are the obligations of jurors? - Jurors contract the same obligations as the judges themselves, while nevertheless staying within the limits of their office. The reason is that they exercise the office of judges in great part. Yet they ought not furnish all things to which judges are held, but only pronounce concerning the existence of the fact and the culpability of the accused. C. I. penal procedure 493 ff.; C. G. criminal instruction 337 ff.

179. What are the obligations of inferiors as regards ecclesiastical superiors? - Subjects are bound to exhibit to their spiritual superiors love, honor, and obedience in those things which look to their jurisdiction and care; likewise necessary support. It is proved: 1. This is clear from many places of Sacred Scripture, 1 Tim. 5:17, 18; Heb. 13:17, etc. 2. As regards love, reverence, and obedience: because they are superiors, having true jurisdiction; as regards support: because the worker is worthy of his wage. As to those who apply their work to the common utility, that is, to Princes, soldiers, and others of this kind, stipends of sustenance are owed by the people, so also to those who minister to worship unto the salvation of the whole people, the people owes stipends of sustenance. - Trent, s. 25, c. 17, de R.; Leo XIII, encyclical Sapientiae christianae, Jan. 10, 1880; St. Thomas, Quodl. 6, a. 10; Quodl. 10, a. 12.

180. You will resolve: Therefore all Christians are bound under grave fault to obey the Supreme Pontiff in things pertaining to faith, to morals, and to Christian discipline; for in these he is the Vicar of Christ on earth. In the same way diocesan subjects are bound to obey Bishops, according to the reason of the matter, in those things which look to their jurisdiction.

181. What are the obligations of ecclesiastical superiors? - Spiritual superiors in turn are bound to exhibit to subjects love, spiritual care, doctrine, and good example. It is proved: 1. This is clear from many places of Sacred Scripture; cf. the Epistles to Timothy and to Titus, and the Council of Trent, s. 23, c. 1, de R. - 2. It is evinced from their office itself. - Whence neglect of souls as regards their Christian instruction and administration of the sacraments, as regards their due admonition and correction, in ecclesiastical superiors is not only against charity, but also against justice, and for the most part a mortal sin, according to that saying of Ezek. 34:2, 4: Woe to the shepherds of Israel: that which was weak you have not strengthened, and that which was sick you have not healed, etc. - L. 357 seqq.

1. To Ferdinandus, a most pious man, prefect of a province, there was committed the execution of the Decree that religious families be expelled from that same province over which he presides. But if he refused to execute it, he himself would have to resign from office, and another prefect, altogether wicked, would be substituted in his place, who certainly will immediately, and more harshly, execute that Decree.

Q. Can Ferdinandus execute the aforesaid Decree, by commanding that even by military force, where there is need, religious be expelled from their own houses?

R. Negatively. For 1. it does not seem that, in circumstances of this sort, the Church yields its right, of the free existence of religious Orders and of ecclesiastical immunity. 2. It indeed does not appear how a most pious man can command the execution of so iniquitous and unjust a Decree without public scandal. 3. If that reason, which is the principal one, of resigning the office, were valid for a prefect on whom the burden of execution of the Decree falls, then it would also have to be said that the supreme minister of the Government himself, issuing such a Decree, would be excused, if otherwise he would have to yield his office. For if that mandate of execution is iniquitous, unjust, and scandalous, much more is the Decree itself iniquitous, unjust, and scandalous. Moreover there is no one who will ever excuse the supreme minister of the Government by that reason, that otherwise he would have to yield his office. Otherwise, now by similar Decrees he could with impunity attack any other right of the Church, which directly yields to public damage of Religion: for any minister who refused to sign Decrees of this sort would certainly be forced to resign his office. But that another is not lacking who would perform this evil and worse cannot render lawful that which is intrinsically illicit, by reason of scandal, by reason of hatred against Religion, by reason of injury against the legitimate liberty of the Church, the Church indeed being reasonably unwilling and contradicting.

2. Festus, a pastor, on account of a grave and urgent cause of death, joined in marriage Caius and Sempronia, concubinaries, although they had not previously contracted civil marriage before the civil magistrate. Festus is accused, as guilty of a violated law, before a judge, an excellent man and fervent Catholic. Hence the judge, very doubtful, approaches his confessor, asking from him whether he ought to resign his office, or whether he can render a condemnatory sentence against the pastor.

Q. What as to the Case?

R. The judge must first take care in every way to absolve the pastor in the case, and declare him innocent. For the pastor acted legitimately per se. Indeed he acted legitimately even with that law of precedence of civil marriage standing. For a law is subject to legitimate epikeia, and in the Case legitimate epikeia appears. If in no way can the judge render a sentence for the pastor, nor can he himself decline the judgment, he does not then seem to be held to yield his office. For although there is question of a law altogether harsh and unjust, nevertheless the matter is not intrinsically evil, and, where it cannot be done otherwise, it is tolerated; and so neither is it intrinsically evil to commit it to execution. Nor likewise is it intrinsically evil to condemn the pastor to some monetary fine, e.g., in the Case, precisely on account of the law not observed, prescinding from the aforesaid epikeia which civil law and the practice of the forum do not admit. For then one altogether innocent is not condemned, at least according to the appearance and form of the judgment, but one guilty of a violated law, namely according to the presumption of the external forum and according to the things brought forward and proved. But the pastor, on account of a greater harm both of the judge and of the community, if another wicked judge would have to be substituted, is reasonably judged to yield his own right as to the aforesaid fine to be paid. Wherefore in the Case the grave harm of the judge, who otherwise would have to resign office, and at the same time the grave harm of the community, which would certainly be present if a wicked judge were substituted, seems to prevail. But the judge must take care in the Case to decree as small a fine as possible, and in the preliminary considerations of the sentence to remove any insinuation injurious against the pastor, so that both every scandal may be removed, and the sentence itself may sufficiently be understood to yield only to the rigor of the law, which does not admit legitimate epikeia from elsewhere. — I. M. 19.

3. Augustinus and Dominicus, confessors, without any scruple absolve all judges who render a sentence of divorce, according to the more recent laws, in matrimonial causes. For they say that here there is no question of a thing intrinsically illicit, but only positively prohibited by the Church; and positive laws do not obligate with great inconvenience. Besides, the judge does nothing else except merely declare the law, which is an act indifferent of itself. Wherefore the cooperation of the judge toward the sin of the parties is merely material, which is lawful for a grave cause. Besides, the judge can well admonish the parties either privately, or even in the Considerations of the sentence, concerning the real indissolubility of marriage. Whence the aforesaid sentence will be nothing except a certain mere permission and denial of civil action; and in truth it regards nothing except the civil effects of marriage; and it in no way touches the sacrament of marriage itself, but only the civil contract of marriage.

Q. What as to the Case?

R. Augustinus and Dominicus are deceived. For there is question of a thing intrinsically illicit, by natural and divine right, and not only by ecclesiastical right. For divorce from the bond of matrimony, according to the more recent laws, is opposed to natural and divine right. Besides, the judge rendering sentence does not merely declare the law, but declares authoritatively and practically, so that from that sen- tence civil rights and civil obligations flow, which, speaking per se, have force also in the forum of conscience, namely when that sentence is legitimate and just. Therefore the cooperation of the judge toward the aforesaid divorce in the Case is not merely material, but formal; nor remote, but proximate, since it itself is what gives the parties the faculty of divorce. But that the judge admonishes the parties privately, or even in the Considerations of the following sentence, does not change the intrinsic nature of that sentence, but rather shows its illicitness more. A sentence of this sort is not a mere permission and denial of civil action, since that sentence makes a civil right or civil power, namely according to that iniquitous law of divorce, of contracting other marriages, so that he who is bound by this second marriage must be held by the judge himself, not as an adulterer, but as one legitimately bound by civil marriage. Lastly, it is altogether most false that that sentence regards only the civil effects of marriage, since otherwise the law of divorce would have been altogether useless; for those effects were already governed by the law of civil marriage. Therefore, as that law of divorce regards divorce itself from the bond, so consequently does the sentence of divorce delivered by the judge by force of that law. It is one thing indeed that that sentence regards only civil effects, which is false; another, that the civil effects, where that law now prevails, depend on that sentence, so that unless the sentence of divorce is first obtained, there cannot be had separation of bodies and goods. Lastly, it is plain that, since the aforesaid law and sentence touches divorce from the bond itself, in reality they do not touch only the civil contract of marriage, but most truly the sacrament of marriage itself.

And indeed, if what is asserted were true, namely that that sentence of divorce regards only the civil effects of marriage, then either the Holy Office or the Sacred Penitentiary, from whom it has been sought very often, would have permitted at least spouses to invoke that sentence of civil divorce, in the case of avoiding very grave damage; and, on the contrary, the response has always been: It is not lawful. Cf. Ferraris, Supplementum, v. Divortium, Commentary on the Sentence of Divorce to be rendered by a lay judge as to the bond of matrimony.

4. Armandus and Armanda, spouses, since they could not obtain a sentence of divorce in Italy because of the absence of such a law in Italy, go to France; there they first obtain naturalization, or civil status, and then in court they obtain a sentence of divorce. Having returned to Italy, they ask in court that the judge in Italy confirm the sentence rendered in France. — Can the aforesaid judge in Italy confirm that French sentence?

R. In the negative. In no way can the judge in Italy furnish this, either by natural law or by positive civil law. Concerning natural law, cf. here n. 3.

As regards civil law, it is easily proved, because from C. I. 56, 148, one bound by marriage cannot contract another marriage, and marriage ceases only by the death of the spouse. But one independent State cannot impose upon another State, likewise independent, its own law permitting an act prohibited in that State, when that act regards natural and public honesty, good morals, and public order, as the indissolubility of marriage is. Hence it is that whether Armandus and Armanda are Italians, or are also French, that sentence of divorce pronounced by a French judge cannot be held ratified by an Italian judge. It is added in the Case that there is open fraud against the law, and no one’s own fraud ought to patronize him.

5. The ship William Brown, directed from the port of Liverpool to Philadelphia, suffered shipwreck in the month of June in the year 1841. Many sailors and many travelers were saved in a small boat. But since the sea was stormy, in order to lighten the boat, which otherwise they feared would sink, the sailors cast the travelers into the sea. The matter then having been brought before a judge, the accused were acquitted in court, since otherwise all would certainly have perished.

It is asked: What must be judged concerning the sentence of the judge in the Case?

R. It was certainly in no way lawful for the sailors to cast the travelers into the sea. For this in fact was nothing else than to kill innocent men by private authority. But the fact that all otherwise would have perished does not make their homicide honorable, since the death of all would then have happened only by a natural misfortune, which certainly they could not prevent by the death of some. Therefore the sentence of the judge, wholly absolving the sailors as not guilty of homicide, was not legitimate. In the Case the judge ought indeed to have condemned the sailors as true homicides, but to a punishment milder than the ordinary one, on account of the grave circumstance of the shipwreck of all, which in the case certainly attenuated the offense. It would certainly have been wholly another thing if, in that danger, lest all should perish, some should have cast themselves into the sea, lest the boat be sunk by the multitude. For this “is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves.” Thus Lessius writes about one who permits to another the plank occupied by himself, de Iust. et Iur. l. 2, c. 9, d. 6, n. 31: “In a shipwreck,” he says, “you can permit to another a plank not yet occupied by you, indeed even one occupied, and commit yourself to the waves, even if there is no hope of escaping, as Victoria and Peter Navarrus teach; for this is not directly to kill oneself, but to expose oneself to danger, so as to be overcome by the weight of the body pressed down by the waves. Here note that he who first occupied the thing in such an event is not held to admit another, but can hinder him, unless it is sufficient for both; if they occupied it at the same time, it must be decided by lot, unless one wishes voluntarily to yield to the other.” Kenrick, Theol. Mor., Mechlin, 1890, tr. 3, c. 9, nn. 111, 134.

6. Gerulfas, a mayor, assists at the civil marriage of two betrothed persons who both are bound by a previous marriage, but have already been separated from their own spouses by sentence of divorce according to the law in force. Gerulfas contends that he himself can licitly do this, because his assistance is merely a certain civil ceremony.

It is asked: What as to the Case?

R. Gerulfas acts wholly illicitly. For his presence is not a merely civil ceremony; but it is a certain solemnity of law, furnishing civil authority, in the particular Case set forth, to legal adultery, or to adultery contracted according to the norm of civil laws. This is further established from the Responses of the S. C. and of the S. Penitentiary. Cf. Enchir. Mor. 19. And, since the mayor, in the aforesaid Case, not only posits an intrinsically illicit act, but also one unjust against the prior legitimate wife and legitimate children, he is held to compensation for damages if the adulterer refuses to compensate them. For by that unjust act the mayor effectively influences those damages.

Nor indeed does it avail to object that civil marriage in the Case is not intrinsically illicit; whence it could at least be permitted in some very grave and very rare case. For civil marriage, since it is not true marriage, of itself does not hinder a man from fulfilling the obligations of the prior legitimate marriage. This is not true; for in order that in fact a man, for example, may return after a civil marriage to his legitimate wife, the consent of the other party is necessary. Therefore that civil marriage is an act of itself and by its nature legally sanctioning adultery against ecclesiastical and legitimate marriage. — Of a mayor of this sort it cannot be said, as is prescribed by the S. Penitentiary on 20 March 1855, that he does nothing against the sanctity of marriage and the necessity of contracting it before the Church. Of a mayor of this sort it cannot be said, as is held from the same S. Penitentiary, that he removes scandal, since on the contrary he confirms it by his own act.

7. Torquatus, a mayor, a fervent Catholic, assists at the civil marriage of Tullius and Tullia, whom he knows neither to have contracted canonical marriage previously, nor to wish to contract it afterwards. Torquatus cannot deny his assistance; for otherwise he will be liable both to a grave fine and to deposition from office.

It is asked: What as to the Case?

R. Torquatus, in the Case, can assist at the aforesaid marriage. For to the aforesaid case the S. Penitentiary, 20 March 1855, responded: “That it can be tolerated, provided that civil officials in drawing up acts of this sort intend to exercise a merely civil ceremony, and do nothing or advise nothing against the sanctity of marriage and the necessity of contracting it before the Church; rather, that they exhort them to contract it before the Church itself; having before their eyes the most holy laws of our Religion, and the letters of Benedict XIV, Redditae sunt nobis, concerning which, for removing scandal, they should admonish the contracting parties. But as regards cases in which it appears that the faithful, approaching the civil ceremony, are ill-disposed, and will not celebrate before the Church the marriage which regularly ought to have been premised, but will remain in concubinage under the pretext of a civil contract, the officials themselves are to be directed according to the rules handed down by approved authors, and especially by St. Alphonsus, l. 2, tr. 3, c. 2, dub. 5, art. 3, concerning cooperation.” Moreover in the aforesaid letters Benedict XIV teaches that, when Catholics present themselves to the civil magistrate, they exercise a merely civil act, and that marriage must be celebrated before a Catholic minister and two witnesses; otherwise they will never be legitimate spouses, nor ever legitimate offspring.

Now St. Alphonsus teaches this concerning cooperation in the place cited: “It must be said that that cooperation is formal which concurs with the evil will of another and cannot be without sin; but that is material which concurs only with the evil action of another, apart from the intention of the cooperator. And this is licit when the action of itself is good and indifferent, and when there is present a just cause proportionate to the gravity of the sin of the other and to the proximity of the concurrence which is furnished for the execution of the sin.” Cf. I. M. v. 1, 440. Moreover Torquatus the mayor does not cooperate formally in the case with the depraved will of Tullius and Tullia, either by intention, as is supposed, or by action; for the act of the mayor is, in the Case, a merely civil ceremony, furnishing of itself force to a marriage contracted or to be contracted, as to civil effects. For by civil law those things can be ordered and administered which marriages of themselves bring in the civil order, the marriage itself being left untouched, which among Christians is governed by the laws of the Church. But that Tullius and Tullia have neither previously contracted marriage, nor wish afterwards to contract marriage, is only from their depraved will. The cooperation of the mayor is merely material, by an act, as appears, not only indifferent, but of itself honorable and licit, which the aforesaid betrothed persons abuse only from their own malice. Nor indeed is a just and proportionate cause lacking, such as certainly is both the grave fine to which the mayor would otherwise be subjected, and his deposition from office, which would redound to the grave private harm of the mayor himself and to the common harm of society itself; because otherwise honorable and religious public officials would, to the public harm, be replaced by depraved and unjust officials.

1. Hipparcus, an advocate, undertook the defense of the case of a certain noble man, who, besides the ordinary honorarium, promised him besides a thousand lire, if he should obtain victory. Hipparcus without delay defended the case and in fact obtained victory with great applause.

It is asked: Can Hipparcus licitly receive, besides the ordinary honorarium, the thousand lire promised to him?

R. In the affirmative. For first, that extraordinary stipend is not demanded by the advocate, but is promised to him spontaneously. But no one is held to refuse what is spontaneously offered to him by others. Besides, since the advocate obtained the case with great applause, he must have applied extraordinary study and diligence; or at least he must be an advocate of no ordinary talent and name, and under this head he could also have received and demanded a non-ordinary stipend in comparison with other common advocates. Indeed, even for the victory alone he could have received and demanded a stipend beyond the customary one, even prescinding from his extraordinary study and diligence, from his name and reputation. The reason is, first, because if, with all circumstances considered, success had appeared very doubtful, so that equality between hope and fear was preserved, then the contract would have been aleatory in part. Gury observes this well, n. 9. A further reason is that, once victory has been obtained, the advocate furnishes to his client a thing most useful and estimable by price. Wherefore it is not true what the same Gury has in the place cited, namely that the advocate “cannot demand a stipend beyond the customary one, even for the case in which he is to obtain the cause. For victory adds nothing to his labor and cares, nor does he receive payment for victory, but for study and diligence. Therefore what he receives for victory obtained he receives unjustly, and he must restore it.” Certainly victory adds much to the work and labor of the advocate. It is victory which makes his work and labor truly useful and most estimable by price; victory is intimately connected with the defense itself. I. M. 40.

2. Homobonus, a Catholic notary, is compelled by reason of his office, under penalty of prison, to draw up the deed of sale and purchase of a certain house and small garden annexed, formerly the Convent of the Capuchin Fathers. A certain Tiburtius bought the house and garden from the State Domain, and now sells the aforesaid Convent to a certain Curtius. Homobonus anxiously asks his confessor whether he can draw up an act of this sort.

It is asked: What as to the Case?

R. It seems that Homobonus can draw up the aforesaid act. For certainly the matter, on the part of the notary himself, is not intrinsically evil; since Tiburtius and Curtius can very well seek due pardon in this matter, if they wish, from the Apostolic See. Besides, there is not question of a direct spoliation of the Church; since indeed the aforesaid goods, already usurped by the Government, have been sold. Rather, there is question of the mere transmission of the same goods from one possessor to another; and so that act of the notary is not as if consummating and perfecting the unjust spoliation, which has already been perfected; nor does he in any way confirm or increase it by transmission of possession, just as also the notary refusing to draw up the act does not remove or weaken it; for there will not be lacking another wicked notary who will draw up the act. Lastly, if there is still any difficulty, certainly in the Case the presumed consent of the Church is not lacking. For if, in a similar case, as regards the goods of private persons, the reasonably presumed consent of the owner is not lacking on account of the grave private harm to the notary and the grave injury to society, much more will the presumed consent of the Church not be lacking in the Case. It is certainly expedient to seek this explicitly, on account of public edification. But it is easily granted on account of the reasons already brought forward. — Cf. Gennari, Consultaz. Morali etc., p. 1, Cons. 16; I. M. 19.

3. Rutilius, a notary, clearly notices that in the contract of sale of a certain house the true price is not declared by the contracting parties, but a lesser one, namely so that they may pay less tax. Rutilius completes the deed and enters the aforesaid price in it.

It is asked: What as to the Case?

R. Rutilius does not seem to be disturbed. For he himself is not placed in charge of taxes, but is a public official appointed for drawing up acts. Besides, the contracting parties themselves probably do not sin against justice. For the act to be drawn up is only for confirming the contract and furnishing security for the thing in case of eviction, or of another judicial suit. Wherefore there is no obligation of conscience to declare the true price by force of that act to be drawn up. Nor indeed is there present an obligation, by force of the imposed tax, to declare spontaneously the true price of the thing, since the practice now is that taxes are not paid unless they are demanded. Nevertheless, there is an obligation to pay the fine, if the matter is detected, and not to tell a lie. — G. v. 1, nn. 744–756; v. 2, n. 23; I. M. v. 1, n. 232.

1. Barbantius, a priest of most unimpaired reputation, visiting on a certain occasion Armanda, a married woman of excellent reputation, sinned with her. By a fortuitous chance Melchior, a man of corrupt morals, saw them; he immediately reported the matter to Armanda’s husband, and then testified to the same in court, with great scandal of the city.

It is asked: What as to the Case?

R. Fr. Gury raises the question: Is a witness held to reveal an altogether occult crime? and he responds, n. 19: “More probably in the negative by Common Law, if the witness is wholly certain that the crime is known to himself alone; because for condemning the accused two witnesses are necessarily required. Hence the axiom: one witness, no witness. But otherwise one must speak according to French Law, or another similar law, by which one witness can suffice for the condemnation of the accused, and nothing else is required from the jurors except that they assert that they have an intimate conviction of the fact, without their needing to prove their sentence.”

But from the fact that the jurors are not held to prove their sentence, and that it suffices that they have an intimate conviction of the fact, it does not follow that a witness is held, or even is able, to reveal an altogether occult crime. Indeed rather the contrary follows. For jurors do not pronounce their sentence independently of the trial, but after they have been present in court for the whole discussion of the case and the examination of witnesses; whence the crime is already supposed by that very fact to be publicized, at least half-proven, or certainly at least producing great suspicion of itself, and indeed from knowledge of facts already public in themselves. Wherefore from the sentence of jurors, to be pronounced according to intimate conviction, nothing indeed is drawn for that resolution, but rather the contrary. Nor indeed does that other thing prove anything better, namely that by more recent Law one witness suffices; for one thing is that one witness can make full proof even in court, another thing, altogether diverse, that therefore a witness can also reveal an altogether occult crime. There is no necessity for such an interpretation, which, since of itself it is not consonant with Natural Law, consequently is not to be asserted without a manifest declaration of the law itself. Cf. I. M. 70. And in the proposed case and in similar ones, the very grave disadvantages of this opinion easily appear.

Therefore it does not seem that Melchior is held, indeed even that he can, reveal that most occult crime either to the husband of Armanda, with so great harm and infamy of Armanda herself and of Barbantius; or even to the judge, with so great public scandal. Nor indeed in the Case is there question of a crime impending and to be avoided, and to be prevented in the future; for, as is clear from the exposition of the Case, that offense was committed wholly in passing, nor is there any indication of future danger, which otherwise would have to be met by other means altogether honorable and useful.

2. “Alexius promises by oath to Marcus that he will never manifest to anyone either the homicide which, while he saw and was not seen, Marcus had secretly perpetrated, or the theft which, an agreement having been made concerning the keeping of secrecy, Marcus had confided to his ear.

It is asked: Can Alexius, summoned by the judge, give testimony?

376. II. Necessity. 1° According to the Code (can. 877), the judgment of suitability is necessary for all confessors, even regulars, for licitly hearing confessions: "Let both local Ordinaries not grant jurisdiction, and religious Superiors not grant jurisdiction or license for hearing confessions, except to those who have been found suitable through examination, unless there is question of a priest whose theological doctrine they have ascertained from elsewhere." This law has rightly been established, so that unskillful and unworthy ministers might be kept away from the sacred tribunal.

2° It was expressly declared by Pius V that doctors and lectors of Sacred Theology are not exempt from this law.¹ But those who possess a parochial benefice to which care of souls is attached do not need special approval; for by the very fact that they are deputed to this office, they are implicitly recognized as suitable for hearing confessions. Moreover, one who is not endowed with doctrine and prudence must not be assumed as pastor (can. 453), and the Ordinary can compel a pastor, and indeed even a canon, concerning whose suitability doubts arise, to a new test of doctrine.²

¹ Constitution Romani Pontificis, 8 Aug. 1571.

² "If after jurisdiction or license has been granted they prudently doubt whether a priest previously approved by them still remains suitable, let them compel him to a new test of doctrine, even if there is question of a pastor or penitentiary canon" (Can. 878).

3° Exempt regulars today need approval for receiving the confessions of regulars of their own order;³ but in this case let the religious Superiors judge concerning their suitability (can. 877).

³ Exempt regulars are those who pronounce solemn vows, such as Franciscans, Dominicans, Benedictines, and also certain Congregations enjoying this special privilege, such as the Congregation of the Most Holy Redeemer. - Concerning all those things which pertain to the approval of Regulars, Piat Montensis discusses fully, Praelect. Juris Regularis, Tournai, 1898, t. II, p. 170-205; cf. the compendium of the same work, by V. ab Appeltern, 1903, p. 549-560.

380. 3° The Ordinary should not revoke approval from one who truly remains suitable, since in this matter he acts as judge, who is bound to pass judgment according to truth; therefore he sins if he revokes or suspends it without cause.² Nevertheless one to whom approval has been denied even unjustly cannot validly absolve, since jurisdiction also has been denied to him, without which absolution is invalid.³ - Besides, the Bishop is not bound to confer jurisdiction on every suitable person: for this is left to his judgment.

² Code, c. 880.

³ From the old law it was clear from the condemnation of proposition 13 by Alexander VII, 24 Sept. 1665, apud Denzing., n. 984; cf. Viva, op. cit. on proposition XIII; Vacant, Dict. de Theol., t. I, p. 736-737.

392. (d) Hence, once the Code had been promulgated, a controversy arose concerning the power of delegating belonging to pastors. 1) Some thought that pastors could, at least in urgent cases, delegate other priests to hear the confessions of their subjects, by force of the general principle that those having ordinary power can delegate it. 2) But the Pontifical Commission for authentically interpreting the Canons of the Code, on 16 Oct. 1919, declared that pastors, vicars of pastors, or other priests delegated for the universality of cases cannot delegate to secular or regular priests jurisdiction for receiving confessions, nor extend beyond the circumscribed limits jurisdiction to those already approved, but need for this a special faculty or mandate of the Ordinary of the place. And deservedly; for the Code designates no one except the Ordinary of the place as the source from which delegation is to be received, and positively denies this faculty of delegating to the penitentiary canon; hence by being silent about the pastor, it denies him the same faculty; - moreover, already for three centuries, the whole jurisprudence tends to this, that the Ordinary of the place be constituted, for seculars, the sole source of delegated jurisdiction.¹

¹ J. Creusen and A. Vermeersch, Summula novi juris, 1918, n. 346; A. Boudinhon, Rev. du cl. fr., 15 Apr. 1919, p. 96, and 1 July 1919, p. 73.

In practice, however, there is scarcely any difficulty; for Bishops are accustomed to grant to pastors living within the limits of the diocese the faculty of calling pastors exercising ministry in contiguous places of their diocese and of conferring jurisdiction on them; moreover recourse to the Bishop is easy today.

394. (B) From law, or from the Code: (a) Cardinals and Bishops, whether residential or titular, from the accepted authentic notice of canonical provision having been completed, can choose for themselves and their families a priest for receiving confessions; if he lacks jurisdiction, he obtains it by the law itself, even with respect to reserved sins and censures also, with the sole exception of censures reserved to the Apostolic See in the most special manner and those which are attached to the revelation of the secret of the Holy Office.²

² Code, c. 239 and 349.

(b) Any priests undertaking an overseas journey, provided they have from their own Ordinary, or from the Ordinary of the port, whether initial or intermediate, the faculty of receiving confessions, can during the whole journey validly and licitly absolve both the faithful sailing with them, and the faithful who for any reason come to the ship, and those who, when they themselves call at land in passing, ask to confess to them, and can validly and licitly absolve them even from cases reserved to the Ordinary of the place.³

³ Code, c. 883.

406. (A) Religious, even exempt, receive jurisdiction for receiving the confessions of seculars or religious from the Ordinary of the place in which the confessions are heard; but they cannot use the same without at least the presumed permission of their own superior. Moreover, Ordinaries are not to grant jurisdiction habitually except to religious presented by their own superior, nor are they to deny it without grave cause to those who are presented by the superior; nevertheless this ought not to be done without a previous examination by which they have been found suitable, except in the case of a priest whose theological doctrine has been ascertained from another source.²

² Code, c. 874, 877.

444. From these cases the following can absolve: 1) by ordinary power, both the Supreme Pontiff and the Major Penitentiary; 2) by delegated power, Bishops and priests delegated by the Holy See, or by another Superior having the faculty of subdelegating: "From a censure reserved to the Apostolic See, these and others can absolve who have obtained from it the power of absolving, whether general, if the censure is simply reserved, or special, if it is reserved in a special manner, or finally most special, if it is reserved in a most special manner."² Thus delegation is always required also for absolving from a sin reserved to the Apostolic See without censure.

² Code, c. 2253, § 3.

635. 1° On confession and communion. (a) Apart from a special concession, one cannot satisfy the paschal precept and gain the Jubilee by one confession and communion.⁶ Yet, with respect to confession, one can first confess in order to gain the Jubilee; and if afterwards, within the year, he has admitted no mortal sin, he will not be bound to confess, since the law of annual confession obliges only those who are conscious of grave sin (n. 245). Nor is absolution required, if one is in the state of grace, unless it is expressly said in the Bull, as in the year 1851, "having confessed their sins and having expiated them by sacramental absolution."

⁶ Sacred Penitentiary, January 25, 1875, in Acta S. Sedis, VIII, pp. 266-267; cf. p. 361.

(b) Confession and communion must be made during the time of the Jubilee, but not on the vigil, unless from first Vespers, when it is already customarily begun at Rome.

(c) He who, after confession has been performed, falls into mortal sin before he has completed the last work, must repeat confession, so that by sacramental absolution he may recover grace;¹ nor is it sufficient for him to elicit perfect contrition.

¹ Bull Inter praeteritos, n. 79.

636. 2° On the visitation of churches. Which churches are to be visited, and how often, the Supreme Pontiff designates in the City, and the Bishop of each diocese outside the City.

(A) Thus for the year 1900, Leo XIII prescribed² that the four basilicas of Blessed Peter and Paul, St. John Lateran, and St. Mary Major should be visited at least once in the day for twenty continuous or interposed days, whether natural or ecclesiastical, by inhabitants residing at Rome; for at least ten days by pilgrims. But if those residing in the City, or on the journey itself, are prevented by illness or by another legitimate cause from making certain or all visitations, they can nevertheless gain the Jubilee by performing other works enjoined by confessors.

² Bull Properante, in Act. S. Sedis, XXXI, p. 644 sq.

(B) Outside the City, (a) Bishops determine, according to the Bull of the Pontiff, how many churches and how often they are to be visited. In places where there is one church, they can grant that all the prescribed visitations be made in this church; this power was given to them in the year 1852 in a general manner,³ so that they enjoy it even if the Bull of the Jubilee is silent concerning this matter. They can also designate a public oratory, if Mass is habitually celebrated in it.⁴

³ Decret. authent., n. 353, March 15, 1852.

⁴ Sacred Penitentiary, January 15, 1886, in Act. S. Sedis, XVIII, p. 334.

(b) If the same church must be visited several times, this can be done on the same day or on distinct days, unless in the Bull of the Jubilee it is defined otherwise. But visitations made in the same church must be so distinguished from each other that each time it is necessary to go out from the church in order that a new visitation can be made.

(c) Regulars cannot gain the Jubilee by performing the prescribed visitations in their own church, unless they have obtained a special privilege from the Roman Pontiff.⁵ But if they are legitimately impeded from visiting the churches designated by the Ordinary, each one can obtain commutation from his own confessor.

⁵ Sacred Penitentiary, 1875, in Act. S. Sedis, VIII, p. 554.

(d) Often also the number of visitations is diminished by instituting processions, with the license of the Bishop, from a special privilege granted by the Holy See. In which case the faithful who, because of the narrowness of the church or oratory, remain outside the doors and pray with the others, form one body morally, and therefore satisfy the visitation for gaining the Jubilee, provided, however, that all who can be contained in the church enter it. Likewise, if because of a legitimate reason processions are made with vestments not choral, without a cross, with psalmody in a low voice, or even without any chant, this is valid.¹

¹ Sacred Penitentiary, in Act. S. Sedis, VIII, p. 554; vol. XXXIV, p. 638; vol. XXXV, p. 43.

1154. 4° On the previous examination. (a) Anyone to be promoted, whether secular or religious, must undergo a previous and diligent examination concerning the very order to be received. (b) One to be promoted to sacred orders is to be examined also in other tractations of sacred theology designated by the Bishop. (c) Regularly, the local Ordinary who ordains by his own right or gives dimissorial letters receives this examination. (d) The names of those to be promoted to the several sacred orders are to be publicly announced in the parochial church of each candidate, and indeed on a feast day of precept during the solemnities of Masses or on another day and hour at which a greater frequency of people is had in the church. (e) All the faithful are held by the obligation of revealing to the Ordinary or pastor before the sacred ordination any impediments to sacred orders, if they know any. (f) But the Ordinary can prescribe other inquiries, according to his prudence and conscience¹.

¹ Codex, can. 996-1000.

532. Hence the following are obliged to restitution: (a) merchants and innkeepers who accept from children of families, servants, etc., money or things secretly taken away from parents or masters, because thus they favor thefts of this kind; (b) advocates who in a civil matter patronize manifestly unjust causes, or, in a criminal matter, an unjust accuser; but not those who, in a criminal trial, defend evildoers when these ought from the law itself to have a defender; (c) those who furnish help to a thief or another evildoer, by watching and warning if perhaps persons occur who are going to denounce or impede the crime; (d) tavern-keepers who receive thieves and conceal them lest they be seized.

939. Up to this point the matter has concerned the offices which are incumbent upon all in general; but since there are various states of life, to which diverse offices correspond, it is necessary to add a few things concerning these. Now there are three states of life to which the others are referred: the state of laymen, the state of clerics, and the state of religious; for among Christians, some remain in the world, and, although they care for their own salvation, are devoted to secular affairs; others, adorned with clerical dignity and performing the priestly office, officially attend to the salvation of souls, although they dwell amid the dangers of the world; finally others, snatching themselves away from worldly cares, bind themselves by the three vows of poverty, obedience, and chastity to embracing a more perfect life, whether they are content with the lay condition, or receive the priesthood.

¹ St. Thom., 2. 2., q. 183; Antoine, Theol. Moralis, De obligationibus specialibus certorum statuum et officiorum (Migne, Theol. Curs., XVI, 1131-1276); Conferences d'Angers, sur les Etats, 3 vol., Paris, 1829-1830; Valentin, Examen raisonne sur les devoirs et les peches des diverses professions, Lyon, 1844; Berardi, Praxis, Tr. VII, De statibus particularibus; Ballerini P., Tr. IX, De praeceptis particularibus.

940. We shall not treat here of the religious state, since Canonists are accustomed to discuss it. Concerning the lay and clerical state we shall especially set forth those things which flow from natural and divine right, more briefly touching upon offices which are declared more fully in the Praelectiones Juris Canonici.

On The Offices Of Laymen

From domestic society:

• Of parents and children.
• Of masters and servants.

From civil society:

• Of superiors and subjects.
• Of those exercising a special office.

On The Offices Of Clerics

• Of all clerics in general.
• Especially of those who are constituted in sacred orders.
• More especially of those who have received the priesthood.

The special offices which are incumbent upon laymen arise especially from a twofold source, from domestic society and from civil society.

941. State of the question. Domestic society, which is older than other societies, arises from nature itself. For since the human race cannot naturally be propagated except by the union of man and woman, by that very fact there arises conjugal society, concerning which we spoke in Tr. on Matrimony; but afterward, when children have been procreated, parental society now arises, which flourishes between parents and children; to this there is often added masterly society, which flows from relations between master and servants. Wherefore we shall speak of the mutual offices 1. of parents and children; 2. of masters and servants.

942. According to St. Thomas,¹ parents "are the particular principle of our being, just as God is the universal principle"; for just as God creates men, so parents procreate their children; just as He preserves creatures in being, and directs them to their end and governs them by his providence, so parents protect their offspring by assiduous cares, and by counsels, examples, and also by wise providence rule them and direct them to the end. From this it follows that the right and office of educating their own children is incumbent upon parents, and besides that children are held to render the due honor to parents.

¹ St. Thom., 2. 2., q. 122, art. 5.

943. State of the question. Socialists, adhering to the footsteps of J. J. Rousseau,² contend that children belong to the Republic rather than to parents, and therefore that the office of feeding and educating them is incumbent upon the State: for parents, they say, often imbued with many prejudices, inculcate the same in their offspring, and thus dissensions arise among citizens, because not all have received the same discipline; wherefore, for placing national unity in safety, it is necessary that children be snatched away from parents, so that each and all may be instructed in the same way in public schools; then there will be no distinction between rich and poor, noble and ignoble, Catholics and non-Catholics; all, imbued with the same principles, will defend liberty of thinking, social equality, and perfect solidarity; no preeminence will be acknowledged except that which is owed to each one's talent and merit.³ - Anarchists, who altogether reject the authority of the State, nevertheless do not wish children, procreated from a free union, to be educated by parents, but by those who love them more, and adopt them as children, and freely consent to furnish them food and education.¹ - Not a few of those who defend the rights of women beyond what is fair (feministes) are more or less imbued with the same errors; for since they contend that women have, by equal right with men, the faculty of managing public affairs, they wish them to be immune from domestic cares and the education of children, so that they may give themselves to civil offices.²

¹ Taparelli, Essai de Droit naturel, n. 1555-1575; Meyer, Instit. juris naturalis, t. II, n. 107-111; 660-678; A. Jansen, De facultate docendi, 1885; Castelein, Droit naturel, Paris, 1903, p. 625-640; R. Lavollee, L'Etat, le Pere et l'Enfant, Paris, Plon, 1904.

² For he holds that the family is indeed older than any other society, but that children do not remain joined to parents except as long as they need them for protecting their life: "The oldest of all societies, and the only natural one, is that of the family: and even so, children remain bound to the father only as long as they need him in order to preserve themselves; as soon as this need ceases, the natural bond is dissolved." (Contrat social, l. I, ch. 5.) But afterward (ch. 6-8) he declares that, by force of the social pact, all authority is in the Prince's possession.

