The Use of the Moral System

I. With regard to ourselves, in itself it is better to follow the safer opinion. I said "in itself," because accidentally the contrary must sometimes be advised, for instance, so that scruples may be forestalled.

II. With regard to penitents. 1. Where the confessor, in view of the system which he embraces, practically holds something as licit, he does not impose the safer part, but at most recommends it, namely if the penitents show themselves prepared to follow safer things. Yet observe that sometimes an action licit in itself or sufficiently probably licit is illicit in view of the proximate danger of sinning which it creates for the penitent; this must be attended to especially if there is question of slippery matters (cf. St. Alphonsus, I, 83; V, 63; II, 456, 605; Praxis conf., 69, 114, 192; Homo Apostolicus, appendix IV, n. XXI).

2. Where the confessor, in view of the system which is approved by him, practically holds something as illicit, one must act thus:

a) If the penitent is unlearned and cannot form his own conscience, the confessor should teach his own opinion or impose upon him that which he himself, namely the confessor, holds as practically prescribed. The reason is that the confessor must teach a penitent of this sort that practical norm of acting which he holds as true, and not that which he judges to be false (St. Alphonsus, Homo Apostolicus, tr. 16, n. 118). The confessor indeed is not a judge of controversies, as they say; but this does not prevent him, with respect to a penitent who cannot form his own conscience, from being regarded as in the likeness of a judge who practically settles the controversy.

b) If the penitent is learned and in doubt can form his own conscience, the confessor should absolve him, unless he holds the penitent's opinion as improbable (St. Alphonsus, I, 83; III, 669; VI, 604; Homo Apostolicus, tr. 16, nn. 118, 119).

III. With regard to public direction. In catechism and in sermons the disputes of theologians should be omitted, and only those opinions should be presented which practically are admitted by all, or at least sufficiently commonly. In doubt one should proceed by recommending rather than by obliging (St. Alphonsus, II, 55; Institutio... in praecepta Decalogi et sacramenta, preface, nn. 2-4). Yet in scientific expositions before educated laypeople, it can also be indicated what it is licit for a person to do in doubt.

418. In so great a conflict of opinions, let it be licit for each one speculatively to assent to one of the systems which are permitted by the Church to free discussion; but in practice, let these things especially be attended to.

1. Let it always be kept before the mind that even probabilists today extend their system only to cases where the matter concerns only the licit or illicit, according to the things set forth above, n. 388-390.

419. 2. It is not licit for the confessor to impose his own system upon a penitent who has formed his conscience according to one of the permitted systems; for the proximate rule of morals is each one's conscience.

Hence if a probabilist penitent wishes to follow an opinion certainly and solidly probable, and from another side is rightly disposed, a probabiliorist confessor cannot deny him absolution; otherwise he would violate the right which the Church leaves to each of the faithful, of following a truly probable opinion. - But if the penitent has not formed a conscience for himself, and asks the confessor what is licit or illicit, the latter, after the dispositions of the penitent have first been investigated, will respond according to the system which he will judge in the Lord to be more expedient for his spiritual good. Thus, if the penitent tends toward better things, to him he will generally advise that which, all things considered, seems better. But if, given the infirmity of the penitent, he foresees that this man will not follow the more probable opinion favoring the law, and from another side knows that the more benign opinion is truly probable, he can suggest this, so that the penitent may continue to frequent the sacraments, and, fortified by divine grace, may gradually tend toward better things; indeed, in many cases, he ought to furnish this from charity: for even if he himself adheres to equiprobabilism, he can permit others to follow probabilism.

But when the doubt concerns the very dispositions of the penitent, it pertains to the confessor himself to judge concerning them, according to his own system: for here the question concerns an action to be placed by the confessor himself; nevertheless let him temper judgment by charity and prudence, according to what was said in the Treatise on Penance, n. 407-409.

420. 3. In any system whatsoever, the confessor ought to weigh not only what is licit, but also what is expedient, all circumstances of times, places, and persons having been attended to: "All things are lawful to me, but all things are not expedient."¹

¹ 1 Cor. 6:12.

