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A MANUAL OF MORAL THEOLOGY 



A MANUAL :;;OF 
MORAL; i^ 

$6t^ 




(BT 
REV. THOMAS SLATER, SJ. 

VOL I. 

FIFTH AND REVISED EDITION 



LONDON 

BURNS OATES & WASHBOURNE LTD. 

PUBLISHERS TO THE HOLY SEE 
1925 



NIHIL OBSTAT: \*\ / j 

H. DAVIS, SJ. i ' : v, 1 

IMPRIMI POTEST: ^ 
GULIELMUS BODKIN, SJ. 



NIHIL OBSTAT: 

J. R. McKEE, C.O., 

Censor deputatus. 

IMPRIMATUR: 

EDM. CAN. SURMONT, 

Vicarius generalis. 



WESTMONASTERII, 

Die i a Decentbris, 1924. 



Made and Printed in Great Britain 



765751 



PREFACE TO THE FIRST EDITION 

THE object of the book which is herewith offered to the public 
is to present the common teaching of the Catholic moral 
theologians in an English dress. That common teaching is 
to be had in innumerable works written for the most part in 
Latin, but as far as I am aware there is no complete manual 
of moral theology in English. Yet that such a book will be 
found useful seems certain from the fact that works of the 
kind exist in abundance in other modern languages. In 
German we have Pruner, Probst, Linsenmann, and many 
others; in French, the well-known works of Gousset and 
Gaume ; in Italian, Frassinetti ; in Spanish, Villafuertes, Moran, 
and others. It may then confidently be expected that especi- 
ally the ecclesiastical students and Catholic clergy of English- 
speaking countries will welcome a book intended chiefly for 
their benefit. The writer is not without hopes of its doing 
good even among non- Catholics. Among these the moral 
theology of the Catholic Church is little understood and 
constantly misrepresented and maligned. Of course, it does 
not merit the bad reputation which has been fastened on it 
by Protestant and Jansenist slander. It is the product of 
centuries of labour bestowed by able and holy men on the 
practical problems of Christian ethics. Here, however, we 
must ask the reader to bear in mind that manuals of moral 
theology are technical works intended to help the confessor 
and the parish priest in the discharge of their duties. They 
are as technical as the textbooks of the lawyer and the doctor. 
They are not intended for edification, nor do they hold up 
a high ideal of Christian perfection for the imitation of the 
faithful. They deal with what is of obligation under pain of 
sin; they are books of moral pathology. They are necessary 
for the Catholic priest to enable him to administer the sacra- 

v 



vi PREFACE 

ment of Penance and to fulfil his other duties ; they are intended 
to serve this purpose, and they should not be censured for 
not being what they were never intended to be. Ascetical 
and mystical literature which treats of the higher spiritual life 
is very abundant in the Catholic Church, and it should be 
consulted by those who desire to know the lofty ideals of life 
which the Catholic Church places before her children and 
encourages them to practise. Moral theology proposes to 
itself the humbler but still necessary task of defining what is 
right and what wrong in all the practical relations of the 
Christian life. This all, but more especially priests, should 
know. The first step on the right road of conduct is to avoid 
evil ; in the doing of good each will act according to his vocation 
and opportunities, moved and stirred by the grace of God, 
who works in all as he wills. 

THOMAS SLATER, S.J. 



PREFACE TO THE FIFTH EDITION 

THE aim of this work was to state the Moral Theology of the 
Catholic Church as clearly and briefly as possible. A large 
portion of the Moral Theology of the Catholic Church depends 
on positive law. Many changes of far-reaching consequence 
were made in the positive law of the Church by the new Code 
of Canon Law. The new Code canonizes the law of the 
country on such important questions as Prescription and 
Contract. It changes the nature of more than one diriment 
impediment of Marriage. It alters numberless details on 
many other points of Church law. In this edition I have tried 
to bring my book into harmony with the existing law and teach- 
ing of the Catholic Church. 

T. SLATER, S.J. 
October 15, 1934. 



CONTENTS 



PREFACE TO THE FIRST EDITION . 
PREFACE TO THE FIFTH EDITION . 



PACK 

V 

vi 



Chapter I. 

Chapter II. 

Chapter III. 

Section I. 

Section II. 

Section III. 

Section IV. 

Chapter IV. 

Section I. 

Section II. 

Point i . 

Point 2. 

Point 3 . 

Section III. 



BOOK I 
HUMAN ACTS 

What is a Human Act ? 

Voluntary Acts 

Obstacles to Voluntary Action 

Ignorance 

Concupiscence . . . 

Fear . 

Violence . 

The Morality of Human Acts 

The Essence of Morality 

The Sources of Morality 

The Object .... 

The End . 

The Circumstances 

On Merit .... 



i 

5 
ii 

ii 

13 
16 

i7 
19 
19 

21 
22 
22 

25 
26 



BOOK II 
CONSCIENCE 

Chapter I. The Notion of Conscience 
Chapter II. The Certain Conscience . 
Chapter III. The Doubtful Conscience 
Chapter IV. The Probable Conscience 
Chapter V. The Scrupulous Conscience 



29 
3i 
34 
37 
43 



BOOK III 
LAW 

Chapter I. The Nature of Law 
Chapter II. The Power of Making Laws 
Chapter III. The Matter of Law 
Chapter IV. The Subjects of Law 
Chapter V. The Acceptance of a Law 

vii 



47 
So 
52 
55 
58 



viii CONTENTS 



PAGE 



Chapter VI. The Obligation of Law .... 59 

Chapter VII. The Interpretation of Law .... 62 

Chapter VIII. What Excuses from Observing the Law . . 65 

Chapter IX. The Cessation of Law 67 

Section I. Custom . . 67 

Section II. A Law Become Useless ..... 69 

Section III. Dispensations ...... 70 

Chapter X. Various Species of Law .... 73 

Section I. Natural Law -73 

Section II. Positive Divine Law ..... 74 

Section III. Ecclesiastical Law ..... 75 

Section IV. Penal and Voiding Laws .... 76 

Section V. Civil or Municipal Law ..... 78 

Section VI. Privileges . . . . . . . . 80 



BOOK IV 

SIN 

PART I. SIN IN GENERAL 

Chapter I. The Nature of Sin 83 

Chapter II. The Gravity of Sin 85 

Chapter III. Different Species of Sins ..... 89 
Chapter IV. Numerical Distinction of Sins . . . .91 

PART II. CERTAIN KINDS OF SINS 

Chapter I. Sins of Thought ...... 94 

Chapter II. The Capital Vices 97 

1. Pride 97 

2. Covetousness ........ 99 

3. Lust .......... 100 

4. Anger ......... 100 

5. Envy . . . . . . . . . 101 

6. Sloth ......... 102 

7. Gluttony 103 



BOOK V 
THE THEOLOGICAL VIRTUES 

PART I. FAITH 

Chapter I. Necessity of Faith . . . . . .105 

Chapter II. External Profession of the Faith . . . 108 
Chapter III. Sins against Faith . . . . . .in 



CONTENTS ix 

PART II. HOPE 

PAGE 

Chapter I. Nature of Hope 113 

PART III. CHARITY 

Chapter I. Nature of Charity 115 

Chapter II. Well-Ordered Charity 117 

Chapter III. Love of Enemies . . . . . .120 

Chapter IV. Almsgiving . . . . . . .123 

Chapter V. Fraternal Correction . . . . .126 

Chapter VI. Scandal . . . . . . .129 

Chapter VII. Co-operation in Another's Sin . - . . . 132 

BOOK VI 
THE PRECEPTS OF THE DECALOGUE 

PART I. THE FIRST COMMANDMENT 

Chapter I. The Matter of the Commandment . . . 135 

Chapter II. Prayer . . . . . . .136 

Chapter III. Worship . . . . . . .138 

Chapter IV. Superstition . . . . . .140 

Section I. Wrong Ways of Worshipping God . . .140 

Section II. Idolatry . . . . . . . 141 

Section III. Divination . . . . . . .141 

Section IV. Vain Observance . . . . . .144 

Chapter V. Tempting God . . . . . .146 

Chapter VI. Sacrilege ....... 147 

Chapter VII. Simony . . . . . . .151 

PART II. THE SECOND COMMANDMENT 

Chapter I. The Irreverent Use of God's Name . . . 154 

Chapter II. Blasphemy . . . . . . 155 

Chapter III. Oaths ........ 157 

Chapter IV. Vows ........ 161 

PART III. THE THIRD COMMANDMENT 

Chapter I. Hearing Mass of Precept . . . . .169 
Chapter II. Servile Work . . . . . . 174 