³ Thus G. Renard, Le Regime socialiste, Paris, 1898, p. 89-100, where among other things he writes: "The child, a moral person in potency, or, to speak still better, in the way of development, must no longer, as formerly, be considered the property of his parents. The power of the father or of the mother is justified, like every authority exercised over human beings, only on condition of being a creator of liberty, and not of oppression... If the parents remain absolute masters of his education, I fear over his mind a pressure all the more powerful because the pupil is naturally predisposed to undergo the affectionate suggestion of those who are nearest to him. Beware then hereditary prejudices, which are the very negation of scientific progress... Teaching being gratuitous and the maintenance of children being put at the charge of the community, one will no longer see, as in our mercantile society, this unreasonable anomaly: public instruction reserved to those who can pay for it... education will address itself equally to all intelligences which will be capable of profiting from it."

¹ Thus J. Grave, La Societe future, ch. 23, where he says: "The child is not a property, a product, which can belong more to those who have procreated him, as some wish, than to society, as the others contend." Whose therefore will children be? "To those who love the child most... Instead of being a charge for those who will adopt him, the child will no longer be anything but a pretty little creature to love and caress." - This system C. Turgeon sets forth and refutes, Le Feminisme francais, Paris, 1902, t. II, p. 405-420.

² In Turgeon, op. cit., t. II, 417-420.

944. Thesis: The right and office of educating their own offspring belongs primarily to parents, and only secondarily to the State, namely when parents are lacking. - For if it is certainly and publicly established that certain parents do not furnish the education necessary to their children, and there are no others who act in place of the parents, it pertains to the State, insofar as it is the provider of the public good, to provide for this education.³

³ We do not here treat of the rights of the Church, whose office it is to hand on moral and religious education to all those who have arisen from Catholic parents, or who through baptism have entered the Church, as was declared in Tr. on the Church. As to human sciences, spiritual authority has the right of teaching them, by at least the same right as private citizens or private associations. - Cf. F. Cavagnis, Instit. juris publici, l. IV, n. 1-145.

(A) It is proved by reason. For the right and office of educating offspring naturally belongs to those who have begotten the same: "It is a most holy law of nature that the father of a family should protect, with sustenance and every cultivation, those whom he himself has procreated."⁴ For children, as long as they have not attained the use of reason, are altogether unable to protect their own life; likewise, when reason now first dawns, they can obtain the truth in the intellectual, moral, and religious order only with the greatest difficulty by their own powers, without any external aid, and therefore they need some authority which directs them in the right path of truth. Now nature itself manifestly shows that the work of education is primarily to be performed by the parents themselves.

⁴ Leo XIII, Encyclical Rerum Novarum.

"For the son," says St. Thomas,¹ "naturally is something of the father; and at first indeed he is not distinguished from the parents according to the body, as long as he is contained in the mother's womb; but afterward, after he comes forth from the womb, before he has the use of free will, he is contained under the care of the parents, as under a certain spiritual womb." In reality nature gave breasts to the mother, but not to the State, for nursing children; to each parent, but not to the City or to strange nurses, it gave a maternal or paternal heart for pursuing their own offspring with tender and at the same time generous love; to parents, but not to strangers, at least from things commonly occurring, it gave an inclination that they gladly hand over not only their own things, but even themselves and their own life, for the welfare of their offspring. Wherefore long and universal experience establishes that children educated at home, fed with maternal milk, and carefully guarded by the vigilant care of parents, much more easily escape the dangers of diseases and death, and progress much more than those who are nourished by strangers.²

¹ St. Thom., 2. 2., q. 10, art. 12.

² For many of those who are handed over to strange nurses die: "Already in 1889, at the congress of hygiene and demography, Dr. Fleury attested that at Lyon the mortality of nurslings rose to 49 percent." (C. Raff, Natalite, Paris, 1901, p. 364.)

945. The same must be said concerning intellectual and moral education; no one, as the mother, can look into the mind of her offspring, no one can detect and correct their depraved inclinations, or direct the powers of the will to good: for led by maternal instinct, she naturally performs all these things, and besides by native inclination the child is inclined to follow the sweet direction of the mother. Afterward, when the boy is now growing up, he needs a virile education, for furnishing which no one is more suitable than the father: for, because of the special and generous love with which he pursues his children, he tempers with gentleness the authority necessary for restraining the depraved habits to which they incline, and helps them by opportune counsels to avoid dangerous occasions;³ by words and examples he draws them to the practice of virtues; indeed he himself is induced to lead a more honorable and more perfect life, led by this reason, that unless he gives a good example, he will scarcely be able to exhort his boys to honesty. - Hence experience establishes that children educated at home, other things being equal, generally progress much more in studies and in the practice of virtues than those who are instructed by strangers.¹

³ To the point it is read in the Expose des motifs du Code civil, where the matter concerns paternal authority: "The child is born weak, besieged by needs and diseases; nature gives him his father and mother to defend and protect him. When the time of puberty arrives, the passions awaken at the same time as intelligence and imagination... It is then that the child needs a counsel, a friend, who may defend his nascent reason against the seductions of every kind which surround him."

¹ On the office of each parent in education, cf. Turgeon, II, 341-362.

946. Socialists indeed object that children have rights which parents are not permitted to oppress. - It is certainly wonderful that these men complain of the tyranny of parents, while they themselves wish tyrannically to inculcate their opinions in the young; do they not thus contradict themselves? - We by no means deny the rights of children, since Christ himself and the Church have diligently vindicated these against the unspeakable errors of the pagans, as was proved elsewhere, on True Religion, n. 155; but since the child himself cannot protect these rights, it pertains to parents, rather than to strangers or to the State, to preserve them whole and intact; for those who begot and nourished children are joined more intimately with them, and are more apt to instruct them than any others. For the family is historically and logically prior to the State, nor is it consonant with right reason that civil power at its own judgment penetrate even to the interiors of homes, and disturb domestic peace; paternal power ought neither to be extinguished nor absorbed by the republic, but rather confirmed by it.² And certainly, if prejudices are in parents, is it not to be feared that the State, imbued with worse prejudices, may wish to inculcate them in the young, and thus oppress the liberty of children equally and of parents by intolerable tyranny? - And, since besides the opinions and theories of the State are diverse according to the diverse ministers who manage public affairs, will children also be held to change their ideas at the will of various officials? Where, I ask, is liberty? - Nor should it be said that the young are to be educated in such a way that they are instructed neither by the State nor by parents in religious or ethical disciplines, until, mature in age and reason, they are able freely to choose among various religions or diverse systems of ethics; - for this is nothing other than to promote indifferentism in matters altogether necessary for the right ordering of life, and to deprive the young of the means by which they need to restrain depraved inclinations.¹

² Leo XIII declared this excellently, Encyclical Rerum Novarum: "Therefore to wish that civil power at its own judgment penetrate even to the interiors of homes is a great and pernicious error... Paternal power is of such a kind that it can neither be extinguished, nor absorbed by the republic, because it has the same and common principle with the life itself of men. Children are something of the father, and as it were a certain amplification of the paternal person; and if we wish to speak properly, they do not of themselves, but through the domestic community in which they were generated, enter and participate in civil society." Cf. Brunetiere, Le Droit de l'Enfant, in the periodical Reforme sociale, Feb. 1, 1903, p. 202-221.

¹ G. Bonjean, Enfants revoltes et parents coupables, Paris, 1895; A. Fouillee, Les Jeunes Criminels, l'Ecole et la presse, in the periodical Revue des Deux Mondes, Jan. 15, 1897, p. 417-449; H. Joly, L'Enfance coupable, Paris, 1904, among others, have described into what excesses the young frequently fall who are educated without religion and moral discipline.

947. They insist, saying that by paternal education those dissensions are preserved and strengthened which draw one region and city, as it were, into two or more factions, and invincibly stand in the way of national unity. - I turn the argument back: are there not factions and dissensions in the State itself, and indeed among the socialists themselves? Do not anarchists, collectivists, and moderate socialists try to draw the minds of the young to their systems? - Therefore this difficulty rests on a false concept of unity: for it is impossible, especially in our days, where unbridled liberty of thinking, speaking, and writing flourishes, that all citizens of one City think and will the same thing concerning religious, philosophical, or political matters. Therefore those who vindicate national unity in this sense, that they wish all citizens to have the same principles concerning all these matters, not only promote intolerable tyranny, but dream of a thing altogether impossible. No unity can flourish among rational and free citizens other than that which arises from mutual tolerance and fraternal charity;² for all citizens ought to tend toward the common good of the fatherland, and devise nothing which turns to its detriment; but concerning the better reason for pursuing this end, discussion ought to be free, according to that saying: in necessary things unity, in doubtful things liberty, in all things charity. This is clearly evident by the example of nations which are eminent among cultivated nations, such as Great Britain and America: there certainly flourishes a singular love of fatherland, precisely because the greatest liberty flourishes for parents in educating children; and certainly the fatherland is loved the more, the more securely and efficaciously the liberty of domestic life is protected.

² Cf. Ch. Dupuy, in the speech held to the Senate Nov. 5, 1903, in Questions actuelles, t. 71, p. 168-192; E. Faguet, Le Liberalisme, Paris, 1903, p. 128-169, where he lucidly shows how much they contradict themselves who, under the pretext of unity, strive to extinguish liberty of teaching.

948. (B) The same is established by history. For Nations which assigned the office of educating boys to the Republic alone soon fell into despotic tyranny; thus the Spartans, ignorant of human dignity, who had committed the education of children to the State, instituted not men nor free citizens, but soldiers. Thus also the leaders of the French Revolution, Danton and Robespierre, who assigned to the fatherland alone the right of educating children, oppressed their fellow citizens with bronze tyranny and cruel persecution. Hence those who favor Caesarism, as Napoleon I, State Socialists, in one word, all haters and oppressors of liberty, vindicate for themselves the exclusive right or monopoly of teaching.¹ - On the contrary, however, the Christian religion, which liberated peoples from tyranny, has always asserted and defended the rights of parents to educating their own offspring; likewise everywhere and at every time it has favored those institutes and Universities which, independently from the State, hand on various disciplines. Wherefore even in our days truly cultivated nations, which pursue not only the shadow and name of liberty, but the thing itself, such as Belgium, Switzerland, Great Britain, and the Federated States of America, gladly acknowledge and protect the rights of parents to instructing their own offspring in various disciplines, and at the same time confer the greatest liberty on independent schools and Universities.¹ Unless therefore we wish to say farewell to the liberty of private persons and families, we ought unceasingly to vindicate, by all legitimate means, especially by rightly ordered associations of fathers of families, the rights of parents as to the education of offspring.

¹ This indeed is admitted by a man otherwise most hostile to the doctrines of the Church, Clemenceau, in the speech held to the Senators Nov. 17, 1903: "The State, I know it: it has a long history, all of murder and blood. All the crimes which have been accomplished in the world, massacres, wars, breaches of sworn faith, pyres, torments, tortures, everything has been justified by the interest of the State, by reason of State... I understand well: you dream of the ideal State. Thus Plato, thus Aristotle, thus Thomas More, thus other dreamers. You dream of the ideal State. This State, in books, you make it as beautiful as it can please you; but here we are weak men, changing, grappling with reality... If you could succeed, you would put into the hands of universal suffrage, into the hands of the changing majorities which succeed one another in Assemblies, the most formidable instrument of reaction which has yet been seen in the world, for the responsibility would be ungraspable, scattered in the anonymous crowd." (In Questions actuelles, t. 71, Dec. 12, 1903, pp. 197, 198, 199; ibidem p. 177-183, read what Lamarzelle spoke excellently concerning liberty of teaching.)

¹ Thus J. Stuart Mill (Principles of Political Economy, New York, 1882, t. II, p. 576-577) writes that no right belongs to the State of teaching exclusively, or even of conferring special privileges on those who frequent the State's schools; and that it is intolerable tyranny to wish to subject all schools to its rule: "to possess such a control, and actually exert it, is to be despotic." - R. Lavollee sketches the history of this question and the laws of diverse Nations, op. cit., p. 3-202.

949. Corollary. A twofold office belongs to civil authority concerning the instruction of children, namely to take care that independent schools not favor the corruption of morals, and to found schools necessary for the right instruction of citizens.

(A) The reason for the former is that it pertains to the State to promote the public good, and therefore to prohibit those things which manifestly stand in the way of this good. Now, if there were any school which notoriously corrupted the minds of the young by doctrines evidently contrary to natural right, or weakened good morals, civil authority would deservedly restrain those abuses, since the right and office is incumbent upon it of warding off dangers which can overturn the foundations of the republic. - Yet we said notoriously, because public authority ought not to be too solicitous about hidden things, lest perhaps, while it tries to restrain abuses, it take away all liberty altogether.

(B) The same reason of the public good often urges civil authority to institute schools and colleges. For although it pertains primarily to parents to educate their own offspring, nevertheless many can fulfill this office neither through themselves nor through private teachers; wherefore it pertains to the City to remedy this insufficiency by the foundation of public schools, to which parents can send their offspring: for the right instruction of the young greatly profits the public good.

But the Republic cannot institute a monopoly of education, namely by commanding that parents send their children to public schools, with the faculty excluded of educating them privately through teachers well seen by themselves: for this would be a usurpation of domestic right and an open violation of liberty of conscience.

Indeed that system, now flourishing among not a few nations, by force of which public schools alone are sustained from the common treasury, harms the equality and liberty of citizens; for then the school tax is paid by all, although many receive no advantage from it.¹ Much fairer is the system prevailing in Great Britain and other regions, by force of which public and private schools are equally sustained, provided that they attain a certain degree of progress: for thus the liberty of families remains intact, burdens are equally distributed, and noble emulation prevails among the diverse schools.

¹ Faguet sets this forth thus, op. cit., p. 134: "It is as if from Paris to Bordeaux there were two railways, one by Chartres, the other by Orleans, operated by two different companies, and I had the right to go to Bordeaux by Orleans, but on condition of paying my place to the Company of Orleans and also to the Company of Chartres."

950. Since parents act in God's place with respect to their offspring, they are held to pursue them with a special love, and to impart to them bodily and spiritual education, and also by a certain providence to direct them to the end.

² St. Chrysostom, De liberorum educatione, in Migne, P. G., t. LXIII, col. 763-772; Sayrus, Clavis regia sacerdotum, lib. VII, cap. 7; Mayol, Summa doctrinae moralis circa decem Decalogi praecepta, in Migne, Curs. Theol., t. XIV, p. 503-532; Jaugey, De virtutibus cardinalibus, Paris, 1876, p. 464-475; Berardi, Praxis, Tract. VII, n. 1-32; Rosset, De sacram. Matrimonii, t. V, n. 3520-3572; A. de Margerie, De la Famille, Paris, 1869, t. I, p. 226 sq.; P. Janet, La Famille, 15th ed., Paris, 1894, p. 107-236; A. de Gasparin, La Famille, Paris, 1866, t. I, p. 143-297; M. d'Hulst, Lent of 1894, 4th Conference.

1. On The Love Of Parents Toward Children.

951. Love of this sort is called piety, because it bears before itself something sacred and religious; it helps to set forth its foundation and endowments.

(A) The motives on account of which parents ought to love their offspring are natural and supernatural.

(a) Natural indeed; for if anyone loves the work of his hands, if even beasts themselves by a certain natural instinct love and protect their young,³ even with danger to their own life.

³ St. Augustine lucidly sets forth this argument, Sermon 349 (alias, de Tempore 52), in Migne, P. L., XXXIX, 1530: "Beasts also love their children: asps love their children, tigresses love their children, lions love their children. For there is no beast which does not gently murmur to its children. For when it terrifies men, it cherishes its little ones. A lion roars in the woods, so that no one may pass: he enters the cave, where he has his children, he lays aside every rage of ferocity. Outside he places it, when he himself does not enter. Therefore he who does not love his children is worse even than a lion."

how much more ought parents to pursue with tender and devoted affection the offspring whom they have begotten from their own substance, and who are as it were a certain amplification of the paternal person? - This appears even more manifestly if one considers that the children whom they procreated are endowed with reason and free will, bear in themselves the image of God and at the same time of the parents, enjoy immortality, are destined to God as to their ultimate end, and that they are citizens of the earthly fatherland, whose good and honor they can promote, if they have been rightly educated; for who, attending to these things, would not sincerely and devotedly love the sweet offspring who can procure the glory of God, the exaltation of the fatherland, and the happiness of the family?

952. (b) To these are added supernatural motives; for these are citizens not only of the earthly, but also of the heavenly fatherland: they are destined to the supernatural end, namely the clear vision of God and perfect possession; wherefore they are given the divine life, and all the graces necessary for increasing it; redeemed by Christ, and cleansed by his precious blood, they bear the image of Christ impressed in their hearts, and ought to imitate his virtues. Now parents are as it were God's cooperators in the sanctification of children, as they were in procreation; and therefore they ought to love their offspring with a special and supernatural love, so that by paternal solicitude they may form in them the spirit and virtues of Christ, and supernaturally beget those whom they have carnally begotten, according to that saying of the Apostle:¹ "My little children, of whom I am in labor again, until Christ be formed in you."

¹ Galat., IV, 19.

953. (B) The endowments of this love. The love of parents toward children ought to be:

(a) True and internal, insofar as they sincerely will their good, not only as to the body, but also and chiefly as to the soul, not only for the present, but also for the future. - Wherefore they sin gravely of themselves who deliberately pursue them unjustly with hatred, or seriously and from the soul curse them or imprecate evils upon them, or provoke them to anger with names gravely injurious; to the point St. Paul says: "And you, fathers, do not provoke your children to anger, but educate them in the discipline and correction of the Lord."¹ - Yet parents are often excused from grave sin who, moved by anger, act thus without perfect deliberation. Nor do they commit any sin, but act rightly, who, on account of a just cause, severely rebuke children, and moderately chastise them.

¹ Ephes., VI, 4.

(b) Rightly ordered, that is, resting on and ruled by a rational and also supernatural motive, so that it is neither excessive, nor irrationally favors one rather than another. - Hence they should not love children with a quasi-idolatrous love, by indulging everything to them, on account of sluggishness or cruel benignity, by by no means correcting their vices, etc. Likewise they should love all offspring equally, insofar as it can be done; and if there is some distinction, let them take care that it not be made without a reasonable cause; not rarely incautious parents are deceived by external qualities or flattering caresses, and they pursue with a more tender affection those who are worthy of less love; and from this arise not a few envies, quarrels, contentions, and other things of this sort, as is clear from the history of Joseph.²

² "But his brothers, seeing that he was loved by his father more than all the sons, hated him, nor could they speak anything peaceably to him." (Gen. XXXVII, 4.) - Hence St. Ambrose writes (de Joseph, in Migne, P. L., XIV, 643): "To love children is sweet, and to love more intensely is very sweet; but frequently paternal love itself, unless it holds moderation, harms children; if either by excessive indulgence it weakens the beloved, or by the preference of one turns the rest away from the affection of brotherhood... Let equal grace join children whom equal nature has joined."

(c) Generous and operative, insofar as parents not only will well to children, but do good, by averting from them every evil, whether corporal or spiritual, insofar as it can be done, and by furnishing that which can conduce to their good and salvation; this indeed is especially performed through the best education.

2. On The Education Of Children.³

³ Dupanloup, De l'Education, 7th ed., Paris, 1866, t. II, l. 2, p. 138; Guibert, L'Educateur apotre, Paris, 1894, p. 66-84.

954. Education is the progressive and harmonious evolution of faculties, by which children are gradually and orderly transformed into perfect men. For children have received from God various faculties, which, although generically the same in all, are nevertheless imbued with special inclinations, whether good or bad; now good education is placed in this, that it eradicates evil inclinations, restrains untamed passions and directs them to good, but strengthens, cultivates, and orders good qualities to human and at the same time Christian perfection. - This evolution, however, can only be slow and progressive, because it is impeded by many obstacles, and besides man naturally can obtain perfection only gradually. It ought to be harmonious, or rightly ordered, insofar as all faculties, whether bodily, spiritual, or religious, must be cultivated in such a way that the whole man is formed, that is, a sound mind in a sound body; if therefore one kind of faculties is evolved before the others, this nevertheless ought to be done proportionately, so that bodily exercise does not harm the progress of the mind, nor excessive intellectual cultivation stand in the way of bodily health. - We shall speak of education both bodily and spiritual, and also of the schools to which parents ought to send their children.

955. (A) On bodily education. This already begins in the maternal womb, and does not come to an end except at mature age.

(a) As soon as it is established that a child has been conceived, everything which, under grave obligation, could harm the life of the little child ought to be avoided. Wherefore the mother ought to abstain from those dances, violent movements and actions, and other things of this sort which induce more violent concussions of the body;¹ and also from immoderate excitements, anxieties, or from excesses in drink; for all these things can induce abortion. Men and others who inhumanely treat, exasperate, or strike a pregnant woman also sin, since from this the life of the fetus is endangered.

¹ To the point Capellmann, Medicina pastoralis, 1896, p. 156, n. 1: "It is also to be most carefully guarded that they (pregnant women) not be carried in a carriage through badly paved streets or rough roads. The very trips on the railway, by continual concussions, not rarely furnish the occasion of abortion, wherefore longer journeys on the railway are not to be undertaken without necessity. To this also pertains the use of machines for sewing (machines a coudre, sewing machines) which are moved by the feet."

(b) After the birth of the offspring, parents are held diligently to watch so that whatever would induce danger of death be warded away from it. Wherefore the Ritual admonishes parents not to have a little child with them in bed, because of the danger of suffocation.

956. (c) The mother ought to nourish children with her own milk, as often as this can be done;² for many inconveniences arise from the contrary practice as to the mother herself, who is exposed to a longer-lasting fever, - as to the children, for whose nourishing maternal milk is more apt,¹ - and as to the nurses themselves, who are generally compelled to abandon their husbands and their own offspring, with danger of incontinence and neglect of the offices of domestic life. Yet mothers are excused from this office who, because of lack of milk, infirmity, or another reasonable cause, prudently cannot nurse their own offspring.

² Concerning the gravity of this obligation, scarcely anything certain can be established; of itself it is held as light by most theologians; but when many evils, and very grave ones, are foreseen to arise from the use of a strange nurse, of itself a grave sin is committed if this is done without legitimate cause. On this Capellmann wrote excellently, op. cit., p. 47-53; cf. R. Bazin, Donnatienne; Brieux, Les Remplacantes.

¹ Hence, with experience as witness, among infants who are nourished by art, mortality is far greater than among those who are fed with maternal milk.

But when little children are handed over to nurses, care should be taken that these be healthy in mind and body, and provide for the health and also the morals of the child: for maternal solicitude is no less necessary in this case than where the mothers themselves feed their children.

(d) Parents are held under grave obligation of itself to furnish to offspring food and other things necessary for honestly sustaining life, according to their condition, until these can feed themselves; for it pertains to them to protect the life of those whom they have procreated, and this obligation from its nature is grave.

Therefore parents sin who, without grave necessity, expose offspring in public ways, with danger of death, or at the door of an orphanage, so that they may free themselves from the burden of feeding it, when besides they can easily provide for its education. Yet, if the matter concerns illegitimate offspring, prudence can demand that it be commended to an orphanage; in which case, however, honor and equity demand that the rich repay the expenses for nourishing the offspring. But whether justice requires this is disputed among theologians; certain ones probably deny it, because hospitals of this sort have been instituted not only for assisting the poor, but also the rich who otherwise would incur the mark of infamy;² whence if any parents have not paid these expenses, they are to be earnestly exhorted, but not compelled to restitution.

² St. Alphons., lib. III, on the Decalogue, n. 656; Ball. P., n. 824.

957. (e) Finally, in a general way parents ought to take care that children, by bodily exercise and labor proportioned to age, orderly evolve and increase their physical powers; for since the body is the instrument of the soul, and the health of the body favors not a little the evolution of intellectual life, it is very expedient that legitimate means be used for multiplying physical powers.³ This is also true of girls: for if they are educated delicately and are weaker in body, they easily suffer in their nerves and by an irritable character exasperate others.⁴

³ Demolins described how, in Great Britain, attention is given to the physical education of boys, A quoi tient la superiorite des Anglo-Saxons? Paris, s. d., p. 52-86; every excess indeed in this matter must be avoided, but in France parents and teachers often do not care enough about bodily education.

⁴ To the point Bentzon, Causeries de Morale, p. 236: "It is a duty to be well. Without doubt each of us inherits a more or less robust temperament; but, such as it is, we ought by wise hygiene to maintain it in the best possible equilibrium. And why? Because the soul is bound to the body; how many nervous people, by losing all command over their will, become insupportable to themselves and to others! How many young girls are sullen, capricious, disagreeable, because they overwork, digest badly, lead a life too over-excited, abuse dance and worldly pleasures..."

958. (B) On spiritual education. The care of parents is not confined to the health of the body, but ought especially to be occupied in rightly instructing the souls of children. For this it is necessary that they cautiously and diligently look into their inclinations and psychological dispositions: for not all ought to be instructed in the same way and by the same method, but each according to his own powers and the special character with which he is endowed.¹ Yet we shall hand on certain more general things: namely education ought to be virile, practical, and Christian.

¹ Courtade and d'Hulst, De l'action individuelle dans l'education chretienne, Paris, 1870; E. Picard, Comment traiter l'enfant a l'ecole, in Science sociale, t. XXXVI, August 1903, p. 97-129.

959. (a) First, education ought to be virile, insofar as it ought to tend to forming men gradually. For there are parents and teachers who think that nothing else is to be desired in the young except perfect docility of soul and blind obedience of will, by which they immediately and without complaint embrace the opinions expressed by superiors and obey their commands. Men endowed with reason and liberty are not formed thus. But by words and examples, persuasion and gentle suggestion, and also paternal correction, let the young be taught how they may cultivate their faculties, and gradually may be able by themselves to think, will, and act, not indeed independently from God and the rule of morals, but independently from vain human fear and from prejudices by no means consonant with reason.

Wherefore, as soon as the exercise of reason dawns, let it be set forth to them why and how they ought to flee evil and do good; let them be deterred especially from vices common to their age, such as lies, small thefts, contentions, and quarrels; let them be induced to perfect sincerity and honesty, justice and charity, modesty and chastity.² But let them be taught to perform all these things not only from fear or custom, but from the inward persuasion of the soul, by which they understand that they are held to this both from the will of God and from the dictate of conscience. Likewise let them increase the powers of the will by assiduous efforts,¹ so that they may more easily overcome the untamed passions which arise within, and the allurements of the world which from without entice them to vices.

² Fonssagrives excellently sets forth how the young are to be strengthened in chastity, Conseils aux parents et aux maitres sur l'education de la purete, 2nd ed., 1902. - For preserving chastity, it must diligently be cared for that boys and girls not sleep together in the same room, and especially in the same bed, at least after the seventh year.

¹ J. Payot, L'Education de la volonte, 18th ed., Paris, 1894; Ribot, Les maladies de la volonte, Paris, 18th ed.; A. Martin, L'Education du caractere, Paris, 1889.

960. (b) Education ought also to be practical, that is, truly preparing boys or girls for that kind of life for which they are destined, according to the character and condition of each. Many parents today, especially in France, think only of teaching letters, and send their offspring to colleges and universities, so that they may be able to lead a quiet life in the exercise of the liberal arts or in managing public affairs; from this it happens that many exercise no office, because there are many more candidates than offices to be distributed. Now the liberal arts must be cultivated by some, but not by all; otherwise industry, commerce, agriculture, and other arts necessary for life would soon grow languid and perish. Moreover many are found less suitable for the liberal arts, while on the contrary they would wish to give themselves to agriculture, industry, or commerce, if they were rightly instructed in these. Therefore let parents and teachers diligently look into the character and inclinations of their children or pupils, and not exercise any longer in literature those who intend to devote themselves to industry. Therefore it is greatly to be desired that schools which they call professional be multiplied among Catholics, in which all those who wish to embrace an industrial office, independent from the State, may be rightly formed.²

² Demolins, op. cit., p. 87-112; the same author, in another work (L'Education nouvelle, Paris, s. d.), describes how the young can be practically prepared for industrial life.

961. (c) Education should especially be Christian, by which namely adolescents are formed who embrace religion and adhere to it, not only when they are placed under the guardianship of parents or teachers, but also when they now act by their own movement and lead life far from the family. For this it is required that they believe from an inward and reasonable persuasion of the soul, and not be ashamed to manifest faith by works; for today, since the Catholic faith is attacked everywhere, it is necessary that Catholic youth be ready to fight manfully for the faith, as soldiers of Christ.

Wherefore parents are held under grave obligation, either through themselves or through others, to hand on to their children Catholic doctrine concerning all those things which are necessary to be known for attaining salvation and living as Christians; to form the same to the practice of those virtues without which they cannot be saved. For since children of this sort are destined to a supernatural end, those who procreated them by that very fact took upon themselves the burden, insofar as it can be done, of furnishing them the means necessary for obtaining this end. - The Roman Catechism inculcates this obligation in these words:¹ "The proper offices and duties of parents are that they imbue their children with most holy disciplines and morals, and give them the best precepts of living, so that, instructed and prepared for religion, they may venerate God holily and inviolate."

¹ Catech. Rom., On the fourth precept of the Decalogue, n. 13.

The same is handed down in the Code, c. 1113.

962. 1. Hence parents ought to take care that children be baptized as soon as possible (On Baptism, n. 48), and receive the grace of regeneration, by which they are made children of God, citizens of the Church and of the kingdom of heaven; - that from the tenderest years they learn the principal mysteries of faith, invoke the name of God,² love Christ the mediator, and pursue his Mother with a pious affection; - that they become accustomed to morning and evening prayers, the sacrifice of the Mass and divine offices, and also catechisms; - that they avoid depraved companions and dangerous readings, and especially that they not be corrupted by impious or dishonest servants.

² Let mothers take care that children, first attaining the years of discretion, turn themselves to God; to the point St. Thomas, 1. 2., q. 89, a. 6, ad 3: "For the first thing that occurs to a man having discretion is that he think concerning himself, to whom he should order other things as to an end. For the end is prior in intention. And therefore this is the time for which he is obliged by the affirmative precept of God, by which the Lord says: Be converted to me, and I will be converted to you (Zach., 1, 3)."

2. But they themselves ought to furnish a good example to their offspring, by speaking cautiously before them, especially about things pertaining to religion or chastity, lest at an inopportune time they learn what they ought still to be ignorant of; - likewise by acting cautiously, lest perhaps they furnish scandal to little ones:³ for these easily desire to imitate all things which they see; - by showing them examples of all virtues: for since the first age, like soft wax, receives impressions more distinctly and elegantly, it is certainly of great importance that only specimens of virtue be shown before boys, especially by those who enjoy the greatest authority among them.

³ Hence even the pagan poet Juvenal writes (Satire 14): "The greatest reverence is owed to the boy; if you prepare anything shameful, do not despise the years of the boy: but let your infant son stand in your way when you are about to sin."

3. Parents are also held to correct delinquent children, yet moderately, prudently, and benignly, so that it clearly appears that this is done for the sake of amendment, but not of indignation and anger. - For parents act in God's place in the rule of the house, and ought to imitate him who disposes all things sweetly and strongly, and chastises men only wisely, for instructing them and deterring them from vice. Therefore let them speak or determine nothing too bitter against children; but, as the Roman Catechism admonishes,¹ "if any fault has been committed, since chastisement and rebuke are necessary, let them not loosely remit anything to children through indulgence: for often children are depraved by the excessive softness and facility of parents; wherefore let the example of Heli, the high priest, deter them from relaxed indulgence, who, since he had been too indulgent toward his children, was afflicted with the greatest punishment."

¹ Catech. Rom., loc. cit., n. 14.

963. (C) On Catholic schools. Finally parents, when they cannot provide at home for the perfect education of children, are held to send them to Catholic schools; for from the Code, c. 1374, "Catholic children should not frequent non-Catholic, neutral, mixed schools, namely those which are open also to non-Catholics"; lest they be exposed to the danger of losing faith or morals.²

² Dupanloup discusses excellently the endowments of teachers and the manner of educating the young, De l'Education, and Lettres sur l'Education des Filles, Paris, 1879; cf. Guibert, op. cit.

To set forth the matter more fully, it must be known that non-Catholic schools are of two kinds: neutral, which in the education of boys prescind from any positive religion, but teach nothing heretical or impious; positively evil, in which atheism, heresy, or indifferentism is more or less defended.

(a) Now it is not permitted to parents to send children to positively evil schools, in which the proximate danger of perversion cannot be removed: for here the matter concerns the eternal salvation of souls, which must be preferred to all goods; nor is it permitted to expose oneself to the proximate danger of sinning, as is established from the things said where treating the proximate occasion, On Penance, n. 458-469. Hence, if such public schools exist, let fathers of families not omit to denounce them, as contrary to the common good, and let them use all legitimate means to abolish them thoroughly. - But if, with attention to all the circumstances, the danger can certainly morally be removed, let these things from the Code, c. 1374, be attended to before the eyes: "But it belongs to the Ordinary alone to decree, according to the norm of the instructions of the Apostolic See, in what circumstances of things and with what cautions employed, so that the danger of perversion may be avoided, it can be tolerated that those schools be attended." This also applies to neutral schools.

964. Schools which are called neutral are also very dangerous; for by the very fact that they exclude every religion, they prepare the way for religious indifferentism, especially as regards boys of tender age; at least in their estimation the dignity and authority of religion is much diminished if it seems relegated within domestic walls; besides, in these schools purity of morals is not rarely exposed to great dangers; finally it can scarcely happen that religion is altogether prescinded from, especially in historical and moral matters, and often, under the pretext of neutrality, Catholic dogmas are attacked or mocked.¹

¹ Leo XIII vividly described these dangers, Encyclical Nobilissima Gallorum gens, Feb. 8, 1884; cf. Instruction of the S. C. de Prop. Fide, Nov. 24, 1875, to the Bishops of the Federated States of America, in Collectanea, n. 481; Third Council of Baltimore, n. 194-213; Letter of the S. C. de Prop. Fide, in Acta S. Sedis, t. XXVIII, p. 381. - In France, the Bishops set forth how dangerous State schools are, in the letter of Sept. 14, 1909; cf. Goyau, L'ecole d'aujourd'hui, Paris, 1899; J. Bricout, Ce qu'on enseigne aux enfants dans nos ecoles publiques, Paris, 1910. In certain schools the existence of God, the immortality of the soul, and the very foundations of morality are denied or called into doubt!

Wherefore Catholic schools are to be erected wherever this can be done, all the more because, where such have been instituted, public schools are compelled to reverence the Catholic religion more, lest perhaps parents send their offspring from these to Catholic schools.

But where there are no Catholic schools suitable for conveniently educating the young, parents are permitted to commit their offspring to public schools, provided that cautions are employed by which the danger of perversion is made remote from proximate.²

² Thus the Holy See already declared that it can be tolerated that Catholic young persons frequent the Universities of Oxford and Cambridge, and at the same time defined what cautions are necessary for removing the dangers thence arising (Holy Office, March 26, 1895).

But the cautions to be employed so that the danger of perversion may be warded off are these: to hand on Christian instruction and education outside school rightly and diligently, especially concerning those truths which are usually attacked in schools; to watch solicitously lest children suffer some detriment in faith or morals from lessons heard, from depraved books, or from association with depraved companions.¹

¹ Thus the Holy Office, in Collectanea, n. 481. - Hence the Third Plenary Council of Baltimore, n. 199, established that "all Catholic parents are held to send their offspring to parochial schools, unless either at home or in other Catholic schools they sufficiently and evidently consult the Christian education of their children, or, on account of a sufficient cause, approved by the Bishop, and with opportune cautions and remedies, it is permitted to them to send them to other schools."

3. On The Providence Of Parents Toward Children.

965. When parents have given work to the education of children, it remains that, by a certain paternal providence, they help them toward choosing a state and rightly ordering life.

(A) First of all they are held to help them so that they may be able to embrace a state suitable to their condition and character; for it is not fitting that even the rich and noble remain idle, but an obligation is incumbent upon each person of devoting himself to some labor, so that he can bring some utility to himself, to the family, and to society. They will furnish this indeed:

(a) By taking care that boys and girls (for these also ought to do something useful) learn art or letters, - and acquire those endowments of body and soul by which, even if they were deprived of an inheritance, they would be able to obtain for themselves an honorable support.

(b) By furnishing to the same counsel concerning choosing a state of life, according to their condition: for parents, who have greater experience, can help incautious young persons much in this matter; nevertheless they cannot bring force upon their children, who have the right of choosing a decent state for themselves, after they have sought the counsel of parents.

966. (c) By bringing help to them, so that they may be able to attain the state which they have chosen; therefore, if parents are richer, it is altogether fitting that they moderately endow their children, so that these may more easily be able to devote themselves to some industry or art and support themselves and their family, when they have married. But whether this is owed from justice, by natural right alone, is not so certainly established, provided that otherwise the children are able to provide for themselves. - Whatever may be the case, in many regions the custom has prevailed that daughters be endowed, so that they may more easily marry according to their condition; and, where custom flourishes, parents who without reasonable cause would not wish to furnish this would sin against charity - gravely or lightly according to the circumstances - because by their fault a daughter would often remain unmarried or would enter only an unequal marriage.

It is likewise fitting that parents lay up treasure for children, and leave to them a part of the inheritance, so that the honor and security of families may be more safely provided for; but, natural right alone being inspected, that is not prescribed from justice;¹ wherefore, in certain nations, civil law leaves full liberty to fathers, as we declared above, on the Virtue of Justice, n. 716. But where civil law has defined something concerning this matter, what is to be done in conscience we handed down in the same place, n. 725.

¹ To prove that this is an office of justice, many allege the words of the Apostle: "For children ought not to lay up treasure for parents, but parents for children" (II Cor., XII, 14); but, the context having been inspected, it is clear that St. Paul there in no way treats of an office of justice incumbent upon parents, but only refers to those things which are fitting, and which in his time were commonly done.

967. (B) After children have chosen a state of life and have married, paternal care is indeed diminished, but not altogether extinguished; for children, even after marriage has been celebrated, are closer to parents than strangers; wherefore the order of charity demands that, if they are placed in bodily or spiritual necessity, parents assist them more than strangers.

(a) If therefore children by fortuitous chance, from physical infirmity or misfortune, indeed from their own fault, have been made needy, and do not have the necessities for the support of themselves and of their children, and neither wives nor their own children can furnish them food, paternal charity demands that parents, insofar as they can, provide for the necessities of children: for if they are held to aid the poor, a fortiori those who are joined to them by the closer bond of consanguinity. - Yet they ought by no means to supply them with wealth and luxury, but only those things which are required for honorable support.

968. (b) Thus likewise if children need spiritual correction or opportune counsel, the right and office of furnishing spiritual alms by paternal affection is incumbent upon parents rather than upon strangers, because of the closer conjunction which they retain with them.