Therefore the probabilist who would always recommend to penitents to follow less probable opinions would act altogether imprudently: from the fact that it is not strictly prohibited under sin to follow such opinions, it is rashly inferred that this is good and opportune. An upright Christian, who wishes to cling to the footsteps of Christ, ought not only to avoid mortal sin, but also, according to his condition and powers, to tend toward moral perfection; otherwise he will lead a life little worthy of a Christian, and soon will fall into sin. For he who so indulges himself that he wishes to enjoy all delights which are not strictly prohibited, quickly also desires prohibited pleasures, and, accustomed to delights, is exposed to the danger of sinning. Therefore even if a probabilist knows very well that it is licit to follow all truly probable opinions, very often he will advise well-disposed penitents that, not indeed from fear of hell, but from love of God and of Christ, they turn themselves toward better things. - In this sense temperate probabilism by no means tends toward laxism.

421. 4. When two opposed opinions are truly probable, it is licit for each one to follow either, indeed to use each in various circumstances, yet in such a way that he is practically consistent with himself and violates the rights of no one.

The matter is made clear by an example: let a testament be supposed destitute of legal forms, concerning whose validity there is a twofold truly probable opinion. Titius, as heir, can indeed today use the probable opinion favoring him and enter upon the inheritance, as long as he is not disturbed in his possession by the sentence of a judge; at another time, he can impugn the validity of another testament destitute of legal forms, and enjoy the benefit of the law. But after, relying on a probable opinion, he has accepted the inheritance, he cannot decline the burdens annexed to the inheritance under the pretext that the testament is probably invalid; for he ought to be consistent with himself, and if he receives the inheritance, he ought to pay the legacies: he who feels the advantage ought likewise to feel the burden; otherwise the rights of the legatees would be violated.

— The proper place of probabilism. I. Probabilism has its proper seat where there is question of the liceity of the action alone, with consideration given to the law by which the action can be commanded, forbidden, or permitted. Then, according to the very order most wisely pre-established by God, the principles must be applied: a doubtful law does not oblige; no one is bound except through knowledge of the law ¹; and therefore, he who acts probably acts prudently, because he exposes himself to no danger of offending against an obliging law. Wherefore even then the use of probabilism is always licit or legitimate: it is confined by no exception.

But when there is question of probability of fact, no doubt of men can remove the danger of fact, as the danger of violating law is eliminated by a doubt of law. By what norms doubts of fact are ruled will soon be said below.

Therefore the exceptions sometimes brought against probabilism are only apparent, arisen from this, that probabilism is appealed to outside its proper seat.

¹ Cf. d'Annibale, I, 162.

— What is better to do. The use of the safer opinion is not always morally more perfect. It is more perfect of itself where, in order to do what is safer, one's own utility or convenience alone would have to be abandoned, but not where the less safe part is chosen for other reasons. If the obligation of restoring a sum to a man who will abuse it is uncertain, and you wish to give the same sum to an apostolic work, what prudent arbiter will estimate restitution as morally more perfect?

Indeed the use of the less probable opinion can be commanded. For obedience must be given to a Superior commanding according to a probable opinion, even if another opinion is more probable to the subject. Thus a Superior prohibits the fast by which you think yourself more probably bound: you are forbidden to fast.

— 1. Use of an extrinsically probable opinion. An extrinsically probable opinion cannot be useful to him for whom its falsity has been looked through. For presumption yields to truth. Nor does extrinsic authority have force except insofar as it founds a presumption of valid reasons. Therefore he himself is forbidden to use such an opinion. But it will scarcely happen to a prudent and not pertinacious man that he certainly judges false an opinion which commonly is held as probable.

2. Thus we say: and this concerning obligations of natural or divine law. But when there is question of human laws, it is reasonably judged that the legislator does not urge his law beyond what approved authors understand it to mean.

Wherefore, if I judge as wholly false some benign interpretation of a canon, which is sufficiently received, I myself am not prohibited from acting according to it. Thus, if we consider principles, an excuse from reservation sought from ignorance seems altogether vain. Yet in places where the bishop has not removed the controversy by formal decree, any penitent or confessor will be able to allege that excuse and admit it. For the very well-known controversy permits us to interpret the silence of the Code thus far as a toleration of the more benign opinion.