PART IV. THE FOURTH COMMANDMENT 

Chapter I. Duties of Children to Parents .... 176 
Chapter II. Duties of Parents to Children . . . 179 

Chapter III. Duties of Relatives and Guardians . . .183 



x CONTENTS 

PAGE 

Chapter IV. Obligations of Husband and Wife . . .185 
Chapter V. Duties of Masters and Servants . . .186 
Chapter VI. Duties of Masters and Scholars . . .191 
Chapter VII. Duties of Ecclesiastical and Civil Rulers and 

their Subjects ...... 192 



PART V. THE FIFTH COMMANDMENT 

Chapter I. Suicide . . 194 

Chapter II. Capital Punishment . . . . .196 

Chapter III. Justifiable Homicide . . . . .198 
Chapter IV. Killing the Innocent ..... 200 

Chapter V. Duelling 204 

Chapter VI. War 206 

PART VI. THE SIXTH AND NINTH COMMANDMENTS 

Chapter I. The Nature of Impurity .... 209 

Chapter II. Consummated Sins of Impurity . . .212 

Chapter III. De Peccatis Consummatis contra Naturam . 215 

Articulus I. De Pollutione . . . . . .215 

Articulus II. De Sodomia . . . . . .217 

Articulus III. De Bestialitate ...... 218 

Chapter IV. Non-consummated Acts of Impurity . .219 

PART VII. THE SEVENTH AND TENTH COMMANDMENTS 

DIVISION I. ON JUSTICE AND RIGHT 

Chapter I. Nature of Justice and Right .... 222 

Chapter II. Objects of Ownership ..... 226 

Chapter III. Who May Own Property . . . .230 

Section I. General Principles . . . . .230 

Section II. Property Rights of Minors . . . .231 

Section III. Property Rights of Married Women . . 233 
Section IV. Property Rights of the Church . . . 234 
Section V. Property Rights of Clerics .... 236 

Chapter IV. Title to Property ...... 242 

Section I. Occupation ....... 242 

Section II. Accession ....... 244 

Section III. Prescription ....... 246 

DIVISION II. THE VIOLATION OF JUSTICE 

Chapter I. Injuries in General ...... 250 

Chapter II. Theft ........ 252 



CONTENTS xi 

DIVISION III. ON RESTITUTION 

PAGE 

Chapter I. Restitution in General . . . . .255 

Chapter II. First Root of Restitution . . . .256 

Section I. Possession of Another's Property in Good 

Faith ....... 256 

Section II. Possession of Another's Property in Bad Faith 259 

Section III. Possession of Property in Doubtful Faith . 260 

Chapter III. Second Root of Restitution .... 262 

Section I. Damnification in General .... 262 

Section II. Particular Cases of Damnification . . . 265 

Chapter IV. Co-operation in Injustice .... 269 

Chapter V. Circumstances of Restitution .... 273 

Section I. To Whom Restitution is to be Made . . 273 

Section II. How Much is to be Restored .... 274 

Section III. Order of Making Restitution .... 276 

Section IV. Manner of Making Restitution . . . 278 

Section V. Time and Place of Making Restitution . . 279 

Chapter VI. Causes Which Excuse from Making Restitution 281 

Chapter VII. Occult Compensation ..... 283 

PART VIII. THE EIGHTH COMMANDMENT 

Chapter I. Rash Judgements ...... 284 

Chapter II. Detraction ....... 286 

Chapter III. Contumely . . . . . . .289 

Chapter IV. Lying .. ^ ..... 290 

Chapter V. Secrets . . . . . . . . 294 

BOOK VII 
CONTRACTS 

PART I. CONTRACTS IN GENERAL 

Chapter I. Nature of Contract ...... 297 

Chapter II. On Consent ....... 300 

Chapter III. Capacity of Parties . . . . . .303 

Chapter IV. The Matter of Contract ..... 305 

Chapter V. Consideration and Effects of Contract . . 308 
Chapter VI. Discharge of Contract . . . . .311 

PART II. SPECIAL CONTRACTS 

Chapter I. Promises 312 

Chapter II. Gifts 314 

Chapter III. Wills 315 

Chapter IV. Mutuum and Usury . . . . .321 



xii CONTENTS 

PAGB 

Chapter V. Sale ........ 327 

Article I. Sale of Goods ...... 327 

Article II. Sale of Real Property 334 

Chapter VI. Sale by Auction . . . . . .336 

Chapter VII. Monopolies 338 

Chapter VIII. Bailment 34 1 

Chapter IX. Principal and Agent . . . . -344 

Chapter X. Partnership ....... 347 

Chapter XL Leases ....... 349 

Chapter XII. Insurance . . . . ... . 351 

Chapter XIII. Gaming and Wagering Contracts . . -353 



BOOK VIII 
THE COMMANDMENTS OF THE CHURCH 

Chapter I. On Keeping Certain Days Holy . . -357 

Chapter II. Fasting and Abstinence . . . . .360 

Chapter III. Annual Confession ...... 363 

Chapter IV. Easter Communion . . . . . -365 

Chapter V. Support of Pastors . . . . . .366 



BOOK I 
HUMAN ACTS 

CHAPTER I 
WHAT IS A HUMAN ACT ? 

i. THE Christian faith teaches that the end of human life 
is to know, love, and serve God. If a man fulfils this obliga- 
tion faithfully till death, it further gives him the assured hope 
of eternal happiness with God in heaven. All our actions 
should be directed towards the end for which the whole man 
exists ; if an action is such that it conduces to that end, it is a 
good, moral action; if, on the contrary, it does not conduce 
to that end, it is a bad, immoral action. 

Not all man's actions, however, are capable of being invested 
with this moral quality. There are many actions of man 
which have no more moral quality than the growth of a tree 
in the garden or the running of a dog in the street. Good 
or bad digestion is an operation to a great extent removed 
from man's control; he is in general no more responsible for 
it than for the condition in which he was born. Or, if some 
immoral picture is suddenly thrust under his eyes, he cannot 
help seeing it. Such acts are neither moral nor immoral; 
they are neither capable of conducing to the end of moral 
human action, nor of diverting the agent from it : they merit 
neither praise nor blame. 

2. A man is a good man morally if he performs well the 
good actions over which he has control ; he is a bad man if 
he wilfully performs bad actions. So that the actions over 
which a man has control, the actions which he freely performs, 
are alone capable of making him a good or a bad man ; they 
are the only actions of man which have a moral quality ; they 
alone are treated of in moral theology. It is the task of moral 
theology to frame rules for human conduct according to the 
teaching of the Catholic Church, to decide what actions are 
good and what bad according to the principles of the Christian 
faith. 

3. The actions over which a man has control are in a special 
sense called human acts, because they are due to his free 

i. i 



2 HUMAN ACTS 

choice. That man has the power of free choice or free will, 

is clearly taught in Holy Scripture, and is a dogma of faith. 1 

It is also a truth of sound philosophy, 2 vouched for by the 

consciousness of each individual and by the common sense 

of mankind. It does not belong to our province to prove the 

doctrine. We suppose that, at any rate in many of his daily 

actions, when all the conditions requisite for action are present, 

a man is free to act or not, to perform this action rather than 

that other. A man must indeed have a motive for action, 

but that motive does not constrain him to act ; if he has the use 

and control of his reason, he may as long as he is in life perform 

or abstain from the action proposed to him. Man has the 

wonderful power, unique in all the visible creation, of directing 

his mental and bodily activity in this way or that according 

to his good pleasure; and it is this wonderful power which 

makes him a moral agent, and makes it worth while to 

discuss and formulate rules of human conduct. Man himself 

is the cause of his human acts ; he freely directs them to the end 

of human existence, or to some perverse end of his own choice. 