In one word, the special bonds of charity by which parents are bound to children are indeed relaxed at mature age, but are not entirely dissolved. Yet in these matters very great attention must be paid to the morals and customs which have prevailed in such or such a region, indeed even in the same region among various kinds of families; for the bonds by which parents and children are joined are closer or looser among diverse Nations, and also at various times or among diverse families: in this matter, custom is the best interpreter of laws.

Guilt of lending

60. 6. On the lending of a book. a) Of itself, it is less grave to lend a book than by selling it to hand over full possession of it. Therefore a proportionate reason, such as a librarian of a public library has, can excuse the lending of those books which, although prohibited, have a useful use.¹ Moreover, a positive faculty is granted by the Holy See.

On a librarian,

b) But concerning booksellers who also rent the books which they have for sale, or concerning libraries which are set up by private funds, one must respond more cautiously. This private industry easily contains some recommendation of prohibited works, which is entirely to be avoided. Catholics besides must beware of scandal. Therefore these will neither rent such books without license, nor openly display them, nor hand them over without distinction of persons.

On innkeepers

c) Here the question is asked concerning innkeepers, whether or not they can set evil newspapers before guests.

We think this question is to be solved thus,² leaving aside positive prohibition.

How far innkeepers can set out evil newspapers

alpha) On account of the additional reason of scandal, they cannot, even if they would be abandoned by many clients, set out those newspapers which are entirely opposed to faith and morals.

beta) But those which more rarely contain something less right, they will be able, for a reasonable cause, to hand over to be read, especially if, on account of the announced matters, for example commercial news, there is some necessity for several to read some sheet; at least then they can supply these things to clients of this kind in a separate place.

gamma) But the Confessor should practically see what he can obtain. The matter must be urged more severely in those places where, as in the countryside, these newspapers will be removed both more usefully and with greater scandal if displayed. Let him certainly lessen the evil which he cannot extinguish, by effecting that they be handed over only to those asking, or in a separate place, not indiscriminately, and that at least good newspapers be displayed at the same time.

¹ Cf. Hollweck, Die kirchlichen Strafgesetze, section 107, 4, who thinks it is lawful for public libraries, excepting obscene books, to contain all prohibited books and to leave the reader to his own conscience. We can concede this for those places where it can scarcely be otherwise. This will often happen in larger cities.

² Cf. Lehmkuhl, I, 664; Arndt, pp. 235, 236, n. 175.

Whether exempt Regulars are held by the prohibitions of Bishops

64. Hence you will ask whether or not exempt Regulars are held by Episcopal prohibitions.

Opinions of those who affirm, and arguments

Most affirm that they are held. And some indeed subject Regulars in this matter even to the ordinary jurisdiction of the Bishop, either because these Regulars do not demonstrate their exemption, or because this is a cause of faith, in which Regulars are subject to the Bishop.¹ So Pennacchi,² Ciolli.³

But others argue rather from the power of proceeding even as delegated by the Holy See, which is confirmed to Bishops by article 29 of the Constitution Officiorum. So Palmieri,⁴ who acknowledges that he is moved by this reason alone, and Wernz.⁵

But neither group seems to us to establish the matter.

General force of exemption

For Regulars properly so called - and also members of certain Congregations, for example of the Congregation of the Most Holy Redeemer - have a general privilege of exemption which, as commending the authority of the Supreme Pontiff, receives a broad interpretation;⁶ and the houses of Regulars, by a fiction of law, are as if torn away from the Diocese.⁷ But outside the diocese, of himself, a Bishop has no power. Therefore that principle has force which we remember was handed down in the school of law at Rome: as regards jurisdiction, the Bishop has no power over Regulars except what is expressly granted to him in the law.⁸

But the contrary assertion of the distinguished Pennacchi, by which Regulars would have to bring forward an Indult concerning each exemption, plainly overturns the accepted notion of the exemption of Regulars, suppresses the generality of the privilege, and is repugnant to authors and to the Constitution Romanos Pontifices itself.⁹ For they propose the causes in which Regulars are subject to Bishops as exceptions and temperaments of the privilege that has been made. Nor do Doctors omit carefully to prove the individual derogations.

Moreover, among the exceptions, which nevertheless they have collected with most diligent care, the present case is nowhere indicated.¹⁰ Yet the doctors do not pass over this matter, since they expressly teach that Regulars are subject to Bishops in the publication of their own books, which, equally as those by seculars, are to be subjected to the previous censorship of the Bishop.

Nor is a stronger argument sought from the kind of prohibition which in some way concerns faith. For Regulars are subject to Bishops in causes of faith only insofar as judicial cognizance of causes which pertain to the Holy Office belongs privatively - that is, with regular Superiors excluded - to Bishops, who are born Inquisitors.¹¹ But from this it does not follow that Bishops have a general power of commanding things which are thought to benefit faith.

But that regular Superiors have their own role in this matter of books is clear from the authority which is given them by articles 15 and 36; it is clear from the Brief of promulgation of the new Index, by which Leo XIII, September 27, 1900, equally commits to Bishops and to Superiors of Regulars the care of urging the laws of the Index, each for his own subjects.

Force of the clause: "also as delegates of the Apostolic See."

Thus far concerning the former opinion opposed to us.

But those later authors who draw reasons from the delegated power of Bishops do not seem to bring us stronger arguments.

Certainly, Bishops need delegated power in order to be able to give precepts to Regulars as such.

The Holy Synod of Trent granted this power to them several times in the chapters De Reformatione. It also permitted Bishops to establish certain things concerning exempt persons and Regulars "even as delegates of the Apostolic See," as when it gave them the mandate of visiting monasteries in which regular observance does not flourish.¹²

But by what law do you infer from this: whenever this faculty of proceeding also as from Apostolic delegation is attributed to Bishops, any general act of theirs obliges exempt persons and Regulars? By what canon is this declared? Reverend Father Wernz himself¹³ does not deny the ambiguity of that clause. He brings forward three interpretations of it. "It can scarcely be denied," he himself continues, "that there are not lacking ancient and new authors who ... less rightly restrict that word also to signifying cumulative jurisdiction alone (over one's own subjects)." These, therefore, at least tacitly, disagree from Fagnani, whose support Father Wernz uses. But what of that interpreter of law? In chapter Ad audientiam 3, De ecclesiis aedificandis (III, 48), nn. 46, 47, 54, he sees contained in the clause "also as delegates" a delegated power by which Bishops can also dismember parishes subject to Regulars.

But if we wish to transfer this into our argument, we shall say by parity: by force of that clause the Bishop will be able to proscribe with a censorial mark the books of all, even of exempt persons and Regulars. But Fagnani himself has no universal opinion by which he contends: a Decree which the Bishop issues even as Delegate of the Apostolic See always affects exempt persons and Regulars.

Indeed, does not Fagnani himself, whom we know to favor the causes of Regulars little, nevertheless in chapter 19, De officio iudicis ordinarii (I, 31), n. 5, deny that a Bishop delegated by the Pope can proceed against exempt persons, if no mention of exemption has been made in the letters; and testify that this is the doctrine of Hostiensis and John Andrew?¹⁴ Moreover, in our age, neither De Angelis¹⁵ nor Santi¹⁶ attribute to this obscure clause, "also as delegate of the Apostolic See," efficacy of itself to widen the spaces of the ordinary power of the Bishop, but rather efficacy of warding off whatever impediments could obstruct the exercise of this authority.

Therefore we shall say thus: that clause gives Bishops a more expedited power and removes obstacles which could impede the end for which the delegation was made.

Was perhaps extension to Regulars demanded here by the intended end?

By no means. In the present case, there could of itself have been intended equally a greater and more certain efficacy of proscription for touching the books of all, rather than an extension of episcopal prohibition to exempt persons who are entrusted to the care of other Prelates. Now: a) if we consider the letters Inter multiplices, by which that faculty was first conferred, Pius IX, through these letters, stirred up Ordinaries to exercise their power of proscribing books, so that harmful writing might be met more swiftly in individual dioceses when evil was pressing.¹⁷ And once the necessity of prompt coercion had been declared, he immediately connects the granted delegation.¹⁸ But what could the exemption of Regulars do against this swift coercion, whose obstacles he wished to remove? Are not Regulars, outside rare cases of necessity, prohibited from dangerous readings by their own Superiors? But various pretexts of another kind could stand in the way, for example the lack of the condition required by Clement VIII (below here), approval received from one's own Bishop, etc., on account of which they might perhaps contend that jurisdiction was lacking in the Bishop for proscribing the book itself, and might hold his judgments "as not issued." And in truth, questions were being raised concerning the power of a Bishop to punish certain books. Cf. Albitius, De Inconstantia in Fide.¹⁹ And difficulty could be made by the declaration of Clement VIII, by which he had declared concerning this faculty of Bishops: "the case will be very rare, nor is this power to be used without a most grave cause, and the Holy See must be made more certain concerning its use."²⁰ Cf. also the letters of Propaganda Fide, August 11, 1855.²¹ Besides, when the exemption of Regulars is the cause or occasion of a delegation of this kind, the exemption is generally expressly derogated from. b) If we look to the present article 29, the delegation is joined with the indicated office, by which Bishops must see to it that harmful writings "be removed from the hands of the faithful." Who are those faithful if not diocesan subjects?

For this reason, until the Holy See defines the contrary, we judge that the opinion can be retained which makes Regulars immune from Episcopal prohibitions. With us Péries,²² Génicot,²³ Oietti,²⁴ Piat,²⁵ Van Coillie,²⁶ and practically Sleutjes²⁷ defend this. At the same time, however, Regulars, according to their prudence and humility, will beware lest by openly reading those things which the Bishop has prohibited, or even by openly receiving them within their houses, they be a scandal to diocesan subjects, or seem by some ostentation of immunity to undermine the authority of the Bishop.²⁸

¹ We omit certain futile reasons, as when they say that exemption ought not give a privilege of running into danger in faith or morals. By a similar reason you could demonstrate that the prohibition of one Bishop binds neighboring dioceses and perhaps the whole world. But the question looks to this: to which Prelate belongs the care of providing for the safety of Regulars. And if, from article 26, the faculty of reading books prohibited by the Holy See does not contain the faculty of reading books condemned by Bishops, it is clear that this regards those who are held by the prohibition of Bishops.

² Op. cit., n. 67.

³ N. 61, p. 60.

⁴ Op. cit. on articles 26 and 29.

⁵ Loc. cit., n. 111, note 82.

⁶ From the general principle of St. Alphonsus, Appendix De Privilegiis, n. 8. Cf. Suarez, De Legibus, book 8, chapter 27, n. 7.

⁷ Constitution Romanos Pontifices of Leo XIII, beginning.

⁸ Cf. Piat, Praelectiones iuris regularis, vol. 2, pp. 195, 196, question 9, end.

⁹ Loc. cit.

¹⁰ Even in recent catalogues and after Apostolic delegation has been granted. Cf., for example, Piat, Praelectiones iuris regularis, vol. 2, pp. 202-205; Oietti, Synopsis rerum moralium et iuris pontificii, s.v. Exemptio.

¹¹ A cause of this kind was the suspicion of heresy which those reading books of heretics incurred, but not those reading obscene books. Cf. Albitius, De Inconstantia in fide, chapter 30, nn. 414 and 417, 418.

¹² Session XXI, chapter 8, De Reformatione.

¹³ Ius Decretalium, vol. 2, n. 696.

¹⁴ Even in a favorable matter, it was much doubted whether or not a Bishop could aid Regulars by faculties delegated to him of dispensing, etc. Besides, the jurisdiction of a Legate is delegated and of itself is not extended to Regulars.

¹⁵ Praelectiones iuris canonici on book 1, title 29, n. 2.

¹⁶ Praelectiones iuris canonici on the same place, n. 3.

¹⁷ Cf. letters Inter multiplices.

¹⁸ For thus it states: "If due obedience responds to these [exhortatory letters], most grave evils will be removed, especially in those dioceses in which the necessity of prompt coercion is urgent. But lest anyone under the pretext of defect of jurisdiction or under some other sought-out color ... His Holiness has granted ... that in this matter they proceed also as delegates of the Apostolic See." Nor does he say under the pretext of exemption, as would have been natural if he had been thinking of Regulars; but he uses those words which are easily referred to jurisdiction lacking absolutely, or as regards books.

¹⁹ Chapter 30, nn. 164-186.

²⁰ Declaration of Rule X, related by Albitius, Inconstantia in Fide, n. 186, and by Arndt, op. cit., n. 163.

²¹ Collectanea C. Prop. Fidei, n. 1886.

²² Op. cit., p. 164.

²³ Op. cit., I, n. 451.

²⁴ Analecta Ecclesiastica, 1898, p. 383.

²⁵ Nouvelle Revue Théologique, vol. 31, pp. 572-582.

²⁶ Op. cit., p. 27.

²⁷ De prohibitione, p. 18.

²⁸ But we deny that this scandal can scarcely be avoided, as Reverend Father Wernz thinks; for even without scandal there are held in the houses of Regulars books proscribed by the Holy See. Nor must they constantly manifest the faculty they have.

Which Prelates possess this faculty

96. 2. Prelates to whom quasi-episcopal jurisdiction belongs are Nuncios,¹ Apostolic Vicars, Capitular Vicars, and Superiors of exempt Regulars, both Generals and Provincials, and also, as is probable, Locals,² provided they truly preside over a convent or monastery. Thus Guardians of the Friars Minor; Priors of the Friars Preachers; Provincials, Rectors, Vice-Rectors of the Society of Jesus, and Superiors of houses which are of their own right. But not Ministers, nor Priors who are subject to an Abbot.³

The same power belongs to the Vicar General, not as to a Prelate, but insofar as he exercises episcopal jurisdiction as one judge with the Bishop.

What power has been conceded to them

3. To these Prelates an ordinary power is made of conceding license, for individual books, and only in urgent cases.

For individual books

For individual books, strictly, would signify for certain books designated individually, and not by some general reason of books, for example, which might be useful for making this lucubration. Yet because the faculty can be taken broadly, a sufficiently special designation seems to suffice so as to contract the faculty to a few books, provided the other condition of an urgent cause is observed.

In urgent cases

In urgent cases only. A case will urge if a just cause of reading suffers no delay necessary for Roman recourse.⁴

But the cause ought not to be of so great necessity that it excuses from the law; but we seem able to be content with notable utility, on account of which a general license would deservedly be given by a competent Superior; indeed with less, since there is less danger in the reading of one individual book. Suppose, for example, that a rare occasion is offered of reading a book which is indeed prohibited but useful for studies.

It can be delegated

Since this power is ordinary, it can be delegated to Deans, Parish Priests, and Confessors themselves (for whom it will often be useful to have it).

It extends to obscene books

It is not circumscribed by object, so that, if nevertheless a just cause underlies it, it comprises a book obscene of set purpose.⁵

¹ The principle from which they could regularly do those things "which the Ordinary could do in his diocese" seems sufficiently to have force for this use. Pirhing and Schmalzgrueber on book 1, title 30, n. 4.

² Cf. Vermeersch, De Religiosis, etc., t. 1, n. 412.

³ The distinguished Pennacchi, A. S. S., n. 63, p. 385, whom Ciolli, n. 59, still follows, undeservedly excludes from use of this faculty all regular Prelates whose authority, circumscribed to monks, is not exercised over some people. He gives as reason that, in the latter part of article 25, the Legislator sets down the case in which Prelates of this sort have obtained from the Holy See the faculty of imparting to the faithful license of reading and retaining prohibited books. Therefore the Prelates must be understood only as those who would have faithful. But by the name of faithful there come only "secular men and those living in the lay state." But what prevents some expression in the two sentences from being taken in a sense accommodated to each sentence? Therefore in the former sentence, Prelates possessing jurisdiction as if episcopal will be all who are accustomed to come under this name; in the latter they will be those who "de facto" have faithful. Besides, why say more? Even if this article did not include regular Prelates in express words, it was not fitting to pass over the Constitution Romani Pontificis circumspecta of St. Pius V, which universally disposes: "The Regular Prelates themselves, by themselves, can do altogether the same toward Brothers and Nuns ... subject to them, which Bishops can do toward clerics and laymen subject to them, both as regards faculties of absolving and dispensing of this sort and as regards any other faculties whatsoever, by the same authority and tenor, even perpetually we concede and indulge, and also declare." That this Constitution still has force, Piat, Prael. Iur. regul., t. 2, p. 87, note 2, shows. This concession plainly suffices in the present species. Cf. also the general principle in Suarez, De Relig., tract 8, book 2, chapter 12. On the matter also very well Wernz, cited place, n. 111, note 78.

⁴ To Roman recourse, I say. For just as concerning reserved cases, so concerning this matter the impediment seems able to be estimated with respect to him who has the ordinary faculty, that is, in the case, with respect to the Holy See. Therefore the said superiors will enjoy the faculty of an urgent case although opportunity is at hand of approaching a Bishop furnished with a delegated faculty.

⁵ Nordin, Summa theol. mor., n. 694, note.

Faculties delegated by the Holy See

97. Greater faculties are sometimes delegated by the Apostolic See to the same Prelates, by which they are permitted to concede to their subjects a general faculty of reading and retaining prohibited books.

Concerning the right interpretation of those faculties, these things occur to be observed.

Interpretation

a) These faculties are to be interpreted broadly.

Communication with successor and by delegation

b) From the new discipline introduced through the Decree of November 24, 1897, these faculties, which are conceded for a certain space of years, if they are handed to Bishops, also pertain to Vicars General; if they are given to Ordinaries of places, or to Superior Generals of Regular Orders, they pass (in the state in which they were) to their successors, substituted in their place by stable or passing title; and, from the decree of December 14, 1898, they are in themselves delegable.¹

Use in favor of themselves

c) Bishops can concede the faculty to themselves by force of the obtained Indult, since the act pertains to voluntary jurisdiction.²

And of Regulars

c) Bishops seem able to use those faculties which they have obtained in favor of Regulars, lest the favor of exemption yield to their detriment.³

Limits of a temporal faculty

d) Unless the formula restricts the power, the Bishop can make the permission perpetual. But if he cannot give perpetual permission, he does not seem to exceed his power if he gives the faculty until revocation. For this is numbered among temporal faculties.

What if the indult is temporary

But by no means must he circumscribe the faculties which he concedes by the same time by which he himself has the faculty of conceding. For it is well conceived that for a quinquennium a faculty is given to someone of giving even perpetual licenses; and there is no reason why you should restrict to the time of the indult the time of the faculty granted by force of the indult. Otherwise, a Bishop who obtained a quinquennial indult four years earlier could now make a faculty only for one year; and he whose indult would expire after a month could permit reading only for a month. Doctors adhere to our interpretation and the style of the Sacred Congregation of the Index accords with it.⁴

Yet this must be understood in itself. For in the Indult the time can be expressly defined beyond which permission cannot be conceded; and the present mind of the Sacred Congregation de Propaganda Fide⁵ seems to understand indults conceded by it in that manner which in itself we reject.

e) The modes and limits which are prescribed in the indult must be well observed.⁶

And so, in the use of the Indult the apostolic authority by force of which the faculty is conceded must be recalled.

The faculty must be conceded altogether gratis.

The power is not accustomed to extend to all books to be conceded, but certain ones designated by name, or certain classes of books, are excepted.⁷ For example, delegation is never given for permitting books obscene of set purpose.

Often, especially for books against Religion, Bishops can concede the faculty only to those persons who are furnished with a certain quality.

While it is always required that Bishops concede this permission only with selection, or with prudent discretion of persons and circumstances, and from a just and reasonable cause (article 25), the cause itself is sometimes indicated taxatively: "for the effect of attacking them (heretics)." Cf. n. 98, 5.

The form of the Indult which the Sacred Congregation of the Index grants to Bishops is this:

Most ample and Reverend Lord,

Our Most Holy Lord Pius Pope X, kindly receiving the suppliant prayers by which Your Amplitude asked the faculty of permitting to the Christian faithful committed to your pastoral care the reading of books prohibited by the Apostolic See, committed to this Sacred Congregation of the Index that it should impart to You, concerning whose religion, doctrine, and piety he has very great confidence, the aforesaid faculty, namely of conceding to the faithful of Your diocese, from a just and reasonable cause, license of reading and retaining prohibited books, with certain laws and conditions nevertheless preserved, until ...

Wherefore you can concede:

1°. To upright and learned men only, license of reading and retaining any books whatever (and periodicals) prohibited by the Apostolic See, excepting those which defend heresy or schism, or overturn the very foundations of religion; whose reading you can permit only to those whom you know to be more outstanding in doctrine, piety, and zeal for the faith; but you shall permit to no one the reading of books treating obscene things of set purpose.

2°. To youths who in public schools, gymnasia, lyceums, academies apply themselves to studies, you can similarly concede license of reading and retaining, for as long as they are placed in that necessity, books proscribed by the same Apostolic See which by command of lay power they are compelled to have at hand.

But the aforesaid licenses are to be conceded gratis under any title whatever, and without any emolument to be received by Your episcopal curia, under penalty of nullity; and in each letter of concession express mention must be made of the Apostolic faculty.

In faith of which, etc.

Given at Rome, from the Secretariat of the Sacred Congregation of the Index, on the ... day of the month ... in the year ...

To the Most Ample and Reverend Lord

Lord ...

¹ Some have been deceived by the prior law, for example Hilgers, p. 31, note 2, who deny that these faculties can be delegated.

² Sleutjes, De prohibitione, p. 32.

³ Vermeersch, De Religiosis, I, n. 382.

⁴ Zitelli, Apparatus iuris eccl., p. 541, note; Arndt, cited work, p. 252; Wernz, cited work, n. 111, note 79; Hilgers, cited work, p. 31, note 2.

⁵ The clause in the diocese is taken by the same Sacred Congregation in such a way that, when the faculty is made, the Bishop conceding it and the subject to whom he concedes it must both be present in the diocese.

⁶ The Sacred Congregation of Propaganda Fide has a longer Instruction, which we have copied in the fourth part of this work.

⁷ At least expressly. For in n. 2° of the formula just recited no books are excluded.

An apostolic faculty does not permit books prohibited by Bishops

98. 1. The Holy See does not lack the power of permitting someone books prohibited by Ordinaries, but the intention or will is lacking unless the indult gives express permission of reading and retaining books condemned by whomsoever. This clause is contained in no general formula. Therefore the Holy See is accustomed to act here in the same way as when it gives a faculty in reserved cases. Cases which the Bishop has reserved to himself have not customarily been contained by an apostolic faculty.

By their ordinary power

But this holds concerning episcopal proscription as it is a diocesan decree, not however as it is borne from delegated power. For the Holy See itself is judged to act through its delegate. Hence books proscribed by a delegate as such are judged condemned by apostolic authority. Wherefore the faculty of reading books disapproved by the Holy See must consequently comprehend these.

Corollary

Therefore exempt persons, for example regulars, if you contend that they are held by the prohibitions of bishops insofar as delegated faculty has been conceded to these,¹ will be able, once an apostolic indult has been obtained, actually to read works proscribed by Bishops.

One who can read a book can in itself retain it

2. The faculty of reading books seems in itself to comprise the faculty of preserving the same, yet circumscribed by the same limits. Wherefore, if the reading has been conceded only for a passing act, or if the one has permitted it who enjoys power only for an urgent case, a distinct faculty must be sought for habitual preservation, all the more because sufficient time is at hand to obtain it.

One who can read books can also read periodicals

2. The faculty of reading prohibited books comprises the faculty of reading periodicals. For attention is turned less severely to periodicals than to books.² It is confirmed indirectly from our article 26. For while it denies that one who has the apostolic faculty of reading books can read books or periodicals proscribed by Ordinaries of places, it indirectly says that periodicals condemned by the Apostolic See can in themselves be read by him.

But, on the contrary, the faculty of reading periodicals cannot be understood concerning books.

Clauses: excepting books against Religion

3. The clause, excepting books of set purpose against Religion, seems able to be understood concerning books which with direct intention have been written against every religion.³

Of this sort are those which of set purpose try to demonstrate that every religion is harmful or false; or which of set purpose blaspheme God and every worship; but not those which reject positive religion in order to preach natural religion.

Or which overturn the foundations of religion

4. The exception of books which in any way overturn the foundations of religion excepts books which defend materialism, atheism, positivism.

What of the clause: "for the effect of attacking."

5. The concession is sometimes clothed with this clause: "for the effect of attacking them (bad writers)." All admit that this clause is to be interpreted benignly and without scruple.⁴ Indeed, according to a very probable opinion, those words indicate the reason why the exception has been made, not a condition to which the use of the conceded faculty is tied:⁵ so that it is justified by any right end whatever. This is confirmed from the fact that at the same time the Superior judged that the danger of perversion was not imminent for the dispensed person. St. Alphonsus.⁶ Thus Zitelli,⁷ Planchard,⁸ Génicot.⁹ This will hold much more if there is added: and as an aid to one's own office and honorable studies.

Use outside the diocese

6. Unless the use is clearly more circumscribed, you can use everywhere the faculty of reading books condemned by the Holy See, whether the Holy See itself directly, or the Bishop from delegated power, has made this permission for you. For here holds the rule concerning dispensation, according to which dispensation from commission and dispensation from ordinary power are in themselves contained by the same limits. Schmalzgrueber, on book 5, title 33, n. 111. With us is Sleutjes, De prohibitione, etc., p. 31.

Moreover, the clause: in such a way that books are not taken out of this diocese, does not seem in itself to have the force of prohibiting use outside the diocese, since it rather looks to this, that books not be introduced into another diocese in a stable manner, although he who is endowed with the faculty can read also there books occurring there or brought with him there.¹⁰

¹ Cf. above, part I, n. 64.

² Cf. Arndt, cited work, p. 223, n. 166; Pennacchi, cited work, n. 64; Ciolli, cited work, n. 55.

³ Cf. above, n. 92.

⁴ Cf. Heymans, cited work, n. 345.

⁵ A condition sine qua non is customarily indicated more clearly: otherwise not; not otherwise; otherwise the whole will be void. Zitelli, Apparatus, p. 541, note.

⁶ Book 7, n. 291.

⁷ Apparatus, p. 541, note.

⁸ Rev. Th. Fr., 1897, pp. 31, 32.

⁹ Cited work, I, 457.

¹⁰ For reading, in another diocese, books prohibited by the Bishop of that diocese, the faculty of another Bishop cannot benefit those who are bound by this episcopal law, such as those would be who acquired at least a quasi-domicile in another diocese. Against Heymans, cited work, n. 343, and De Brabandere, cited work, n. 136.

It confirms the disposition of Clement

113. 1. That clause reports, almost to the letter, the words of the Instruction of Clement VIII added to the Rules of the Index. From this:

Equally with the rest they are subject to the censure of the Ordinary

a) The doctrine, already certain before, is confirmed, according to which exempt Regulars are subject to the censure of the Ordinary of the place equally with the rest. Equally, I say, not more.¹ Therefore, only for books which from common law are subject to censure.

How far, besides, the faculty of the proper Prelate is required

b) There is also commemorated the decree of Trent, session 4, concerning the edition and use of sacred books, by which they are further bound to obtain the faculty of their proper Prelate. But because, in that decree, speech is only concerning books of Sacred Scripture, annotations, and commentaries, the pontifical law concerning the faculty of the proper Prelate to be sought seems to be circumscribed to the same things. Cf. Desjardins, Etudes, t. 71, p. 365.² But as to other works, they will stand by their proper Constitutions.

Which Regulars?

2. Regulars are to be understood as those strictly such.³ Those who are called such more broadly will much less escape the censure of the Ordinary. For the rest they will observe their proper Rules.

Each concession to be printed

3. Each concession is to be printed at the beginning or end of the work in that manner in which the sole concession of the Bishop is to be appended to the books of others. Cf. below, n. 116.

¹ Wernz, n. 121, note 103, also holds the same, against certain persons who, relying on I know not what reason, already wish all books of Regulars to bear testimony of a double approval.

² Most think that by the Instruction of Clement VIII that prescription was extended to every book. Thus C. Gennari (cited work, in this place), Genicot (cited work, 460), and Pennacchi (n. 73). But in the same words by which our article does, that Instruction appeals to the decree of the Council of Trent. Therefore we do not perceive the force of the inference made. Nevertheless Boudinhon also admits this in this article, and Wernz, note 103. For the rest the matter is of the smallest importance, since at least from their proper Constitutions the books of Regulars must be approved by their Superiors.

³ They are, however, the solemnly professed, and, from the Constitution of Gregory XIII, Ascendente Domino, also the simply professed of the Society of Jesus. Concerning the simply professed of other Orders this is doubted. Cf. Bizzarri, Collectanea, 1st ed., p. 801, note.

The former law partly abrogated

114. 1. By the former law, by order of Alexander VII, those dwelling in the Pontifical State had to offer their books to be approved by the previous censure of the Cardinal Vicar of the City and of the Master of the Sacred Palace. Now the special obligation, if any remains, is circumscribed to the City alone.

Force of the present article. It imposes an obligation

2. Proceed now: the obligation seems to remain. For although the sentence of the law is in itself ambiguous and can be taken of a mere privilege,¹ nevertheless the reason of the former disposition remains in such a way that a correction of that law, which would be inexplicable, does not seem to have to be admitted. The usage of the City agrees, in which the Masters of the Sacred Palace urge their right in this way.²

But the reason of this sanction is drawn from a certain peculiar authority with which books that are considered to have been written under the eyes of the Holy See are vested, so that they seem to have to be fortified by the caution of Roman censure.

And it confers a privilege

3. At the same time, however, the article confers a most equitable privilege, by which these books, even if they are published elsewhere, need have no other approval. Thus the law is not made harsher for the inhabitants of the City, and fitting honor is given to Apostolic censure.

Whom it affects

4. Those properly dwell in the City who there have at least a quasi-domicile.³ Those, however, who actually stay at Rome even for a shorter time will be able, as pilgrims, to share in the privilege of the inhabitants.

¹ Cf. Palmieri, in this place; Ojetti, Analecta Eccl., 1898, pp. 383, 384.

² Cf. Wernz, n. 121, note 104.

³ Quasi-domicile is acquired by real habitation joined with the intention of staying in some place for the greater part of the year. Thus the opinion received in the curia, although some, as Lehmk. II, 775, are content with staying through a notable part of the year: as, for instance, through 4 months. Penn., A. S. S., cited place, n. 74, p. 495, judges that no space of stay is required for the use of that privilege.

Difference from the Tridentine censure

126. 1. Thus, by expressing it more clearly, the Tridentine excommunication is renewed,¹ which nevertheless struck only anonymous books, while, according to interpreters of the Constitution Apostolicae Sedis (which confirmed the same censure), books which bear before themselves the name of the author are now also comprehended.

It is necessary only that the approval of the Ordinary was given

2. Without the approval of the Ordinary. It is enough, for escaping the censure, that it has been given, although perhaps not in writing nor appended in the book. And although regulars besides need the license of their Prelate, they do not commit the excommunication if the book is approved solely by the Ordinary of the place.

Who are printing?

3. Printing, in the present case, seem to be only those who either are owners of the typography or sustain their person, so that they conduct the matter in their name. For the Tridentine text in the cited place contains commands and penalties which cannot be accommodated to workers, etc. Cf. Pennacchi, Ballerini, Arndt,² Hollweck,³ against Piat (on Van der Velden), p. 861.

Causing to be printed

4. Causing to be printed: as the editor of the book, he by whose care the book is printed; not necessarily the author, for example, if he merely gave or sold the manuscript, caring nothing for the printing.

Who absolves from this excommunication?

5. Excommunication reserved to no one. Therefore every Confessor can absolve from it, provided that contumacy has ceased.

¹ Session 4 (Decree concerning the edition and use of sacred books). As Hollweck, Die Strafgesetze, etc., sec. 108, 1, wishes, also for this reason it is established a little more severely than in the Council of Trent, because the Tridentine decree did not clearly comprehend Sacred Scripture itself.

² Avanz.-Penn., t. 2, appendix 38, p. 232; note 62 on Gury, II, 789; cited work, pp. 246, 247, n. 180.

³ Cited place. This sentence, which earlier, by I know not what law, R. D. Van Coillie, Collat. Brugg., p. 551, had accused of too much benignity, he sincerely confessed in the Commentary in this place to be sufficiently pleasing to himself.

1. DEFINITION.—Man must live and move in the society of his fellowmen.¹ In return for the physical and intellectual advantages which he receives from them, he must endeavor to make himself as useful to them as he can, by choosing or accepting certain work which his inborn or acquired faculties or means enable him to perform. The sphere of activity to which he devotes his powers is called vocation in the broad sense of the term.

¹ Cfr. 1 Cor. XII, 12 sqq.; Gal. VI, 2; Phil. II, 4.

2. IMPORTANCE.—The significance of such a vocation arises from the fact that, when sanctified by religion, it becomes the natural basis of a higher, spiritual life, —"the garden, as it were, in which the seeds of eternal life are planted, grow, and ripen unto Heaven."

Every man is in duty bound to choose a definite vocation, —preferably the one which corresponds best to his natural endowments, inclination, and bodily constitution, —and to prepare himself conscientiously for it.²

² St. Ambrose says (De Offic., I, c. 44): “Let each one know his own disposition and apply himself to that which he has chosen as suitable to him; and therefore let him first consider what he should pursue. Let him know his good qualities, but also recognize his faults, and let him show himself an impartial judge of himself, so that he may apply himself to the good and turn away from faults.” (Migne, P. L., XVI, 87).

3. CHOICE OF A VOCATION.—In choosing a vocation the individual is governed by subjective and objective influences, some of which may exercise a certain compulsion, whereas others are entirely under the control of the will.³

³ Job XII, 10; Ps XXXVI, 23; Prov. XVI, 33; XX, 24; Wisd. VII, 16; Acts XVII, 28; Rom. XI, 36.

a) A degree of compulsion is exerted over each individual, first, by the social conditions and circumstances of the country or race to which he belongs, be they differences of class or caste, or of material means; secondly, by the social position of the family of which he is a member; thirdly, by his own natural talents and inclinations, which dispose him favorably for certain occupations, and fourthly, by the course and vicissitudes of his life. The latter, while they no doubt have a certain compelling force, are still subject to the guidance of Providence, that is, the Will and Wisdom of God, who is both infinitely wise and infinitely good. "Man proposeth, but God disposeth, and the way of a man is not his."⁴ Free-will and moral responsibility are never entirely destroyed by what is commonly known as milieu. Every man, even he who has his vocation practically pointed out to him by circumstances of birth or parentage, is obliged to give his interior consent, and no one may be forced into a vocation against his better knowledge or will. Such external and objective factors as birth, parental commands or wishes, and that which thoughtless men call chance, sometimes contain valuable indications in regard to a man's vocation, but they should not be allowed exclusively to determine his final decision.

⁴ Thomas a Kempis, De Imit. Christi, I, c. 19: “For man proposes, but God disposes; nor is his way in man.” (Ed. Pohl, II, 33).

This is true especially of the vocation to the priesthood and the religious life. Foolish parents sometimes compel their children to embrace the one or other of these important states by undue suasion, nay even by direct threats. As the final choice is generally not made before the individual has attained a somewhat advanced age, the fear of offending parents (timor reverentialis) cannot exert so strong an influence as to neutralize free-will. The liberty of choice is indeed rendered difficult, —not, however, from without, but from within, and hence the excuse, "I was forced into this state of life" is irrelevant.

b) Of the rules to be observed in the choice of a vocation, the first and most important is that the salvation of the soul must outweigh all other considerations. It would be as wrong, therefore, to try to work out one's salvation without regard to others, as to devote oneself entirely to their well-being, regardless of the fate of one's own soul.

Secondarily, and as a matter of considerably less importance, regard may be had for temporal advantages and the common welfare of society. Time contains the germs of eternity, and whatever we do for our fellowmen is apt, one way or another, to affect their eternal destiny. Hence it is forbidden to choose a vocation that is positively immoral or sinful in itself, as, e. g., to be a slave-trader or a pirate, but it is not forbidden to choose an occupation which does not redound to the immediate and tangible benefit of society, as, e. g., that of a hermit or member of a contemplative order. Man lives not by bread alone, but he has spiritual and moral needs, and prayer coupled with heroic renunciation is of great social and ethical value, as any one can see who will study the immense benefits conferred upon humanity by the Mendicant Orders.⁵

⁵ Cfr. St. Thomas Aquinas, Summa Theologica, 2a 2ae, qu. 190 sqq. and the Apostolic Letter of Leo XIII to Cardinal Gibbons (Jan. 22, 1899) condemning "Americanism," in which the Pontiff says: “How splendidly these [religious orders] have also deserved well of human society is certainly known by those who are by no means ignorant of what the continual prayer of a just man can accomplish in appeasing and winning the favor of the Deity (Jas. V, 16), especially prayer joined with affliction of the body.” —On the work of the religious Orders see Montalembert, The Monks of the West, English translation, with an introduction by Cardinal Gasquet, 6 vols., 1896. See also F. A. Mohler, Gesammelte Schriften und Aufsätze, Vol. II, Ratisbon 1840; M. Heimbucher, Die Orden und Kongregationen der kath. Kirche, 3 vols., 2nd ed., Paderborn 1907-08. —On vocation to the religious life cfr. M. J. Scott, S.J., Convent Life: The Meaning of a Religious Vocation. New York 1919.

Catholic moral science, as such, makes no distinction between higher and lower states of life, or between honorable and dishonorable occupations, but, accepting the differences existing in society, both ecclesiastical and civil, commands every man to preserve the constituted order and to refrain from breaking down, without sufficient cause, the barriers that separate the different classes. Let no one be ashamed of the class to which he belongs or the occupation in which he is engaged, but let all remember that the Divine Founder of Christianity chose to sojourn upon earth "in the form of a servant."⁶

⁶ Phil. II, 6 sq.—Cfr. Pohle-Preuss, Christology, 3rd ed., St. Louis 1919, pp. 95 sqq.

c) Besides the fundamental principles stated above, a man when choosing a vocation should have some knowledge of his own character and the work for which he is fitted. To acquire this knowledge is a strict duty. Unless a man knows his own character and has an earnest desire to save his soul, he will not be able to select the vocation for which he is destined, and unless he has previously familiarized himself with the obligations and difficulties of that vocation, he is likely to experience grievous disappointment.

Let it be further borne in mind that all vocations have two features in common, namely, work and self-denial, though not, of course, in the same degree. This is another reason why every man who is about to select his vocation, should endeavor to ascertain the will of God concerning himself, and then set to work to obey it. The means by which this may best be accomplished are mature deliberation at a time when the mind is calm and undisturbed, reading good books, consulting prudent and experienced advisers, and, above all, praying for light and grace from above.