3. A confessor or another learned man can respond to one consulting him according to the probable opinion of others, with his own opinion omitted, even if this latter was more probable. Indeed he can indicate to him an opinion which other learned men defend as probable, although he himself judges it false. And a penitent who wishes to follow such an opinion has a right to absolution ¹. And even if the opinion to which the penitent adheres is only apparently probable, provided the penitent is in good faith, he will be able to be absolved: for he is disposed.

¹ This obligation of the confessor confirms probabilism. Cf. De Bock, Theol. fund. n. 231.

337. Notion. By the name of moral system is understood a method of indirectly obtaining practical moral certitude in practical doubt. For since in human life so many diverse cases occur, and since very often a man remains uncertain what must be done by him, lest he commit sin, hence from about the end of the sixteenth century diverse norms were devised for solving practical doubts. Thence were invented, or rather proclaimed, those reflex principles about which there was discussion in n. 332 sqq. Both the Holy Fathers and the older Scholastics defended no fixed moral system, but solved individual practical questions according to the maxim adduced above: "In doubt one must stand for that for which presumption stands"; or: "In doubts the safer part is to be chosen." Worthy of special mention is St. Thomas, who did not solve the controversy, then much agitated, whether one cleric can have several benefices, by recurring to the principle, "A doubtful law does not oblige," but to the conscience of each benefice-holder and to the particular circumstances. Hence the Angelic Doctor concludes that it is licit to have several prebends, if the benefice-holder has a right intention and sufficiently satisfies the diverse offices.⁹⁴ - The first who thought out some moral system, and indeed the system of Probabilism, was Barth. Medina, O. Pr., a Spaniard, who in the year 1577, against the arguments brought forward by Soto, Cajetan, etc., writes these things: "It seems to me that, if an opinion is probable, it is licit to follow it, although the opposite is more probable."⁹⁵ He himself acknowledges, however, that the ancient doctors taught otherwise. Behold his words: "The most learned Soto explains this rather difficult question (De iustitia l. 3, q. 6) in this way: for he says that, although in speculative matters and in the academy it is sometimes licit to follow a probable opinion, the more probable one having been set aside, nevertheless in moral matters and in things which pertain to the right of a third party, it is not licit to follow a probable opinion, the more probable one having been set aside. Sylvester thinks the same (under the word 'Opinion,' c. 2), Conrad (in the book De contract. q. ult.), and, what moves more, Lord Cajetan in his Summa (under the word 'Opinion')." - But the words of Cajetan in the cited place are these: "In things to be done, unless by choosing the safer part, it is not licit to take the opinion of anyone as the rule of action, since by the very fact that the operation to be regulated is committed to opinion, it is committed to an ambiguous rule, because every opinion is ambiguous, as being with fear of the other part. And because it is presupposed that the safer part is not chosen, it follows that the operation is committed to an ambiguous rule with respect to the case of sin, and by this very fact is exposed to the danger of sinning, which it is clear is illicit. And if there is question of mortal sin, it is clear that it is a mortal sin: knowingly to do an operation doubtful whether it is mortal; since such a one acting prefers to fulfill his will in such a work, even if it is mortal, rather than to abstain from it." From these words it follows that Medina thought, and indeed rightly, that Probabilism had not previously been expressly defended, but that theologians had rather taught that in doubt the safer part must be chosen. - The following moral systems are explained as being the better known:

⁹⁴ Cf. Quodl. 8, a. 13, and 9, a. 15.

⁹⁵ In 1, 2, q. 19, a. 6 (Venice 1580, p. 178 sq.).

100. What system of probability it is licit to use. - Here the following things are to be attended to:

1. In the direction of his own moral life, each one can use probable opinions according to the mode of one of the three systems: Probabiliorism, Equiprobabilism, or Probabilism. For although of itself and generally it will be more conformable to reason and more prudent to follow Probabiliorism rather than Equiprobabilism, and Equiprobabilism rather than Probabilism, nevertheless ordinarily we are not held to act more prudently and more safely (this belongs to counsel and perfection), but only safely and prudently. But Equiprobabilism or Probabilism in practice is sufficiently safe and prudent, because it removes the danger of sinning formally, unless for those who certainly saw that such a system was false, in which case they would have to follow the stricter system.

2. In the direction of others, we cannot impose, but only persuade to, our own system, or one or another probable opinion, because priests are not legislators and do not command; unless per accidens, if the other consents in this, or if otherwise some particular danger would follow for him.