4. This power of free choice is a property of the rational 

will, and is the natural complement of the deliberative reason 

with which man is also endowed. For among the various 

objects offered to the will's acceptance, the reason can propose 

motives for the selection of one object rather than of another, 

and, at any rate in many actions, until the deliberation is 

finished, the will need not decide between them. If an object 

capable of satisfying all our desires were presented to us, 

there would indeed be no room for deliberation; as Dante 

expresses it : 

Such one becomes, admiring that blest Ray, 
That, whatsoever else allure the sight, 
Impossible it is to turn away; 
Because the one sole wished-for Good is there, 
And everything defective elsewhere found, 
In it is perfected beyond compare. 

Paradise, xxxiii 100. Wright's translation. 

In the presence of such an, object, the whole man, with all 
the vehemence of his will made for good, would rush into 
the embrace of his God. For God alone is capable of wholly 
satisfying all man's desires. Or again, if some object of ardent 
natural desire were suddenly thrust upon us, leaving no time 
for deliberation, overwhelming us with the idea of its power 

1 Ecclus. xxxi 10; Trent, sess. 6, can. 5, 6. 

2 M. Maher, Psychology, 5th ed., p. 394, 



WHAT IS A HUMAN ACT ? 3 

to satisfy our appetite, it might be that no room was left for 
free choice, that we should be necessitated to action. There 
would be at least some indeliberate motion towards the object, 
a movement of the will which divines call motus primo-primus. 
If in such a case the power of deliberation is not altogether 
smothered, but is exercised, though imperfectly, the movement 
of the will which follows is called secundo-primus. If the 
power of deliberation is wholly wanting, the act which follows 
cannot be sinful, however wrong objectively; if the act is 
semi- deliberate, however grievously wrong in itself, it will 
be imputed to the agent only as a more or less serious venial 
sin. 1 

These principles are of great importance for forming an 
estimate of the moral guilt of children, of habitual drunkards, 
of persons long habituated to sins of the flesh, and persons 
with weak intellect. 

It follows from what has been said that previous knowledge 
of, and deliberation about, the object proposed by the intellect 
to the will, is necessary to free and moral action, which is 
defined by divines to be action which proceeds from man's 
deliberative will. 2 

5. Human acts are by theologians divided into various 
classes : 

(a) Internal acts are performed by the internal powers of the 
soul ; external, by the bodily organs. 

(b) Elicited acts are such as proceed immediately from the 
will and are performed by it alone. They are usually said to 
be six in number ; three having reference to the end, and three 
others to the means for the attaining of the end. A wish is 
a simple inclination of the will or an ineffectual desire of an 
object; an intention is a firm resolve to attain an object by the 
use of the appropriate means ; fruition is a peaceful delight 
in the possession, real or imagined, of a loved object. The 
act of selection between various means to an end is called 
choice; if no alternative is offered by the intellect, acceptance 
of the means by the will is called consent, though this term is 
more commonly used of every act of acceptance by the will of 
an object proposed to it ; use or execution is said of the act of the 
will which applies the means chosen to the obtaining of the 
end proposed. 

Commanded acts are executed by other faculties than the 
will by which they are commanded. 

1 St Thomas, i-z, q. 77, a. 7. 

2 St Thomas, 1-2, q. i, a. i. 



4 HUMAN ACTS 

(c) Natural acts are performed by man's faculties unaided 
by divine grace; supernatural, by the help of God's grace. 

(d) Good actions are conformed to the rules of morality; 
bad actions are contrary to them ; those that are indifferent may 
be good or bad according to circumstances. 

(e) Valid acts are such as have all the conditions requisite, 
and so produce their effect ; invalid acts are destitute of some 
condition necessary to produce their effect. 



CHAPTER II 
VOLUNTARY ACTS 

i. HUMAN acts, the subject-matter of moral theology, are 
also called voluntary acts to distinguish them from such actions 
as are produced under external compulsion. For voluntary 
acts are the effect of an internal principle, the will (voluntas). 
The term, however, is ordinarily used not of all actions which 
are produced by an internal principle, for some of these are 
specially denominated spontaneous or reflex actions. These 
latter are the immediate result of sense excitation without the 
intervention of consciousness. Thus the eyelid closes to 
protect the threatened organ, and the hand rises involuntarily 
to drive off a troublesome fly. Voluntary in the strict sense 
is used only of actions produced by the will with rational 
knowledge of, and inclination towards, the object. Voluntary 
actions are produced with consciousness and deliberation. 
Thus, practically and in the concrete, voluntary actions are 
identical with human acts, though their connotation is different. 
For human acts connote freedom, as we have seen, while an 
act may be voluntary and yet not free. The beatific vision 
by which the blessed see God face to face, and are thereby 
thrilled with ineffable delight, is a voluntary act ; it proceeds 
from the will with full and clear knowledge of God, but it is 
not free ; the blessed cannot avert their gaze from the Infinite 
Beauty which enraptures every fibre of their being. How- 
ever, all voluntary acts of man are in this life free, and so, for 
the purposes of moral theology, human acts and voluntary 
acts are interchangeable terms. 

2. An act may be voluntary in various ways : 

(a) An act is perfectly voluntary if it proceeds from the will 
with full knowledge and deliberation; if the knowledge and 
deliberation are not full, the act is imperfectly voluntary. 

(b) Simply or absolutely voluntary is distinguished from 
voluntary under a certain respect, or secundum quid. More 
commonly an action which under the circumstances is willed, 
but which would not be willed if the circumstances were 
different, is said to be simply or absolutely voluntary; while 
inasmuch as the same action would not be willed if the cir- 



6 HUMAN ACTS 

cumstances were different, it may also be said to be only 
voluntary under a certain respect. Thus, to take the well- 
worn example, when the merchant is willing in a storm that his 
goods should be thrown overboard to save the ship, the action 
is simply voluntary; he would not will it unless the ship were 
in danger, so that it is also voluntary only under a certain 
respect. 

(c) An action is said to be voluntary in itself when it is in 
itself and by itself the object of the will ; if it is merely the 
effect of something else which is willed, it is then called 
voluntary in something else, or voluntary in the cause. 

Frequently directly and indirectly voluntary are used in the 
same sense as voluntary in itself and voluntary in the cause. 

3. All voluntary action is imputed to the agent for praise or 
blame, merit or demerit ; for the action is free, as we have seen, 
and proceeds from a positive inclination of the will. This 
inclination of the will is an important element in voluntary 
actions ; the absence of it prevents the sin of man being imputed 
to God as voluntary, and the same principle sometimes justifies 
us in performing an action which is right in itself, though 
some of its effects are evil. But this is an important point and 
requires fuller treatment. 

First of all then, let us see what is required before an evil 
effect of my action can justly be imputed to me and make me 
morally guilty. 

(a) The evil effect must in some measure be foreseen, other- 
wise it will be involuntary and not imputable. And so no 
moral blame attaches to a man who, thinking that he is drinking 
water, swallows poison. 

(b) The agent must be able to prevent the evil effect, for we 
are only responsible for what is under our control. The 
engine-driver of an express train is not responsible for the 
death of a person who suddenly throws himself under the 
wheels of the engine. 

(c) There must be an obligation not to perform the action 
by reason of the evil effect which would follow from it. If 
the evil effect follows merely by accident, it does not render 
an otherwise lawful action unlawful, and I am not bound to 
abstain from it on account of the mere possibility of the evil 
effect following from it. Thus, if a hundred people indulge 
in hunting or motoring for a considerable time, some one of 
them is morally certain to meet with an accident endangering 
life or limb. But this does not make hunting or motoring 
morally wrong. Though I am conscious that the accident 



VOLUNTARY ACTS 7 

may happen to me, I may nevertheless hunt or use the motor- 
car as usual. If I kill myself or someone else, it will be merely 
by accident, for it is presumed that I use reasonable care to 
avoid mishap. 