READINGS.—J. B. Krier, Der Beruf, 4th ed., Freiburg 1909.—Berthier, Christian Life and Vocation, New York 1897. —A. Vermeersch, S.J., De Vocatione Religiosa et Sacerdotali, Bruges 1903 (Engl. tr. by Kempf, St. Louis 1925). —Hettinger-Stepka, Timothy, St. Louis 1912, pp. 1 sqq., 20 sqq., 34 sqq., 40 sqq. —Jos. Lahitton, La Vocation Sacerdotale, Paris 1909. —A. Mulders, La Vocation Sacerdotale, Bruges 1925. —J. Mausbach, Altchristliche und moderne Gedanken über Frauenberuf, München-Gladbach 1906, pp. 93 sqq. —Bernard Ward, The Priestly Vocation, London 1918. —H. Davis, S.J., "Religious Vocation," in the Irish Ecclesiastical Record, 54th year (1918), Nos. 608 sqq.—H. Noldin, S.J., Summa Theologiae Moralis, Vol. II, 11th ed., Innsbruck 1914, pp. 77 sq. —Thos. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 635 sq.—A. Lehmkuhl, S.J., Theologia Moralis, Vol. I, 11th ed., pp. 362 sqq. —Damanet, Choice of a State of Life, Dublin 1880.—M. J. Scott, S.J., Convent Life: The Meaning of a Religious Vocation, New York 1919. —J. Goettsberger in Einführung in das Studium der Kath. Theologie, Munich 1921, pp. 7-14—Chs. A. Bruehl in the Homiletic and Pastoral Review, Aug., 1924, Vol. XXIV, No. 11, pp. 1121-1128.

1. Once a man has chosen his vocation, he should persevere in it to the best of his ability and comply faithfully with the obligations which it imposes.¹

¹ Cfr. Matt. XXV, 14 sqq. (parable of the talents); Eph. IV, 1 sqq.; Acts XX, 18 sqq.

We do not mean to insinuate that a change of vocation is never permissible or advisable. We merely wish to lay down the general rule that frequent changes of vocation, or any change not dictated by reasonable and sufficient motives, is unjustifiable from the moral viewpoint.² Doubts may and often do arise with regard to the vocation chosen, and if feelings of disgust with its duties and obligations cannot be entirely suppressed, they should be regarded as temptations and vigorously combatted. Even when one has a well-founded fear (dubium prudens) that he may not be able to attain his eternal salvation or perform his allotted share for the welfare of society in the vocation he has selected, he should, if the choice is irrevocable (as in the case of a priest), repel all thoughts of change and make a virtue of necessity,³ nay, try to recognize in that necessity the will of God. Constant brooding over a past or future change of vocation is apt to paralyze a man's moral power and to destroy the joy with which he ought to go about his duties, whereas a firm resolution to do one's best in all circumstances, coupled with unremitting prayer, invariably brings down the grace of God and often enables a man to perform even the seemingly impossible.

² Cfr. 1 Cor. VII, 17 sqq.

³ Cfr. St. Jerome, Epist., 54 (al. 10), n. 6.

A mere change of occupation may, of course, be made for any good and sufficient reason, provided that no positive duty is violated thereby and the individual is satisfied that he is called to some other state of life.

He who, though in lowly station, fills his place with honor, is better off, socially and morally, than he who seeks a higher vocation for which he is not fitted. Talent and energy find a suitable field of activity in every state, and if properly applied, will yield personal satisfaction and social benefit.

In laying down this principle we do not, however, condemn those exceptional natures who break through the barriers of an humble station and aspire to higher tasks for which they feel themselves qualified. Nor do we believe in confining people too rigidly to classes or castes. The caste system, in particular, is more or less immoral. No class as such should be excluded from social honors and privileges. Every man is entitled to the advantages of civilization and culture, and where equal opportunities are open to all, we usually find that ability or intellectual power joined to moral probity succeeds in winning a fruitful sphere of activity. We hear much about an aristocracy of birth in Europe and an aristocracy of wealth in America; but the only true aristocracy is the aristocracy of character and talent.⁴

⁴ F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 683 sq.

The security of those in humble station finds graphic expression in the old Latin saying, "Procul a Jove, procul a fulmine." Everywhere and always fidelity to duty ranks above mere success.⁵ "It is all the same," says Lessing, "how an honest man makes his living, whether he splits wood or pilots the ship of State; what really matters, in his inmost conscience, is not the thought how useful he is, but to what extent he is willing to make himself useful." A man's true worth consists in faithfully endeavoring to fulfil his appointed task, whatever it may be; and in this all may enjoy equality, regardless of the existing differences of vocation and occupation.

⁵ Cfr. Acts XX, 18 sqq.; XXI, 13; Phil. II, 17. —Seneca, Ep., 25, 2: "Malo successum mihi quam fidem deesse." —IDEM, Ep., 14, 16: "Consilium omnium rerum sapiens, non exitum spectat."

There are various ways in which a man may sin against his vocation.

1. He injures himself and society if he neglects to seize the opportunity of securing a living, or to acquire the necessary facilities by developing his bodily and mental talents, or to prepare himself for what he perceives to be his vocation by the conscientious employment of his time and all available means of training.

The first and greatest sin one can commit against one's vocation, therefore, is to refuse to choose a vocation. This sounds paradoxical, but is literally true nevertheless. Failure to choose a vocation, when inexcusable, is a sign of sloth, and sloth, as we all know, is the source of innumerable sins. Tramping and vagabondage not only entail grave social dangers, but their victims as a rule deteriorate morally.

Any man who, without a reasonable excuse, fails to labor in some legitimate occupation, whether intellectual or physical, is useless to society, and forfeits the right to the benefits it confers upon its members. "If any man will not work, neither let him eat," says the Apostle,¹ and "in the Lord Jesus Christ" he charges and exhorts those who "do no work but interfere with others," to "earn the food they eat," lest they be excluded from intercourse with their brethren.²

¹ 2 Thess. III, 10 sqq.; cfr. 1 Thess. IV, 11.—St. Thomas, Summa Theol., 2a 2ae, qu. 187, art. 5, ad 2: "Non otiose vivit, qui qualitercunque vtiliter vivit."

² 2 Thess. III, 3, 10-12.

2. A man also sins against his vocation if he undertakes too many things or fails to make himself useful, physically or intellectually, to himself or to the community in which he lives, either because he is dissatisfied with what society offers him in return for his labor, or because a wrong disposition moves him to seek nothing but pleasure.

3. Another grievous sin against vocation is the pursuit of purely temporal rewards without regard to the supernatural. To lead a life devoted entirely to mundane ambitions and material gain degrades man to the level of the brute. "A voluptuous life," says the Angelic Doctor, "seeks its end in bodily pleasure, a tendency which is common to us and the beasts, and hence, in the words of the Philosopher [Aristotle ], such a life is bestial." ³ Unprofitable like the beast's is the life of him who has no supernatural faith, for faith is the foundation of vocation, and without it no one can pursue his course with joy and spiritual profit.

³ Summa Theol., 2a 2ae, qu. 179, art. 2, ad 1: "Vita voluptuosa... est vita bestialis."

Work performed in the spirit of faith and prayer is like the gold standard, says Bishop Keppler; it has a fixed, nay an eternal value. "Thus earthly deeds assume heavenly worth; they become treasures which moths and rust cannot consume, nor thieves dig up and steal; they produce everlasting merits which give title to a crown. Performed for the honor of God and with the help of the divine power of grace, they become copies and images of God's omnipotent activity."⁴

⁴ P. W. von Keppler, More Joy, tr. by Jos. McSorley, C.S.P., St. Louis 1914, pp. 229 sqq.—Cfr. Ps. CXXVI, 1; 1 Cor. III, 7.

READINGS.—F. H. Linsenmann, Lehrbuch der Moraltheologie, Freiburg 1878, pp. 683 sq.—Fr. Probst, Kath. Moraltheologie, Vol. II, 2nd ed., pp. 389 sqq., Tübingen 1853.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 77 sqq.—J. Kearney, C. S. Sp., "Vocation: Its Essential Elements," in the Irish Ecclesiastical Record, No. 650 (Feb., 1922), pp. 165 sqq.

Labor is a natural necessity, a moral obligation, and a religious duty. We shall treat it in as many sections, adding a fourth on recreation or rest, which is the necessary correlative of labor.

1. Labor is, first of all, a natural necessity. Nature compels man to labor for the necessary means of subsistence. Since the fall of our first parents, the earth, which is the ultimate source of all things required for the support of the human race, of itself bears nothing but thorns and thistles, and man is compelled to till the soil in the sweat of his brow to make it yield the products he needs. "With labor and toil thou shalt eat thereof all the days of thy life."¹ "The soul of him that laboreth, laboreth for himself, because his mouth hath obliged him to it."²

¹ Gen. III, 17 sqq.

² Prov. XVI, 26.

"Manual labor," says St. Thomas, "has a fourfold purpose. The first and principal one is to procure food, wherefore the first man was told: 'In the sweat of thy face shalt thou eat bread.'³ ... Therefore, since manual labor is ordained for the obtaining of sustenance, it falls under the necessity of precept, because it is necessary to attain that end. For that which is ordained towards an end, derives necessity from that end, i. e., it is necessary in proportion as the end cannot be attained without it. Consequently, he who has no living from some other source, is obliged to perform manual labor, no matter what his position may be."⁴

³ Gen. III, 19.

⁴ Summa Theol., 2a 2ae, qu. 187, art. 3: “Manual labor is ordained to four purposes. First and principally, to obtaining sustenance; whence it was said to the first man: ‘In the sweat of thy face shalt thou eat thy bread.’... Therefore, insofar as manual labor is ordained to obtaining sustenance, it falls under the necessity of precept according as it is necessary for such an end; for that which is ordained to an end has necessity from the end, so that it is necessary precisely insofar as the end cannot exist without it. And therefore one who has no other source from which he can live is bound to work with his hands, of whatever condition he may be.”

Having in view both the natural and the economic aspect of labor, we can truly say that the more industriously men work, the more abundant are the means of sustenance and enjoyment at their disposal, and the less danger there is of want.

2. As man consists of body and soul, his labor is either bodily or mental, or perhaps it would be more correct to say, it is both bodily and mental; for as a rule the two occur in combination, though one or the other may, and usually does, predominate. Moreover, nearly every kind of bodily labor is more or less planned and directed by the will and the intellect; —by the will, because all labor involves the overcoming of difficulties; by the intellect, because the proper utilization of the materials and powers furnished by nature requires a preliminary knowledge. Productive labor is that which creates, conserves, acquires or transfers material or economic goods, and likewise that which produces, preserves, communicates or spreads personal or social values, as religious and moral convictions or endeavors, useful knowledge or facilities, intellectual and spiritual culture, political order and security, or any other requisites of intellectual and physical well-being.⁵ While the work of some classes of men, e. g., physicians, teachers, priests, authors, etc., does not produce material goods, it may be truly said to be productive in a mediate and indirect way, because the creation, acquisition, and preservation of economic values depends largely on personal and social goods. "He who writes a book," in the words of a modern author, "serves the intellect, and by serving the intellect, serves the world." Thus, in the natural or economic sense, labor may be defined as the conscious and purposeful application of man's faculties with a view to producing those things which are necessary or useful for sustaining life.

⁵ Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 187, art. 3: “It must nevertheless be known that under manual work are understood all human offices by which men lawfully earn their livelihood, whether they are performed by the hands, by the feet, or by the tongue. For watchmen and runners and others of this kind who live from their labor are understood to live by the works of their hands. For because the hand is the instrument of instruments, by the work of the hands is understood every operation from which anyone can lawfully earn a livelihood.”—Ibid., qu. 100, art. 3, ad 3: “One who has knowledge and has not thereby undertaken an office by which he is bound to impart the use of his knowledge to others can lawfully accept payment for his teaching or counsel, not as though selling truth or knowledge, but as though hiring out his services.”

The line of demarcation between work and play is not always easy to draw; nevertheless it exists and must be duly attended to.

Charles S. Devas,⁶ because of the invidious and misleading character of the term "unproductive," prefers to divide labor into industrial and non-industrial, according as its end is, or is not, the preparation of material goods or the production of wealth. The terms industrial and non-industrial are also used by Dr. H. Sidgwick⁷ and correspond substantially with Prof. Nicholson's "material production" and "immaterial production." The moralist may disregard this controversy as irrelevant.

⁶ Political Economy, 3rd ed., London 1917, pp. 15 sqq.

⁷ The Principles of Political Economy, p. 265, London 1883.

3. The welfare of the individual as well as that of society depends not only on the amount of labor performed, but likewise on its proper distribution among the different individuals and classes that constitute the community, on the way in which the laboring men are treated, and on the perfection of the mechanical means employed, such as tools, machinery, power, and on the progress made in industry, trade, and commerce. A higher standard of living with less expenditure of labor is to-day the goal of all classes of workers, including the farmer.

The necessity of working for a living entails the obligation of employing labor efficiently and economically, so as to make it as fruitful and re- munerative as possible and to satisfy not only the elementary natural needs of man, but likewise his legitimate craving for relaxation.⁸

⁸ Cfr. F. Schäffle, Kapitalismus und Sozialismus, 2nd ed., Tübingen 1878; G. Ratzinger, Die Volkswirtschaft in ihren sittlichen Grundlagen, 2nd ed., Freiburg 1895.

Of the "right to work" we shall treat in the fifth volume of this Handbook.⁹

⁹ See on this subject J. E. Ross, C. S. P., The Right to Work, New York, 1918.

READINGS. —St. Thomas, Summa Theol., 2a 2ae, qu. 187, art. 3. —Leo XIII, Encyclical "Rerum Novarum," May 15, 1891 (The Pope and the People, London 1912, pp. 188 sqq.) —E. Genicot, Theologiae Moralis Institutiones, 4th ed., Louvain 1902, Vol. I, n. 365. —S. Weber, Evangelium und Arbeit, Freiburg 1898. —H. Noldin, S.J., Summa Theologiae Moralis, Vol. II, 11th ed., Innsbruck 1914, pp. 79 sqq.

1. Labor is not only a natural necessity, it is also a moral obligation.¹

¹ Job V, 7. —Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 187, art. 3: “Secondly, [manual labor] is ordained to removing idleness, from which many evils arise.... But insofar as manual work is ordained to removing idleness or to mortification of the body, it does not, considered in itself, fall under the necessity of precept, because the flesh can be mortified and idleness removed in many other ways than by manual work.”

Labor was enjoined upon our first parents in Paradise as the primary condition and chief means of moral progress and perfection. Man has to labor in order to ennoble his nature and to attain sanctification. Labor should be his very breath and life. It preserves his bodily and mental health; it steels and fortifies his will; it makes him contented and happy. Even when the tangible products do not seem to correspond to the energy expended, the right sort of work has an intrinsic ideal value which makes it worth while, whereas idleness and sloth entail spiritual death and at the same time are a gross violation of the duty which the individual owes to society; for, as St. Paul says, "If any man will not work, neither let him eat."²

² 2 Thess. III, 10; cfr. A. Winterstein, Die christliche Lehre vom Erdengut, pp. 157 sqq.

2. To toil faithfully and assiduously in one's chosen vocation is to obey a divine command. Labor spells life; idleness, death. Distaste for labor has its source in repugnance to duty and involves contempt of the divine commandments which bind society together. There can be no doubt that labor brings its own reward. No matter how disagreeable any particular task or occupation may seem at first, after a while it becomes pleasant, as a bitter medicine grows sweet to the taste. Labor is a great blessing, and he who voluntarily renounces its benefits is a fool.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But what concerning a doubt of law?

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

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

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

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

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

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

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

What is lawful for a judge concerning gifts?.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Can they execute an unjust sentence?.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let us call all these by the name of brokers.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— Doubt can be raised both concerning the usefulness and concerning the place of this argument on Persons.

Concerning the usefulness. For not without elegance Fr. Lehmkuhl, in his celebrated moral theology, omitted the special treatment On Persons, and joined the treatise On Religious to the treatise on Religion, but the treatise on Clerics to the treatise on the sacrament of Order. For through the various religious Institutes the Church in a peculiar way worships God collectively; but by the sacrament of Order the gradation of clerics is constituted; indeed, through first tonsure, which imitates Order, clerics are made.

Concerning the place. For since through the exercise of virtues and the fruitful use of the sacraments all persons are called to sanctity, but clerics both command acts of virtues and administer sacraments, the special treatment on persons could logically precede or follow the other treatises. In the former order, a step would be made from persons to their offices and sacraments; in the latter arrangement, from offices and sacraments to their subjects or ministers.

Indeed, not rarely the treatment on persons lies as though in the middle between precepts and sacraments. For in it the discourse is chiefly about clerics; but clerics confect and administer sacraments, so that by the treatise on clerics the treatise on the sacraments is, as it were, prepared.

The Code of Canon Law removed the doubt, especially since we are entering into matter chiefly canonical. For in the Code there exists a special book On Persons. This is followed by the book on things, in which first the sacraments are treated, then sacred times, then the censorship and prohibition of books. But Book V is assigned to ecclesiastical censures and penalties.

Therefore there must be in our moral work a special part on Persons, and this part must be placed before the sacraments, the precepts of the Church, and Censures.

And because, except for the fundamental treatise on Laws, it seemed good to enclose canonical matters in a single volume, lest strictly moral parts, such as the virtues, should follow the canonical aspects of persons and sever them from the other canonical matters, we had to treat of persons after the completed exposition on the offices of the virtues, or immediately before the sacraments.

Thus, however, we were led by our own proper formal respect to choose for the book on persons the same place which it occupies in many commentaries.

— Division of the book. Furthermore, three states of persons are distinguished in the Church. For, as we are taught by canon 107 itself: "By divine institution there are in the Church clerics distinct from laymen, although not all clerics are of divine institution; but both can be religious."

Therefore in three treatises we shall speak of clerics, of religious, and of laymen.

Usefulness. - A distinct knowledge of the state of clerics and of their rights and obligations reveals to very many readers or hearers of moral theology their own rights and offices, which is altogether required for honesty of life; but to others it supplies a just estimation of that state, by which not a few practical errors, for example unjust violations of rights or privileges, are forestalled.

Order of speaking. - Although we must be content with a summary proposition of the argument, we shall make the order of the Code of Canon Law itself rather constantly our own; yet in such a way that at the same time we shall treat of offices and benefices, which in the Code are separated in distinct books.

— Clerics ought already to consider it no small honor that they have been enrolled among those who, by divine institution, are distinct from laymen. Cf. c. 107, already cited at n. 2.

Moreover, the state of clerics brings with it rights and privileges. Rights are goods or useful things which, from the very character of the clerical state, inviolably belong to clerics; but privileges are goods or useful things which, by the positive benefit of the legislator, have been added in order better to protect the dignity of the state.

I. Rights. 1. Therefore, because it is the state of those who preside, the clerical state makes clerics fit for legitimately participating in the power either of order or of ecclesiastical jurisdiction, and for obtaining ecclesiastical benefices and pensions (c. 118).

This state is required as a condition of validity when there is question of jurisdiction, benefices, and pensions, unless by apostolic good pleasure the defect has been healed.

2. Hence the person of clerics acquires a certain sanctity, which is so violated by every real injury that the author of the injury is guilty of sacrilege (c. 119).

But real injury embraces all exterior actions which by deeds, not words, are injurious against the body, liberty, or dignity. Cf. Wernz, Ius Decretalium, t. 2, n. 163.

3. And in a general way reverence is owed to clerics by the faithful, which is different according to the different grade and office.

II. Privileges. Common privileges are the privilege of the canon, by which the sanctity of the state is protected; the privilege of the forum; the privilege of immunity from services; the privilege or benefit of competence.

1. The privilege of the canon punishes with penalties those who are guilty of real injury toward clerics. It is called "of the canon" because of canon 15, Si quis, suadente diabolo, of Lateran Council II, 1139, in which it was contained. This canon afterwards became c. 29, C. XVII, q. 4.

Besides other penalties, whether latae or ferendae sententiae, he who has laid violent hands upon the person of the Roman Pontiff contracts excommunication most specially reserved to the Apostolic See, and is ipso facto to be avoided; he who has done so upon the person of a Cardinal, Legate of the Roman Pontiff, Patriarch, Archbishop, or Bishop, even titular, incurs excommunication latae sententiae reserved in a special manner to the Apostolic See; he who has done so upon the person of clerics or other religious of either sex is punished with excommunication latae sententiae reserved to his proper Ordinary (c. 2343).

2. By the privilege of the forum, clerics are exempted from lay jurisdiction, so that even in their temporal cause they cannot be convened, at least as defendants, before the tribunal of laymen, "unless for particular places something else has been legitimately provided" (c. 120), or unless the permission of the competent ecclesiastical Superior has been obtained.

Permission is reserved to the Holy See when there are to be convened Fathers Cardinals, Legates of the Apostolic See, bishops even titular, abbots or prelates nullius, supreme Superiors of religions of pontifical right, and major Officials of the Roman Curia on account of business pertaining to their office; others can be convened by permission of the Ordinary of the place in which the cause is conducted; and he is admonished not to refuse permission without a just and grave cause (c. 120, §2).

Those convened, nevertheless, can appear, the Superior "from whom permission had not been obtained" having been notified (c. 120, §3).

Derogation is made from this privilege by concordats, and also by custom, at least centenary custom. The Secretariat of State acknowledged this for Belgium, Germany, and Holland in the year 1911. Cf. Periodica, I, 190. Elsewhere also the Church is accustomed to be silent concerning this often violated privilege of the forum, and generally tries to obtain this, that without the permission of the Holy See a bishop, especially in a criminal cause, not be dragged before a lay judge.

Therefore we shall advise that due permissions be sought; but generally we shall not disturb the good faith of the parties or magistrates. Yet we shall opportunely admonish the faithful that the divine natural law always remains in force, which forbids scandals and diminutions of ecclesiastical authority to be permitted without a proportionate cause. Concerning this privilege, cf. Wernz, op. cit., V, n. 291 ff.

3. The privilege of immunity or exemption looks to this: that clerics be considered immune from services which the Church judges can scarcely be reconciled with their state. These services are chiefly military service and certain public offices, for example that they not be assumed as jurors in criminal causes.

It belongs to the Church, as a Society indirectly superior, to estimate what duties and civil offices are alien to the clerical state. Yet the Church by no means refuses to arrange the matter amicably with civil governments.

Historically, personal immunity was first sanctioned by Constantine the Great on October 31, 313 ¹.

Since, however, not a few civil laws boldly violate the rights of the Church, clerics, with the permission of their Ordinary, will be able voluntarily to undertake secular military service so that they may sooner become free (c. 141): sooner, that is, that they may serve for a shorter time, or be liberated earlier.

But on July 15, 1919, the Sacred Congregation of Religious declared that the decree Inter reliquas, January 1, 1911, concerning religious bound to military service, was still in force, and besides established certain things by way of corollary. A.A.S., XI, 321.

4. By the benefit of competence or of suitable support, a cleric who is not solvent is permitted to retain those things which, by the prudent judgment of an ecclesiastical judge, are necessary for his honest support (c. 122).

This benefit drew its origin from the way in which c. Odoardus, I, X, III, 23, was understood. Cf. Wernz, op. cit., II, 170.

Since, in present-day civil law, it has been made common to all debtors, it will not be denied to clerics, except that civil laws wish the matter to be determined by the decision of a civil judge.

¹ Its history in Roman law is narrated in Archiv f. k. Kirchenrecht, 37, p. 356 ff.

Loss of privileges. These privileges, granted on account of the decorum of the clerical state, cannot cease through renunciation by clerics (c. 72). Indeed clerics of themselves must use them; yet prudently: wherefore c. 120 positively indulges them, when summoned before a lay judge, that, in order to avoid greater evils, they may appear, the Superior from whom permission had to be obtained having been made aware.

But they are lost by a cleric who is reduced to the lay state, or is deprived in perpetuity of the right of wearing ecclesiastical habit. When the state or the right of wearing the habit has been restored, they are recovered (c. 123). And by the law itself minor clerics fall from the clerical state if they have entered marriage, or on their own authority, without a legitimate cause, have put aside ecclesiastical habit and tonsure, or have enrolled for military service (cc. 132, §2; 136, §3; 141, §2).

Therefore, by the clear disposition of the law, we are today dispensed from the solicitude of defining the conditions under which clerics can use these privileges. Cf., for example, d'Annibale, Summula, I, 100. The privileges belong to all who have not fallen from the clerical state or have not been legitimately stripped of clerical habit.

I. Rights belong inviolably to clerics from the very character of their state: fitness for participating in the power either of order or of ecclesiastical jurisdiction, and for obtaining ecclesiastical benefices and pensions; protection of sanctity; a title of reverence.

II. Privileges have been added by the positive benefit of the legislator for protecting the dignity of the state. They are the privilege of the canon, by which penalties, graver according to the more noble quality of clerics, are brought against those who, by deeds, are injurious against their body or dignity or liberty; the privilege of the forum, by which, even in a temporal cause, before a tribunal of laymen, they cannot be convened at least as defendants unless for particular places something else has been legitimately provided. Legitimate derogation is made by concordats; and also by custom, at least centenary. The privilege of immunity from services which are scarcely compatible with the dignity of clerics; the privilege of competence, by which a cleric who is not solvent is permitted to keep those things which are necessary for his honest support.

These privileges are not lost by renunciation, but by reduction to the lay state.

Principle and general rule. Clerics must flee secular business and amusements, and all things which can scarcely be reconciled with the sanctity, modesty, decorum, and dignity of the clerical state.

Most prohibitions, as far as substance is concerned, are already repeated from ancient memory, that is, especially from the fourth century. Recommendations are read among the Holy Fathers of that age, for example St. Jerome in Ep. 52, to Nepotianus (P. L., 22, 527 ff.); and St. Augustine in sermon 355, in which he describes the life which he was leading with clerics (P. L., 39, 1569 ff.); but the discipline is confirmed and completed by canons of the Council of Nicaea (325) and of many particular councils, for example Laodicea, about the middle of the fourth century, Sardica (343), and those of later centuries. Thus, on account of the customs of invading barbarians, it was necessary to prohibit hunting, at least noisy hunting; because monks and regular canons were deserting monasteries in order to betake themselves to public schools and there were learning temporal laws and medicine, in the twelfth and thirteenth centuries studies of this sort were forbidden to them and afterwards to clerics; and in the Decretals the practice itself of medicine, at least dangerous practice, was prohibited.

These canons were collected by Gratian in his Decree; the ordinances were perfected in the Decretals of Gregory IX and in Book VI of the Decretals, chiefly in the titles De vita et honestate clericorum (III, 1); Ne clerici vel monachi saecularibus negotiis se immisceant (III, 50).

The Council of Trent renewed all these things in its decrees on Reformation (sess. XXII, c. 1, Ref.; sess. XXIV, c. 12, Ref.). These decrees were in force until the present Code of Canon Law.

Corollaries. The following must be fled: 1. things which are dangerous to the virtue and name of clerics. Wherefore:

a) they cannot keep with themselves, or in any way frequent, women concerning whom there can be suspicion;

b) they can cohabit only with women closely related, that is, blood-relations of the first and second degree or those to whom reverence is owed, and affines of the first degree, or with those from whom tried honesty of morals, joined with more advanced age, removes every suspicion.

The Ordinary of the place is accustomed to define these things more by synodal statutes, just as he can also in a particular case prohibit clerics from keeping or frequenting a related woman with whom by accident there is danger of scandal or incontinence (c. 133).

This is to be understood when the cleric himself is head of the house. But, scandal or particular danger always being excluded, cohabitation with women who belong to the family of related persons with whom clerics dwell is also judged honest. Cf. Palmieri, Op. theol., tom. 4, tr. 9, n. 455;

c) on the contrary, common life of itself brings a protection of virtue and fervor. Wherefore in c. 134 this is called to be commended and observed.

2. Things which are dangerous to peace of soul and honest support. Wherefore, without the local Ordinary having been consulted, a cleric is prohibited from becoming surety, even concerning his own goods (c. 137).

He becomes surety who undertakes to fulfill the obligation in the place of an impotent principal debtor.

3. Things which are unbecoming either in themselves or with the clerical state considered. Once the principle has been stated, c. 138 brings forward these examples:

a) "let them not exercise unbecoming arts." Such are the arts of butcher, tavern-keeper;

b) "let them not devote themselves to games of chance, money having been exposed." To devote oneself is to indulge in a thing often and for a long time. A game of chance is one which is founded more on fortune than on skill.

Therefore common law does not prohibit moderate play, for a short time or for the sake of recreation. Indeed it expressly mentions only play where money is staked. Synodal definitions must be attended to.

The gravity of the sin will depend on scandal, time, money, and the quality of the person. Received customs influence scandal. Already to watch certain public games can be grave;

c) "let them not carry arms, unless when a just cause of fearing is present." It is especially prohibited that they walk publicly armed.

Hidden carrying will not be grave and will easily be excused by some reason of defense. Nor are they prohibited from keeping defensive arms at home.

d) "let them not indulge in hunting; but noisy hunting let them never exercise."

Therefore, by common law, hunting that is not noisy is not prohibited unless for too much time; but frequent noisy hunting was thought already before to be forbidden under grave sin. Synodal statutes can prohibit these things more severely;

e) "let them not enter taverns and other similar places without necessity or another just cause approved by the Ordinary of the place."

A tavern, with attention to common law, is to be understood as a common inn or eating-house where wine, beer, and liquors are openly and indiscriminately sold retail to any who come. Cf. Periodica, XI, p. 19. Those places which are principally destined for refreshment or lodging are by no means such: trattoria, albergo. Nor are a decorous cafe or restaurant of themselves comprehended under this name. But the particular law and usages of certain regions have introduced a stricter discipline, which keeps clerics from going to any cafe. Even then, however, there must be excepted houses which, with the Ordinary not objecting, are commonly frequented by clerics.

Necessity can be had on a journey. Another just cause can arise for a cleric who accompanies parents, or young men committed to his care, or who by reason of relationship visits an innkeeper. But it suffices that the cause be tacitly approved by the Ordinary, or that he be presumed to be about to admit the cause.

Synodal statutes are accustomed to define these things more. And pilgrims must obey these laws, although they escape the attached penalties or censures;

f) "let them not be present at spectacles, dances, and pageants which disgrace them or in which it would be a scandal for clerics to take part, especially in public theaters" (c. 140).

Therefore these things are not prohibited absolutely, but insofar as the reason of decorum or the reason of scandal has opposed the presence of clerics. Thus nothing prevents a cleric from hearing a public concert, or watching an honest dance which is part of a classical tragedy exhibited before select persons, or participating in some way in a solemn pageant on account of a religious or patriotic cause. While, on the contrary, it is of itself unbecoming that he be present at bullfighting, that he lead dances, that he take part in a worldly or too profane pageant. But twice, on March 31, 1916, and December 10, 1917, the Sacred Consistorial Congregation forbade that in North America priests promote and favor dances which were held for sustaining pious works, or be present at them, if perhaps they were promoted by laymen. Cf. A.A.S., VIII, 147, and X, 17; or Periodica, VIII, 161, and IX, 43.

If these spectacles are exhibited in public theaters, the prohibition is urged more severely on account of the place itself, suspect of itself, and which clerics are almost everywhere simply forbidden to approach. As regards private theaters, the circumstances must be prudently weighed.

"Cinematographic" spectacles are akin to theatrical spectacles. Yet the usages of places must be observed. In the City, by a decree of May 15, 1918, each clergy is absolutely prohibited from access to public cinematographic exhibitions (A.A.S., X, 300).

It must be treated concerning the state 1° of laymen, 2° of clerics, 3° of regulars.

Already in the Fourth Precept of the Decalogue we have spoken concerning the various and mutual offices of Superiors and inferiors. But in the present Treatise we must speak concerning the offices which regard the public good, and especially concerning forensic persons. Hence:

It must be treated 1° concerning the obligations of judges; 2° of advocates and procurators; 3° of officers; 4° of scribes and notaries; 5° of the accuser and the accused; 6° of witnesses; 7° of physicians, surgeons, and pharmacists; 8° of craftsmen and workers. Concerning custodians see n. 776. q. 7°. 822. 823.

But the obligations of merchants and of other men of this kind are sufficiently understood from those things which we have discussed concerning justice and contracts.

1052. • A judge is a public person, constituted by legitimate authority, so that according to the laws he may vindicate justice and decree due punishments upon delinquents.

It is said: a public person, constituted by legitimate authority, so that he may be distinguished from an arbiter, who undertakes the office of judging not by public authority, but by the spontaneous election of the contending parties.

Principles. - I. A judge is held from a quasi-contract with society and private persons to fulfill his office rightly: if he does not provide this, he will be guilty of violated justice both legal and also commutative.

II. That a judge may rightly perform his office, he must have 1° more than common intelligence, so that he can look into intricate causes; 2° sufficient knowledge, so that he may have account of all the circumstances both of law and of fact, so that whoever seeks or undertakes the office of judge, knowing himself to be so unequal to it that he probably foresees grave damage to his neighbor will follow, sins mortally. But whether he has done this conscious or unconscious of his poverty, he ought not to be absolved unless renunciation of the office has been made, or unless he has the firm purpose of renouncing;¹ 3° incorruptible integrity, so that he yield neither to love nor to hatred.

III. A judge is held to pronounce sentence according to the laws and the order determined by the laws; for he is not constituted to change or reform the laws, but to put them into execution. Except the special case in which the mind of the law must be followed by the judge rather than the bark of the words; then indeed account must be had both of the age, and of the condition and fortune of him on whom he must impose the punishment.

IV. In a doubtful cause let him hold these rules:

1° In criminal matters favor must be shown to the accused, unless the crime is clear, i.e. both concerning the existence of guilt and concerning the merits of the punishments. - Reg. Jur. Can. 11. in 6°.

2° In doubt concerning ownership and possession at the same time one must judge according to the more probable reasons, as is clear from natural law and proposition 2 condemned by Innocent XI. See p. XV. But if the reasons are equally probable from each side, the thing must be divided. Cf. n. 60. II. 3°.

3° In doubt concerning ownership alone, one must stand for the possessor certainly of good faith. This is clear from Reg. Jur. 65. in 6°: "In equal fault or cause, the condition of the possessor is better." Cf. n. 60. II. 3°. Except pious causes and certain others in St. Alphonsus,¹ in whose favor one must judge, although they are actors. Yet our laws do not favor them.

1053. Questions. - Query 1° Whether a judge can condemn an accused person whom he knows to be guilty only by private knowledge, or an innocent person who juridically is convicted as guilty?

Resp. to the 1st Negatively altogether according to all. The reason is that a judge is held to judge according to the things alleged, and according to the forms prescribed by law. For there is no danger in sometimes dismissing a hidden guilty person, while there would be great danger in violating the established forms of judgment.

Resp. to the 2nd It is greatly controverted. St. Thomas affirms.² - St. Bonaventure denies. - St. Alphonsus³ admits the affirmative opinion as undoubted if it is a question of civil causes, or even pecuniary punishments: but if a case concerning greater criminal matters, and especially capital ones, occurs, he thinks the opinion of St. Bonaventure very probable. The reason is that in the former case the Republic for the common good, which exists from judgment rendered according to public knowledge, rightly transfers the dominion of goods. But otherwise in the latter case; and therefore then to condemn an innocent person seems intrinsically evil.

Besides, this question in our law and in causes which we call criminal offers itself under an altogether different aspect; for among us jurors alone pronounce concerning the innocence or guilt of the accused; but the judge only declares what punishment according to the laws is to be applied to him who has been pronounced guilty by the jurors. But in declaring this he performs his office only mechanically, so to speak; nor does he, but the jurors, seem to be the efficacious cause of the punishment to be pronounced. Yet he is held to do what is in him, so that he whom he knows to be innocent not undergo the punishment, which for the most part he can prevent either by intercession with the Governor, or, if the sentence of the jurors does not rest on the acts and proofs, but has been pronounced from a malignant spirit or rashly from ignorance, by indicating that they have exceeded the limits of their office, and labor under error of fact or of law, and thus obtain a new judgment for the innocent person, by which the error may be removed.

Query 2° Whether 1) a Catholic Judge can pronounce a sentence of divorce as to the bond according to the laws of this region; whether 2) it is licit for a Catholic, in any event of things, to demand a sentence of this kind, and what 3) concerning an advocate seeking it in the name of a client?

Resp. to the 1st "Since a Catholic could scarcely perform the office of judge, if he did not wish to decree divorce, the offense" (on account of which it is sought according to the laws) "having been proved in judgment; and the civil effects are chiefly regarded, I think the judge is not to be condemned who furnishes his service." Thus Kenrick.¹ But certainly, as is clear of itself, he can pronounce a sentence of divorce in the case in which a Catholic licitly demands it.

Resp. to the 2nd The bond of matrimony subsists before God, or not. In the former case again one must distinguish; for civil divorce is sought either with the intention of entering new nuptials, or without this intention. If the former, it is not licit, as is clear of itself. If the latter, and a most grave reason presses, e.g. lest the husband be compelled to pay the foreign debt of the wife and so that every right to inheritance be taken away from her,² let divorce from cohabitation be sought where the law grants it. But if the law, as in most States, grants only divorce from the bond, or where the option of either is given, this alone is chosen as the sole efficacious barrier against foreign troubles, it seems this can be sought in certain most grave circumstances; for he who is not going to use the civil liberty which he asks to be restored to himself is not judged to approve the exercise of civil power upon the bond.

But if the bond of matrimony subsists from civil law alone, and not before God, because, for example, one or the other lacked Baptism, it will be licit for a Catholic to seek the protection of the civil law. This is gathered from the response of the S. C. Inq. to the questions of the Bishop of New Orleans, Sept. 9, 1824, concerning marriages which were invalid on account of the impediment of clandestinity. Namely the S. Congregation advises that every effort be applied to induce them to contract with each other in a Catholic manner; "but to suggest to one asking to enter a new marriage with another that he should first consult both for himself and for the Parish Priest, acting namely so that both civil liberty may be restored to himself, and nothing evil may come thence to the Parish Priest, this would not be to approve the custom of civil repudiation, provided the one asking is rightly instructed that this is done not for this reason, that the bond of matrimony may be dissolved, because he is now detained by no bond, but only that he may free himself and the Parish Priest from legal penalties and civil vexations. ... But Missionaries ought not to involve themselves in these things to be transacted with the Government. He who asks to marry, let him conduct his own business."¹

Resp. to the 3rd. 1° It is certain that it is licit for an advocate to do what I said is licit for the client in Resp. to the 2nd. - 2° It also seems certain that an advocate is not held to inquire from the client either concerning the intention with which he seeks divorce, namely whether with the intention of entering other nuptials or not, or concerning the true cause on account of which he seeks it, so that he may know namely whether it is sufficiently grave, or concerning the value of the marriage before God; for he is judged to undertake only the civil cause of the client and this to be defended only by a civil title. - But whether 3° it is licit for him to undertake this civil cause in the case in which from the sayings of his own client or from public and certain fame, he knows that divorce is sought in a marriage valid before God and with the intention of passing to other nuptials, or from a cause not sufficiently grave, I would rather leave to the judgment of the wiser. It is indeed true that the client will easily find another advocate who will act his part; but the advocate is not able to be excused by the same reason of necessity as a judge, since he can refuse his service with impunity.