3. Hence in practice the three systems do not differ so very much as to application, if the morals of the faithful of the whole Church are considered. We have already seen that what is certainly more probable is rather often notably more probable and practically certain for all (n. 96). Moreover, what some call more probable, others call less probable; what some call less probable, others hold equally or more probable; what appears equally probable to some, appears less probable to others. Besides, if one inspects not only what is strictly licit, but also what is expedient or more fitting, as often happens in practice, the differences will be still smaller.

The sole difference is for those who, from conviction, hold some system as practically certain and judge all opinions by themselves. Indeed even in them it easily happens that after some time an opinion which previously they had held less probable already appears more probable, or vice versa. And therefore the question concerning a determinate mode of forming a certain conscience is not of such great moment as it seems at first sight and as several theologians affirm, calling it a "moral system," and placing it at the threshold of moral theology as if it dominated all the treatises, whereas nevertheless the doctrine concerning human acts, as being more fundamental, rules all the others.⁶

⁶ Sometimes, on account of extrinsic circumstances, the question could seem of greater moment: thus, on account of sharp disputes, in the time of St. Alphonsus.

4. Therefore it is understood that the Church has abstained from a formal judgment concerning the systems, and has been content to reprove the two extreme doctrines of Laxism and Rigorism; for in practice, as to forming the morals of the faithful, confessors do not differ so very much.

5. Nor is it strange if, in the Middle Ages, such determinate systems are not found; for this belongs rather to the art of the direction of souls than to moral science. Various reflex principles were indeed known: In uncertainties, the more truthlike is to be chosen; - A doubtful law does not oblige; - The condition of the possessor is better; - In uncertainties one must stand for that for which the presumption stands; - In doubts one must act more safely, etc. These were applied by some rather than others in doubts of conscience for various cases and circumstances, so that in some way a conscience might prudently be formed as certain, without the matter being expounded systematically, or one determinate mode predominating or being imposed on all. And therefore all the systems can bring forward something from the authors of the Middle Ages in their favor; nevertheless none is found there complete and formed. But from the sixteenth century onward they endeavored to reduce those principles to one supreme principle from which, in any case, in any matter, the practical doubt might easily be solved.

Besides the general principles by which the theory of probabilism has been established above, namely: an obligation is not to be imposed unless it is certain concerning it, or, a doubtful law does not oblige, there are also recounted some special rules by which those principles are confirmed, or are applied in particular cases. They are the following:

I. In doubt one must stand for him for whom presumption stands. The reason is that presumption produces moral certainty, at least broad certainty; and in this sense alone the cited principle or rule ought to be understood. Hence if you are accustomed at such a time diligently to recite the whole Breviary, and you doubt whether you have recited some part, the presumption favors you, and exempts you from the obligation of reciting or repeating it. Likewise, if you doubt whether a superior justly commands or dispenses, presumption stands for him; because he can be led by reasons unknown to you, or is judged to judge prudently concerning those known. Besides, right order and the common good require that in such a case deference be shown to him.

II. In doubt one must judge from things ordinarily occurring. This rule nearly falls back into the preceding one, since in each presumption is the reason for judging thus. But the former extends more broadly; since presumption can be drawn not only from things ordinarily occurring, but also from particular circumstances.

III. In doubt one must stand for the validity of the act. It is a rule of civil law; but also commonly applied to theological matters. It is applied if the principal fact is certain, and there is doubt concerning some necessary circumstance or condition, or concerning the due mode; for example, if you doubt whether you confessed a sin with sufficient sorrow, or if you doubt, without being able to drive away the doubt, whether you contracted matrimony duly, which certainly and in good faith was entered into, you are not bound to repeat the confession, and the matrimony must be held as valid.

IV. In doubt favors are to be enlarged and burdens restricted. It is rule 15 of canon law in the Sixth, and signifies that in doubt the more benign things are to be preferred. Whence, according to this principle and the more common interpretation, these things seem to be established: 1st. As often as burdens and favors can be separated, burdens are to be restricted and favors enlarged, as much as can be done without force being brought upon the sense of the words. 2nd. If burdens and favors are indivisible, then one must judge concerning the intention of the legislator from his words, from the subject matter, or from the connected circumstances. 3rd. If the intention of the legislator cannot clearly be determined, one must attend more to the favor than to the burden. But here burdensome is understood as whatever tends to penalty, or harms the right of a third party, or is opposed to common law. But favor, or favorable, is whatever indulges liberty, or grants grace without detriment to private persons, or to the community, or to the law itself.