On the other hand, a superior, whose commands I am bound 
to obey, may have used his authority to forbid an action on 
account of the possible evil effect which may follow therefrom. 
In that case I must abstain from the action by reason of the 
command of my superior, though otherwise I should be free. 
And so if a father, for special reasons, forbids his son to go 
to the theatre, the son should obey, as long as he is subject 
to parental authority. Again, even though there may be no 
positive command of a superior, in cases where no good would 
come from the action, and where the only effects would be 
evil, I am bound to abstain from the action, which in that 
case itself becomes evil. Similarly, where the evil effects are 
largely in excess of the good, right reason tells me that I must 
abstain from the action. But there are many actions which 
are forbidden by no lawful authority, which have both good 
and evil effects, while it is not clear that the latter largely 
outweigh the former. Am I bound to abstain from such 
actions, or when am I bound to abstain from them ? 

4. In order to provide a general rule of conduct in such 
circumstances, divines have formulated what is known as the 
principle of a double effect. That principle may be enunciated 
as follows : 

It is lawful to perform an action which produces two effects, 
one good, the other bad, provided that (i) the action, viewed 
in itself, is good, or at least indifferent; (2) the agent does 
not intend the evil effect, but only the good ; (3) the good effect 
is produced as immediately as that is, not by means of 
the bad ; and (4) there is a sufficiently weighty reason for 
permitting the evil effect. 

This rule will furnish us with a guide in case of doubt 
whether we are bound to abstain from any given action because 
of some evil effect which will follow from it. We shall be at 
liberty to perform the action in question provided that four 
conditions are realized. In the first place, the action itself, 
apart from the evil effect, must not be bad. If it is bad in 
itself, there can be no question about its lawfulness. Further, 
the agent must not intend the evil effect, though he foresees 
that it will follow. If he intends it, the evil effect becomes 
voluntary in itself and imputable to the agent. Then, the 
good effect must not be the result of the bad, for we must 



8 HUMAN ACTS 

not do evil that good may come ; the end does not justify the 
means. 11 Lastly, there must be such a proportion between the 
good and bad effects that right reason tells me that I am not 
forbidden to forego the good effect of the action on account 
of the bad being inextricably bound up with it. 

The question as to whether a general is justified in ordering 
his army to take a stronghold by assault in war will serve to 
illustrate the principle and its use. In the first place, the 
assault must be justified by itself, apart from the cost in human 
life. The assault will be justified in itself if the war is just 
and the stronghold belongs to the enemy ; it will not be justified 
if the war is one of unjust aggression, or if the general has 
been expressly ordered by his Government not to take the 
place. Moreover, the general must not directly intend the 
necessary loss of life among the innocent non-belligerents. 
He foresees and deplores it ; he is said in the technical language 
of theology to permit the evil effect, not to intend it. The 
slaughter of innocent non-belligerents must not be the means 
chosen to capture the stronghold; evil may not be done that 
good may come. Finally, the capture of the place must be 
a matter of sufficient importance in the war to warrant the 
shedding of innocent blood in the bombardment, and the 
other evils necessarily entailed in an assault. The question 
as to when the good result is sufficient to outweigh the evil is 
largely a matter of sound judgement after a careful examination 
of all the circumstances. If the successful storming of the 
place would only add to the personal reputation of the general 
without bringing the end of the war any the nearer, the assault 
would be a crime; if it would compel the enemy to sue for 
peace, it would usually be justified. 

This principle is of great importance in Moral Theology; 
it has in its support the common consent of divines, and is 
expressly used by St Thomas. 2 

5. If I am not justified, according to the foregoing principle, 
in performing an action which causes some evil effect, that 
evil effect is imputable to me though I did not intend it in 
itself; it is not indeed voluntary in itself, but it is voluntary 
in its cause, and I am bound to avoid evil even though only 
voluntary in its cause. 

When, however, evil is not voluntary in itself, but only 
voluntary in its cause, a question arises concerning the degree 
of moral guilt which is contracted when such a cause of evil 
is posited unwarrantably. The case arises especially when 

1 Rom. iii 8. 2 Summa, 2-2,, q. 64, a. 7. 



VOLUNTARY ACTS 9 

grave evil is the result of an action which in itself is only 
venially sinful, as when grave harm is the result of slight 
negligence. Of course, great evil arising from grave negligence 
is seriously sinful even though only voluntary in the cause; 
and so a doctor who through grave negligence kills his patient 
is guilty of a great sin, though he did not intend the homicide. 
But supposing that in passing through a gate in the country 
I leave it open, owing to slight negligence, and in consequence 
a neighbour's crop is seriously damaged by his cows getting 
among the corn ; do I commit a grave sin in that case ? Of 
course, if owing to the circumstances I clearly foresaw that 
the damage was certain to follow and I could easily have closed 
the gate if I chose, I certainly sin grievously in not closing it ; 
the negligence is then grave. But our case supposes circum- 
stances to be such that the negligence is only slight, partly on 
account of the uncertainty of harm following, partly because 
I had frequently seen the gate standing open, and for other 
reasons. Will the neglect to close the gate after me in such 
circumstances be grievously sinful on account of the serious 
harm to my neighbour which was the consequence ? The 
answer must be " No." For the harm did not follow neces- 
sarily and exclusively from my neglect ; my action was not the 
immediate and necessary cause of the damage done to the 
crop; other agents intervened; my action was only slightly 
responsible for what followed. Inasmuch, then, as the malice 
of the cause is only slight, and this alone is voluntary in itself, 
the evil effect which is only voluntary in the cause will be 
imputed only as a venial sin. 

6. Theologians dispute about the question whether such a 
sin of omission as is committed by not closing the gate after 
me, with resulting loss to my neighbour, can be committed 
without a special act, by simply neglecting to put the act which 
was of obligation. 

The question is not a very practical one; it will be sufficient 
to say in reply that physically a man who adverts to the obliga- 
tion of doing something may hold himself neutral, and so sin 
by omission without doing anything; practically, however, in 
such cases, a positive determination is formed not to perform 
the duty, or at least to perform something else which is fore- 
seen to be an obstacle to the performance of the duty. 1 

7. The question sometimes arises at what time a sin of 
omission or a sin which is voluntary only in the cause is com- 
mitted. When a man gets drunk on the Saturday evening 

1 Suarez, tract. 5, d. 3, sec. 2, n. 6. 



io HUMAN ACTS 

and foresees that in consequence he will not be able to attend 
Mass on the following day, is the sin of omitting to hear Mass 
committed on the Saturday night, when he voluntarily posits 
the cause of his not hearing Mass on the following day, or on 
the Sunday, when Mass is not heard as is of obligation ? 
Inasmuch as a formal sin is a human act, it would seem that 
we must say with St Alphonsus 1 that the sin is committed 
when the cause of the omission or of the evil is voluntarily 
posited, otherwise we should have to say that a man may 
commit sin without knowing it, or while he is asleep. 

1 TheoL Mor. lib. 5, io. 



CHAPTER III 
OBSTACLES TO VOLUNTARY ACTION 

WE have seen that we are responsible only for those actions 
which are performed with knowledge or advertence and 
freedom of choice. Whatever tends to prevent or lessen 
advertence, or to restrict liberty, will tend to diminish our 
responsibility. Ignorance affects advertence, fear and violence 
influence freedom of choice, and concupiscence influences 
both. Something must now be said on each of these causes 
which affect the voluntariness and imputability of our actions. 

SECTION I 
On Ignorance 

1. Ignorance is the absence of knowledge which the person 
who is ignorant should have. It is thus distinguished from 
nescience, which is merely the absence of knowledge, without 
the implication that the knowledge should be possessed. 

Ignorance must also be carefully distinguished from error 
or mistake, which is a false judgement concerning something. 
Thus, if I simply do not know the person to whom I am 
speaking, I am in ignorance of his identity ; if I mistake him 
for someone else, I am in error. 