1054. • Query 3° Whether a judge can accept gifts for pronouncing sentence?

Resp. Negatively. For this is prohibited by every law; and 1° By natural law, in the case in which either scandal or danger of perversion, or of favoring the donor more than is fair, is present.² But if the judge sins by receiving gifts, by this very fact whoever offers them also sins; for he cooperates with the sin of another. Except the rude, whom ignorance generally excuses. Likewise except if gifts are given to redeem unjust vexation, when an unjust sentence otherwise prudently seems to be feared: but these must be restored, and can also be sought back in judgment after the sentence.³ 2° By Canon Law; for Boniface VIII¹ established that judges accept neither any gift nor anything else, except perhaps food and drink offered by mere liberality.

Query 4° Whether a judge is held to restitution if he has accepted gifts from litigants?

Resp. Negatively, probably before the sentence; because although he acts illicitly by accepting gifts, nevertheless he does not sin against justice. - Thus more commonly, - against others, who also probably affirm. - St. Alphonsus² says that each opinion is sufficiently probable.

Yet judges at least must be impelled to restore gifts accepted, or to expend them on pious works. Sometimes this could be enjoined as penance to turn the judge away from relapse.

Query 5° Whether a judge is held to restore what he has accepted by pact for pronouncing some sentence?

Resp. 1° Affirmatively, if he accepted it for pronouncing a just sentence, i.e. for furnishing that which from justice he owed. The reason is that whatever is already owed from office, and therefore from justice, cannot be matter of a contract. A fortiori he is held to restore those things which he has extorted by force, threats, or unjust vexation.

Resp. 2° If he accepted it for pronouncing an unjust sentence, he certainly is held to restitution before he pronounces a sentence of this kind; but after sentence has been rendered it is controverted, according to the things said concerning a contract in a shameful matter, n. 834.

1055. • Query 6° Whether a judge is held to repair damage which he did not impede, or whose reparation he does not procure, when he can?

Resp. Affirmatively, because he is an unjust and efficacious cooperator. Recall the things said concerning negative cooperators, n. 773 and following.

Query 7° Whether a sentence of a judge doubtfully just, or certainly unjust, obliges?

Resp. to the 1st Affirmatively altogether. For presumption favors the Superior or judge. (n. 65. 3°.)

Resp. to the 2nd Negatively of itself, as is clear. Yet except unless there is present a reason of scandal or of disturbance of public order; because private good must always yield to public good. But he who obtains a cause through an unjust sentence cannot receive the thing adjudged to himself, or must restore it, and moreover he is held to repair all damages and expenses to the adverse party. Yet if he was in good faith, when this vanishes he must only return the thing of another according to the things said concerning a possessor of good faith, n. 722.

1056. • Jurors, so called on account of the oath which they furnish concerning the office committed to them to be rightly exercised, are men selected from the citizens to perform some part proper to judges. Their function is to pronounce concerning the existence of the fact and the culpability of the accused; but then the judge pronounces the punishment according to the law.

Jurors contract the same obligations as the judges themselves, whose office in great part they exercise, and therefore concerning Jurors the same generally must be said as concerning the judges themselves.

1057. • Query. Whether a Juror can give a vote against the accused, indeed juridically convicted of the crime, but whose innocence he certainly knows by private knowledge?

Resp. Negatively, because this seems contrary to the mind of the law, by force of which, almost everywhere, they must pronounce only concerning the fact, and according to the intimate conviction which they have concerning its existence, nor are they in any way held to render the legal reason of their sentence. Indeed from the law itself they are not held to found their sentence either from such a number of witnesses, or from these or those reasons brought into the middle by the various parties, etc. Therefore they must give their vote only according to that which they think in the forum of conscience. And so, with attention to the office which is imposed on Jurors, it is easily clear that those controversies which are conducted concerning judges, n. 1053, have no place at all concerning them.

1058. • They are called arbiters who, by each opposed party, are spontaneously chosen or admitted, after the manner of judges, to settle some lawsuit.

The pact by which the faculty of composing the lawsuit is attributed to them is called compromise (in English submission). By this pact the adverse parties by mutual consent promise that they will execute whatever is established by the arbiters. But what is established is called in our tongue "award."

Arbiters, whoever they are, once admitted by the diverse parties, properly enjoy the office of judges and perform all their functions, no differently than if they had been designated by public authority. Therefore they can instruct the cause brought to them, defer the matter to another more opportune time, hear witnesses, and finally, with sentence rendered, settle the lawsuit absolutely. Sometimes they designate a third, who in their name may settle the matter, and this one is called "the umpire."

1059. • Since arbiters fulfill the offices of judges, they undergo approximately the same obligations and the same burdens as judges. Hence:

1° They ought not to undertake a lawsuit for the judging of which they do not have sufficient doctrine; otherwise they sin against commutative justice, and contract the obligation of restitution.

2° Arbiters are held to judge according to the laws, unless the parties have imparted to them the faculty of composing the matter from the fair and good. For then from the good and fair they must promote the convenience of each party.

3° They must most greatly beware of acceptance of persons, namely lest, drawn aside by hatred, aversion, or excessive affection, they pronounce sentence against the rules of equity. As to the rest, the same things must be said concerning arbiters as concerning the judges themselves.

1060. • An advocate (Counsel, Counsellor, Advocate, Lawyer, Barrister) is called he who furnishes his assistance to litigants either by counsel, or voice, or writing.

A procurator - one is of the parties (Attorney, Attorney at Law, in chancery Solicitor) and appears in the name of his client, and prepares all instruments of the lawsuit by which the advocate can conduct the matter, - another is of the State (Attorney-General, State's Attorney, Solicitor) and represents the State in causes either civil or criminal.

Principles. - I. Advocates and procurators are held from legal justice toward society, and from commutative justice toward litigants, to have competent knowledge, to undertake and prosecute a cause with due diligence and study, and to prevent delays damaging to litigants; otherwise they sin, and are liable to restitution, as was said above concerning judges.

II. In civil matter neither the advocate of the defendant nor the procurator of the State can licitly sustain a certainly unjust cause; therefore if, by defending it, he obtains an unjust sentence, he is held to repair all damages following thence, if they are not repaired by those in whose favor the unjust sentence falls.¹

A fortiori in criminal matter neither can an advocate undertake the parts of an evidently unjust accuser, nor can the procurator of the State pursue one unjustly accused, if he detects his innocence either at the beginning, or in the course, or at the end of the cause, but each is held to abandon the accusation begun.

III. An advocate, when questioned by a client, must examine his cause seriously, and with that diligence which the gravity of the matter demands, preserve fidelity toward him, open the justice or injustice, and scrupulously indicate the probability of obtaining or losing it; otherwise he will impel the client to empty expenses which he himself is held to repair.

But in pleading the cause he must beware of frauds, false proofs, or other unjust means against the adverse party; for otherwise likewise he is held to compensate all damages following thence.

Query 1° In what sense must the INJUSTICE of a cause which an advocate cannot sustain be understood, namely MORAL, or only LEGAL?

Resp. Far more probably moral, and not only legal. Thus St. Alphonsus.² For to the question: "When the client has a good right in the cause of possession, yet not in ownership, whether it is licit for an advocate to defend him in a possessory cause?" he responds:¹ "Others say that it is licit for an advocate to defend such a client, because then he only permissively cooperates with the sin of the client, since in that case he exercises the function of a counselor before the judge. But Lugo Disp. 41" de Just. "n. 10 with Molina, Fagundez, Medina, etc., contradicts more truly. The reason, because just as the client sins by retaining the thing, so the advocate sins by cooperating with him in such retention; but the advocate does not stand on the part of the judge, but of the client."

Therefore an advocate sins by furnishing his service to a party whom he knows to elude the certain right of the adverse party by opposing to this either some vice, or defect of title or instrument, or prescription to which good faith is lacking. Yet an advocate is not held to inquire from the client concerning the moral justice of his cause, and he will be able to sustain this so long as he is ignorant of its moral injustice.

1061. Questions. - Query 2° Whether advocates can defend causes even less probable both of defendants and of actors?

Resp. 1° In civil causes of defendants, or, if it is a question of probability of law, also of actors, affirmatively, with the common and certain opinion, because they can have hope that the truth may shine forth. But if it is a question of probability of fact, even equal, it will not be licit to defend the cause of the actor.²

Resp. 2° But in criminal causes, the accused can always be defended, even if his culpability were clear, yet by honest and licit means, namely with lies, frauds, etc., excluded. The reason is that an advocate defending an accused person brings injury to no one, and besides from his office ought to patronize the accused as much as he can.³

1062. • Query 3° To what is an advocate held by reason of the honorarium or stipend?

Resp. 1° Generally speaking, he can accept nothing beyond the just amount, which either perhaps has been taxed by law, or is to be determined by the judgment of prudent men, with account had of the business, the skill of the advocate, the labor which he expends, and received custom.

Resp. 2° As to the poor in particular, 1° he is held to aid gratuitously, even with grave inconvenience to himself, those who are in extreme necessity; 2° likewise he is held to patronize gratis those who exist in grave necessity, and indeed under mortal sin, yet not with notable inconvenience to himself; 3° finally even in common necessity he is held from charity to protect the causes of the poor, yet not with grave inconvenience: namely it suffices that he bestow something of his work on them when he is free from others.

Query 4° What can an advocate exact if, after agreement has been made concerning the stipend, the client abandons the cause begun?

Resp. He can exact the whole if it does not stand through him that he does not prosecute the lawsuit, no otherwise than one renting his work for some wage can exact this if it stands through the conductor that the work is not completed. Yet except if a just cause of abandoning the lawsuit intervenes, since this condition is always understood in the agreement.¹

1063. • Query 5° To what is an advocate held who, after the cause has already been undertaken, notices that it is unjust?

Resp. He must at once warn concerning the injustice of the cause and abandon it, lest he cooperate with unjust damage. Nor can he advise settlement (n. 1051), for this is licit only in a doubtful matter. - But if knowingly he has prosecuted an unjust cause, he will be held to compensate all damages occurring to each party. For he must restore to the adverse party from the sin of commission, since he himself was the positive cause of the damage; but to his own client, if he was in good faith, from the sin of omission; since from office he was held to warn him concerning the injustice of the cause.

Yet an advocate, by abandoning a cause which he detects to be unjust, ought not to aid the other party, or reveal the secrets of his own cause to the other party, as is clear from natural law, and St. Thomas expressly teaches.² A certain exception, which however will be present very rarely, see, if you wish, in St. Alphonsus.³

Query 6° To what is an advocate held who, noticing that a cause is unjust, indeed warns the client, but, with him wishing it, prosecutes the cause?

Resp. 1° He is held to nothing toward the client if he loses the cause, because no injury is done to one knowing and willing.

Resp. 2° He is held to compensate all damages which the adverse party suffers by title of positive cooperation.

1064. • Query 7° Whether and how an advocate sins who defends a just cause by unjust means, for example if he substitutes a new note in place of a former lost one, etc.?

Resp. 1° He sins against fidelity and truth, more gravely indeed or less gravely according to the measure of the unjust means applied, and according to the gravity of the matter about which there is question, and likewise according to the gravity of the effect which follows upon the use of the unjust means. The advocate will be guilty of a greater sin if he not only substitutes a new note for the former one, but supplies that which never existed. Nor can he be excused from the good end which he intends; for evil things are not to be done that good things may come.

Resp. 2° Of itself he does not sin against justice, since the cause is supposed just. Yet accidentally he can injure justice and be obliged to restitution, namely if from this damage comes to his own party or to the adverse party; for if, for example, the fraud is detected, it can easily happen that a cause good in some way is brought into suspicion and collapses.

1065. You will resolve. - 1° Advocates sin against justice toward the client if, when they are not sufficiently skilled and suitable, they undertake causes to be defended; if they detect the foundations or secrets of the cause to the adverse party, or if they serve each party; if, because some arguments seem to them peremptory, they neglect to bring forward others not contemptible, because perhaps judges would be moved by those neglected motives; if they do not prepare themselves sufficiently for pleading the cause, etc.

2° The same sin against justice toward the adverse party if they cite false or abrogated laws, or bend them aside to an alien sense, apply deceit or lies, from which judges or jurors are drawn aside into an unjust sentence or vote; likewise if they impose false crimes or vices on the adverse party, etc.

3° They sin likewise "by advising the client to swear falsely, or by as it were casting him into the necessity of perjuring, by indicating that otherwise there is no hope of victory, or by seeking out false witnesses, and instructing them to perjure by a certain discipline and training before the public examination, as is sometimes done."¹

4° Procurators of the parties sin against justice if they draw out causes, if they obtain undue delays, if they do not procure in the first place a cause earlier accepted, if they lead the parties to an unjust composition, etc.

5° The procurator of the State sins against justice if from negligence, from haste or prejudice, from hatred or acceptance of persons, etc., he brings an innocent person into detention, into judgment, and into undergoing an unjust sentence. Likewise if he sustains an accusation after in the course of the cause he has recognized innocence, or has gravely doubted concerning it; therefore he is held concerning all damages following upon the accused. Likewise if he delays the exercise of his office with injury to citizens, by hope of greater profit; but what he has procured by arts of this kind he is held to restore.

1066. • An officer (constable, sheriff) is he who from office carries a command of appearing in judgment (citation, warrant) and the mandates of justice, and performs the executions decreed by the judge. Hence the office of an officer is twofold.

Since officers are ministers of justice, it is exceedingly fitting that they perform their office very humanely, and temper the rigor and harshness of their ministry as much as can be done. They must be sufficiently instructed concerning all things which pertain to their office. They must also furnish fidelity in executing the mandates of the tribunal, and in guarding themselves both from negligence in performing their office, and from rigor and vexation toward those whom public justice pursues.

1067. • Officers act unjustly especially:

1° If they allow themselves to be corrupted by price or favor to the prejudice of the client, for example by drawing out or neglecting announcements of sentences, or by doing other things whence it happens that the creditor cannot receive payment. Likewise by favoring certain debtors bound in solidarity, so that they do not comprehend them in executions.

2° If while searching houses they act more harshly, so that they may extort some gift; if they inflict unjust force or another injury; if they announce something false in their acts.

3° If they exceed the mandate of the judge, or the statutes of the law in seizing the things or goods of private persons; if they do not observe the just price in the sale of seized things, etc.; if they retain part of this price for themselves, etc.

I. On scribes or secretaries.

1068. • A scribe or secretary (clerk of the court) is he who reports in writing the testimonies, the sentences of judges, and all the rest which are transacted in tribunals. Hence he is usually considered as the right hand, as it were, of the judge, and his public and authentic secretary.

But a scribe can commit various injustices, especially:

1° If he does not apply due diligence for reporting exactly in writing all things heard and established or decided; for omission in matters of this kind can easily become grave.

2° If he does not use serious and constant attention for reporting into the authentic books all things uttered and transacted in the tribunal: for very easily a defect of attention in a scribe can induce grave fault and the obligation of restitution, unless it is altogether involuntary. For who does not see how great damages can follow from even a slight defect on the part of secretaries?

3° If from malice he omits something in writing, or if he adulterates or badly guards the public tables committed to him; if he does not place, or does not sufficiently strive to have placed, the due formalities and signatures; if he does not faithfully transcribe testimonies, whether by exaggerating, or diminishing, or changing, or inverting.

II. On notaries.

1069. • A notary, or tabellion (Notary, Notary public, Conveyancer), is called he who is constituted by legitimate authority for writing public acts or instruments, which may make faith both in judgment and outside judgment.

Hence it appears of how great moment the office of a notary is, how widely it extends, and by how grave obligations it is bound. Therefore notaries must enjoy knowledge equal to that office, more than common perspicacity, and especially eminent fidelity, prudence, and probity. For since they must handle affairs and contracts of every kind, from their negligence, ignorance, and defect of attention very great evils for society and damages for the parties can follow.

1070. • Notaries are unjust especially in the following cases:

1° If they are ignorant of the things which pertain to their office, and therefore do not compose instruments rightly; if with detriment to the contracting parties or to others from negligence they omit necessary solemnities, for example to employ suitable witnesses, to place signatures, to indicate the day, month, year, etc.

2° If they compose a false, usurious, or unjust instrument; if to the damage of another contracting party or of a third they feign in an instrument those things which are not; if they place false annotations of the day, or change true ones, even if they do not intend damage; likewise if they counsel such things; if they compose acts which exceed their office, or if outside the territory assigned to them they exercise their ministry: for then their acts are void ipso facto.

3° If they do not describe faithfully the wills of the contracting parties, or through ambiguous compositions furnish place for lawsuits and injustices; if they do not warn the parties concerning clauses which can harm them, or concerning difficulties which can arise from them. For they are held to these things from a quasi-contract with the parties.

4° If they falsely write that a sum has been paid before themselves or already before, with damage to the other party or to a third; likewise if they easily write such things, gravely suspecting that they are being deceived by the contracting parties; for then they cooperate with their sin.

5° If they guard acts and instruments negligently with peril of damage to the parties; if they defer the expedition of instruments so that they may extort money; if they commit something to an amanuensis with danger of error.

6° If they change anything in the original act, whence some right is violated or impeded; if they admit false witnesses; if they do not exhibit, conceal, or deny a transcript of some necessary testimony to their own client.

7° If they communicate acts to others than the parties; if by their fault they lose original acts; if they violate oaths or secrets; if they add something to, or take something away from, the sayings or deeds of the parties, or the testimonies of witnesses; if they do not sincerely transcribe all things as they stand.

8° If they neglect to watch over their ministers, and on account of this the instruments are badly composed; for notaries are held to answer for all ministers whom they employ; if they sign instruments composed either by other notaries, or by their own ministers, before they have diligently reviewed them and have had perfect knowledge concerning the things which are contained in them.

9° If they ask a price beyond the tax or approved custom, or draw out the affairs to be handled for the sake of increasing the salary.

In all these, and many similar matters, notaries are held under grave obligation, of themselves, to restitution, as unjust damagers or cooperators, as is clear from the things said in the Treatise on Justice and Right. - St. Alphonsus.¹

I. On the accuser.

1071. • He is called an accuser who in criminal causes brings a crime to the judge, and asks vindication from him on account of the common good, and at the same time undertakes the obligation of proving the objected crime: but in civil causes he who, as the injured party, compels the adversary to the judge, is not called accuser, but actor (plaintiff).

The accuser differs from the denouncer, who brings some crime to the Superior or judge for vindication, and nevertheless does not undergo the obligation of proving it. - Therefore denunciation is not understood here as fraternal, whose scope is not punishment but the amendment of the neighbor, with the paternal admonition of the Superior intervening, from which amendment is hoped more certainly on account of his authority, - but juridical. L. V. 235.

By our law the obligation of proving a denounced crime is incumbent only on the magistrate constituted for this, or the procurator of the State. But private persons also are held to denunciation from charity, and indeed under grave obligation and even with grave inconvenience, when it is a question of avoiding common and grave damage, or even, but not with grave inconvenience, if it is a question of averting grave damage from an innocent person.¹

II. On the accused.

An accused person (accused in a criminal cause, defendant in a civil) is called he who is accused in judgment either criminal or civil, whether he is guilty or innocent.

1072. Questions. - Query 1° Whether the accused, questioned by the judge, is held to confess the truth?

Resp. 1° Negatively by our positive law. "Nor shall" (any person) "be compelled in any criminal case to be a witness against himself."²

Resp. 2° Affirmatively by natural law, if this is necessary to avert common damage. Yet he must be left in good faith if fruit is scarcely hoped from the warning.

Resp. 3° Affirmatively also, if it is a question of an ecclesiastical punishment, which namely is medicinal, provided he is legitimately questioned, i.e. by a legitimate judge, with the judicial form observed and the offense half-fully proved.⁴

Query 2° Whether the accused, although not legitimately questioned, if it is a question of an ecclesiastical punishment, at least from this cause must confess the crime, because otherwise he by whom he was accused or denounced could be held as a calumniator?

Resp. This certainly and altogether must be denied. The reason is that no sane person will hold the accused as falsely accused because the crime has not been confessed, and the accused not confessing who, other proofs failing, is absolved, is held not as innocent, but simply as not convicted. L. V. 277.

Query 3° Whether it is licit for the accused to appeal?

Resp. Distinguish. For either it is a question of a civil cause, or of a criminal. If of a civil, and this either certainly unjust or less probable, it is not licit, as is clear from the things said n. 60. II. 3°; otherwise, if it is doubtful whether the superior judge is justly going to render sentence for the accused, because since the minds of men are diverse, perhaps the opinion which the inferior judge judged less probable will appear more probable to the superior, and the accused can licitly try this.⁵ - If of a criminal cause, generally and practically speaking, among us it will almost always be licit; for 1° the right of an appeal properly so called in a criminal cause is not given here to the accused except by decree of the judge, which it is surely licit for the accused to ask by legitimate means. 2° St. Alphonsus teaches with the common opinion that the accused is not held to abstain from an appeal from a sentence, even an altogether just one, except in the case in which it is certain that the opposite cannot be proved; but in practice that certitude, when a new judgment has been granted, will scarcely ever be present, especially among us, since jurors are very easy in absolving. (q) p. 483.

Query 4° Whether an innocent accused person can reveal occult crimes of witnesses or of the accuser for his own defense?

Resp. Affirmatively, provided 1° the crime is true; 2° the revelation is absolutely necessary for his own defense; 3° otherwise he himself is going to suffer grave damage² (n. 517. III. IV.).

1073. • Query 5° Whether it is licit for an innocent accused person to flee or resist?

Resp. It is indeed licit for him to flee and to snatch himself from the hands of attendants; but it is not licit to repel force by force, by killing or wounding, because he would violate the rights of public power.³

Query 6° Whether it is licit also for an accused person who truly committed an offense to flee?

Resp. Affirmatively, if he has not yet been condemned by juridical sentence to the punishment; because no one is held to pay the punishment before sentence. Likewise if he has already been condemned to a most grave punishment, and prison has been assigned to him for custody until he is struck by the established punishment. - Thus commonly.⁴

But they more commonly deny if prison has already been assigned as punishment by the sentence of the judge. The reason is that the accused is held to obey in the execution of a just sentence. Yet many except if necessary things are not given to him, or if the prison is most harsh: because the obligation of not freeing oneself from a most grave punishment seems to exceed human strength when one can accomplish this without force and resistance.⁵

Query 7° Whether it is licit for the accused to flee, even if the guard is going to suffer damage from it?

Resp. Affirmatively, because he uses his right and does injury to no one, unless nevertheless charity suggests otherwise on account of damage to the guard much graver. Yet it is not licit for the accused to corrupt the guard with money, because, since an obligation is incumbent on the guard of not dismissing the accused, he would cooperate with this man's sin. L. V. 282.

Query 8° Whether it is licit for those who are not ministers of justice to help the accused, so that he can escape from prison?

Resp. Affirmatively, in the case in which this is licit for the accused, and provided 1° the flight of the accused, because, e.g., he is a highway robber or similar, is not pernicious to the Republic, and 2° from this, for example from a break-in, the security of the prison does not perish. The reason is that to help another toward an end licit to him cannot be illicit.²

Query 9° Whether it is licit for the accused to decline a MILDER punishment, for example a fine or a not long prison, to which he was justly condemned, BUT WHICH HAS NOT YET BEEN INFLICTED UPON HIM?

Resp. Kenrick:³ "I think all punishments are so established by law and decreed by the judge that they are to be inflicted by the ministers of justice; and therefore I do not dare to condemn him who, another's right being uninjured, withdraws himself" from punishment of this kind, "provided however he does not apply force and does not disturb public order."

1074. • I. No one is held from justice spontaneously to offer himself for testifying; but sometimes there is given such an obligation from charity, for example if someone by his testimony can easily free an innocent person, impede a grave injustice, etc.¹

II. A witness legitimately cited is held to present himself before the judges, to emit the oath prescribed by law; to say the truth entire and nothing besides the truth, and then to respond simply according to conscience to legitimate questions. - Thus all.

III. A witness who maliciously deposed what is false is perjured, and, if through this he was the efficacious cause of damage to another, a violator of justice; and therefore he is held to reparation of all damages, and also to revocation of the false oath, with equal damage to himself, even with danger of life, if by force of the false testimony an innocent person has been condemned to death.⁴

1075. Questions. - Query 1° To what is a witness held who said what is false from invincible ignorance, or inadvertence, or inculpable forgetfulness?

Resp. He is held to open the false testimony, and to impede damage in the way in which he can; yet he is not held to reparation of damage already following, since he is without theological fault.¹ - The same would have to be said more probably even if he had sinned venially. Cf. things said n. 746. 3°. - 749. q. 3°. - 773. q. 7.

Query 2° What concerning him who supposes or adulterates a writing, note, or receipt, to supply acts that have been lost, or to prosecute a certain right?

Resp. 1° He sins at least venially by reason of lying; because, however the matter stands, the note which is exhibited is diverse from that which makes faith in judgment.

Resp. 2° Sometimes he can sin gravely against charity toward himself, when he exposes himself to the proximate peril of most grave punishments if the falsity is detected.

Resp. 3° In no way does he sin against commutative justice, and therefore he is by no means held to restitution.

1076. • Query 3° When is a witness excused from furnishing testimony?

Resp. He is excused in the following cases: 1° if he accepted the matter only under the secret of Confession; 2° if he knew the matter under a committed secret; 3° if he accepted the matter from men not worthy of faith; 4° if he knows that the accused did not sin mortally, for example on account of ignorance; 5° if he foresees grave damage going to come to himself or to his own; 6° if he has knowledge of the fact through injury, for example by opening another's letters, or unjustly compelling another. Except, as to 2°, 5°, 6°, if common damage or another's private damage prevails.³ - Yet by the laws of all States the excusing cause alleged 2°, or even 1°, is not admitted. Cf. n. 541. q. 1°.

Query 4° Whether a witness is held to reveal an altogether occult crime, for example which he alone knows?

Resp. Affirmatively, in States in which common law is in force, which establishes that even one witness can suffice for condemning the accused.⁴

1077. • Query 5° Whether and how a witness sins who hides himself lest he be cited by the judge, or who flees after citation?

Resp. To the 1st. He does not sin 1° against legal justice, because no one is held to obey the precept of a Superior before it is imposed on him; 2° nor against commutative justice, because he conducts himself merely negatively. Yet he can sin against charity toward neighbor, as was said above (n. 1074).

Resp. to the 2nd. He sins gravely against legal justice, or against obedience owed to the judge in a grave matter and necessary to society; but more probably he does not sin against commutative justice: because that citation does not impose an obligation of justice, but only of obedience.¹

Query 6° Whether a witness is held to restitution who, legitimately interrogated, conceals the truth; yet does not say what is false?

Resp. Negatively, probably. The reason is that the witness then conducts himself merely negatively, nor is he held to depose the truth except from the precept of the judge: and therefore by concealing it then he sins only against obedience owed to the judge, or even against religion on account of the oath furnished of saying the truth.²

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

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

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

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

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

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

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

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

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

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

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

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

1081. • Craftsmen and workers must be carefully examined by the confessor: for generally in Confession they are silent about the injustices and sins proper to their condition.

I. In general they are unjust by selling or leasing their works at an unjust price; by not manifesting occult defects of their works according to the things said concerning sale; by wasting time through culpable negligence; by turning other workers away from labor; by executing the work badly, whether by excessive haste, or by omission of necessary things, etc.

II. But in particular the following chiefly are unjust:

1° Goldsmiths and silversmiths who adulterate gold and silver, pour lead among the empty spaces, buy diamonds or even below their just lowest value from the ignorant, or sell fabricated or artificial ones as natural.

2° Clothmakers and wool-workers who mix wool of lesser price with good wool, and sell it for as much as if the whole matter were of the same quality; who weave the beginning and end of a roll of cloth from much better wool; who use painted colors; who, deceived in buying cloths, likewise deceive others by selling.

3° Millers who change the grains, or mix with them extraneous things of almost no value, as beans, for increasing the weight and mass; who retain for salary something from the wheat or flour beyond the practice of the fearful.

4° Bakers who bake badly; who maliciously mix flour from rye, barley, beans, etc., with wheaten flour; who fraudulently diminish the weight.

5° Butchers who sell corrupted meats, or hand over a worse quality for a better.

6° Tailors and shoemakers who cut badly; who use cloth or leather corrupted or burnt; who retain part of the cloth handed over to themselves, pretending that they applied the whole in making the work.

7° Makers of hats who sell hats newly blocked or dyed as new, or as if they had existed in the shop for a longer time.

8° Printers who print copies in a greater number than was agreed, and retain these for themselves; who make adulterous editions against the right of one having a privilege; who have unskilled correctors; who do not apply paper of the same quality as they promised in the program, etc. ... - See St. Alphonsus.¹

It must be treated 1° concerning the common obligations of Clerics; 2° concerning the peculiar obligations of certain ones.

Clerics are chiefly obliged: 1° to sanctity of life; 2° to celibacy; 3° to ecclesiastical habit and tonsure; 4° to the canonical Hours; 5° to suitable knowledge; 6° to the ecclesiastical ministry to be performed fittingly; 7° to the obedience and due reverence to be furnished to the Bishop justly commanding. Concerning the four former here; concerning the rest in their proper places.

1082. • How great the internal sanctity and exterior edification of Clerics must be needs neither demonstration nor exposition. For the very idea alone of Clericate and Priesthood manifestly argues this. Therefore in very few words we shall declare that Clerics must be pious, holy, and modest, both from the nature of their state, and from Scripture, the Fathers, and Councils.

1° From the nature of the clerical state. Most holy is the ministry of Clerics, since they are always applied proximately or at least remotely to sacred things, to the Sacraments to be conferred on the faithful, to the divine praises solemnly to be paid in the name of the Church, to teaching the Christian people concerning the way of eternal salvation, and also to celebrating the Most Holy Sacrifice of the Mass. For why are Clerics and Priests constituted in the Church? That they may be, according to the testimony of the Gospel, the salt of the earth and the light of the world. Moreover they cannot be such unless they shine before others by an illustrious and excellent sanctity of morals. Not only the sublimity and excellence of the offices to be fulfilled, but also the garments with which the Cleric is clothed, cry out that he must profess sanctity. Hence St. Jerome says:¹ "The garment cries out, the state cries out, the profession cries out sanctity of soul."

2° From Scripture. Thus the Lord said concerning the priests of the old law: They will be holy to their God, and they shall not pollute His name: for they offer the incense of the Lord and the breads of their God, and therefore they will be holy.² Likewise in Isaiah it is said: Be cleansed, you who carry the vessels of the Lord.³ Moreover if so great sanctity of life was required in priests who offered oxen and sheep and other animals to God, what will have to be required in those who sacrifice the divine Lamb Himself? And if so great cleanness was required in those who carried the vessels of the Lord, what purity of soul will have to be required in those who carry the Lord Himself in their hands? Read also St. Paul to Titus, Timothy, etc.

3° From the Fathers. Thus St. Chrysostom:⁴ "The Priest ought to have an immaculate life, so that all may look to him as to some excellent example; for God chose us for this, that we may be as lights and teachers of the rest, and may live on earth as Angels." St. Thomas⁵ teaches that greater sanctity is required in a priest than in a simple Religious, saying: "Through Sacred Order someone is deputed to most worthy ministries, by which Christ Himself is served in the ministry of the Altar; for which greater interior sanctity is required than even the State of Religion requires." And in the Supplement:⁶ "For the suitable execution of Orders, goodness of any sort does not suffice; but excellent goodness is required, so that just as those who receive Order are constituted above the people by the grade of Order, so also they may be superior by merit of sanctity."

4° From Councils. Innumerable things are contained in Canon Law concerning the sanctity of Clerics, which also are confirmed by very many Councils. But let it suffice to report that which the Council of Trent has by solemn Decree:¹ "It altogether becomes Clerics called into the lot of the Lord so to compose their whole life and morals, that in habit, gesture, walk, speech, and all other things they display nothing except what is grave, moderate, and full of religion." - The Plenary Council of Baltimore II² exhibits the practical interpretation of this Decree in these words: "Wherever they have been, whether they travel, or walk through the streets, or mingle in conversations among themselves or with those given to the world, let them show in their walk and gesture, and in countenance itself and voice, the modesty and gravity which befit them. Let them avoid with highest zeal excessive raising of the voice, immoderate laughter, scurrilous jokes, finally whatever is an indication of a soul not well composed. Let them not utter more free, insolent, impious words, even by reporting the sayings of others; let them restrain and coerce, if not otherwise, by mouth and countenance, others uttering them."

1083. • All Clerics receiving Sacred Orders contract ipso facto the obligation of celibacy. This is clear from various Decrees of Canon Law; but especially from c. 1. D. 28, where St. Gregory thus prescribed: "Let Bishops presume to make no one subdeacon, unless he has promised that he will live chastely, because no one ought to approach the ministry of the Altar unless his chastity has been proved before the ministry has been received." - Likewise from the Council of Trent,³ where it has thus been defined: "If anyone has said that clerics constituted in Sacred Orders, or Regulars solemnly professed to chastity, can contract marriage, and that the contract is valid, notwithstanding ecclesiastical law or vow, let him be anathema."

2127. The order of matters now demands that we approach the FOURTH PART of moral theology, which we have inscribed On Particular Precepts. For, after the general principles of Christian Ethics have been unfolded in the FIRST PART, after the laws of natural right which regard all human beings and which human law has sanctioned more or less have been declared in the SECOND, and after finally the positive divine laws which Christ the Lord, by instituting the Sacraments, established and proposed to us to be observed have been set forth in the THIRD, this one thing remains: that we institute a discourse concerning those laws and obligations to which some human beings bind themselves when they freely undertake a particular manner of living, namely a state or a public office.

Nor indeed should this Fourth Part be judged to be of small moment; for just as all the faithful are held to have a sufficient notion concerning the precepts of the Decalogue and concerning the Sacraments to be received, so likewise every human being is held to know the other precepts which pertain to his own state or office, in such wise indeed that vincible ignorance itself of them, although no transgression follows, already involves mortal sin in itself¹ (recall the things said in n. 319).

Moreover, according to the threefold perfection to be pursued in human society, there is distinguished a THREEFOLD species of states and particular offices, namely: 1. The Religious State, whose end is to lead the human being who undertakes it to his own perfection, and this a spiritual one. - 2. The clerical state, whose end is to lead spiritual society, or the Congregation of Christ's faithful, to its supernatural perfection. - 3. The lay state, whose end is, according to its diverse offices, to lead civil society to its natural or temporal perfection.

Hence there will be a THREEFOLD TREATISE: the first, On the Religious State; - the second, On the clerical State; - the third, On the lay State.

There are five things concerning which we must treat in this Treatise, namely: 1. On the nature of the religious State; - 2. On entrance into Religion; - 3. On the obligations of Religious; - 4. On the privileges of Regulars; - 5. On Religious in a state of dispersion.

2128. Three things must briefly be weighed, namely the notion, origin, and distinction of the RELIGIOUS STATE.

DEFINITION. In general, State is a certain condition of life in which someone persists perpetually, or for a time. - Of this kind is the state of innocence, the state of fallen nature, the state of grace, the state of sin, the ecclesiastical state, the lay state, etc.

In a stricter manner, STATE is an immovable condition of life by which someone is firmly bound to another. Immovable absolutely, or movable only with difficulty; for state signifies persistence and a certain stability. - A state of this kind is THREEFOLD: episcopal, religious, and conjugal. For Bishops are obliged to service of their Church; Religious to divine service; married persons to mutual service. The two prior states are spiritual; and the first of them is the state of perfection acquired, the second of perfection to be acquired, but the third is a secular state.²

Now then,

The RELIGIOUS STATE is incomplete or complete, namely according as it is taken in a broad or strict sense.

The INCOMPLETE religious state, and taken in the broader sense, is the state of the faithful tending to the perfection of divine charity. - Under this definition not a few Institutes called Religious improperly are comprehended, as will be clear from the things to be said.

The COMPLETE religious state, and strictly so called, is defined: A stable manner of living by which one tends to the perfection of divine charity through the three perpetual vows of poverty, chastity, and obedience, under a rule of common life approved by the Church.³

It is said 1. a stable manner of living; otherwise it would not be a state properly so called, as we have already noted.

It is said 2. by which one tends to the perfection of divine charity; for the end of the religious state is CHARITY, not indeed that common charity which belongs also to imperfect Christians who are in the state of grace, but that eminent charity by which someone is proximately disposed to act easily and ordinarily according to the precepts and counsels of God,⁴ namely in imitation of Christ the Lord saying (John 8:29): I always do those things which are pleasing to Him (cf. n. 467, III, and 690).

It is said 3. through the three perpetual vows of poverty, chastity, and obedience; because, according to all theologians, a complete religious state is not understood unless it makes one tend completely and permanently to perfection. But indeed, that a human being tend completely to perfection, it is required both that he remove from the midst all things which forestall this perfection, namely the concupiscence of the eyes, the concupiscence of the flesh, and the pride of life, and that he offer to God in perpetuity as a holocaust all that he has, namely external and internal goods, body and soul. But each is done, as is clear, through the observance of the three evangelical counsels, namely of voluntary poverty, chastity, and obedience. Then, that he tend permanently and firmly to perfection, a VOW is required; for since the prementioned perfection is of free election, scarcely any other means of stability can be thought of than a perpetual vow, which, from the virtue of religion, establishes a truly perseverable law.⁵

Hence, those are not Religious properly so called who indeed observe the three evangelical counsels, but who have pronounced no vow concerning them; nor those who have vowed only one or two of the three; nor those who have vowed all three, but only for a time. - Suarez indeed dissents,⁶ teaching that with the vow of conjugal chastity alone there can exist a religious state properly so called, so that the essence of the religious state remains in the case in which the Supreme Pontiff should dispense someone, in part, from the solemn vow of chastity, with the faculty of using matrimony already contracted, or of contracting future matrimony. But Doctors more commonly oppose this doctrine.⁷

It is said 4. under a rule of common life. And in this consists the accidental or secondary element by which the religious state is constituted. - For although the three vows by which the observance of the evangelical counsels is promised, accepted in the name of God by someone having power for this, suffice of themselves for the essence of the religious state, nevertheless, considering present ecclesiastical law, that state does not exist before the Church except in common or cenobitic life, under one head and under one rule which fittingly conduces to pursuing perfection.