V. In obscure matters that which is least is to be held. It is rule 30 of canon law in the Sixth, and it is to be understood thus: where it is not certain concerning the true sense of a law or statute, and, inquiry having been premised, it cannot be determined either from the nature of the thing, or from the context of the words, or from the custom of the place, or from another circumstance, the less burdensome interpretation, or one more benign to liberty, is to be admitted. The reason is that the legislator is not judged to will to oblige beyond that which is clearly expressed in the law. Hence in doubt concerning the quantity of penalty to be inflicted, the minimum is to be chosen. Likewise, if it is not certainly clear concerning the delict, the accused must be absolved.

VI. In a doubt of fact the following axioms have force, or rules of civil law received among all, namely: 1st. In doubt a fact is not presumed, but must be demonstrated. But this is to be understood concerning doubt about the principal act, for example, if it is doubtful whether someone struck another, this fact ought not to be presumed, but he who affirms must prove it positively. 2nd. In doubt it is presumed rightly done, what had to be done by law. This is to be understood concerning doubt about an accessory act, the certainty of the principal act being supposed; for if something had to be done by law, or if it is ordinarily accustomed to be done, or is favorable to the one doing it, it is presumed to have been done. 3rd. In doubt no one is presumed bad unless he is proved. This has force as often as there is question of the doubt of some delict, which ought not to be imputed unless it is certainly clear concerning it. Therefore, since delicts are not presumed, no one is presumed bad, but must be proved.

VII. In doubt the safer part is to be followed. It is a rule of canon law, which is had in cap. Illud Dominus, de sent. excomm., and in cap. Ad audientiam, de homic. But this rule must be restricted to cases of practical doubt, or to those in which an end must necessarily be obtained, namely where probability would not remove the danger which the law commands altogether to be avoided, as, for example, in confecting the sacraments, according to the things said above, and as is ascertained from all things thus far set forth. But if it is extended to speculative doubts, it ceases to be a rule or precept, but is a mere counsel. Cf. St. Alphonsus, throughout, but especially lib. 1, nn. 26 and 99; Systema Mor., Obj. 4; and lib. 6, n. 505. - Voit, nn. 38 and seq.

Question 1. Is it licit to use probability, not only in the matter of positive human law, but also of divine and natural law?

Response. Affirmatively, because in any matter whatever it can happen that it is not certain concerning the existence of the law, namely as often as true and solid probability militates against it; and therefore concerning such a law there is given truly invincible ignorance. Moreover God, author of law and principle of the natural order, is not judged to will to obligate us when we invincibly ignore the existence of the law. Cf. Scavini, n. 103.

Question 2. Is it licit for a confessor to attend only to extrinsic probability, and to rely upon it alone in questions to be solved practically?

Response. Affirmatively, at least generally speaking, and especially in questions whose solution depends greatly upon the estimation of prudent men. The reason is that it is difficult for something to be extrinsically probable unless a grave reason militates for it; for many and grave authors ordinarily do not teach that some opinion is truly probable unless they have seen through the intrinsic reasons. Therefore this way is indeed rather little scientific, and scarcely worthy of a theologian, but it is short, and must be called safe. There is added the authority of the Sacred Penitentiary, which, having been asked whether a confessor is to be disturbed who follows the doctrine of St. Alphonsus without weighing his reasons, but only on account of his authority, responded negatively; and this response was approved by the Supreme Pontiff Gregory XVI. I said at least generally speaking, because if at some time someone perhaps detects that even many and grave authors have erred in asserting the probability of some opinion, their whole authority, however great it may finally be, and that whole extrinsic probability, will no longer bring it about that this opinion is truly probable for him.

Question 3. What must be thought concerning that principle most familiar to not a few probabilists: "He who acts probably, acts prudently"?