2. (a) With reference to the subject who is ignorant, 
ignorance is either invincible or vincible. 

Invincible ignorance cannot be dispelled by the use of 
ordinary diligence. This may arise in my mind either because 
no thought of my want of knowledge occurs to me, and so the 
idea of making inquiries never enters into my head, or because 
I have failed to acquire knowledge on the point, though I made 
all reasonable efforts to do so. What efforts should be made 
in any given case depends on the character and circumstances 
of the person and the matter on which he is ignorant. If the 
matter is of great importance, if it affects the salvation of souls 
or the spiritual and temporal welfare of large numbers, great 
efforts must be made to dissipate ignorance ; the efforts which 
would be sufficient in the case of one poorly instructed, or 
very much occupied with other weighty affairs, would not be 

ii 



12 HUMAN ACTS 

sufficient in other cases where these suppositions are not 
verified. In general, where knowledge is of obligation those 
efforts must be made to acquire it which ordinarily prudent 
and good men would exert in the circumstances. 

Vincible ignorance is such as can be removed by the use 
of the requisite diligence. Various degrees are distinguished 
by divines according as some, or little, or no diligence is 
exercised to dispel it or means are used to foster it. If means 
are used to foster it, the ignorance is called affected; if little 
or no diligence is used to dispel it, it is called crass or supine; 
if some diligence is used, but not what is required in the case, 
it is called simply vincible ignorance. 

(b) With reference to the object of ignorance, we must dis- 
tinguish ignorance of law, fact, and penalty. There is ignor- 
ance of law, if the law's existence is not known, as when a 
Catholic does not know that the Church forbids marriage 
within the third degree of kindred. There would be ignorance 
of fact, if it were not known that A. B. is related to C. D. 
within the third degree. Ignorance of the penalty is distin- 
guished from ignorance of law when some special sanction 
is not known, though the law itself is known. 

(c) With reference to the action of the subject, we distin- 
guish antecedent, consequent, and concomitant ignorance. 
Antecedent ignorance is not voluntary, it is not willed by the 
subject ; consequent ignorance is voluntary ; concomitant is not 
expressly willed, but the action which is done with concomitant 
ignorance would ex hypothesi be done, even if the ignorance 
did not exist. 

3. Invincible ignorance, as defined above, excuses from 
fault, so that, however bad an action done in invincible ignor- 
ance may be, it cannot be a formal sin. The reason is obvious ; 
there is no knowledge in the agent of the malice of the action, 
and so the bad action is involuntary, and not imputable. 1 

4. Vincible ignorance of the malice of the act, however, 
cannot excuse one who does wrong. He does not indeed will 
the evil in itself, but he wills its cause, and so it is voluntary 
in its cause and imputable. A person who sins in simply 
vincible ignorance, or even in crass ignorance, is indeed less 
blameworthy than one who sins with full knowledge of the 
malice of his act; the sin is only imperfectly voluntary, and 
less imputable than if perfectly voluntary. There is an 
apparent difference of opinion among theologians as to whether 
affected ignorance increases or lessens the malice of a wrong 

Prop. 2 damn, ab Alex, viii; 68 inter Baianas, can. 2,2,02. 



OBSTACLES TO VOLUNTARY ACTION 13 

action. With many modern authors it seems best to dis- 
tinguish the motive with which in each case ignorance is 
fostered. If the state of ignorance is fostered through fear of 
being compelled by knowledge to abstain from the sinful act, 
such affected ignorance would seem to lessen the malice of 
the sin; the wrongdoer would not in this case venture to sin 
if he had full knowledge, and so he fosters his ignorance; his 
will is less malicious than if he sinned with full deliberation 
and consent. If, on the contrary, he merely fosters his 
ignorance to be able to plead it in excuse, and he is so bent 
on sinning that he would do the act in the same way even if 
he had full knowledge of its malice, then it does not seem to 
diminish the sin ; it is rather a sign of an absolute determination 
to commit the sin. 1 

We saw in a former chapter that the degree of malice which 
attaches to a sin committed in more or less culpable ignorance 
is measured rather by the sinfulhess of the neglect to put 
away the ignorance, than by the sinfulness of the act in itself. 

5. Ignorance itself of what we are bound to know, as of the 
obligations of our state of life, of the truths of faith which are 
necessary to salvation, is sinful if consequent and vincible; 
antecedent and invincible ignorance is of course not sinful. 

6. Ignorance does not render an act invalid which has all 
other requisites for its validity; and so baptism conferred by 
one who knows nothing about its effects will be valid, if the 
matter and form are correctly applied with the intention of 
doing what the Church does. Substantial error or mistake about 
the person with whom marriage is contracted will invalidate 
the contract, while ignorance of who the person is will not, 
if there be the will to marry. 

SECTION II 
On Concupiscence 

i. In theology concupiscence is used in two distinct senses. 
It frequently signifies the inclination to evil, which in human 
nature is a result of the fall of our first parents. In this sense 
it is called sin by the Apostle. 2 Without any moral or im- 
moral implication the word is used here to denote any passion 
or any movement of the sensitive appetite towards its proper 
object. It comprehends, therefore, any movement of love, 
desire, or hatred, sorrow, anger, or delight. 

1 Bucceroni, i, n. 51, can. 2229. 

2 Trent, sess. 5, de pec. orig. 



H HUMAN ACTS 

Concupiscence is antecedent or consequent. The former 
precedes any action of the will, and so is involuntary. The 
latter is voluntary, either because it is deliberately and directly 
excited by the will, or at any rate willed in its cause. 

2. Antecedent concupiscence lessens the malice of an evil 
action which is done under its impulse. For concupiscence 
troubles the intellect, so that it cannot dispassionately weigh 
the moral quality of the object proposed to the will and the 
motives for rejecting it; moreover, concupiscence paints the 
object in more than naturally attractive colours, so that it 
exerts an undue influence on the will. Concupiscence thus 
disturbs the indifference of the will and renders the act which 
follows less voluntary and free. It is accordingly less im- 
putable to the agent. 

It sometimes happens that antecedent concupiscence renders 
the subsequent action involuntary, and so in no wise im- 
putable, however wrong it may be. This will be the case 
when some sudden onslaught of passion deprives the agent of 
the use of reason and blindly impels him to evil. Strong 
passions, such as love or anger, especially in impressionable 
natures, sometimes produce this result, and even when murder 
or suicide is committed in such circumstances juries are 
warranted in bringing in a merciful verdict of murder or 
suicide while temporarily insane. If, however, the passion 
was not altogether antecedent, but in the early stages of its 
onslaught there was room for deliberation, the consequent evil 
will not be altogether involuntary; it will to some extent be 
voluntary in its cause at least. 1 

[3 . It used to be a matter of dispute among theologians whether 
a man could be insane and not responsible for his actions in 
some one category, while he retained his self-control in others. 
In our days it will hardly be disputed that monomania exists, 
and if it exists, as, for example, in the matter of intoxicating 
drink, the monomaniac will not be directly responsible for his 
actions done under the influence of his madness, although he 
may be responsible for them in their cause. 2 

1 St Thomas, 1-2, q. 77, a. 7, can. 2206. 

2 Similarly, those who suffer from illusions may be so demented 
on the particular point as not to be responsible for actions which 
they perform under the influence of their illusion. It is a question 
of fact when this is the case, a fact which it is difficult even for experts 
to determine. 

Natural propensities to evil arising from hereditary taint or from 
temperament lessen the voluntariness of the action just as passion 
does, but they are not as a rule so strong as to make what in itself is 



OBSTACLES TO VOLUNTARY ACTION 15 

4. Consequent concupiscence increases the malice of a bad 
action if it is wilfully excited, because the tendency of the will 
to evil is voluntarily made more intense. If the passion is 
voluntary only in its cause, it is rather a sign of the great 
intensity of the perverse will from which it flows, but which 
it does not cause. 