Hence: "Those are not Religious who, after the vow of perpetual poverty and chastity has been made, vow obedience to a confessor or Bishop;⁸ nor are Hermits reputed such, unless they have a common prelate and rule with other members of the same Institute, according to the present custom of the Church."

It is said 5. approved by the Church, namely by the Holy See, to which today the matter is reserved, as being of greater moment. For although this approbation is not of itself of the essence of the religious state, as most theologians think against some, nevertheless it is required from ecclesiastical law. In antiquity indeed, for founding religious Institutes, e.g. of St. Basil, St. Augustine, St. Benedict, etc., the express institution and approbation of the proper Bishops sufficed, the Roman Pontiff not opposing but rather commending; but in the Fourth Lateran Council,⁹ and then in the Council of Lyons,¹⁰ it was established that a new Order could not be introduced, nor the habit taken in it, unless it had been expressly approved by the Supreme Pontiff.

Now the approbation of the Church imports two things, namely judgment concerning the honorableness and utility of the Order or rule, and power conceded to Superiors of receiving Candidates to the habit and profession, and of performing the other things which are according to the Rule or Institute.¹¹

Hence: 1. Those are not Religious properly so called who, although they emit the three vows and lead life in common, nevertheless do not profess a rule approved by the Holy See; such are the pupils of various Congregations which Bishops have instituted by their own authority alone. Although their merit before God can be plainly the same as the merit of the others who are properly Religious, since they exhibit to the Lord the same abnegation of themselves.

2. An Institute which would be reproved or prohibited by the Holy See would by that very fact be void and would exclude the essence of the religious state. For it would no longer be a state of perfection, but rather a state of rebellion, since God can never hold as accepted what the Church disapproves.

2129. Questions. QUESTION 1. What is the difference between SOLEMN and SIMPLE vows, and do simple vows SUFFICE for the essence of the state of religion?

Resp. 1. Authors do not agree concerning the difference which intervenes between solemn vows and simple vows. According to the opinion of St. Thomas,¹² Bellarmine, etc., which St. Alphonsus teaches as the more probable,¹³ the solemnity of the vow of chastity is from ecclesiastical law as regards the rite, i.e. the form essentially required that it be held by the Church as solemn, but from positive divine law as regards the essence and effect, i.e. of invalidating matrimony. The reason is, "because in a simple vow the body is promised only to God, but in a solemn vow through the legitimate acceptance of Prelates, the body is besides handed over to God." These are the words of St. Alphonsus.¹⁴ And a similar reason can be adduced for the vow of poverty and obedience.¹⁵ Nevertheless, the contrary opinion seems today to have become the more common among canonists. Philip de Angelis testifies to this,¹⁶ saying: "This is the canonical doctrine, that solemnity is not intrinsic or essential to vows, so that the simple and solemn vow differ in species; but that it is extrinsic and accidental to vows, proceeding from the disposition of the Church." And a demonstration having been added from various documents, the distinguished Canonist concludes "that the SOLEMNITY of the three vows consists in the force added to them by the disposition of the Church, of making void, or at least voidable, certain acts contrary to the accidental perfection of the vows of a Religious." But whether this opinion is also intrinsically more probable, let others judge. Cf. the things to be said in n. 2156, 2160, 2176.

Resp. 2. "For the essence of Religion solemn vows are not required. The reason is that those who in the Society of Jesus make simple vows are true Religious, as Gregory XIII defined in the Bull Ascendente Domino."¹⁷ And Benedict XIV writes: "By the authority of the Roman Pontiff it can be brought about that that also is a true Religion in which only simple vows are emitted."¹⁸

Nor does it stand in the way that the bond of solemn vows is greater; because, as Suarez rightly observes,¹⁹ greater and lesser do not vary species. And indeed, although simple vows do not induce of themselves, as solemn vows do, inability for matrimony, incapacity of dominion, and absolute or immutable stability, nevertheless they render matrimony illicit in perpetuity, strip the one vowing of every independent use and every arbitrary disposition of temporal things, which is the same as if the Religious possessed nothing at all; finally, they induce sufficient stability, while it is established that the professed can never withdraw by his own will, and the Order ought not to dismiss him except for a grave and just cause.²⁰

QUESTION 2. Whether for the essence of the religious state strictly taken, there is required a HANDING OVER OF ONESELF made to God and ACCEPTED in the name of God by some human being?

Resp. Affirmatively, according to the common opinion of authors. For the religious state properly so called has always been held in the Church of God as a true handing over or donation, by which a human being wholly binds himself to God, namely by abdicating that natural right which each one, the precepts being observed, has of disposing of himself and his things according to his will. And although the aforesaid handing over is customarily joined to the very emission of vows, nevertheless it is something different from the vows, which is superadded to them. For a vow, by its nature, is nothing except a promise, by force of which not the dominion of the thing itself, but only a right to having it, is conferred; but a handing over which is legitimately accepted in the name of God by someone is a true and perfect donation, which effects that the thing or person offered is irrevocably transferred under the dominion of the one accepting.

But that an acceptance of this kind is necessary is gathered from this, that through a donation of goods, right is not yet transferred to another unless the donation is accepted by the donee, as we saw in the Treatise on Contracts (n. 1063 sqq.). "But indeed a handing over or donation, although it can immediately be made in view of God, nevertheless is not accepted by Him, nor is it pleasing to Him, unless it is made to some human being by whom it can be accepted or repudiated, and who acquires a right over the thing handed over for using it or for commanding it and for bearing care of it. The reason of this is that God, according to His ordinary providence, does not assume the peculiar care of governing a private person immediately by Himself, nor does He need sensible things, so that He may use them immediately and without the intervention of secondary causes. And therefore a donation thus made to God would either be vain and odious, or as though tempting God by demanding immediate governance from Him; and for that reason it is not pleasing to Him, nor is it immediately accepted by Him."²¹

2130. From these things you will gather: 1. Vows which are made to God alone and are accepted by no one do not induce the essence of the Religious State. - And hence it was why Pope Alexander VII, in the Constitution Ex commissa issued on 22 Sept. 1655 in favor of the Congregation of the Mission, or Lazarists, which, although it intended to emit three vows, and these perpetual, nevertheless did not wish to be numbered among religious Orders, established these things most worthy of note, namely: "that, in the emission of their vows, no one be present who accepts them in the name of the Congregation, or in Our name and in the name of the Roman Pontiff existing for the time ... And that the said Congregation not on this account be judged among the number of religious Orders, but be of the body of the secular clergy." But unless the Pontiff had added this clause, the Congregation of the Lazarists would not be secular, but properly religious, namely having the essence and truth of the Religious State.²²

2. The handing over of oneself, concerning which we have spoken, does not necessarily presuppose the emission of solemn vows. And this is confirmed from the Bull Ascendente Domino of Gregory XIII, § 18, where the Pontiff notes: "that the three vows of the Society, i.e. of Scholastics, although simple, have been admitted by this See as substantial vows of Religion, and that those emitting them are truly constituted in the State of religion, since by them they dedicate and actually hand over themselves to the Society, and bind themselves to divine service in it."

3. On the part of the Order there can be some acceptance, without for that reason a reciprocal obligation arising between it and the Religious. - To the point, Schmalzgruber speaks thus:²³ "It must be said that, for someone to be truly and properly a Religious, it suffices if at least on the part of the one vowing there is given the obligation of remaining perpetually in Religion, although Religion does not have in turn the absolute obligation of retaining him perpetually." - And this is confirmed by the example of the Society of Jesus, in which "Scholastics bind themselves by vows to remain perpetually in the Order; but the Society reserves to itself the power of dismissing them, if this seems more expedient to it."²⁴

2131. • Some writers have taught that the religious State is of merely ecclesiastical institution, and consequently belongs in no way to the essence or integrity of the Church. Thus especially the Innovators, most hostile to Religious, against whom we establish the following:

Principles. I. The religious State, AS TO SUBSTANCE, although not as to accidental forms, was instituted by Christ the Lord; whence it must be said to be of DIVINE LAW, not commanding but COUNSELING.

"This," says Suarez,¹ "is the opinion of all Catholics who think rightly" (cf. n. 133). And in truth Christ must be called the author of the religious State as to substance, if He Himself is the author of religious perfection, to be acquired through the observance of poverty, chastity, and obedience; for the whole matter or substance of the religious State consists in this. Now then, that the matter is so is clear from the three oracles of the Lord; the first of which is: "If thou wilt be perfect, go, sell what thou hast, and give to the poor, and thou shalt have treasure in heaven" (Matt. 19:21); - the second: "And there are eunuchs who have made themselves eunuchs for the kingdom of heaven. He who can take, let him take it" (ibid. 19:12); and the Apostle explains the mind of the Savior (1 Cor. 7); - finally the third: "If anyone wishes to come after Me, let him deny himself, and take up his cross daily, and follow Me" (Luke 9:23); which same counsel of obedience was given also in these words: "And come, follow Me" (Matt. 19:21).

The same is proved from the Holy Fathers; for they, Suarez bearing witness,² commonly teach that the state of Christians was distributed by Christ into two orders: into the order of those professing the common life of the commandments, i.e. the conjugal or secular life; and into the order of those professing the higher and angelic life of the more sublime counsels, i.e. the religious life. - And this was the life which the Apostles professed, as St. Thomas testifies,³ writing: "The Apostles are understood to have vowed the things pertaining to the state of perfection, when, having left all things, they followed Christ."

From these things you will gather: 1. Although the Pope, as Vicar of God, can dispense in the vows of Religion, he nevertheless cannot effect that someone be at once a Religious and loosed from the substantial vows; because these belong to the essence of the religious State divinely instituted.⁴

2. No Authority on earth is able to abolish the religious State without by that very fact wounding divine right.⁵

2132. II. The religious State is, as to substance, connatural to the Church and so NECESSARY that it must be said to belong to her integrity. - This is drawn not only from the evangelical words, but from the very nature of the Church. For Christ implanted in His Church the property and note of sanctity, namely so that she would be adorned not only with internal sanctity through sanctifying grace and the gifts of the Holy Spirit, but that she would shine also with external and public sanctity, by which she could easily be discerned from all false and spurious religions. Now then, this note of Sanctity comprises not only the exercise of those virtues which suffice for attaining salvation, but also the observance of the counsels and public profession, or the religious State. - Another argument can be taken from the necessity of evangelical workers; for St. Alphonsus⁶ does not hesitate to assert that Bishops and parish priests are unequal to supplying all the spiritual necessities of peoples. Hence, if God did not send to them other priests by whom they might be helped, He would not have sufficiently provided for His Church.

Hence: 1. In every age Religious have existed in the Church, although perhaps they were bound by no peculiar and common discipline during the first two centuries.

2. The religious State is indefectible in the Church, although some Order or Congregation in particular can fail.⁷

Note. The Ascetical writers discuss the EXCELLENCE of the religious State.⁸

2133. • For the greater decorum and utility of the Church, various religious Orders have been raised up by God, which for that reason can be divided into various species.

I. By reason of their PECULIAR END, Religious are said to be contemplative, who principally tend to their own sanctification through prayer and solitude; - active, who principally apply themselves to works of charity toward the neighbor; - mixed, who with equal zeal tend to attaining both ends.⁹

The CONTEMPLATIVE life excels the ACTIVE, according to that word of Christ the Lord: Mary has chosen the best part. But the MIXED LIFE is most perfect, in which a Religious so gives himself to contemplation that, from the fullness of this, those things flow forth which through doctrine and other spiritual offices he expends in helping neighbors. For just as it is more excellent both to shine and to illuminate: so it is more excellent to join action with contemplation, and from charity to pour out into others, for procuring their salvation, the things which are drawn in contemplation. This was the life of the Apostles and of our Lord Jesus Christ Himself, than which none more perfect can be thought.¹⁰

2134. II. By reason of VOWS, they are divided into Religions, into religious Congregations, and into Religious Institutes.

1. A Religion, or religious Order, in the canonical and stricter sense, is constituted by solemn vows alone, so that only those who emit vows of this kind are strictly to be called Regulars.

2. For a religious Congregation there is required and suffices the essence of the religious State with simple vows, as is clear from what was said in n. 2129, q. 1. The members of such Congregations are sometimes comprehended under the name of Religious in Pontifical documents.

3. The word religious Institute extends more broadly than religious Congregation; for it is extended even to those modes of living which imitate the religious State without vows, e.g. the Oratory of St. Philip Neri.¹¹

From these things the manner of SPEAKING of the Supreme Pontiffs becomes clear, who name religious Institutes with simple vows sometimes religious Congregations, religious families, etc.; sometimes secular Congregations, according as they use those words either in the natural sense or in the canonical sense. - But the canons by which the common law of Regulars is constituted suppose and regard Religions properly so called, so that neither the laws nor the privileges given to Regulars belong of themselves to Institutes of simple vows.

2135. III. By reason of the Rule, there are FOUR principal SPECIES of Orders, according as they follow the rule of St. Basil, or of St. Augustine, or of St. Benedict, or of St. Francis. Most founders of religious Orders have embraced one of these four, with peculiar statutes added, by which each might direct his Institute more fittingly to its proper end.

2136. • Note. Religious Orders strictly so called, in which SOLEMN vows are emitted, are reduced to these supreme species:

1. MONASTIC Orders, which, by force of their own institute, are not ordered to the ministries of clerics, but profess in the first place a contemplative and solitary life. - Of this kind are: Basilians, Cassinese, Camaldolese, Vallumbrosans, Cistercians, Trappists, Olivetans, Sylvestrines, Hieronymites, Carthusians, Antonians, etc.

2. CLERICAL Orders, which by their own institute are held to spiritual ministries, to which they are deputed by ecclesiastical ordination. Such are: Canons Regular, e.g. of the Lateran Basilica, and Clerks Regular, e.g. Theatines, Barnabites, Somaschans, Jesuits, Minor Clerks, Ministers of the Sick, Clerks of the Mother of God, and of the Pious Schools.

3. MENDICANT Orders, under which name are comprehended those to whom, from the rule or constitutions approved by the Apostolic See, it is forbidden to have revenues and possessions in common, although they have them by dispensation of the Pontiff, as today, from Trent, sess. 25, de Regul. cap. 3, a dispensation is made with all Mendicants, except the Minors of the Observance and Capuchins. - Wherefore, to the Orders of Mendicants belong the four more ancient Orders of St. Dominic, the Minors, the Hermits of St. Augustine, and the Carmelites, of whom mention is made in cap. unic. § sane, de Relig. domibus in 6; and besides these the Orders of the Servants of Mary, of the Minims of St. Francis of Paola, of St. Jerome, as St. Pius V declared in Constit. 35a Romanus Pontifex, and 48a Apostolicae Sedis; the Society of Jesus, from the Bull Dum indefessae. Likewise, the Trinitarians reformed by Blessed J. B. of the Conception (Paul V, 15 Dec. 1609); the Mercedarians (Benedict XIII, 8 July 1725); the Discalced Carmelites (Clement VIII, 20 Aug. 1603), etc.¹²

4. MILITARY Orders, as the Knights of St. John and the Teutonic Knights, who are ordered to military service for the defense of the Church against Infidels and other enemies of the same.

5. HOSPITALLER Orders, e.g. St. John of God, who from the scope of the Institute are ordered to the exercise of hospitality, as regards the reception of pilgrims, care of the sick, etc.¹³

NB. To various Orders, especially those of St. Francis, St. Dominic, and the Blessed Virgin Mary of Mount Carmel, are joined Tertiaries, who live either in common under a rule, or privately in the world. - Concerning the Third Order of St. Francis of Assisi, see the Constitution of the Most Holy Pope Leo XIII, Misericors Dei Filius, issued on 30 May 1883.¹⁴

In this chapter we shall treat: 1. of those who can enter; 2. of those who are bound to enter; 3. of the Novitiate; 4. of Profession.

2137. • Principles. I. "All and only those can enter Religion who are of their own right and not bound to others; but those who are bound to others CANNOT do so without their consent."¹ Each is clear of itself.

Hence: 1. Entrance is not licit for IMPUBERES, because they are subject to parents or guardians as regards the disposition of life. To them are to be numbered servants properly so called, if their masters refuse; and in many places, on account of civil laws, minors, unless with the consent of parents, which, for preventing future troubles, is prudently required to be set down in letters.

2. Entrance is not licit, regularly, for CHILDREN, even those bound by a vow of Religion, who would have to leave parents constituted either in extreme necessity or merely grave necessity. - But otherwise, if their necessity were common, or if they would suffer only a moderate diminution of state, or if the son, although he should remain in the world, nevertheless could in no way aid their necessity; otherwise also, if he himself could not remain in the world without grave and proximate danger of sin; because his spiritual salvation must be preferred to the temporal life of the parents.²

You will ask: Is a son already professed bound TO LEAVE Religion ON ACCOUNT OF THE NECESSITY OF PARENTS? - Resp. 1. If the necessity is only grave, he is not bound, nor can he; because just as a wife already taken, so also Religion already assumed must be preferred to parents. - 2. But if the necessity is extreme, he is bound, in the case in which he cannot aid them from the cloister. In doubt concerning the gravity of the necessity, judgment belongs to the Superior.³

"Outside the case of necessity," Luther used to say, "children sin by entering Religion without the consent of parents. - But the opposite has been taught by all the Holy Fathers and all Catholics, while it is certain, as the Angelic Doctor says,⁴ that children are free concerning the election of State. And although it is fitting, as the Doctors say, that children not depart unless they have first received the father's blessing; nevertheless this is understood when there is no danger that the father will turn them aside from a holy purpose; but because this danger is almost always present, therefore St. Thomas absolutely exhorts children not to use the counsel of blood-relations when the matter is about a religious vocation. But from this counsel, says the Saint,⁵ first indeed relatives of the flesh must be removed. But relatives of the flesh in this proposal are not friends, but rather enemies."⁶

3. Entrance is not licit for PARENTS who have children constituted in grave necessity or destitute of sufficient education, "unless it has been provided how they can be educated," as St. Thomas speaks.⁷ But this is not understood of emancipated children, unless they are in grave necessity.⁸

4. Entrance is not licit for THOSE who would have to leave brothers or sisters in extreme necessity. If their necessity is only grave, in this case, a brother who has vowed Religion needs dispensation so that he may defer entrance for a long time. - Otherwise, if he has not vowed; because "by reason of charity someone could defer and even omit the state of Religion in order to aid brothers gravely in need."⁹

5. Entrance is not licit for SPOUSES, when matrimony has already been consummated, unless with the consent of the other party, or unless because of his or her notorious adultery; for the matrimonial bond belongs to the order of justice, against which the virtue of religion does not prevail. That a ratified marriage is dissolved by solemn profession, and that two months are conceded to spouses for deliberating concerning entrance into Religion, or into an Order strictly regular, we have already said in the Treatise on Matrimony, n. 1981.¹⁰

6. Finally, entrance into Religion is not licit for BISHOPS. - For they cannot, without a just cause, leave their Churches, both on account of the vow which they emitted in accepting them, of serving them perpetually, and on account of the spiritual marriage with their own Church, which, as Innocent III says, "is dissolved not by human, but rather by divine power." But if a just cause intervenes, the Supreme Pontiff certainly can permit them entrance into Religion.¹¹

2138. • II. All clerics, parish priests, or beneficiaries CAN licitly enter Religion, even if the Bishop contradicts, unless they are held by another bond. This is clear both from the canon Duae sunt leges,¹² in which Pope Urban II established: "If any of these clerics holds people in his church under a Bishop and lives secularly, if, inspired by the Holy Spirit, he should wish to save himself in some monastery ..., even with his Bishop contradicting, let him go free by our authority"; and from the unanimous opinion of the Canonists, which Benedict XIV reports in the Bull Ex quo dilectus.¹³

Nor does the obedience promised to the Bishop stand in the way; because this is promised according to the liberty given by Christ the Lord and according to the laws of the Church. Nevertheless a parish priest, because he is about to resign his office, is bound, from natural law, to make the Bishop more certain concerning the counsel he has taken up, lest the flock be abandoned without a keeper. Clerics and other Beneficiaries are held to the same from decency and office, unless they are excused on account of reverential fear.¹⁴ Yet the benefice is not vacant except after profession. Indeed, if the benefice is not residential, it can be retained, but without use and administration, by those who emit simple vows.¹⁵

We have said: unless he is held by another bond, e.g. of justice, by which that cleric would be held who had been educated gratuitously under the condition that afterward he would exercise ministry in the diocese for a determined time; or by the bond of charity, for example if the Church would suffer grave damage from his departure; indeed, in such a case, the Bishop could recall a priest of this kind from Religion.¹⁶ Thus likewise those are prohibited from deserting missions who were ordained by title of mission with an oath (cf. n. 1923).

2139. • IT IS ASKED. Can those burdened by DEBT enter Religion?

Resp. 1. Considering natural law, the opinion which seems more probable to St. Alphonsus teaches that such persons cannot licitly enter if there is probable hope that in a short time, e.g. within two years, they will be able to satisfy creditors. - But if this hope is absent, or if from that brief stay in the world there threatens a probable danger of falling into grave sins or of losing vocation, they can enter immediately, a cession of their goods having been made to the creditors. "The reason is that the natural precept does not oblige when the debtor cannot satisfy except with so great a detriment to his liberty, and with the burden of undergoing danger to eternal salvation." But if the debts are uncertain, so that they can be restored to the poor or to pious places, he is not bound to wait even the least little while, since nothing is so pious as to dedicate oneself and all one's own things to God in Religion.

Resp. 2. From canonical law, the profession of those who, through the squandering of their goods, have fallen into enormous debt is indeed valid, but illicit; and also that of those who must render accounts, e.g. guardians, procurators, executors of a testament, if the accounts to be rendered are very litigious, intricate, fraudulent, and about to furnish occasion for lawsuits.

2140. • Principles. I. In the first place, he is BOUND to enter Religion who has promised this by a LEGITIMATE vow.¹ It is clear from what was said concerning the obligation of a vow in general (n. 627). Hence it follows:

1. He who has vowed Religion in general, i.e. not determining Order, or place, or discipline more lax or more severe, is bound to seek by ordinary means some Order or some approved religious Congregation in which discipline is flourishing, at least as regards the more principal observances; and if he is repelled from that Order, he is bound, more probably, to enter some other Religion; because by a general vow he is bound to entrance into some Religion.

2. He who has vowed Religion in species is bound to enter some house of that Order, and after being repelled from one he must use ordinary means so that he may be admitted into another. - But after the third or fourth repulse, he is now free from fault if he remains in the world; because fulfillment of the vow has become impossible.

3. He who has vowed Religion individually, so determining the place that he intended no other, is free from his vow if he is not admitted into that house; because he bound himself under this condition only.

4. He who has vowed Religion and has entered it is bound to PERSEVERE in it; "because the vow of Religion obliges not only to taking up the religious habit, but also to serving God for the whole time of life."² - Whence he sins gravely if he withdraws without a just cause; "unless he had understood only that he would make trial of it. Moreover, there would be a just cause of going out if he should find there such a manner of living to which his powers were not equal; or if there he should experience grave and long sadness. - But if he had also vowed to profess, he is bound to execute this even with grave inconvenience to himself, provided the religious State does not turn out wholly intolerable to him."³

2141. II. Everyone who is morally CERTAIN OF HIS VOCATION to the religious life is bound to enter Religion, nor can he, with conscience safe, remain in the world. Certainly, not to obey a divine vocation, speaking of itself, is not a sin; for counsels do not of themselves bind to fault. - Nevertheless, unhappy is he who neglects such a vocation! For "if anyone gravely sins who draws another away from vocation on account of the harm which he inflicts on him: how will he be immune from fault who knows that he is certainly called by God to Religion, and wishes to remain in the world with danger to his eternal salvation? To expose oneself to such danger, the Holy Doctor adds, I will never be able to persuade myself is free from fault. But whether this fault is grave or light, I leave to the judgment of the wise."⁴

2142. For the fuller explanation of the matter, it will not be beside the point to add here some general questions ON DIVINE VOCATION to some state of life.

Questions. QUESTION 1. What is VOCATION to some state?

Resp. Vocation can be defined: An act of supernatural providence, by which God elects each human being to some kind of life, and adorns him with suitable gifts and helps for worthily and laudably fulfilling the offices which are proper to that kind of life. Certainly, many states, e.g. of advocate, of judge, etc., if they are considered in themselves, do not transcend the merely natural order; but if they are considered insofar as they are states of men destined to a supernatural end, there is none which is not subject to the supernatural order. Whence St. Paul says: "Each one has his proper gift from God" (1 Cor. 7:7).⁵ And St. Cyprian: "By His order, not by our judgment, the virtue of the Holy Spirit is administered."

QUESTION 2. What are the SIGNS of a divine vocation to some state?

Resp. THREE especially are enumerated, namely: 1. A certain constant and deliberate PROPENSION to that condition of life about which one is deliberating: a propension, I say, constant; for him whom God destines to some kind of life, He sweetly and strongly draws in a permanent manner to it, although at the same time there can be present a certain natural repugnance; then a propension deliberate, so that in the intellect of the one called there is an illumination of divine grace, in which he looks upon the state to be entered as going to be suitable for him for attaining his eternal salvation. - 2. SUITABILITY, or APTITUDE for fittingly fulfilling the offices of that state. This aptitude for the religious state consists chiefly in right judgment, in a good disposition, in a soul submitted to the yoke of obedience, in relatively sufficient knowledge, and in the absence of defects of body and soul which are opposed to the religious life or to the end of the Institute. - 3. ABSENCE OF IMPEDIMENTS, such as would be want of parents, bad health of body, etc. This last sign, although negative, is nevertheless of the greatest moment, since God is accustomed to manifest His will also through the circumstances of things and external events.⁶ Recall what was said n. 1849, 3.

QUESTION 3. How does one sin who, not called, embraces the state of Clericate or Religion?

Resp. 1. If he embraces the sacerdotal state, especially while intending to dwell in the world, without vocation, i.e. without aptitude or without right intention, he sins most gravely, because he casts himself and others into great danger of salvation.

Resp. 2. If he embraces only the religious state, he is certainly to be accused of great temerity, because he takes up obligations which he will be able to satisfy with difficulty, on account of the defect of special helps which are granted by God to those alone who are called. Whence Christ the Lord said (Matt. 19:11): "Not all take this word." Nevertheless, if one not called has a firm will of satisfying his obligations, he does not seem to sin gravely; because the religious state, by its own nature, will supply him with such helps by which he will be able to execute this will of his.⁷ Except if he knows that he lacks those conditions of soul or body without which he certainly will not be able to observe the vows and rules, or in fact will not observe them.⁸

QUESTION 4. What is to be done by him who has certainly ERRED in the election of state?

Resp. If it is still licit, let him choose for himself another suitable state by the counsel of his confessor. - But if Religion prohibits this, let him consider that word of St. Augustine said to him: "If you are not called, make yourself be called," i.e. live in such a way as if you had been called to the present state of life. Namely, necessity is to be converted into virtue, and special helps must be obtained from God through prayer; for God will never be lacking to one doing what is in him.⁹

QUESTION 5. Whether and how does one sin who DRAWS ANOTHER BACK from the religious State?

Resp. 1. If he draws him back by unjust means, namely by force, fraud, or grave fear, he offends gravely by a sin of injustice, both against that private person, whom he unjustly deprives of a great good, and against Religion, which has the right that it not be impeded by force or deceit from attaining its good. - Hence, he is held to reparation, both of the scandal which he gave and of the damage which he inflicted, according to what was said n. 514 and 921.

Resp. 2. If he draws him back by prayers or counsels, he indeed does not sin against justice, but he sins of himself gravely against charity, unless a just cause is present. Parents, however, can be excused from mortal sin, at least for some brief time, "by reason of ignorance or inadvertence, which can easily be in them on account of vehement carnal affection toward children."¹⁰

2143. • The NOVITIATE is the probation of religious life, or the mutual experiment, by which Religion examines the qualities and disposition of the Novice, and the Novice examines the austerity or observance of the Order. - Hence there are diverse obligations, looking on the one side to the Superiors of the Order who admit novices, but on the other side to the novices themselves who ask to be admitted. Concerning these obligations only a few things are to be said. For it suffices here briefly to explain the common principles of the Law of Regulars, which can be modified by particular Statutes or Indults.¹¹

I. The RIGHT OF ADMITTING novices belongs to the ORDER which one desires to enter, in such a way namely that it is to be exercised not by the Prelate alone, but by the Convent, or capitularly. Now then,

1. As regards MEN, it is of common law that Religions approved by the Holy See, even those not exempt, do not depend on the Bishop in admitting novices; for the faculty of admitting them is contained in the approbation itself.¹²

But in the decree of the Sacred Congregation SUPER STATU REGULARIUM (25 Jan. 1848, Romani Pontifices)¹³ Pius IX established, and indeed under penalty of privation of offices, though not under penalty of nullity of profession, that: "In any Order, Congregation ... whether solemn vows or simple vows are emitted in them, no one be admitted to the habit without testimonial letters both of the Ordinary of origin and also of the Ordinary of the place in which the postulant, after the completion of the fifteenth year of his age, has stayed beyond a year; after they have diligently inquired concerning the qualities of the postulant, the Ordinaries must report concerning his birth, age, morals, life, reputation, condition, education, knowledge." And it is added: "Let the Ordinaries know that their conscience remains burdened concerning the truth of the things set forth, nor is it free to them to deny letters of this kind."

If the Ordinary refuses to testify concerning the qualities of the postulant, either because he does not know him, or because he is impeded by the civil authority, etc., it must be supplied by another accurate information, and the postulants, before they are admitted to the habit, are to remain at least for three months in the Convent, and there they are to be diligently proved. Thus the Sacred Congregation super Statu Relig., on 1 May 1851.¹⁴

But in another Decree of the same day (Regulari disciplinae), the same Supreme Pontiff enacted a twofold law concerning things to be observed: 1. in proving those who ask to be admitted to the Religious habit; 2. in admitting Novices to Profession. - The reason for the decree is that "it seemed necessary that in the admission of Novices to the habit and profession the parts to be conceded should belong not only to inferior Prelates and Superiors general, but also to certain other Religious men ... outstanding in counsel and gravity, so that they might accurately examine the disposition, talent, morals, and other necessary gifts of those who are about to give their name to the religious family," etc.

This second decree was issued only "for Italy and the adjacent islands"; but it furnishes an excellent norm also for other regions.

2. As regards NUNS, the Tridentine law (Sess. 25, de Regul.) continues to have force. - Therefore the Bishop, either by himself or through another, is bound, both before the reception of the habit and before profession, even in exempt monasteries, to examine the will of the virgin: "whether she has been forced, whether she has been seduced, whether she knows what she is doing, whether she is suitable for the monastery, whether this monastery is suitable for her."¹⁵ - This EXAMINATION is indeed commanded under grave obligation, at least before profession. Nevertheless, profession, if the examination has been omitted, is valid.

And here it must be NOTED that the aforesaid examination binds only nuns of solemn vows; but it is expedient that it also be instituted with nuns who pronounce only simple vows, although, at least from positive law, it is not commanded under grave obligation.

Furthermore it must be noted that nuns, although not exempt and professing only simple vows, can never be compelled by the Ordinary to admit some novice; nor can they be compelled to manifest the cause why they have not admitted someone.¹⁶ But they themselves sin, and indeed gravely, if they admit someone evidently not suitable; or if they exclude someone who "has had the conditions required according to the rule of the monastery and Order."

Note. From Trent, loc. cit., novices could be admitted to the habit when the twelfth year had been completed. - But today, from the decree of the Sacred Congregation of Bishops and Regulars issued on 23 May 1659, it is required that the fifteenth year be completed. Then indeed a name of a saint, not of a gentile woman, must be imposed on a nun ...; likewise, she is to be called by the title of sister, and not lady.¹⁷

2144. • II. NOVICES, before they are admitted to profession, must stand in probation for at least ONE YEAR, and this whole and continuous, and indeed in the religious habit and in houses destined for this, under penalty of nullity of profession. - Thus from Trent.¹⁸

A novice must observe the rule of Religion during the time of probation, at least from decency; he enjoys the privileges of Religion; nor can he be dismissed without a just cause, although he himself always enjoys full liberty of abandoning the proposal begun and returning to the world.¹⁹

Indeed, to provide for his liberty, the Council of Trent, under penalty of anathema, PROHIBITS that he himself, and his parents and relatives, give anything to the monastery, except food and clothing; and at the same time it commands that, to him when he departs, all things which were his be restored. - It further forbids, under penalty of nullity, that after vestition he make any irrevocable renunciation or contract an obligation, even in favor of whatever pious cause and even if an oath has been added, unless with the license of the Bishop, within the two months immediately before profession, and provided that profession follows. - And these things were most wisely established, lest on account of the said renunciations and obligations he be despoiled of his goods, and so be compelled against his will to dwell in the monastery, when, despoiled, only begging would remain for him in the world.²⁰ See more among the Canonists.

2145. • IT IS ASKED. When is the year of probation judged to be INTERRUPTED?

Resp. 1. It is judged to be interrupted chiefly when the novice goes out from the monastery without license, with the intention of not returning, even if he immediately returns, as is clear from a decree of the Sacred Congregation of the Council;²¹ when he is dismissed absolutely by the Superiors and afterward is again admitted; when he departs by private authority so that he may enter another house, or another province, although of the same Order.

Resp. 2. But it is not judged to be interrupted if the novice is sick in the monastery, even for a notable time, although he can by no means take part in the exercises of novices; - if he departs from the monastery compelled by violence; - if, license having been received, he goes aside to parents or others for a brief time for the sake of recovering health or conducting business; - if he is dismissed on account of a false accusation, and afterward, the truth having been known, is again admitted; - if he makes a journey ordered by his Superiors, because then he remains under their dependence.²²

2146. • DEFINITION. Religious profession, in the canonical sense, is customarily defined: "A promise freely made and legitimately accepted, by which someone constituted in due age, the time of probation having been completed, binds himself perpetually to a certain Religion approved by the Church, with solemn emission of vows." In a broader and improper sense, even the emission of simple vows is called Profession.

DIVISION. Profession is either express, which is enunciated by words; or tacit, which is expressed by deeds, e.g. when a novice, the time of probation having elapsed, knowingly wears the habit of profession and exercises acts proper to the professed. Today this is almost unusual; indeed, it has been expressly abrogated, if there is question of the emission of solemn vows to be made by male Regulars.¹

2147. I. For the VALIDITY of the profession either of Religious or of Nuns, THREE things are required, namely the aptitude of the one vowing, free consent, and the acceptance of the Superior.²

There is required 1. the aptitude of the one vowing, namely: that he not be of another's right, that he have completed the sixteenth year to the moment of the hour, that he have stood in probation for a whole year (in a leap-year the lapse of 366 days must altogether be awaited); that he have no impediment which, by Statutes confirmed by the Roman Pontiff, is judged substantial in that Order.³

There is required 2. free consent, i.e. that there be present in the one vowing the intention of making profession, free from every deceit, fraud, or error concerning substantial things; and that force or grave fear be absent, both on the part of the one professing and on the part of the monastery accepting (cf. n. 1044 sqq.). - And here there comes to be noted the Tridentine decree, by force of which they incur excommunication reserved to no one "whoever shall have forced some virgin, or widow, or any other woman, except in the cases expressed in law, to enter a monastery, or to receive the habit of any Religion whatever, or to emit profession"⁴ (cf. n. 1359, where concerning cases expressed in law, or excepted).

There is required 3. Acceptance of the Superior of the Order, with the consent or at least with the counsel of the Chapter, according to the Statutes of each Religion; for religious profession consists in a certain bilateral contract, for which true and legitimate consent is necessary on each side.⁵

In ITALY, the Decrees of the Holy See, concerning which n. 2143, must moreover be observed.

Further, a Religious unjustly denying a vote to a novice not only sins, but besides is held to restitution, as they most commonly say, unless there is present a grave cause for reproving, namely a cause of infirmity, bad disposition, defect of talents, and the like, so that the novice is thought going to be grave, i.e. burdensome, to Religion. Thus St. Alphonsus.⁶

2148. II. For the validity of the profession of MEN with SOLEMN vows, there is further required, according to the present discipline, that they first have emitted SIMPLE VOWS. - Namely, from the decrees of Pius IX (19 March 1857 and 7 Feb. 1862):⁷ all Religious of those Orders in which solemn vows are emitted, in the future, the tyrocinium having been completed, emit only simple vows, at least for three years; then, after at least the nineteenth year of their age has been completed, they are admitted to solemn vows, if they are found worthy by their Superiors. But for just causes solemn profession can also be deferred longer, although not beyond the age of twenty-five completed years. The decree does not regard nuns.