Response. Very many and very grave Doctors who have used this saying have employed it after the manner of a proximate rule of acting, but not as a principle by which they would prove the truth of their doctrine concerning probable opinions. Certainly that principle is false if it is held as a primary principle and one which suffices through itself. The reason is that an action cannot be prudent by force of probability alone, but obtains this from certainty alone. But it is true if it is held only, as it was held by these learned men, as a corollary of another primary principle, which is through itself the ultimate rule of acting, such as this can be: A doubtful law does not oblige; or, There is no obligation unless it is certain concerning it.

Question 4. If you doubt whether you have already satisfied some obligation, are you still bound to satisfy it?

Response. It is greatly controverted, and a twofold sentence is given.

The first sentence affirms. The reason is deduced from this commonly admitted principle: A certain obligation is not satisfied through a doubtful fulfillment. For a law once existing and commanding has the right of exacting rigorous obedience, or the undoubted fulfillment of the obligation. Moreover, when you doubt, or only probably or even more probably judge that you have fulfilled the law, you have by no means rigorously satisfied it. Therefore it still urges and presses you until you have certainly satisfied it. Besides, equity demands that what we grant to liberty we not deny to the law also in an equal condition: but we grant to certain liberty that it cannot be bound by a doubtful law. Therefore it must be granted to certain law that it cannot be loosed by a doubtful fulfillment. Finally, in doubt the condition of the possessor is better; but a law certainly existing possesses against liberty, which it has obligated to itself; therefore in doubt it prevails against liberty. Thus St. Alphonsus, nn. 28 and 29, who in this place, and in several other places, as, for example, lib. 6, n. 477, QQ. ref., ser. 2, nn. 1, 18, etc., seems fully to have retracted whatever he had written to the contrary, lib. 1, n. 99, vers. fin. Almost unanimously the more recent disciples follow the Master: Scavini, n. 87. - Neyraguet, cap. 3, inf. 2. - Gousset, n. 87. - Panzuti, n. 20. - Mueller, § 84, reg. 1, etc.

The second sentence denies, with not a few very distinguished theologians. For, they say, an obligation is not to be imposed unless it is certain concerning it, as was said above concerning probabilism. But it is not certain concerning an obligation to which satisfaction has already more probably or probably been made. Therefore. Besides, just as from that principle: An obligation is not to be imposed, etc., it is drawn that the human will is not obligated by a law whose existence has not yet been proved, so it necessarily follows that the same will is not obligated as soon as the existence of the law becomes uncertain; for just as obligation depends upon certain notice of the law, so also the continuation of obligation depends upon continuation of the same certain notice. But a law to which satisfaction has probably been made probably no longer exists. Therefore.

As to the axiom which is objected: A certain obligation is not satisfied through a doubtful fulfillment, it is answered that it is true as often as there is discussion of practical or negative doubt, but not if true and solid probability favors liberty. Suarez holds this sentence, in 3, St. Thom. ad q. 90, disp. 22, sect. 9, n. 6. - Roncaglia, de Voto, cap. 2, q. 4; and tract. 2, cap. 5, q. 3, de Leg. - Tamburini, Meth. conf., lib. 2, cap. 1, n. 10. - Lugo, de Paenit., disp. 16, nn. 59 and 60. - Bonacina, de Integrit. conf., disp. 5, q. 5, sect. 2, punct. 2, § 3. - Lacroix, lib. 1, nn. 599 and 600. - The Salmanticenses, de Voto, cap. 1, n. 145. - etc., etc. - Add from the camp of the probabiliorists Billuart, de Integrit. conf., § 4, and others who say that it is enough if satisfaction has more probably been made to the law.

It cannot be denied that this sentence, which Cardinal de Lugo in the cited place calls common, enjoys great extrinsic probability. Otherwise, the reasons upon which it rests are efficacious, and make it truly probable. Cf. Baller., notes (a), (b), (c), p. 74.

Question 5. Among several probable opinions is it licit to follow now this one, now the opposite?

Response. Affirmatively, and the reason is that among probable opinions none is formally safer and more secure than another. For all are equally secure. Nevertheless you cannot, as to one and the same matter, use at the same time a probable affirming sentence and a probable denying sentence, so that from one, for example, you gain an advantage, from the other you guard yourself against certain disadvantages. For he who feels the advantage ought also to feel the burden, as rule of law 55 in the Sixth bears.