5. The evil motions of anger, impurity, rash judgement 
which precede all advertence and deliberation of the mind, 
cannot of course be sinful, as they are not voluntary. They 
become sinful when consent is yielded to them after advertence 
to their malice. The question is discussed among theologians, 
whether it be sinful, and in what degree, to remain neutral 
under an evil motion of concupiscence, neither giving consent 
to it nor positively resisting it. If the question is raised 
concerning a vehement temptation to impurity, it may reason- 
ably be denied that it is ordinarily possible to remain neutral ; 
the danger of consenting would be too great. In such a case 
there will usually be a grave obligation to resist positively for 
fear of being drawn into giving consent. Positive resistance 
does not mean direct and physical effort, which would be 
worse than useless ; but it means that we must, under tempta- 
tion, avert our minds from the evil suggestion and occupy 
them with other thoughts. If, however, the question be put, 
whether sin is committed by remaining neutral under tempta- 
tion to evil, not deliberating about committing it, but simply 
neither consenting to it nor rejecting it, the correct answer 
would seem to be that a venial but not a mortal sin is thereby 

mortally sinful only venial. The struggle against vice is more diffi- 
cult for those who are subject to such propensities, but as long as 
they are in their right senses with the help of God's grace they can 
resist, if only they take the necessary means. The same must be 
said of those who have strengthened their passions and weakened 
their will by long indulgence in a habit of sin. V. Frins, De Act. 
Hum. i, n. 236. 

" There is not, and there never has been, a person who labours under 
partial delusion only, and is not in other respects insane." C. Mercier, 
Criminal Responsibility, 1905, p. 174. 

However, on p. 203 the same author writes : " The majority of 
insane persons are sane in a considerable proportion of their conduct ; 
and when in this part of their conduct they commit offences they 
are rightly punishable." Perhaps the explanation of this apparent 
contradiction lies in a sentence which immediately follows the last. 
It is this: " Since the limits between the sane and the insane areas 
of conduct of insane persons are ill defined, no insane person should 
be punished with the same severity that would be awarded to a sane 
person for the same offence." 



1 6 HUMAN ACTS 

committed. There is some sin, because we are commanded 
to rule the lower appetites and keep them in subjection to 
reason, which is not done in the case supposed. But the sin 
cannot be mortal, for there is no consent of the will, by which 
alone mortal sin can be committed. This is the teaching of 
St Thomas and of St Alphonsus. 1 

SECTION III 
On Fear 

1 . Fear is defined to be a perturbation of the mind on account 
of some present or future danger. 

It is grave or slight in proportion as the danger is serious 
or not serious. Absolutely grave fear is such as will seriously 
affect an ordinarily constant man, as the fear of death, of 
perpetual imprisonment, or of loss of goods ; relatively grave is 
such as will seriously affect anyone of timid disposition. 

Reverential fear is that which a subject feels lest he should 
offend his superior. Ordinarily, divines rank it as slight fear, 
but it may become grave if, for example, a very austere father 
threaten his daughter with loss of home or with his perpetual 
displeasure. 

Fear from without is the result of some external danger, 
which may arise either from a necessary cause, as, e.g., from 
the danger of shipwreck ; or it may be threatening from a free 
agent. Fear from within is from an internal cause, as the fear 
of death from a disease which has been contracted. 

2. The actions which are done out of fear are simply volun- 
tary, but they are usually also involuntary under a certain 
respect. 

There is no question here of actions which are done in fear 
or with fear, as when I walk with fear and trembling along a 
lonely road by night. We are concerned with the effect which 
fear has on human actions done in consequence of fear ; and 
unless it deprives the agent of the use of reason, which in rare 
cases may happen, the action remains voluntary, because it 
is done freely and deliberately to avoid the threatened danger. 
In such circumstances, as we saw above, the action is said to 
be simply voluntary ; but it is also involuntary under a certain 
respect, for, unless the danger threatened, the action would 
not be done. An exception must be made with regard to 
attrition elicited from fear of hell, which, if it is to be efficacious, 
must be simply voluntary and in no respect involuntary, for 

1 Theol. Mor. 5, n. 6. 



OBSTACLES TO VOLUNTARY ACTION 17 

* 

otherwise it would not help to justify the sinner in the sacra- 
ment of Penance. 1 We can easily see how this is possible 
with regard to sin. For other actions done through fear have 
some evil or loss annexed to them, on which account they are 
involuntary under some respect; while aversion from sin is 
wholly good and reasonable, and so there is no reason why 
repentance for sin from fear of hell should not be simply 
voluntary and in no respect involuntary. 2 

3. Inasmuch as bad actions done through fear are simply 
voluntary, it would follow that they are imputable to the agent, 
so that fear does not excuse him from sin. And this is true 
of such actions as are intrinsically bad and against the natural 
law. The Church has always considered those to be apostates 
who through fear of death or persecution deny their faith, 
though less culpable than those who renounce it without 
excuse (Can. 2205). , 

However, with regard to positive precepts, grave fear 
ordinarily excuses transgressors of them from sin. The 
reason is, -because the legislator is not presumed to desire that 
his laws should bind when their observance would entail such 
grave consequences to his subjects. Divines, relying on what 
we read in Holy Scripture, teach this doctrine concerning the 
positive law of God, and it will be all the more true of positive 
human legislation. 3 But if non-observance of a law or a 
command of a superior would cause great damage to the 
common good, then the law or command must be obeyed, 
even with loss of life ; for private advantage must yield to the 
requirements of the common weal. And so a soldier must 
stick to his post in war, even at the risk of life. 

SECTION IV 
On Violence 

i. Violence or coercion is the using of greater force than 
can be resisted to compel another to perform some action 
against his will. In certain connections the person who suffers 
violence is said in English law to be under duress. 

It follows from the definition that violence is from some- 
thing external to the agent ; no one can offer violence to him- 
self ; and that the subject resists to the utmost of his power. 

1 Trent, sess. 14, c. 4. 

2 St Alphonsus, 6, n. 442. 

3 St Thomas, 3, q. 40, a. 4, ad 3 ; 1-2, q. 100, a. 8, ad 4; Suarez, 
De Leg. 3, c. 30, n. 6; Can. 2205, sec. 2. 

I. 2 



1 8 HUMAN ACTS 

If the resistance is only partial, there is violence only under 
a certain respect (secundum quid). 

2. The elicited acts of the will cannot be forced by violence, 
for in that case the agent would will and not will at the same 
time. 

3. The other internal faculties, and much more the external 
faculties of man, may be subject to violence. If the violence 
is absolute, the resulting action is involuntary and not im- 
putable to him who suffers violence ; if the resistance is only 
partial, the action will be voluntary to a certain extent, and 
in the same degree it will be imputable to the agent (Can. 2205, 
sec. i ; 2218, sec. 2). 



CHAPTER IV 
THE MORALITY OF HUMAN ACTS 

SECTION I 
On the Essence of Morality 

i. BY performing good actions a man becomes a good man 
morally, and he is a bad man morally if he performs bad 
actions. Actions are called good or bad morally with reference 
to the norm or rule of human conduct. So that the morality 
of an action is its relation to the rule of human conduct. It 
will be a morally good action if it be conformed to the rule 
of conduct ; otherwise it will be a morally bad action. As men 
have differed, and do differ, widely in their views as to the 
meaning of human life and as to man's destiny, they naturally 
have differed, and do differ, widely in deciding what is the 
rule of human conduct. The rule in different systems will be 
progress, or the greatest happiness of the greatest number, or 
pleasure, or the categorical imperative of the individual reason. 
Even among Catholic philosophers and divines there is some 
difference of opinion as to what constitutes the fundamental 
norm of morality. Practically the different opinions come to 
much the same, especially as there is greater agreement among 
Catholics as to what are the formal and proximate rules of 
morality. The teaching of St Thomas and many others seems 
to be that the fundamental norm of morality is rational human 
nature as such. Good in general is that which is conformable 
to the being whose good it is; and so morally good actions 
will be such as are conformable to the rational nature of man 
considered in itself and in all its relations. Man's intellect 
can know man himself, the existence of God and our relation 
to him, our relations to other human beings, and to the world 
round about us ; knowing these things, our reason can tell us 
what actions are becoming and what unbecoming to such a 
nature. Moreover, reason tells us that although we have the 
physical liberty to do wrong, we are nevertheless under a 
moral obligation to abstain from it. Our most wise, and good, 
and provident Creator, who has given us our nature and placed 
us in the position which we hold, cannot be indifferent as to 