But from the declarations of the Sacred Congregation SUPER STATU REGULARIUM given on 12 June 1858, and regarding the aforesaid decree of 19 March 1857, the simple vows of which there is question are perpetual on the part of the one vowing, and dispensation from them is reserved to the Supreme Pontiff. - On the part of the Order, however, they can be dissolved by dismissal of the Professed, so that, dismissal having been given, by that very fact the professed become free from every bond of the said vows. But no one can be dismissed because of infirmity arising after profession of simple vows. - Moreover, the professed of these vows become participants of all the graces and privileges by which the solemnly professed in the same Order enjoy.⁸

2149. III. Concerning the profession of NUNS, the following things especially must be noted:

1. A novice CANNOT LICITLY be admitted to profession: 1) If the Bishop, by himself or by a delegate, even in an exempt monastery, has not examined her beforehand; wherefore the Superiorissa is bound, under penalty of suspension from office, to warn him at least one month before profession; but the Ordinary is bound, within fifteen days from the day of notification, to institute the examination according to the Tridentine rules (cf. n. 2143, 2).⁹ - 2) If, the year of probation having been completed, the Ordinary has deferred profession from a just cause. - 3) If the dowry of a choir nun, assessed by the Bishop and which is to be paid in money, has not been furnished (cf. n. 589, 5). But the dowry cannot be alienated, nor, if the nun is transferred into another monastery, be transferred to the same, unless this monastery is compelled to admit the nun. But it is to be restored to one departing from the monastery if only simple vows are emitted in it. - Nevertheless it is equitable that expenses incurred be deducted (cf. n. 2144).¹⁰

2. Profession is INVALID if a novice, having departed from the monastery because of infirmity, and, after she has recovered, having returned, has not begun the novitiate anew. - If a novice of sixteen years and constituted in danger of death wishes to emit profession, she can certainly emit it; but if she recovers, once the year of her profession has been completed, she must profess anew.¹¹

3. The profession of nuns must be made principally into the hand of the Ordinary or his delegate, not into the hand of the Superiorissa. - Nevertheless it is valid if it is made into the hand of the Superiorissa, with the consent of the greater part of the Chapter. Except if custom or approved Statutes of the Order require something else.¹²

2150. Questions. QUESTION 1. Can one RECLAMATE who has emitted an INVALID profession?

Resp. He can, from the Council of Trent,¹³ provided he does this within a five-year period; once this has elapsed, he is no longer heard, unless he is restored in full by the Apostolic See. - But the process must be made both by the local Prelate and by the Ordinary of the diocese, with the assistance of a defender of profession. Further, the professed, although he has the first sentence in his favor, cannot therefore withdraw from Religion, but must await the second, if an appeal is pending. But if he has already taken flight, he is repelled from judgment until he has resumed the habit of Religion. Thus Benedict XIV, Bull Si datam hominibus.¹⁴ See more among the Canonists.

QUESTION 2. What are the EFFECTS of valid profession?

Resp. The principal effects are the following:¹⁵

1. Remission of sins as regards penalty, if the professed is in grace and immune from every depraved affection, even lightly sinful; for profession is a holocaust offered to God, and exceeds every kind of satisfaction.¹⁶ 2. Extinction of vows previously emitted, as though through a certain commutation into something better.¹⁷ 3. Liberation from paternal power, notwithstanding civil law; whence it happens that parents who, relying on secular law, draw a son or daughter from the convent after profession has been emitted, stain themselves with grave sin. - 4. Dissolution of betrothals, according to what was said n. 1957. 5. Dissolution of a ratified marriage already contracted, and inability for contracting matrimony, if the profession is solemn (cf. n. 1981). 6. Cessation of irregularity from defect of birth; but only to the effect of receiving Orders, not however as regards obtaining Prelatures or Dignities (cf. n. 1935). - 7. Vacancy of Benefices, according to what was said n. 2138. 8. Participation in all privileges of Regulars, especially exemption, if the monastery has the required conditions (cf. n. 2183). 9. The obligation of tending to perfection and of observing vows, concerning which now at greater length.

2151. • The obligations of Religious are: 1. to tend to perfection; 2. to observe the vows emitted; 3. to observe the rule of their own Order; 4. to persevere in the institute of life undertaken. Concerning the obligation of reciting the canonical Hours, see n. 2204, 3, and 2205.

2152. • Principles. I. A Religious is held, UNDER GRAVE obligation, to tend to perfection. - For by force of his profession he is bound to wish to preserve his State, which is a state of perfection, or a state of those tending to perfection; although this perfection, of itself, is not of precept but of counsel.¹⁸

2153. • II. A Religious is bound to strive toward perfection: - 1) through ESSENTIAL means, which are the exercise of virtues, assiduity in prayer, and frequentation of the Sacraments; - 2) through the GENERAL means of regular life, i.e. through observance of the vows, for by these the roots of worldly life are cut away; - 3) through the SPECIAL means of his Order, i.e. through at least imperfect observation of the rules, which are not only as it were the outer wall of the vows, but also means necessary for attaining the special end which each Religion has proposed to itself for serving God and perfecting its own members.¹⁹

Hence, a Religious sins gravely against the obligation of tending to perfection: 1. If he casts aside all the means of perfection; for then he is not in the way of salvation. 2. If he frequently infringes the vows in a grave matter; because the vows are to be observed not only by reason of themselves, but also insofar as they are essential means of perfection. - 3. If he violates the rules of the Order from contempt, or with grave detriment to common discipline, as will be explained below (cf. n. 2170).

2154. IT IS ASKED. Does a Religious sin gravely who wishes to observe only those rules which oblige UNDER MORTAL sin, and to neglect the others?

Resp. St. Alphonsus: "Many excuse him; but many do not. But Sanchez says knowingly that it will happen with difficulty that such a one be excused from mortal sin, at least from other heads, namely on account of the danger to which he exposes himself, either of offending against the vows or of inducing relaxation of the rule in the Community"²⁰ (cf. n. 343).

2155. • A Religious by force of the vows is bound to poverty, chastity, and obedience; and if he emitted other vows in profession, he is held to those similarly, according to the prescription of the rules and the custom of the Order.

DEFINITION. Religious poverty is placed in a certain abdication of dominion, whether radical or useful, over temporal goods.²¹

DIVISION. A FOURFOLD grade is distinguished by which evangelical poverty can be vowed: the first grade excludes the use of superfluous things; the second, the free and independent use of temporal things; the third, dominion over these things; finally the fourth, the very capacity of dominion. - This last grade is proper to Regulars who have bound themselves by solemn vow. But for the essence of the vow of poverty, in the religious state properly so called, the second grade is required and suffices, as is clear from the practice of the Church in approving various Institutes.¹ Hence we establish the following:

2156. • Principles. I. A Religious, through the SOLEMN vow of poverty, so ABDICATES the right of ownership over every temporal thing estimable by price, that 1) he can licitly have neither independent use nor independent disposition; 2) nor can he possess anything as his own; 3) nor does he retain the very capacity of possessing. This is clear both from cap. Cum ad monasterium 6, de Statu monach., and from Trent, sess. 25, c. 2, de Regul., and from the common interpretation of Canonists as regards the capacity of dominion. - But he retains dominion over spiritual goods, e.g. reputation, honor, etc. And the same is commonly taught concerning sacred Relics enclosed in cases of small value, and concerning manuscripts whether his own or received from another: both because they are fruits of genius, although of another, and therefore something spiritual; and because they pertain to knowledge, which does not fall under the vow of poverty; and because such is the common custom. But otherwise if the work has in any way been printed by type.²

It is said 1. neither independent use nor independent disposition...; for this is first and essential in every vow of poverty, whether solemn or simple, that it take away the free use of goods; and consequently the one vowing cannot, without the consent of the Superior, use any thing, or dispose of any thing, even if conceded to him for his own use. - Indeed, in order that Regulars and Nuns can, after solemn vows have been emitted, make a testament, cede their leases or a sum of money to blood-relations, or in turn receive rich revenues from them, they need not only the license of the Superior, but also of the Holy See.³

But it must be NOTED: 1) Although a Religious can neither donate nor remit the things which are owed to him, e.g. legacies left to him, the wage owed for his labors, an annual pension to be paid by parents, because the right to these is with the monastery; nevertheless he can refuse gifts offered to him without wounding the vow of poverty; but one refusing without a just cause sins against charity, namely by impeding the good of his Religion. - 2) It is not prohibited to Religious to invite outsiders to banquets, and to bestow gifts on them moderately, if a just cause suggests this: e.g. so that they may free the monastery from some vexation, so that they may conciliate benevolence toward it, indeed so that they themselves may testify their benevolence to friends.⁴

It is said 2. nor can he possess anything as his own. For the Council of Trent, loc. cit., c. 2, decreed thus: "Let it be licit to no one of Regulars, both men and women, to possess or hold immovable or movable goods as their own, or even in the name of the Convent; but let them immediately be handed over to the Superior and incorporated into the Convent." - And this is the ancient rule: that no one be reputed an owner, but that all ownership pertain to the monastery itself. - Nor indeed is it opposed to the vow of poverty if Religious have goods, even immovable, in common. Except Capuchins and Minors of the Observance, from Trent, l.c., c. 3, de Reg. (cf. n. 2136, 3).

It is said 3. nor does he retain the capacity of possessing. For this, by unanimous consent of the Doctors, is imported by the very solemnity of the vow: not that one professed with solemn vows cannot acquire, e.g. from labor, from donation, or even from inheritance, for he is capable of acquisition; but that he acquires not for himself, but for the monastery or Religion, according to that celebrated saying of law: "Whatever a monk acquires, he acquires for the monastery."

And this incapacity of dominion in a solemnly professed Religious is indeed so absolute and immutable that it can never be taken away by the Superior of the Order; because it is annexed, by the law of the Church, to the very solemnity of the vow, whose effects can be taken away by the Supreme Pontiff alone, through dispensation from a most urgent cause⁵ (cf. n. 2176).

2157. II. A Religious, through the SIMPLE vow of poverty, circumscribes the right of ownership for himself by such limits that, although he retains direct dominion of his goods, nevertheless he cannot licitly dispose of them or use them according to his own will and without legitimate license. This is clear from various Rules approved by the Holy See, and from the Declarations already cited (n. 2148) made on 12 June 1858, in which⁶ these things are read: "The professed of simple vows will be able to retain radical dominion, as they say, of their goods, but administration of them and expenditure and use of revenues are altogether forbidden to them. Therefore before profession of simple vows they must cede, for the time in which they shall have remained in the same profession of simple vows, the administration, usufruct, and use to whomever they please, and even to their own Order, if they shall have judged thus according to their choice."

We have said 1. although he retains direct dominion: which dominion indeed extends: 1) to temporal goods which he possessed before the vows; 2) to the fruits or revenues of the same goods; 3) to those things which come to him by right, as paternal inheritance, legacies of relatives, etc.; 4) to all goods which he receives from parents, kin, friends, with the license of Superiors and of the Constitutions.⁷ But such dominion is retained by Religious especially for this end, that the Institute may be able with greater liberty to dismiss them when it shall have been necessary, as Gregory XIII said in the Constitution Ascendente Domino.⁸ Today another end also has been added, namely the end of avoiding difficulties which civil law creates when it does not recognize religious vows.

We have said 2. they cannot dispose according to their own will; for the things said in n. 2156 concerning Regulars and Nuns are also valid concerning Religious emitting simple vows; with this difference, however, that the former dispose both illicitly and invalidly without license, but the latter only illicitly. Nevertheless dispositions of this kind seem to be voidable through the Superior, because all Religious are subjected to the dominative power of Superiors.⁹

We have said 3. nor can he use according to his own will; for to Religious of whatever Order or Congregation there is forbidden the active use of any thing, or use as of one's own thing; but to them there is conceded only use of fact, and indeed precariously, that is, as long as it shall seem good to the Superior. Hence a Religious sins when he uses a thing as his own, or beyond the use legitimately conceded to him.¹⁰

2158. Questions. QUESTION 1. What is the PECULIUM of Religious, and is it licit?

Resp. 1. By PECULIUM is understood whatever from stable or movable goods, e.g. from leases, pension, alms, sermons, Mass stipends, is conceded by the Superior to some member of the Community, and is permitted to him to have, without any right of ownership (in those solemnly professed), and for mere use of fact, and therefore revocably at the nod of the one conceding.

Resp. 2. The Council of Trent indeed prohibited it, by forbidding that a Religious possess, etc., even in the name of the Convent; likewise Clement VIII, Const. Nullus, 25 July 1599. But from a custom long since tolerated by the Apostolic See, it is licit, in some Religions, to have a moderate peculium for necessary and honest uses, e.g. for obtaining food, clothing, and books; provided the subject does not hold it hidden, and is ready, at the nod of the Superior, to deprive himself of it. For thus the use of a temporal thing is not independent, and the substance of poverty remains safe.¹¹

But St. Alphonsus admonishes, saying:¹² 1) "In practice, let all Prelates persuade themselves as certain, that if they introduce the use of peculium anew in monasteries, scarcely the name of poverty will survive there, and from this innumerable evils will supervene upon the Community as regards observance. - Wherefore, even if they themselves can be excused from grave sin by conceding the use of peculium with respect to the vow of poverty, nevertheless they will not be excused on account of the relaxation of the rule, to which by this concession they will without doubt give their work." 2) Subjects cannot refuse common life if Superiors wish to erect it; because although not to observe common life is not against the vow of poverty, nevertheless it is against the vow to reject common life, when nothing which is necessary is denied by the Convent; because this is to have goods independently of the will of Superiors.¹³

Nor must there here be passed over in silence what Pius IX, in the decree of 22 April 1851, enacted on this matter:¹⁴ "In all novitiate houses let perfectly common life be introduced; but in other houses let money be deposited in the common chest."

QUESTION 2. Of what kind must the Superior's LICENSE be, so that a Religious can legitimately use it?

Resp. 1. License expressly conceded can bring with it no difficulty, provided it is true and reasonable: true, i.e. conceded by a legitimate Superior, immediately or mediately through another, and neither extorted from the one conceding by fear nor by fraud; reasonable, i.e. conceded for honest uses. But whether one conceded for illicit or vain uses is valid? - The absolutely more probable opinion denies this, since the Superior is not the owner of the goods of the monastery, but only the administrator of them, nor is Religion ever to be judged to wish to concede anything unto the spiritual ruin of its own members. Whence, if a Prelate concedes to some Religious a general license of spending a sum of money at will, he can by no means spend it for illicit or vain uses. - Nevertheless he can validly, from that license, expose it to play, provided the game is licit and not of mere chance, and the sum moderate, and provided he himself does not belong to an Order of stricter observance.¹⁵

2. They commonly say that tacit license, or presumed license concerning the present, suffices: namely when the Superior knows and sees the subject receive, give, spend something, etc., and does not prohibit it, although he easily could; for then by being silent he is judged to consent. - Except if something else must be gathered from the circumstances.¹⁶

3. It is indeed doubted whether interpretative license, or license presumed concerning the future, is valid, namely that to which the Superior is presumed going to consent if he were asked; but the more probable opinion holds that it suffices whenever the presumption is reasonable, "because then the subject already proceeds with dependence on the will of the Superior, and this effects that he himself is freed from the fault of ownership."¹ And St. Thomas favors this opinion, when he teaches: "A monk ought not to give alms, except in extreme necessity, or, the Abbot being absent, something small under hope of ratification."² "Moreover," says St. Alphonsus, "such dispositions by subjects from presumed license, for the most part, are illicit at least venially; because the Superiors, at least as regards the manner, are unwilling, and not rarely even gravely, and especially when those dispositions have been expressly prohibited by them."³

4. License sought and undeservedly denied does not excuse from transgression of the vow, unless there is danger of grave harm in delay; because in such a case at least the license of major Superiors is presumed to be present, or one can act from epikeia, because necessity has no law.

QUESTION 3. What things are commonly permitted to a Religious from PRESUMED license?

Resp. Generally the following things are permitted: - to succor a poor person reduced to great want, when access to the Superior is not open; - to bestow moderate alms on the needy, if he is staying outside the Convent with due license; and if he is in the Convent, to give them something of food; - to make slight donations to friends and blood-relations as a sign of gratitude, or of due friendship, or for conciliating benevolence toward Religion; - likewise, to make remunerative donations from goods conceded to him for use, because they are as it were payments of debts; - to donate, according to the more probable opinion, those things which he subtracts for himself by living more sparingly, if a certain quantity is assigned to individual subjects, in such a way that neither the monastery must furnish more, nor are the subjects bound to render an account of the assigned thing; - to accept from outsiders, unless it is clear concerning the contrary will of the Superior, a thing to be handed over to the Superior; - to buy a thing which he judges will be pleasing to the Superior, if recourse to him is not easy, e.g. on a journey; - to give something to Peter, if he has license to give to Paul, unless the Superior gave license for Paul because of a peculiar reason and would have denied it if it had been sought for Peter. - Thus commonly.⁴

NB. Concerning the LICENSE of the Superior, it is also helpful to note the following: - 1. In obtaining or conceding it, account must be taken of each Institute; for what is permitted in one is often reproved in another. In stricter ones certain general and tacit faculties are not admitted which are tolerated in mitigated ones. 2. When the Superior gives license to one to give, although in the rigor of law license to receive is also required in the one receiving, in fact he is judged to give it to his own subject. 3. License conceded by one Superior perseveres under his successor, unless it has been explicitly or implicitly revoked by this successor.⁵

QUESTION 4. What QUANTITY is required for GRAVE sin against the vow of poverty?

Resp. 1. As regards the goods of the monastery or of others, this is the rule: that quantity which suffices in theft for constituting mortal sin against justice also suffices for constituting mortal sin against Religion, or against the vow. Nevertheless it must be noted that more is required in these thefts than in thefts from outsiders, but less than in thefts by children; for these have at least hope of dominion, but Religious do not; and Prelates are certainly more unwilling than parents, because the detriment which is inflicted on the monastery is at once temporal and spiritual. - Account must besides be taken of the very material harm really inflicted, which indeed is had less: 1) if the monastery is wealthy; 2) if the Religious does not give a thing of the Community to outsiders, but converts it to his own use; or if the thing is bestowed on Religious of the same monastery, because thus the thing remains at home;⁶ 3) if there is question not of money, but of eatables, or of other things consumable by use; for minute thefts in this last case do not coalesce unless they bring great detriment to the monastery.⁷ And "regularly a Religious does not sin gravely by secretly receiving, for example, a book for temporal use, even for a long time, but not in perpetuity; because then the Prelate is not judged unwilling as regards the substance, but only as regards the manner."⁸

2. As regards goods whose dominion a Religious with a simple vow retains, grave matter for violation of the vow is not easily determined; for in this case not justice itself, but only the vow is violated. Concerning this matter St. Alphonsus speaks thus: "But if something is received from outsiders, to be furnished to others, and therefore without wounding justice, still more is required; for then Jerome Garcia with others among the Salmanticenses assigns for grave matter a value greater than sixty silver pieces."⁹ Today we would say: greater than 60 francs.

QUESTION 5. Does a Religious violate the vow of poverty who expends money IN ANOTHER'S NAME?

Resp. Distinguish. 1) If he has received money with at least some designation of the persons to whom it is to be distributed, he does not violate the vow, because then he is a naked minister and like a servant; nevertheless he can offend against the rule of his Order. - 2) If he has received it with an indeterminate faculty of expending, so that he can confer it, according to his own judgment, on any good work whatsoever or on any needy person whatsoever, he violates the vow: "for, as Azor says,¹⁰ even to the vow of poverty there is opposed a use or administration from which the Abbot cannot remove the monk by his nod."¹¹

QUESTION 6. Whether and when must RESTITUTION be made to the monastery?

Resp. 1. He who without license, in a grave matter, donates or consumes, etc., goods of the monastery is certainly bound to restitution; nevertheless he is not bound to restore from the things given to him for use, unless they are superfluous; because the Prelate is not presumed to wish to oblige the subject with so great an inconvenience.¹²

Resp. 2. One receiving from a Religious a gift of great moment is bound to restore it, not indeed to the Religious from whom he received it, but to the monastery (cf. n. 1772 concerning the case reserved to the Supreme Pontiff).

Just as obligations and dangers are diverse in different conditions and states of life, so too sins are wont to be different; therefore it will not be useless to give them special attention. We shall consider successively the proper sins which can occur in spouses, children and parents, masters and servants, public officials, physicians and pharmacists, merchants and soldiers, priests and pastors, religious and nuns.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

197. Principles. - Religious of themselves preserve entire rights in the internal goods of body and soul and in reputation, although they must satisfy special obligations of obedience. But as to external goods of fortune, they are bound by the vow of poverty; by reason of which:

1. The solemnly professed are incapable of private dominion, so that the goods which they possess they cannot keep, and other goods they cannot acquire (can. 579, 581, 582); yet they can possess in common, unless by their special constitutions they are prohibited from this, as the Friars Minor and Capuchins.

Yet by dispensation they can in certain regions, as in Belgium, acquire and retain goods in particular, but only in order to civil law (S. Poen., Dec. 1, 1820; and Leo XIII, July 31, 1878).

2. The simply professed remain capable of possessing goods (c. 580, § 1), but they cannot dispose of them without the express or tacit consent of the superior; consequently:

a) before profession, they must cede the administration of their goods to whom they wish, and, unless the constitutions provide otherwise, freely dispose of their use and usufruct (c. 569);

b) in a religious congregation, the novice must, before the profession of temporary vows, freely make a testament concerning present goods or goods perhaps to come (c. 569, § 3), which, when vows have been emitted, he cannot licitly change without the permission either of the Holy See or, if a cause is urgent, of the Superior (c. 583);

c) the professed in a religious congregation cannot licitly abdicate dominion of their goods by gratuitous title through an act among the living (c. 583);

d) whatever any professed acquire by their own industry or in view of religion, they acquire for the religion (c. 580, § 2).

More particular matters pertain to canonical legislation concerning religious.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Noldin, Th. M. II, d. 744.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S. Th. II-II, q. 63, a. 4.

635. Public judgment formally and primarily is an act of distributive justice, by which the judge grants protection and guardianship to individuals proportionately to the quality and quantity of their rights; but if he grants it beyond proportion, there is acceptance of persons by which judgment is corrupted.

624. 1. St. Paul admonishes: "Above all things have charity, which is the bond of perfection";¹⁵³ for charity is the form of all the virtues, orders them to the supernatural end, and gives to them their proper notion of meriting eternal life. On account of this reason also our spiritual perfection depends upon the habit of charity, and the more perfect the degree of charity in a man is, the greater is his spiritual perfection. Wherefore St. Augustine says fittingly: "Charity begun is justice begun, charity advanced is justice advanced, great charity is great justice, perfect charity is perfect justice."¹⁵⁴ According to St. Thomas, the perfection of charity in this earthly life is exercised by man in two ways, namely in the first way, "that he appoint his zeal to having leisure for God and divine things, other things being passed over, except so far as the necessity of the present life requires; and this is the perfection of charity which is possible in the way; nevertheless it is not common to all having charity. In another way so that someone habitually places his whole heart in God, namely in such a way that he thinks or wills nothing which is contrary to divine love; and this is the perfection common to all having charity."¹⁵⁵ Therefore according to St. Thomas there are two grades of charity: the first common to all having sanctifying grace; the second belongs only to those who pass over all worldly things, insofar as is possible, and with all their powers devote themselves to divine things.

2. Charity, as an infused virtue, cannot be increased from our acts except through an increase of sanctifying grace, which we merit by our acts. Nevertheless, by our acts we can also remove impediments of charity and thus increase it indirectly. This indeed happens in this way. Manifold disordered cupidity prevents man from adhering to God with all his powers. Hence man is bound by repeated acts gradually to restrain that cupidity, and the more disordered cupidity has been subdued, the greater is the perfection of charity. Hence St. Thomas¹⁵⁶ says: "Perfection is considered as to this, that those things are excluded which are repugnant to the movement of love into God, as Augustine says in the book 83 Questions, q. 36, that the poison of charity is cupidity, perfection is no cupidity." But the acts by which passions are mortified and virtues are exercised pertain to the perfection of charity, not because they constitute it formally, but because they are commanded by charity and eliminate all opposed impediments. Therefore it cannot be concluded absolutely that those saints who exercised greater mortifications had greater charity and sanctity.

3. Whoever has a permanent disposition of loving God above all things and of committing no mortal sin can rightly be said to be in the state of perfection, because every permanent and stable disposition can be called a state. Nevertheless, under the state of perfection theologians are accustomed to understand something else, namely a certain kind of life in which the three evangelical counsels and a certain Rule approved by the Supreme Pontiffs are observed. But first of all it must be noted that the state of perfection accepted in this sense is not the same as perfection itself; for someone living outside that state can be most perfect; and conversely someone living in the state of perfection can be most imperfect, indeed even dwell in the state of mortal sin. Nevertheless this state is deservedly called the state of perfection, because a) its members are bound by profession to tend toward perfection and because b) they ought to employ the best means for attaining this perfection. For the obstacles of charity are disordered cupidity 1. of one's own excellence, 2. of carnal delights, and 3. of material goods. Furthermore this threefold cupidity is most efficaciously mortified by the vows of obedience, chastity, and poverty; and these three vows are perfectly observed in the state of religion according to Rules approved by the Supreme Pontiffs. Hence also the history of all ages proves that the most splendid examples of sanctity have shone forth in religious orders.

¹⁵³ Col. 3, 14.

¹⁵⁴ De nat. et grat. c. 70 (Migne, Patr. lat. 44, 290).

¹⁵⁵ S. theol. 2, 2, q. 24, a. 8.

¹⁵⁶ S. theol. 2, 2, q. 184, a. 2.

153. Principle 1. For lawfully exercising his office the judge must a) be endowed with sufficient knowledge, and b) pronounce sentence according to just laws.

a) For sufficient knowledge there is required not only theoretical knowledge of the laws, but also a perfect, or at least sufficient, investigation of the case to be handled. Hence the judge sins both if he does not sufficiently know juridical science, and also if he neglects a sufficient investigation of the case on which he must judge. If a judge lacking either of these forms of knowledge, while exercising his office, has brought damage, he has wounded commutative justice, and therefore is held to reparation of the damage. For he is then an unjust damager, who truly, formally, and efficaciously brought unjust damage.²¹⁷

b) That the judge is held to judge according to just laws is evident of itself; for his whole office is to apply just laws in a particular case. Hence he is most certainly held to reparation of damage if, knowingly judging against a just law, he has brought grave damage. There are, however, authors, such as Lugo,²¹⁸ Lessius²¹⁹ (whose opinion St. Alphonsus²²⁰ calls probable), who teach that the judge is not held to restitution if his false sentence was the cause that a fine to be paid was not assigned to the treasury. For they think that the judge then wounds not commutative justice but only legal justice, and that fines of this kind are imposed principally as penalties of the guilty person and only secondarily as emoluments of the treasury. Indeed this opinion can be sustained in practice if there is question of rare and small fines, because then the legislator is not so reasonably unwilling that the judge should treat the guilty with benignity. But if there is question of great fines, and those frequently occurring, e.g., of great defraudations of customs duties,²²¹ the opinion set forth does not seem probable, because then the judge wrongly absolving transgressors causes great damage to the treasury, and therefore the legislator is reasonably and gravely unwilling in damages of this kind. Moreover, the judge who judges badly truly wounds commutative justice, because he fails in the office undertaken from contract.

²¹⁷ Cf. Code of Canon Law c. 1625.

²¹⁸ De iust. et iure disp. 37, n. 97.

²¹⁹ De iust. l. 2, c. 13, n. 73.

²²⁰ Theol. mor. l. 4, n. 1906.

²²¹ Zolldefraudation.

154. You ask: Must, or at least can, the judge judge according to laws that are manifestly unjust? e.g., can the judge, according to the unjust law of several regions, punish a pastor who has blessed a Christian marriage before a civil marriage was entered?

This question, which is of the greatest moment especially in ecclesiastical and matrimonial causes, is solved with difficulty by a general response. Rather, in individual cases it is necessary to weigh whether such a sentence of the judge is an act intrinsically evil. The Angelic Doctor²²² teaches absolutely that judgment must not be made according to those positive laws which are opposed to the natural or divine law; therefore cases can occur in which the judge must rather resign his office than violate natural or divine law by a judicial sentence, e.g., a judge can never decree that a Catholic should deny the faith. But since in modern Codes the liberty of the judge is usually greatly limited, so that his office has been reduced almost to the inquiry of the fact and to the application of the law to the fact investigated, perhaps Catholic judges can sometimes be excused who are held to pronounce an unjust sentence, e.g., concerning divorce or concerning ecclesiastical persons and things. For on the one hand a Catholic judge cannot, without the gravest damage, refuse judgment in these cases; but on the other hand he himself commits no free injustice, but only applies an unjust law. Besides, as will appear from the things to be said below, a judge can condemn one whom by private knowledge he knows to be innocent, if juridically he is proved guilty. Therefore in that case the judge condemns an innocent person, because he is compelled to this by the testimony of false witnesses. Why could the judge not do something similar if he is compelled by an unjust legislator? The intrinsic reason of all these things is that the judge, thus most gravely compelled to apply an unjust law, seems only to furnish material cooperation in an evil thing. Now, when a grave cause exists, it is lawful materially to cooperate in evil, as was said above, I, n. 619. - Hence in practice a Catholic judge can be left in good faith if, e.g., he is most gravely compelled to pronounce judgment according to iniquitous laws; e.g., a judge who is held to liquidate the goods of religious according to iniquitous laws in force. The Sacred Penitentiary also seems to imply this, when on Aug. 5, 1907, it responded that "liquidators, insofar as in the name of the government they administer usurped goods and procure their sale, do not incur the censure."

Concerning the obligations of the judge in pronouncing civil divorce there will be treatment below, III, 902.

²²² S. theol. 2, 2, q. 60, a. 5 ad 1.

155. Principle 2. A sentence of the judge which is a) certainly just obliges in conscience; but one which b) is certainly unjust does not of itself oblige in conscience; c) nevertheless, by accident, it can oblige in the external forum for avoiding scandal or public disturbance.

a) A just sentence of a judge includes the precept of the supreme legislator, and therefore in a penal cause it demands obedience, but in a civil cause it defines strict right between the parties.

b) A judge can judge unjustly either formally, i.e., with the essential form of judgment neglected, e.g., without an accuser, without sufficient proof of the fact or of the delict; or objectively, i.e., by bringing forth a false sentence, e.g., condemning the innocent, assigning a good to him to whom it does not belong; or formally and objectively at the same time. It matters little in what way finally the judge has judged unjustly. For every unjust sentence of a judge does not of itself oblige in conscience, because a judgment is, as it were, a particular law.²²³ But no unjust law obliges of itself in conscience. Therefore neither does an unjust sentence of a judge oblige. - Besides, above, I, n. 219, it was proved that a law founded on a false presumption of fact does not oblige in conscience. But an unjust sentence is founded on a false presumption of fact, namely, on the false presumption that the conditions required by law in the present case have been fulfilled. Therefore an unjust sentence does not oblige in conscience. From all these things it follows that one unjustly condemned can compensate himself occultly, if otherwise he cannot obtain his certain right.²²⁴ But I say "his certain right"; for if the right is only doubtful, or the judge's sentence is doubtfully unjust, then one must stand by the sentence of the judge, because the presumption stands for him.

c) The third part of the principle is evident of itself, since private good must yield to public good.

²²³ S. theol. 2, 2, q. 67, a. 1.

²²⁴ Cf. St. Alphonsus, Theol. mor. l. 4, n. 215.

156. Principle 3. In doubt, a) if there is question of a crime to be punished, the judge must favor the accused; but if b) there is question of civil matters, the judge is held to judge according to the greater probability.

a) In criminal causes the judge must absolve the accused unless his guilt is morally certain, according to that saying: "No one is presumed evil unless he is proved," and according to Rule of Law 49: "In penalties the more benign interpretation is to be made."²²⁵

b) But in civil causes the judge must keep before his eyes the principle: "In doubt the condition of the possessor is better." Hence he cannot deprive anyone of possessed goods or rights unless by certainly more probable reasons it is shown that the possession is illegitimate. But if neither litigating party is in possession of the disputed thing, then, if there is equal probability on each side, let the judge urge an amicable composition; and if this is rejected, the judge can assign the thing to whichever one he prefers. But if there is greater probability on one side, the thing must be assigned to that one, because the judge must render right to the parties according to the merit of the cause. The proposition (2) was condemned by Innocent XI: "I probably think that the judge can judge according to an opinion even less probable";²²⁶ and the proposition (26) was proscribed by Alexander VII: "When litigants have opinions equally probable in their favor, the judge can accept money for rendering sentence in favor of one rather than the other."²²⁷

²²⁵ Cf. Code of Canon Law c. 1869, § 4.

²²⁶ Denz. n. 1152.

²²⁷ Denz. n. 1126.

157. Principle 4. In no way is it lawful for the judge to accept gifts properly so called from litigants.

Thus all laws establish.²²⁸ But the reason is that gifts of this kind introduce a grave danger of corruption. Hence it is said: "Presents and gifts blind the eyes of judges."²²⁹ But it is said: gifts properly so called; for the judge can accept a just stipend, to be paid either by the republic or by the litigants, as is evident of itself. Likewise there are not prohibited certain little gifts in food and drink which are offered from mere liberality,²³⁰ unless even this is specially prohibited, as in fact the Council of Trent²³¹ prohibited it to examiners of those who undergo a competitive examination for obtaining a parish. Therefore when the judge accepts gifts properly so called, he sins gravely; indeed he is held to restore them if he accepted and exacted them for rendering a just sentence, because truly such a judge already by force of his office is held to render a just sentence. Therefore he cannot exact some other gift for that which he is already held to do from another source.²³² But if the judge exacted gifts for rendering an unjust sentence, certainly he is held to restore these gifts before the sentence has been given, both because he accepted money for committing sin and because he is held to rescind this shameful contract. But after he has rendered the unjust sentence, he is indeed held to make good all the damages which are brought upon the one unjustly condemned; nevertheless he can retain the gift accepted, just as a prostitute can retain the price which she accepted for fornication done.²³³

²²⁸ Cf. Code of Canon Law c. 1624, 1627.

²²⁹ Eccli. 20, 31.

²³⁰ c. 2, T 3 in VI.

²³¹ Sess. 24, c. 18 de reform.

²³² Cf. St. Alphonsus, Theol. mor. l. 4, n. 216.

²³³ Cf. below, on a shameful contract, n. 253, and St. Alphonsus, l.c. l. 3, n. 712.

158. Scholion. On the obligation of the judge to judge according to the allegations of witnesses. Authors dispute most sharply whether the judge is always held to render sentence according to the allegations and proofs of witnesses, even if from private knowledge he knows that the matter is otherwise. Three opinions are enumerated. The first asserts that in that case the judge is held to disregard the allegations and proofs of witnesses and to judge according to his own private knowledge, which he certainly knows to be true. For it seems to be intrinsically evil to condemn an innocent man or to compel someone to pay who owes nothing. For this opinion Lessius,²³⁴ Bonacina,²³⁵ etc., are cited, and St. Alphonsus²³⁶ calls it very probable. - The second teaches that in civil causes and in lesser criminal causes the judge is held to judge according to the allegations and proofs of witnesses, notwithstanding any private knowledge whatever; but in greater criminal causes judgment must be rendered according to the truth, with the witnesses proving the contrary disregarded. Thus Lugo,²³⁷ Sylvius,²³⁸ Schindler,²³⁹ and others. The reason of this opinion is that it is of the greatest interest to the common good that the right judicial order be observed, and therefore the prince of the republic is presumed to have conferred all his power upon the judge for obtaining this end. But the prince can dispose of the goods of private persons on account of the common good; likewise he can impose lighter penal works on individual citizens on account of the common good; yet he can never punish an innocent man with the penalty of death. Therefore the judge also can act thus when he is compelled to this by the allegations of witnesses. - The third opinion teaches that the judge is indeed held with all his strength to judge according to the truth certainly known, and therefore ought to leave nothing unattempted so that he may render the allegations and proofs of witnesses conformable to the truth; but if nevertheless he has tried thus in vain, judgment must be made according to the proofs of the witnesses, although objectively the sentence is false. Thus St. Thomas,²⁴⁰ St. Raymond, St. Antoninus, Cajetan, Dominic Soto, Banez, Valentia, Sanchez, the Salmanticenses, Billuart, and others. The Angelic Doctor²⁴¹ writes to the point: "The judge, if he knows that someone is innocent who is convicted by false witnesses, must examine the witnesses more diligently, so that he may find an occasion of freeing the innocent man, as Daniel did. But if he cannot do this, he must leave him to a superior to be judged. But if he cannot even do this, he does not sin by rendering sentence according to the allegations, because he himself does not kill the innocent man, but those who assert him to be guilty do." - This whole controversy now is of less practical moment, since in greater criminal causes guilt is for the most part decided not by the judge but by "jurors." Now these jurors are held to render sentence according to their inward conviction, nor are they compelled to offer the motives of their sentence. Hence jurors must always judge according to objective truth and not according to the false proofs of witnesses. - If judgment must be rendered not concerning the penalty of death but concerning other lesser causes, theologians very commonly teach that the judge, as a public person, must judge according to those things which he publicly knows from the testimonies of witnesses, but not according to those things which he knows by private knowledge. Hence the same theologians also deduce, on the contrary side, that the judge acts unjustly and is held to reparation of damage who condemns him whom by private knowledge he certainly knows to be guilty, but whom the witnesses prove to be innocent.²⁴²

²³⁴ De iust. et iure l. 2, c. 29, dub. 10.

²³⁵ De octav. praec. disp. 10, q. 2, punct. 2, n. 2.

²³⁶ L.c. n. 208.

²³⁷ De iust. et iure disp. 57, sect. 4, n. 43.

²³⁸ In 2, 2, q. 67, a. 2, concl. 1.

²³⁹ Lehrbuch der Moraltheol. III, 803.

²⁴⁰ S. theol. 2, 2, q. 67, a. 2.

²⁴¹ S. theol. 2, 2, q. 64, a. 6 ad 3.

²⁴² Cf. Billuart, De iure et iust. diss. 12, a. 2 and 3. The Code of Canon Law c. 1896 also seems to favor the opinion of St. Thomas, establishing: "For the pronouncement of any sentence there is required in the mind of the judge moral certitude concerning the matter to be defined by the sentence. The judge must draw this certitude from the acts and proofs. But the judge must estimate the proofs from his conscience, unless the law expressly establishes something concerning the efficacy of some proof."

162. Notion. 1. An advocate is he who in judgment defends the part of one or the other litigant. In several regions there are usually distinguished advocates who from office protect the matter of the treasury or of the common good (commonly Staatsanwalt, procureur général), and private advocates, who defend the causes of private persons. - In canon law several persons are barred from the office of advocating.²⁶⁶

2. The obligations of the advocate are chiefly the following: a) to have sufficient knowledge of law and to apply due diligence in causes to be handled; b) to defend just causes by just means; c) not to exact an exorbitant salary for labor to be furnished or already furnished.²⁶⁷ But the salary must be measured according to just laws; but if the law does not determine it, attention must be paid to the conditions both of the advocate and of the client and of the labor furnished and of the contract freely stipulated.²⁶⁸

3. The sins of the advocate are chiefly:

a) Knowingly to defend unjust causes. For this is illicit cooperation in evil. Hence St. Thomas teaches: "If [the advocate] knowingly defends an unjust cause, without doubt he sins gravely and is held to restitution of that damage which, against justice, the other party incurs by his help. But if unknowingly he defends an unjust cause, thinking it to be just, he is excused according to the mode by which ignorance can be excused."²⁶⁹ "If the advocate at the beginning indeed believed the cause to be just, but afterward in the process it appears that it is unjust, he ought not betray it, namely, so that he may help the other party or reveal the secrets of his own cause to the other party. Yet he can and ought to desert the cause, or induce him whose cause he is conducting to yield, or to settle without damage to the adversary."²⁷⁰ In criminal causes an advocate can always defend the accused by lawful means. Indeed, according to the discipline in force, a defender is conceded to any accused person.