Besides, I ought to retain the sentence which I have embraced, until it is not certain concerning its improbability, as often as liberty of varying the sentence results in prejudice to another who in that way is defrauded of his right. Add also that a superior obligating me to a precept obligates me to retaining the sentence once accepted, the change of which would impede fulfillment of the precept. Thus, for example, on a fast day it would be illicit in the morning to refresh myself fully, because, as I think, a probable opinion says the hour does not pertain to the substance of the fast, and at midday again to take a full refreshment, because it is probable that the fast has been violated; for indeed such a free faculty of changing would annul the very force of the precept. Moreover, it is not licit to leave a sentence once admitted and embrace another, if, because I act thus, one or the other of two laws is violated, although it is not clearly certain which has been violated. Cf. Castropal., disp. 2, punct. 2, nn. 2 and 3. - Baller., note (b), p. 76.

Question 6. What must be done when the penitent follows a probable opinion but one opposed to the opinion of the confessor?

Response. Since he who acts thus uses his own right, the confessor cannot dismiss him without absolution on this head. Indeed it is not lawful for the confessor to use his own probable opinion for imposing an obligation upon the penitent, whether the latter knows or does not know that the right belongs to him of following a probable sentence. If this opinion of the penitent is publicly probable, it is more difficult to excuse the confessor who does not absolve him: rather let him lay aside his own opinion, leaving liberty to the other. Cf. Baller., note (a), p. 76.

But we who hope that timid consciences will derive some help from this little work, and who see that innumerable would be the difficulties of pious souls if it were always necessary to inquire which opinion out of many is the more probable, nor could an issue be readily found since an opinion frequently seems more probable to some though it is not so in reality,—supported by the authority of great men we assert that it is sufficient to follow the probable opinion of some Doctor, so that we need not adopt those obscure arguments by which some maintain that the more probable opinion must be discovered and followed. For as that is a probable opinion in the schools and in disputations which can be defended without incurring any note of error, so in practical matters that is probable which we can follow without sin or danger of sin. For a probable opinion is not so called because it can be supported by reasons drawn from either side, for in this sense many errors and heresies, such as that of Arius, have more numerous, and in appearance more probable arguments in their favor than have some truths held by Catholics. But a probable opinion is so called because it seems probable to one or more men of learning, or to those whose knowledge is specially known and approved. Since then this is agreeable to right reason and is confirmed by the judgment of learned men, why may we not follow it? Is it because the other opinion is more probable? But we are not always bound to follow what in everything is more perfect, because it is sufficient if a thing is perfect in its kind; and since in the schools and in theory it is lawful to defend that which is probable, what hinders us from being able to follow that which is probable in practice and in action? And so this is lawful provided that the opinion which we judge to be probable is not evidently contrary to Holy Scripture or a decision of the Church, as St. Thomas says, and if one can by one’s own knowledge or that of another who is worthy of confidence answer the reasons to the contrary, or at least one sees that clever men despise them; for a good argument in practical matters is derived from the praiseworthy life and excellent doctrine of good and holy men. And indeed though there are some precepts which are common to and obvious to all, and of those no one who has the use of reason and free will can or ought to be ignorant, such as the precepts of the Decalogue which natural reason and Holy Scripture clearly manifest to us; there are others which Holy Scripture and ecclesiastical decisions leave uncertain, as is the case with many contracts. No one should violate the former on account of the opinion of any Doctor whatever; but in the latter which are not yet settled by a decision of the Church we may follow the opinion of some Doctors against others,

provided that we are ready to stand by the judgment of the Church, if she determine otherwise, make restitution if required, and in the meanwhile form for ourselves a good conscience in everything without hesitation or notable doubt to the contrary.

In this passage Hall formally adopts the theory which Bartholomew Medina had formulated some twenty years earlier and which is known as Probabilism. In the extract which I have quoted he does not mention either Medina or any one else by name; he is content with saying in general terms that his doctrine is supported by the authority of great men. However, he does mention Medina on the next page and in the same context, and by other frequent references to him Hall shows that he was largely indebted to him for his doctrine. He makes use too of the principal arguments by which Medina proved his theory. In adopting this view he was clearly of the opinion that he was adopting no novelty, he was merely making use of a ready formula for what in substance had been taught by the older theologians. This comes out well in a passage which occurs in the sixteenth chapter of the third book on a Scrupulous Conscience. He there says:

The scrupulous are often tortured at reading the chapter Juvenis, de sponsalibus, in which the saying occurs—‘‘The safer way must be chosen when in doubt’’; from which they think it follows that in everything that course must be chosen which is the furthest removed from all appearance of sin. But if this be granted them, nobody can ever be certain that in any of his actions he has played the part of an honest man, without being afraid that he could have done better. However, the answer to this is easy: it is not necessary always to choose the safer way; it is sufficient to choose that which is safe, as was said above when I was treating of a probable conscience in questions where Doctors differ. I there said that it is not necessary to follow the more probable opinion; it is sufficient to hold that which is probable when both are defended by approved authors. And Navarrus gives this advice as a special remedy against scruples, viz., to adopt one out of several opinions, choosing first of all in the external forum that which is confirmed by custom, unless it is clearly against the natural or divine law, for against these custom can do nothing. But if the matter be doubtful, custom can interpret it, and such interpretation is to be followed. If there is no such custom, that opinion should be preferred which rests on some text, and against which it is not easy to find arguments, though the common opinion may be on the other side, and that, although the chief question may be concerning one law and the text concerning another. Furthermore, that opinion among several should be chosen which rests on an argument which cannot easily be answered. And if none of these rules is applicable, the common opinion should be chosen, that namely which is known for certain to be the common opinion; and if there is no common opinion, that should be chosen which rests on better grounds and reasons, although they may be arguments which can be answered without difficulty because other things being equal a double or a triple cord is broken with greater difficulty. But where none of these rules applies, the more lenient and more favorable opinion is to be followed. The more lenient and the more favorable opinion is that which favors an oath, marriage, dower, will, freedom, a ward, widow, stranger, or other miserable person, or a private person against the exchequer, when the exchequer bases its action on the wrongdoing of a private person; otherwise the contrary holds. That opinion also is more lenient and more favorable which upholds the validity of the act, whether the act whose validity is in question be

a last will, or a statement of claim, or a joining of the issue, or a sentence, or any judicial act, rescript, or privilege. For the presumption in favor of the act outweighs other considerations, although the validity of the act redounds to the advantage of the plaintiff, and to the disadvantage of the State. With these exceptions that opinion is the more lenient which favors the defendant. And if one opinion is better than another in none of these ways, that should be held which those Doctors affirm who excel in authority or knowledge in the matter in question, as theologians if the question belong to theology, canonists in canon law, legists in civil law; for in all these ways an opinion is probable although perhaps the contrary is sometimes more probable.

It is obvious that in thus quoting what Navarrus teaches about the various methods for choosing an opinion and forming one’s conscience when Doctors disagree, Hall believed that he was merely putting his own theory in other words. “In all these ways,” he says, “an opinion is probable although perhaps the contrary is sometimes more probable.” 4

What Hall quotes from Navarrus is merely the common teaching of theologians on this question previous to the time of Medina. Angelus de Clavasio, O. F. M., who published the first edition of the Summa Angelica in 1486, teaches the same doctrine in almost identical terms, as also does Prierias, O. P., who issued the first edition of the Summa Sylvestrina in 1516. So that according to Dr. Hall the theory of Probabilism was no novelty; it was merely a short and convenient way of stating a theory which was

4“ Nam totidem modis opinio fit probabilis ; etsi fortassis altera sit interdum probabilior.”

supported by the common consent of theologians of all schools. This was not an opinion peculiar to Hall; it was shared by all his contemporaries, as is clear from the fact that Medina’s formula was at once accepted by theologians of all schools as an accurate and convenient statement of what they all held. Let us take a few examples. Michael Salon, a Spanish Augustinian, published his Controversiae de Justitia et Jure in the year 1581, four years after the publication of Medina’s work. Salon holds with Medina “ that it is lawful to abandon the more probable opinion and to follow that which is probable and believed to be true, while to follow the more probable is merely matter of counsel.’”” He adds that this is the opinion of “many and very eminent Doctors, especially among the followers of St. Thomas; that more numerous and more eminent authors and more weighty reasons can be quoted for it than for the opposite opinion; and that these reasons cannot be refuted, while those on the other side can be refuted.”⁵

⁵ Quest. 63, a. 2, controv. 2, conclus. 4.