19 



20 HUMAN ACTS 

the manner in which we conduct ourselves. The still, small 
voice of conscience is there to tell us what is right, in the name 
of God whose herald it is, to approve of what we do well, to 
condemn what we do ill. The fundamental norm of right 
conduct, then, is man's moral nature, morally right conduct is 
conduct in conformity with man's nature in itself and in all its 
relations. This constitutes right order in the moral world, 
which God the Creator and provident Ruler of the universe 
cannot but will us to observe, and this divine Will or Reason 
bidding us to observe right order and prohibiting its viola- 
tion is the eternal law of God, the formal objective rule 
of morality. Human reason, applied to conduct, or conscience, 
is the formal subjective rule which makes known to us and 
applies the objective rule. 1 

2. The morality of a human act belongs to it inasmuch as 
it issues freely from the will with knowledge of its moral 
quality. Because it is the free product of the human will, a 
human or a moral act makes a man culpable or praiseworthy. 
Now the will alone is free, and so morality belongs properly 
to the internal act of the will. In a perfect human action, 
indeed, the external act must follow, if it is in the agent's 
power, in order to the completeness and perfection of the 
internal act; otherwise there will be no perfect and efficacious 
will. But the external act, which is called free only with 
reference to the will from which it proceeds, cannot have any 
separate morality of its own, nor of itself can it add to the 
morality of the internal act. In a complete human act, there- 
fore, consisting of an internal and external action, morality is 
formally in the internal act alone. Accidentally, on account 
of longer duration, or repetition, or greater intensity which 
the external act causes, it may add something to the goodness 
or malice of the internal act, but not in and by itself. A man 
is good or bad as his will is good or bad. 

From this it must not be concluded that an external sin is 
the same as an internal sin ; that if a man has committed forni- 
cation, it is sufficient to confess the desire and intention to do 
so ; the malice of the internal and external acts are the same 
substantially, but an internal act is different from an external 
act ; and so the sins also differ, for sin is a bad human act. 

3 . There is considerable difference of opinion as to whether, 
besides the division into good and bad actions, we must also 
admit a third class, neither good nor bad, but indifferent. In 
the abstract, indifferent actions certainly exist ; to take a walk, 

1 V. Frins, De Act. Hum. 2, n. 65. 



THE MORALITY OF HUMAN ACTS ai 

for example, in itself and in the abstract, is neither a good nor 
a bad action. But in the concrete, a man's intention, and the 
circumstances in which the action is performed, necessarily 
give it a moral quality. The intention must be honest or not, 
the circumstances must be such as to make the action con- 
formable to right reason or not, and so in the concrete any 
particular action must be either right or wrong ; it must be either 
good or bad, it cannot be indifferent. An action may of course 
be morally good, and yet not supernaturally meritorious, and 
so indifferent from a supernatural point of view; and this 
perhaps is the meaning of some of those divines who contradict 
the above teaching of St Thomas and the common opinion of 
the schools. 1 

4. An action which in itself is not conformable to right 
reason and order is against the law of nature and intrinsically 
bad. An action which in itself is not bad, but only bad because 
forbidden for good reasons by a lawful authority, as eating 
flesh meat on a day of abstinence, is said to be bad because 
forbidden; while intrinsically bad actions are forbidden by 
God because they are bad and inordinate. However, not all 
these intrinsically bad actions are bad in the same degree. 
Some are necessarily and always so, because in all circum- 
stances they remain inordinate, as hatred of God, our first 
beginning and last end. Others in certain circumstances may 
become lawful, as taking what belongs to another, which in 
certain circumstances may be done without sin. The State for 
good reason may grant leave to take another's land for a new 
railway ; and a fortiori almighty God, the supreme Lord of all 
created things, may, without doing an injury, take the life, 
rights, or property of his creatures. Many divines explain 
the spoliation of the Egyptians, and the divine toleration of 
polygamy in the Old Law, by the aid of this principle. 

Finally, some actions, as obscene touches and looks, are 
commonly inordinate and sinful; but if there is good reason 
for them, and due caution be exercised, they become lawful. 2 

SECTION II 
The Sources of Morality 

We saw in the preceding section that there are various rules 
by which we know whether a human action is good or bad. 
It will be a good action if it be conformable to right order, 
otherwise it will be a bad action. It remains for us to con- 

1 St Thomas, 1-3, q. 18, a. 9. 2 Gury, i, n. 26. 



22 HUMAN ACTS 

sider what elements in an action make it conformable or not 
with right order. What have we to attend to in order to know 
whether an action is according to right reason or not ? 

There are three such elements, of which sometimes one, 
sometimes another, sometimes all together, contribute to make 
the actions in right order or, on the contrary, inordinate. They 
are the object, the end, and the circumstances of the action. 

Point I 
The Object 

1 . By the object is here meant that to which the will primarily 
and directly tends ; that which it determines to do looked at in 
itself, apart from the circumstances with which the action when 
done will be clothed ; or it is the action considered in the abstract. 

2. It is obvious that some objects, in the sense above defined, 
have an objective morality of their own, and this causes the 
will which tends towards them to be either good or bad as the 
object is good or bad. To blaspheme God is an action which 
no creature of his can will without the greatest inordinateness. 
The will to commit murder, or to steal another's property, 
is essentially an evil will, because it tends to an evil object. 
On the contrary, to love God, to relieve human misery, to 
show love, honour, and reverence to one's parents, are good 
actions, because these objects are good, and the will that tends 
to them is good. 

Human actions, then, derive their specific morality from 
the object, whenever that object is of itself conformable to 
rational human nature or, on the contrary, not conformable 
to it. If the object is indifferent, without any objective moral 
quality, as walking, the action will derive its morality from the 
circumstances in which the action is performed. 

Point II 
The End 

1. By the end is here understood the reason or motive 
which induces the agent to act. 

The end of all human life is called the last end ; other motives 
for action are intermediate ends. An end is primary if it holds 
the first place among several, and would be sufficient by itself 
to induce action ; otherwise it is secondary. 

2. It is obvious that the end or motive which induces the 
agent to act holds a very prominent place among the sources 



THE MORALITY OF HUMAN ACTS 23 

of the morality of an action. For it is the object to which the 
will tends, the prospect of gaining which moves the agent to 
act ; but, as we saw in the last point, the motion of the will takes 
its moral quality from the object ; a will, then, which tends to 
a good end will so far be good; a will which tends to a bad 
end will be bad. But the morality of an action resides chiefly 
in the will, so that a good or bad will, derived from the motive 
of an action, must necessarily contribute to the goodness or 
badness of that action. It is the end or motive which sets the 
will in motion and gives its own moral quality to the action 
which follows. One, then, who steals money in order to be 
able to commit adultery commits a sin against justice, induced 
thereto by a desire to sin against chastity, and as St Thomas, 
following Aristotle, says, he is more of an adulterer than a 
thief. 1 

3. The end which the agent has in view may coincide with 
the natural scope of the action, as when a man eats to support 
life. The extrinsic end is then said to correspond with the 
intrinsic end of the object. Or it may be different, as when 
a man eats merely for the sake of pleasure; and a man may be 
moved to action by a variety of subordinate ends, as when he 
eats to keep up his strength, to be able to work, to obtain the 
money wherewith to be able to support his family, and so fulfil 
his duty. 

4. If the object of the action be good, and the extrinsic end 
of the agent be good also, the action will have a twofold merit. 
And so there is a twofold merit in giving an alms to relieve 
distress for the love of God. On the other hand, a grievously 
sinful motive corrupts and makes an otherwise good action 
grievously wrong. It turns the agent altogether away from 
God, his last end. And so it would be a mortal sin to give 
an alms to a poor woman in order to seduce her. 