When there is question of a cause of divorce before a civil judge, a Catholic advocate can always defend the bond of a legitimate marriage; but he cannot cooperate in obtaining the divorce of a true marriage, unless nevertheless he knows that this divorce of this kind will produce nothing except merely civil effects. But if, on the contrary, he foresees that one or the other spouse after the divorce obtained is going to contract new nuptials, then the advocate cannot act as patron in these causes unless a very grave cause is present.²⁷¹ In this sense the decree of the Holy Office of Dec. 19, 1860, seems to be understood: "Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and table, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics act in that forum in the parts of plaintiff and advocate, provided there are just causes of separation according to the judgment of the Bishop."

b) To treat negligently causes undertaken and thus cause damage to his client. This is evident of itself.

c) Not faithfully to manifest the dangers which can arise from a doubtful cause undertaken. Therefore the advocate sins and is held to restitution if he inspires too great confidence in the client, who thus, with notable damage, pursues a doubtful cause in court and finally loses.

d) To prolong too much a cause undertaken for extorting a greater salary.

e) To defend a just cause by unjust means.²⁷² Therefore the advocate sins by producing false witnesses, bringing forward false documents, etc. Then indeed he does not sin against justice, and therefore is not held to restitution, if the cause defended is certainly just - which indeed in practice quite often can be known clearly only with difficulty - but he sins against truth and other virtues. But it is never lawful to use a false document in judgment, even if perhaps the identical true document has been lost without fault. Thus, e.g., it is not lawful secretly to supply a purely formalistic defect in some testament which, on account of this defect, would be considered invalid in court.²⁷³

²⁶⁶ S. theol. 2, 2, q. 71, a. 2; Code of Canon Law c. 1657 sq.

²⁶⁷ S. theol. 2, 2, q. 71, a. 4.

²⁶⁸ For ecclesiastical tribunals it is established: "The advocate is forbidden to purchase the suit, or to bargain for himself concerning an immoderate emolument or concerning a part of the thing in litigation once vindicated. If he has done these things, the agreement is null, and by the judge or by the Ordinary he can be punished with a monetary penalty; besides, he can both be suspended from office and also, if he is a recidivist, be removed and deprived of his title" (Code of Canon Law c. 1665).

²⁶⁹ S. theol. 2, 2, q. 71, a. 3.

²⁷⁰ Ibid. ad 2.

²⁷¹ Cf. below in the treatise on marriage, III, n. 903.

²⁷² S. theol. 2, 2, q. 71, a. 3 ad 3.

²⁷³ Cf. below, on testaments, n. 277.

360. Preliminary note. In now treating the canonical Hours, we omit those things which pertain to the history, liturgy, and ascetic practice of this prayer. Among moderns, Batiffol¹⁸¹ and Suitbert Bäumer¹⁸² have written on the history of the Breviary. De Herdt,¹⁸³ Schüch,¹⁸⁴ and many others treat the liturgy of the Breviary. Bacuez,¹⁸⁵ however, treated its ascetic practice.

The canonical Hours have been called by many and diverse names,¹⁸⁶ e.g., canon, synaxis, collect, action, divine psalmody, course, divine office, ecclesiastical office, hourly prayers, canonical prayers, work of God, duty of service, Mass, evening Mass, breviary. This last name (so frequently used in our days) signified in ancient times a compendium or epitome either of the prayers to be said by clerics or of the Rubrics to be observed in the Office. For since the Divine Office, which was performed in choir, had been written in volumes of the greatest bulk, gradually smaller manual books containing an abbreviated Office were composed, which were called breviarium, breviarius, portiforium, portifex, etc.

It is useful now first to recount in a single view the propositions concerning the canonical Hours condemned by Alexander VII and Innocent XI, so that they may be commended more easily to memory and may not afterward have to be repeated in diverse places.

1. The following five propositions were condemned by Alexander VII (in 1665 and 1666):¹⁸⁷ "One who recites the Paschal Office on Palm Sunday satisfies the precept" (prop. 34). "By one Office someone can satisfy the twofold precept for the present and the following day" (prop. 35). "Restitution imposed by Pius V upon beneficiaries who do not recite is not owed in conscience before a declaratory sentence of a judge, because it is a penalty" (prop. 20). "Restitution of revenues on account of the omission of the Hours can be supplied by any alms which the beneficiary previously gave from the revenues of his benefice" (prop. 33). "One who has a collative chaplaincy or any other ecclesiastical benefice, if he devotes himself to literary studies, satisfies his obligation if he has the Office recited by another" (prop. 21).

2. Proposition 54 was proscribed by Innocent XI (in the year 1679): "He who cannot recite Matins and Lauds, but can recite the remaining Hours, is bound to nothing, because the greater part draws the lesser to itself."¹⁸⁸

¹⁸¹ Histoire du Bréviaire (3rd ed., 1911).

¹⁸² Geschichte des Breviers (Freiburg im Breisgau, 1895).

¹⁸³ Liturgia.

¹⁸⁴ Pastoraltheologie.

¹⁸⁵ Le Bréviaire (German trans., 1891: Das Brevier vom Standpunkt der Frömmigkeit betrachtet).

¹⁸⁶ Cf. Bäumer, l.c., § 1.

¹⁸⁷ Denz. nn. 1134f., 1120, 1133, 1121.

¹⁸⁸ Denz. n. 1204.

361. The parts of the Divine Office. According to the present discipline of the Roman rite, the following parts pertain to the Divine Office which is to be performed by ecclesiastical precept:

1. The seven canonical Hours, namely Matins with Lauds, Prime, Terce, Sext, None, Vespers, Compline. Some authors think that this division was introduced on account of the verse of Ps. 118, "Seven times a day I have given praise to thee," or on account of seven moments in the Passion of our Lord Jesus Christ.¹⁸⁹ The Pretiosa is not indeed a distinct Hour, but nevertheless pertains to the Divine Office. Since in ancient times there existed the custom of saying Matins and Lauds at midnight or at another time of night, these two Hours are called the nocturnal Office; but the other Hours are called the daytime Hours. In a broader sense the whole Office to be recited daily is called the daytime Office, because it is to be performed on every day.

2. The Office of the Dead on the day of the commemoration of all the faithful departed, on which day the Office of the current day is omitted.¹⁹⁰

3. On the feast of St. Mark and during the three days of the Rogations, the Litany of the Saints is to be recited, even outside choir;¹⁹¹ it cannot be anticipated on the preceding day.

Today there is no longer any obligation of reciting a) the Office of the Blessed Virgin Mary, b) the Office of the Dead (outside the day mentioned above), c) the Penitential Psalms, d) the Gradual Psalms.¹⁹² The prayers Aperi at the beginning and Sacrosanctae at the end do not pertain to the integrity of the Office; but they are added very piously and usefully.

Note. With regard to those who legitimately use a special rite, the particular statutes concerning the parts pertaining to the Divine Office are to be consulted.

¹⁸⁹ These are the seven things on account of which we sing psalms at the Hours: Matins binds Christ, who cleanses crimes; Prime fills him with spittle; Terce gives the cause of death; Sext fastens him to the cross; None divides his side in two; Vespers takes him down; Compline lays him in the tomb.

¹⁹⁰ Pius X, Const. Divino afflatu, 1 Nov. 1911, tit. XIII (Act. Ap. Sed. III, 649).

¹⁹¹ Pius X, Const. Divino afflatu, 1 Nov. 1911, tit. VIII, n. 3. If the feast of St. Mark is transferred, the Litanies are not transferred.

¹⁹² Ibid., n. 2.

362. Obligation. By common law the following are gravely obliged to recite the Divine Office daily:

1. all clerics constituted in major orders;¹⁹³

2. all beneficiaries, even those not constituted in major orders;

3. all religious of either sex assigned to choir, but only after solemn profession.

All authors teach that the obligation of reciting the Divine Office is grave of its kind. Therefore he who omits the entire Office or a notable part of it without an excusing cause sins gravely. One little Hour, or an equivalent part, is considered a notable part. Hence, e.g., if someone without sufficient reason omits Terce or Compline, or from several Hours omits so many parts which, taken together, are equivalent to Terce or Compline, he sins mortally. The reason for such severity seems to be this, that especially in this matter the saying holds: "He who is negligent in a small thing shall gradually fall." For a cleric who from levity sometimes omits even a little Hour of the Divine Office will easily neglect greater things also and will gradually fall into other grave sins. Theologians dispute whether it is also a mortal sin to omit Vespers on Holy Saturday, which are then very brief. Nothing certain can be said in this dispute. Therefore, after the omission has been made, the existence of mortal sin is not to be asserted, all the more because the far more common opinion holds that this omission is only a light sin.¹⁹⁴

He who culpably omits the entire Office of one day commits only one grave sin, because he violates only one precept and that by one act of the will. But if several acts of the will not joined to one another are present, there are also several sins, as is evident from what was said above in I, n. 377 concerning the numerical distinction of sins.¹⁹⁵

Something more must now be said concerning the individual categories of persons who are obliged to the Office.

¹⁹³ Clerics of the Eastern Churches must in this matter observe the statutes of their own Church; cf. Papp-Szilagyi, Enchir. iur. eccl. orient. cath. sect. 2, § 56.

¹⁹⁴ Cf. St. Alphonsus, Theol. mor. l. 4, n. 147.

¹⁹⁵ St. Antoninus (S. theol. Part III, tit. 13, c. 4, § 5) says: "If someone omits all the Hours of one day, ... he does not thereby commit seven mortal sins, but one, and one so much graver the more he omits of it, because the whole Office of one day falls under one precept."

363. The obligation of clerics in major orders.

This obligation, already existing for centuries from customary law, is expressed in these words in the Code of Canon Law, c. 135: "Clerics constituted in major orders, except those concerning whom in cann. 213 and 214, are bound by the obligation of reciting the canonical Hours in full every day according to their own approved liturgical books." All clerics constituted in sacred orders, although excommunicated, suspended, or degraded, are bound to the Divine Office. For if clerics who have been punished on account of crimes were freed from the burden of the Office, they would then derive some advantage from iniquity, which certainly would be incongruous. But when a cleric in major orders has legitimately been reduced to the lay state, the obligation of reciting the Divine Office ceases.¹⁹⁶

For clerics, the grave obligation of reciting the Office begins at the hour at which the order of subdiaconate is received. Therefore he who is ordained in the morning before the ninth hour is bound neither to Matins and Lauds nor to Prime, but ought to begin with Terce; he who is ordained after the ninth hour of the morning ought to begin with Sext. Nevertheless, in either case it is better if the cleric begins with Prime. But he who before ordination recited the Hours to which he was not yet bound must more probably recite them again after ordination, because no one can satisfy a precept at a time when it does not yet exist; just as I cannot today recite the Office to which I am obliged only on the following day. The contrary, however, is maintained by some authors, e.g., Lugo,¹⁹⁷ Noldin,¹⁹⁸ etc., and this opinion is deservedly called probable by St. Alphonsus.¹⁹⁹

¹⁹⁶ Code of Canon Law, c. 213.

¹⁹⁷ De euchar. disp. 16, sect. 2, n. 39.

¹⁹⁸ De praeceptis n. 756.

¹⁹⁹ Theol. mor. l. 4, n. 140.

364. The obligation of beneficiary clerics.

1. A grave obligation of reciting the Divine Office falls upon all beneficiaries, even those not constituted in major orders, from the day possession of the benefice is taken. For St. Pius V²⁰⁰ declared concerning every beneficiary: "Likewise, let him who ... has not said the Office, unless a legitimate impediment has excused him, understand that he has committed a grave sin." In our regions there are very few beneficiaries not yet initiated into sacred orders. Other beneficiaries are especially pastors, canons, bishops, certain chaplains, etc.

2. A beneficiary who, "detained by no legitimate impediment, has not satisfied the obligation of reciting the canonical Hours does not make his own the revenues in proportion to the omission, and let him hand them over to the fabric of the church or to the diocesan seminary, or expend them upon the poor."²⁰¹ This return of revenues obliges by the fact itself, i.e., before the sentence of a judge, as is evident from proposition 20 condemned by Alexander VII and cited above. Beneficial revenues are not indeed the price for the Divine Office recited, for this would be simony, but nevertheless they are granted under the condition that the beneficiary recite the Office. For just as no one receives the subdiaconate unless he promises to observe chastity, so no one receives a benefice unless he promises the daily recitation of the Office. But a beneficiary who, with a legitimate excusing cause, e.g., infirmity, excessive labor, etc., does not say the Office can lawfully receive the beneficial revenues. If the omitted part of the Office does not constitute grave matter, i.e., a part equivalent to a little Hour, there is no grave obligation of restitution. Thus the more common and more probable opinion.²⁰²

²⁰⁰ Const. Ex proximo, 1571.

²⁰¹ Code of Canon Law, c. 1475, § 2. In the ancient law, revenues of the first semester did not have to be restored, but in the new law this indult no longer seems to exist.

²⁰² St. Alphonsus, Theol. mor. l. 3, n. 668.

365. 3. The quantity of restitution on account of neglect of the Office is to be measured according to the statutes enacted by St. Pius V. "We establish that he who has omitted all the canonical Hours on one or more days shall lose all the revenues of his benefice or benefices which would correspond to that day or those days if they were divided daily; but he who has omitted Matins alone shall lose half; he who has omitted all the other Hours shall lose the other half; he who has omitted individual ones of these shall lose a sixth part of the revenues of the same day." But the difficulty is whether equal restitution is to be made by a simple beneficiary (e.g., by a canon) and by a beneficiary with cure (e.g., by a pastor). Several theologians and canonists maintain the affirmative part, e.g., Peter Navarrus,²⁰³ Castropalaus,²⁰⁴ Suarez,²⁰⁵ Azor,²⁰⁶ Schmalzgrueber;²⁰⁷ and this opinion receives great weight from the very Constitution of St. Pius V, who speaks indiscriminately concerning all benefices and makes no distinction between simple benefices and benefices with cure. But the other, far more common, indeed today almost universal, opinion rightly teaches that a beneficiary with cure is bound only to partial restitution of the revenues of the benefice if he indeed neglected the Office but fulfilled the other works of his benefice. How great this partial restitution is cannot easily be determined. D'Annibale²⁰⁸ rightly says concerning this matter: "How great [the part to be restored is], whether half, as the stricter authors hold, or a fifth, as the more benign hold, is not agreed; therefore it is better to leave this between these to the judgment of a good man, who will have to measure the matter variously according to the offices." And in truth, if these offices incumbent in addition to the canonical Hours are grave, it is just that the beneficiary have some recompense, although he neglected the canonical Hours. He can retain for himself at least half and even two-thirds of the beneficial revenues for such recompense. Hence, e.g., if a certain pastor has culpably neglected the whole Office on one day and has annually 3,000 francs in strictly beneficial revenues, i.e., about 8 francs each day, he certainly sufficiently satisfies his obligation of restoring if he expends about 4 francs, or even 2 francs, upon the poor or for the benefit of the church.²⁰⁹ But if he omitted not the entire Office but only part of it, the restitution is to be proportionally diminished.

There are several authors, e.g., Suarez,²¹⁰ Bonacina,²¹¹ St. Alphonsus,²¹² Noldin,²¹³ Göpfert,²¹⁴ who teach that a poor beneficiary obliged to restitution can apply to himself the alms to be given; indeed, Ballerini²¹⁵ thinks that a beneficiary with cure for whom the beneficial revenues are necessary for fitting support is bound to nothing from the omission of the Divine Office alone, provided that he otherwise fulfilled the obligations of the benefice. Whether these opinions correspond to the mind of the Church, which so gravely obliges beneficiaries to the recitation of the Office, I do not dare to say. It is greatly to be desired that the Church herself authoritatively establish what obligation exists in these and similar cases. It must be recalled that alms made before the omission cannot be reckoned toward the restitution to be made, as is evident from proposition 33 condemned by Alexander VII. But alms made after the culpable omission can be reckoned toward the restitution to be made.

²⁰³ De restit. l. 2, c. 2, n. 283.

²⁰⁴ Opus mor. tr. 7, disp. 2, punct. 7, n. 8.

²⁰⁵ De relig. l. 4, c. 30, n. 6.

²⁰⁶ Instit. mor. Part I, l. 10, c. 14, q. 5.

²⁰⁷ Ius can. l. 1, n. 98.

²⁰⁸ Summula Theol. mor. III, n. 64.

²⁰⁹ Noldin (De praeceptis n. 758) asserts: "A bishop or pastor who fulfills his pastoral offices will scarcely have to restore a tenth part of his revenues on account of the neglected recitation of the Breviary." This opinion indeed seems excessively benign, since the Church treats beneficiaries who neglect the recitation of the Office so severely.

²¹⁰ L.c., n. 21.

²¹¹ De Offic. div. disp. 1, q. 5, punct. 4, n. 8.

²¹² Theol. mor. l. 3, n. 672.

²¹³ De praeceptis n. 758 d.

²¹⁴ Moraltheol. I, 331.

²¹⁵ Opus Theol. mor. IV, n. 106.

366. On the obligation of canons to recite the Office in choir. A few things are to be said here, since this matter pertains rather to canon law and is often determined more precisely by particular statutes or by legitimate customs. All chapters of canons (whether in cathedral or collegiate churches) are bound under grave sin to say the whole Divine Office chorally, unless a special permission of the Holy See is present.²¹⁶ A bishop can in no way dispense from this grave obligation by his own authority. Canons who through their own fault and without legitimate permission are absent from the choral Office sin gravely or lightly according to the quantity of the matter, although they recite the Divine Office privately. They are also bound to restore the beneficial revenues received.²¹⁷ According to the more probable opinion, a continuous culpable absence of five days is grave matter.²¹⁸ Concerning what causes excuse from choral attendance, see the canonists.²¹⁹ Canons are bound not only to be materially present in choir, but also devoutly to sing psalms and chant; otherwise they lose not only beneficial revenues but also the so-called "daily distributions."²²⁰

²¹⁶ Council of Trent, sess. 24, de reform. c. 12; Code of Canon Law, c. 413f.

²¹⁷ Cf. S.C.C., 10 July 1920, where almost the whole doctrine concerning the obligation of canons is clearly set forth.

²¹⁸ Cf. Billuart, De orat. diss. 2, a. 8, § 4.

²¹⁹ Cf. our Man. iur. can. q. 143.

²²⁰ Council of Trent, l.c., and Benedict XIV, Const. Cum semper oblatas, 19 Aug. 1744.

367. The obligation of solemnly professed religious.

A grave obligation of reciting the Office falls upon religious of either sex, and it arises not from simple vows but from solemn profession alone. The choral obligation, however, must be distinguished from the obligation of reciting the Divine Office privately. In some religious orders, the simply professed are indeed obliged to the choral Office in the same manner as the solemnly professed,²²¹ but, unless they are constituted in sacred orders, they are never obliged to private recitation.²²² The choral obligation of religious is already presupposed in the Council of Vienne,²²³ where it is said: "In cathedral, regular, and collegiate churches let psalms be sung devoutly at the due hours, ... if they wish to avoid the indignation of God and of the Apostolic See." But the obligation of privately reciting the Divine Office for solemnly professed religious of either sex arose from immemorial custom having the force of law; now, however, it is established in express words in the Code of Canon Law, c. 610, § 3.

Lay brothers or lay sisters after solemn profession are not obliged to recite the Divine Office,²²⁴ since these men and women are deputed not to choir but to other offices. Whether they are bound under sin to other prayers prescribed for them by their Rule depends upon certain and legitimate particular statutes. But if a doubt is present concerning the quality of this obligation, the more benign side is to be followed. For the most part, lay brothers and lay sisters are not obliged under sin to perform the prayers imposed by the Rule. The obligation of many religious sisters or even nuns to recite the Marian Office daily is not grave; indeed, of itself its omission does not even induce light fault.²²⁵ Nevertheless, the Constitutions of the individual Congregations are to be attended to.

The canonists treat the manner of reciting the Office in choir, the place of the choir, and the persons necessary for the choral Office. Cf. our Man. iur. can. q. 235ff.

²²¹ Cf. Sacred Congregation of Religious, 6 Aug. 1868.

²²² Sacred Congregation of Religious, 28 July 1902.

²²³ Lib. 3, tit. 14, c. 1 in Clem.

²²⁴ Cf. Code of Canon Law, c. 610, § 3.

²²⁵ Cf. Normae n. 156.

368. The form of the Divine Office is here called the objective arrangement of prayers determined for each day. For the Church has determined not only in general the obligation of reciting the Office, but also its rite through the so-called Rubrics. The following is to be held as a general principle: The rites and Rubrics truly prescribed by the Church oblige in conscience; nevertheless, parvity of matter is possible in their transgression, and indeed, when a sufficient cause is present, their transgression becomes lawful.

A grave violation of the form of the Divine Office is present in the following cases, unless a legitimate excusing cause exists:

1. if someone changes the rite by using a breviary other than the one prescribed;

2. if someone recites the Office in a language other than Latin;

3. if someone recites an Office notably different in quality and quantity.

With regard to 1. St. Pius V²²⁶ prescribed that all who are obliged to the Divine Office are gravely bound to recite it according to the form and rite of the Roman Breviary, except those churches and religious orders which two hundred years previously (i.e., before the year 1368) were already using another legitimately approved breviary. But even to these privileged ones it was then conceded that, with the consent of the bishop and the entire chapter, or of the prelate and the community, they could use the Roman Breviary in choir. By force of this Pian privilege, even in our times several churches, e.g., Milan, Trier, etc., and several religious orders, e.g., the Benedictines, Carthusians, Dominicans, etc., employ their own breviary. The choral recitation of the Office must without any doubt be celebrated under grave obligation according either to the Roman rite or to another legitimately prescribed rite; nor is any change now lawful without special permission of the Holy See.

But if there is question of a change of rite in private recitation: a) it is indeed certain that a religious cleric using his own breviary, if he is elevated to the episcopal dignity, ought to leave his own rite and in all things follow the Roman rite or the rite of his diocese. The same holds for his chaplain who recites the Office with him. Thus the Sacred Congregation has established several times.²²⁷

b) Authors taught rather commonly that all who assist at the choral recitation of the Office can always conform themselves to that choral Office, even if of themselves they are bound to follow another rite. Hence, e.g., a secular priest assisting and singing psalms at the choral Office of Benedictines or Dominicans satisfies his obligation and is not bound to recite the Office according to the Roman rite. The reason is that holy Mother Church greatly favors the choral recitation of the Office, because in choir the Office is customarily celebrated with greater solemnity and devotion than in private. But apart from a special privilege (such as the Jesuits during the Exercises and the Benedictines possess)²²⁸ or apart from a sufficient cause, such as is possessed, e.g., by a priest seeking the religious state who sings psalms in the choir of those religious, this doctrine is no longer sufficiently safe today. For to the question, "Does a cleric constituted in sacred orders satisfy his obligation if, spontaneously or upon invitation, he joins clergy who chant or recite an Office different from the Office of that cleric?" the Sacred Congregation of Rites responded on 27 Jan. 1899: "Generally, no."²²⁹

c) Authors do not agree whether, at least in a case of necessity, a religious having his own breviary can satisfy by reciting the Office of the Roman Breviary and, conversely, whether a cleric obliged to the Roman rite satisfies his obligation by employing the breviary of some privileged order; nor has a general law been enacted concerning this matter. St. Alphonsus²³⁰ writes: "If you lacked the Roman Breviary and had another, for example a Benedictine one or something similar, you are bound to recite from it. The reason is that there is a twofold precept of the Office: one universal precept concerning the performance of the Hours; the other concerning the observance of the form of each day; whence, if you cannot observe one, you are bound to the other. But the Salmanticenses contradict this, saying that one is not bound, because, as they say, the precept of the Office is indivisible; that is, the precept of reciting it and of reciting it under one form. And they infer this from the words of the Bull of Pius V, where it is said: 'that satisfaction cannot be made except in this form alone.' Notwithstanding this, the first opinion, as more pious and reasonable, seems to me to be followed." Outside a case of necessity, one reciting the Office cannot lawfully use the breviary of another rite.²³¹

With regard to 2. If someone recites the Divine Office in a language other than Latin, e.g., the psalms in the Hebrew language or the Litanies or Vespers in the vernacular language with the people, he does not satisfy his obligation. Thus at least if the one reciting belongs to the Latin rite.

²²⁶ Const. Quod a nobis, 1568.

²²⁷ Cf. St. Alphonsus, Theol. mor. l. 4, n. 161, q. 3, n. 2.

²²⁸ Sacred Congregation of Rites, 11 July 1908 (Anal. eccl. XVI [1908], 391).

²²⁹ Decr. auth. n. 4011, ad 3.

²³⁰ L.c., n. 158.

²³¹ Noldin (De praeceptis n. 760) says: "Priests and religious who must use their own, non-Roman breviary in choir can recite the private Office according to the Roman Breviary." So far as I know, neither any decree of the Roman Curia nor the doctrine of canonists permits this so universally; and therefore such a religious would sin if, without a grave cause, he recited the Office according to the Roman rite while abandoning his own rite.

369. With regard to 3. The quality of the Office to be recited daily is customarily determined in the Calendar or Directory. The general rule is: Everyone is bound to use his own calendar. Concerning the application of this rule, the following things are to be noted:

1. Beneficiaries, such as pastors, canons, residential bishops, etc., are always bound to the Office of their own church. Thus the Sacred Congregation of Rites several times, on 12 Nov. 1831 and 23 Nov. 1906.²³² The same holds for clerics assigned to some church.²³³ But only those who exercise the care of souls in it by a stable office (and not merely a transitory one), e.g., pastors and assistant pastors, are considered assigned to some church. Teachers and students of a seminary are considered assigned to the church of the seminary;²³⁴ therefore they are bound to recite the Offices proper to the church of the seminary. The Offices proper to some church are: the Office of the titular of the church, of the dedication of the church, of an outstanding relic, etc.

2. Clerics who are not beneficiaries and are not specially assigned to some church are bound to follow the calendar of their diocese. But if they remain outside the diocese for a short time, they can, but are not bound to, follow the calendar of that diocese where they are here and now. But if they have acquired a quasi-domicile in a place outside the diocese, they are bound to follow the calendar of that place.²³⁵ Thus the more probable opinion. The reason is that clerics having a quasi-domicile somewhere are subject to the bishop of that place.

Hence, e.g., a cleric in major orders who, for the sake of study, resides at some university for the greater part of the year better recites the Office according to the calendar of the diocese in which the university is situated; and indeed immediately from the day on which he arrives at the university, because he also immediately acquires a quasi-domicile on that day, since he has the intention of remaining in that place for the greater part of the year. If such a cleric is a priest, still another reason presses. For in saying Mass he is bound to conform himself to the calendar of the church in which he celebrates (a few cases excepted). But the mind of the Church is that the Mass correspond to the Divine Office recited.

3. Regulars are bound to use their own calendar, i.e., that of the convent or monastery in which they dwell. But regulars who are traveling must still follow the calendar of their own convent, unless a) they arrive at another convent of the same order, whose calendar they ought to observe; b) they remain for a longer time, e.g., for a month, outside every convent of their order, e.g., for the sake of preaching or health. For then "they ought to conform themselves to the calendar of the province extended without any diversity to all for each year."²³⁶

Note. Since the calendar is customarily prepared by men learned in the Rubrics and Liturgy, the Office can and ought always to be recited as determined in the calendar, unless an error of the calendar is manifest.²³⁷

²³² Decr. auth. n. 2682, ad 46, and n. 4194, ad 8. If a bishop governs two dioceses or if a pastor governs two parishes, he recites the Office of that place where he habitually resides. Cf. Sacred Congregation of Rites, 28 May 1898, Decr. auth. n. 3993, ad 1.

²³³ Sacred Congregation of Rites, 7 Dec. 1844 (Decr. auth. n. 2873).

²³⁴ Sacred Congregation of Rites, 7 Sept. 1850 and 23 Nov. 1906 (l.c., nn. 2980 and 4194, ad 8); cf. also Noldin, l.c., n. 762.

²³⁵ Sacred Congregation of Rites, 14 May 1672 and 12 Nov. 1831 (l.c., nn. 1445 and 2682, ad 46).

²³⁶ Sacred Congregation of Rites, 31 Aug. 1839. The Sacred Congregation of Rites on 27 June 1896 established that religious absent from their convent for several days ought in the private recitation of the Office to follow the calendar of the monastery from which they departed.

²³⁷ Sacred Congregation of Rites, 13 June 1899 (Decr. auth. n. 4031).

370. With regard to exchanges of one Office for another, it must first be distinguished whether such exchanges are voluntary or involuntary.

1. If someone voluntarily, without a grave reason, exchanges the Office to be recited for another notably different in quality and quantity, he sins gravely. Thus the common opinion, which is confirmed from proposition 34 condemned by Alexander VII, in which it was asserted that on Palm Sunday it was lawful to recite the Paschal Office. He sins lightly or not at all who for a reasonable cause changes the Office for another of almost the same quality and quantity, e.g., because the Office to be recited is not contained in the breviary possessed. But the intention of reciting the Hours with a companion is not a sufficient cause for changing the Office,²³⁸ as was already said above.

2. If someone has involuntarily erred in the Office, the following three rules are to be attended to:

a) Office stands for Office.

b) An error is corrected where it is discovered.

c) An error is not corrected by an error.

By reason of the first rule, no one is bound to recite the Office appointed for that day if, after performing the wrong Office, he discovers his error. But if the Office recited erroneously was much shorter than the Office actually prescribed, then some compensation is to be made. Thus, e.g., if someone had recited the Office of a saint in place of the Sunday Office, which according to the old Roman Breviary consisted of twelve psalms in the first Nocturn, he had to supply nine psalms. Thus the common opinion.²³⁹

By reason of the second rule, he who, after part of the Office has already been performed, notices that he said the wrong Office should perform the remainder from the true Office. There are, however, authors such as Lessius, the Salmanticenses,²⁴⁰ Noldin,²⁴¹ etc., who teach that in this case it is lawful to complete the Office begun, lest unlike parts be joined into one Office. The first opinion is better and more common; whence St. Alphonsus²⁴² says: "I think with Croix and Tamburini that it is better to recite from the proper Office, lest you continue the error." But when someone through error, e.g., has recited Sext twice, he cannot therefore omit None or another similar part of the Office. For Office indeed stands for Office, but Hour does not stand for Hour. For when one Hour is omitted, the form of the Office has already been notably changed, and the whole Office of such a day has not in fact been recited. This is a sin.²⁴³

By reason of the third rule, he who through error recited an Office not yet occurring must recite that Office again on the day on which it is actually prescribed. There are, however, authors, e.g., St. Alphonsus,²⁴⁴ Noldin,²⁴⁵ Lehmkuhl,²⁴⁶ etc., who teach that in this case the omitted Office is to be recited. The reason is that, just as the Office of a saint is rightly transferred on account of an impediment of the day to another unimpeded day, so the Office seems reasonably able to be transferred on account of a moral impediment, such as error or ignorance is considered to be, lest the saint be deprived of his honor in that year. Nevertheless, the first opinion is truer and more common; for the deprivation of honor which the saint suffers from the fact that one cleric does not recite his Office is so small that it ought to yield to the order established in the calendar.²⁴⁷

²³⁸ Sacred Congregation of Rites, 27 Jan. 1899. Hence the opposite opinion of St. Alphonsus (Theol. mor. l. 4, n. 161, q. 3, n. 4) and of other authors seems to have to be abandoned because of the contrary decision of the Sacred Congregation of Rites.

²³⁹ Cf. St. Alphonsus, l.c., q. 3.

²⁴⁰ In St. Alphonsus, l.c., q. 5.

²⁴¹ De praeceptis n. 764.

²⁴² L.c.

²⁴³ Cf. also Noldin, l.c.

²⁴⁴ L.c., q. 5.

²⁴⁵ L.c.

²⁴⁶ Theol. mor. II, n. 790.

²⁴⁷ Cf. Cavalieri, Commentaria II, c. 41, nn. 21-28; cf. also Decr. auth. n. 1474.

813. To the third question it is answered: The obligation of clerics constituted in major orders to perfect chastity, so that any sin whatsoever (even internal) committed against chastity has the character of sacrilege, does not arise from ecclesiastical law alone, but from the vow annexed to the subdiaconate (which consequently also obliges to celibacy and which, because of its solemnity, furthermore constitutes a diriment impediment of any subsequent matrimony). Thus St. Thomas,⁹⁷ St. Bonaventure,⁹⁸ Peter Ledesma,⁹⁹ and commonly the Thomists, Suarez,¹⁰⁰ Reiffenstuel,¹⁰¹ Benedict XIV,¹⁰² St. Alphonsus,¹⁰³ and among moderns, with many others, Feije,¹⁰⁴ Freisen,¹⁰⁵ Wernz-Vidal,¹⁰⁶ and Lehmkuhl.¹⁰⁷ Many authors, both ancient and modern, for example, Scotus,¹⁰⁸ John of Torquemada,¹⁰⁹ Hinschius,¹¹⁰ Scherer,¹¹¹ Leitner,¹¹² Sägmüller,¹¹³ Hollweck,¹¹⁴ Scharnagl,¹¹⁵ and De Smet,¹¹⁶ teach the contrary opinion, namely, that the obligation both of celibacy and of complete chastity, so that every voluntary violation of chastity is sacrilege, arises from ecclesiastical law alone. - The former opinion seems to be preferred, both because Boniface VIII in the text cited below speaks expressly of a vow solemnized through the reception of sacred order, and because otherwise it seems unintelligible how a cleric in major orders committing a merely internal sin against chastity truly perpetrates sacrilege, as the most common opinion and the Code of Canon Law, can. 132, § 1, teach. For the Church probably cannot command merely internal acts. Therefore, if someone posits an internal act against a merely ecclesiastical precept, he does not commit sacrilege. The authors of the second opinion indeed have recourse to some personal consecration, I know not what, which according to them the cleric receives in sacred order; but this particular consecration is fictitious, and it is not found in the sacred orders of the Eastern Church, nor is any trace of it found anywhere. Furthermore, even if this ecclesiastical consecration were admitted (not granted), it is not apparent how it could be violated by true sacrilege through a merely internal act. Finally, moralists quite commonly teach that a sin of lust committed by a cleric in major orders and the same sin committed by a solemnly professed religious do not differ essentially, so that a regular priest committing such a sin is not bound in confession to declare his religious state, provided that he confesses his priestly state. Moreover, it seems certain that the violation of a truly solemn vow really differs from the violation of some merely ecclesiastical consecration. Nor should anyone say: if the Church cannot command an internal act, neither can she command a vow, which essentially consists in an internal act of the will; for although the Church cannot absolutely command some vow, she can nevertheless annex a vow to some state to be undertaken, so that no one can licitly undertake that state unless he also emits the prescribed vow. Thus no one can undertake the religious state unless he emits the three customary vows. In like manner, no one can licitly undertake the state of sacred order unless he emits the vow of perfect chastity.

It is said, 2. in the Latin Church; for in certain Eastern Churches this impediment of sacred order does not exist, so that clerics can enter matrimony before receiving the subdiaconate and afterward use this matrimony even after receiving the orders of the diaconate and priesthood. But if the wife of an Eastern cleric in major orders has died, second nuptials are prohibited and invalidated.¹¹⁷ Besides, the practice is not the same in all the Eastern Churches, both with respect to the celibacy of clerics and with respect to clerics in major orders who attempt second nuptials.¹¹⁸ Eastern bishops must observe celibacy altogether.¹¹⁹

It is said, 3. clerics initiated into sacred order cannot licitly use a matrimony perhaps contracted previously. A husband can receive sacred orders, provided that his wife freely consents and emits a vow of perpetual chastity (either in a monastery, or, if suspicion of a violation of chastity is absent, in the world).¹²⁰ Besides, according to the discipline now in force, a husband is impeded from receiving orders.¹²¹ Therefore, in practice the Holy See must be consulted, which determines what is to be done. Matrimony indeed is not dissolved as regards the bond by the reception of sacred order, but divorce as regards bed and even habitation is commanded.¹²²

⁹⁷ S. theol. 2, 2, q. 88, a. 11. Elsewhere (Suppl., q. 53, a. 3) the Holy Doctor says: "Sacred order ... has from the constitution of the Church that it impedes matrimony; nevertheless, differently among the Latins than among the Greeks; because among the Greeks it impedes matrimony to be contracted solely by the force of order, but among the Latins it impedes by the force of order and, further, by the vow of continence which is annexed to sacred orders; although someone does not emit this verbally, nevertheless, from the very fact that he receives the order according to the rite of the Western Church, he is understood to have emitted it."

⁹⁸ Bk. 4, dist. 38, tit. 2, q. 1.

⁹⁹ De magno sacr. matrim., q. 53, a. 3.

¹⁰⁰ De virt. relig., tr. 7, bk. 9, c. 17, n. 11.

¹⁰¹ Ius can., bk. 4, tit. 6, n. 15.

¹⁰² De syn. dioec., bk. 12, c. 4, n. 2.

¹⁰³ Theol. mor., bk. 6, n. 808. The Holy Doctor calls this opinion more probable and more common.

¹⁰⁴ De imped. et dispens. matrim., 384.

¹⁰⁵ Gesch. des kan. Eherechtes, 767 ff.

¹⁰⁶ Loc. cit. V, n. 284. Wernz treats this question excellently (with Ballerini).

¹⁰⁷ Theol. mor. II, n. 782.

¹⁰⁸ Bk. 4, dist. 37, sole q.

¹⁰⁹ Comm. in Decr. Grat., c. 3, D. 84.

¹¹⁰ System d. kath. Kirchenr. I, 159.

¹¹¹ Kirchenr. II, 367.

¹¹² Lehrb. d. kirchl. Eherechtes, 189.

¹¹³ Kirchenr. I, 264.

¹¹⁴ Kirchenr., 257.

¹¹⁵ Das feierl. Gelübde als Ehehindernis, 207 ff.

¹¹⁶ Loc. cit., n. 574.

¹¹⁷ Benedict XIV, Constitution Anno vertente, June 19, 1750; cf. also Papp-Szilagyi, Enchir. iur. eccl. orient. cath., 3rd ed., §§ 16 f. and 101.

¹¹⁸ Cf. Papp-Szilagyi, loc. cit., and especially Wojuki, Die Wiederverehelichung der Priester in der morgenl. Kirche, in Arch. f. kath. Kirchenr. (1908), p. 405 ff.