Even a venially sinful motive, if it be the whole or the 
primary motive for the action, corrupts the whole act and 
makes it venially sinful; for then a bad object is sought by 
good means indeed, but the means are infected with the pur- 
pose to which they are prostituted. And so one who preaches 
merely out of vanity commits a venial sin. 

If, however, an end be only venially sinful, and be not the 
whole or primary motive of the agent, the resulting action 
will be partly good and partly evil. We suppose that the 
object is good, a partial motive or motives are also good; in 
this case a partial and secondary bad motive, which is only 

1 St Thomas, i-a, q. 18, a. 6. 



24 HUMAN ACTS 

Venially sinful, cannot corrupt the whole action. One who 
preaches principally out of obedience, but more willingly 
because his vanity is flattered, performs an action which is 
substantially good, but which is infected with a slight defect. 

5. A good motive gives its own moral quality to an in- 
different action and makes it good. And so I do an act of 
charity by depriving a man of a knife with which he was 
threatening to commit suicide, while the same action done 
with a view to making the knife my own would be theft. 

There is a controversy among theologians as to whether the 
purpose or intention with which an action is performed can 
make an action unjust, which, apart from that intention, is 
not so. 

Would a man, for example, be guilty of an act of injustice 
towards his enemy, and bound to make restitution to him, if 
he committed a crime, foreseeing and intending that it should 
be imputed to his enemy, who would be punished for it ? 
Of course he is guilty of a grave sin by giving way to such 
an act of hatred, and if by any means he procures the false 
accusation of his enemy he is also guilty of injustice by causing 
his undeserved punishment. But supposing the false accusa- 
tion, though foreseen, was in no way procured by him, but 
was brought about by other causes, would his intention make 
him guilty of injustice towards his enemy and bound to make 
restitution to him ? 

Many theologians affirm tha,t it would, 1 but seeing that the 
false accusation is indeed occasioned by the crime, but not 
caused by it, it would seem that the bad intention of the man 
who committed the crime was incapable of supplying the 
causal connection between the crime and the false accusation. 
The intention alone cannot change the nature of the external 
action. But if this be so, he is not the effective cause of the 
injury done to his enemy, and he is not bound to make restitu- 
tion to him. 

A good intention certainly cannot make a bad action good. 
It is not lawful to tell a lie even to save another's life, according 
to the teaching of Innocent III. Evil must not be done that 
good may come of it. This is the teaching of Holy Scripture 
and of the Catholic Church, nor have Jesuits any other doctrine 
different from that of the Church. Father Dasbach promised 
to give anyone two thousand florins who would prove in opejn 
court that the Jesuits had ever taught that the end justifies 
the means. Count Paul von Hoensbroech undertook to do 

1 Lugo, Dejustitia, disp. 8, n. 75. 



THE MORALITY OF HUMAN ACTS 25 

so, but he failed in his suit when it was tried at Cologne in the 
spring of I9O5. 1 

6. Here we must touch upon a question which has raised 
a good deal of controversy among divines, and which still 
divides them. Some, following the great St Augustine, hold 
that it is a venial sin to eat and to perform other operations 
of our animal nature for the sake of the pleasure which they 
give us. Others, on the contrary, hold that the sensible 
pleasure which accompanies the satisfaction of our animal 
appetites is good, inasmuch as it is natural and intended by 
the Author of nature, and so to perform actions which are not 
wrong in themselves from the motive of pleasure cannot be 
sinful. If it were not for the sake of the pleasure afforded 
by eating and by other animal functions many men would 
abstain from them altogether through disgust. The imperious 
stimulus of our fleshly appetites and their satisfaction is 
required for the preservation and increase of the human race. 
These satisfactions of our animal nature must indeed be ruled 
and moderated by right reason, the norm of human conduct. 
If they are thus moderated, they are conformable to man's 
nature, they are in right order and morally good. This seems 
to be the teaching of St Thomas ; 2 it is the commoner opinion 
among modern theologians, nor is it involved in the condemna- 
tion of the eighth and ninth propositions condemned by 
Innocent XI on March 2, 



Point III 

On the Circumstances of an Action 

i . By the circumstances of an action we understand certain 
accidental conditions, which, as it were, surround (circumstant) 
and complete the substance of the action. There are seven 
enumerated in the doggerel line 

Who, what, where, when, by what means, why, and how. 

The circumstance indicated by who does not signify the 
agent merely as the author of the action ; the action must neces- 
sarily be done by someone ; but it signifies some special quality 
in him or condition which affects the morality of the action. 
Thus if a son strike his father, the circumstance of the parental 
relation changes the morality of the act, and makes it a sin 

1 Civilta Cattolica, Oct. 7, 1905, p. 3. 

2 Oont. Gent. 3, c. 9, n. i ; Summa, 2-2, q. 141, a. i, ad i. 

3 V. Frins, De Act. Hum. 2, n. 505. 



a6 HUMAN ACTS 

not only against justice, but also against the fourth command- 
ment or the virtue of piety. If a thief steals a consecrated 
chalice, the sacredness of the object makes the sin a sacrilegious 
theft, a circumstance indicated by what. And so of the rest. 

It is obvious that circumstances of this kind are sources of 
morality, for they make the action conformable or not to the 
norm of morality. It is against right reason to strike anyone 
unjustly, but it is still more inordinate to strike a parent. At 
the proper time it is a good action to play in the proper place 
and with good playmates; if any of these circumstances be 
wanting, the action becomes so far bad. 

2. Some circumstances affecting the intensity, or quantity, 
or duration of an action add to or lessen its malice, but they 
do not change its moral species ; such circumstances are called 
aggravating circumstances. Although they do not change the 
moral species of the act, they sometimes make a venial sin 
mortal, or vice versa, as the quantity in theft; they are then 
said to change the theological species of the action. If the 
circumstances add to the action a special and distinct malice 
of their own, they change its moral species, as the sacred object 
or place in a sacrilegious theft. Such a theft is not only 
against justice, but also against the virtue of religion. 

3. In order that an action may be altogether and simply 
good, the object, the end, and the circumstances must all be 
good; for good indicates completeness and perfection; there 
.is evil in any defect. If all the sources of morality are evil, 
the action may have a triple malice; as when a thief steals 
Church plate in order to be able to indulge his vicious pro- 
pensities. If only one source or circumstance of an action 
be mortally sinful, the perpetration of it turns the evil-doer 
away from God and makes the action wholly bad. An acci- 
dental and secondary circumstance, when only venially sinful, 
does not corrupt the whole action; it only lessens its merit. 
Thus it is a grievous sacrilege to receive Holy Communion in 
a state of mortal sin; a state of venial sin only makes the 
Communion less fruitful. 

SECTION III 
On Merit 

i. It follows from what has been said in the preceding 
section, that an action will be morally good if the object, end, 
and circumstances are good. The object, end, and circum- 
stances will be good if they are conformable to man's rational 



THE MORALITY OF HUMAN ACTS 27 

nature and to the eternal law of God. An opinion was held 
by some theologians that besides these conditions it is necessary 
to refer, actually or at least virtually, all our actions to God; 
otherwise they will at least be venially sinful. These theo- 
logians rested their opinion on certain texts of Holy Scripture 
and on passages from some of the Fathers, especially St 
Augustine. The principal Scripture text is from St Paul's 
First Epistle to the Corinthians, x 31: " Therefore whether 
you eat, or drink, or whatsoever else you do; do all to the 
glory of God." There are various interpretations of the 
passage, but the meaning seems plain from the context. 
St Paul is teaching the Corinthians the duty of avoiding 
scandal to Jews, Gentiles, and to the Church of God. They 
must so order their actions, even those that are indifferent 
in themselves, such as eating certain kinds of food, as not to 
be a cause of offence to others. Then will their actions all 
tend to the honour and glory of God, then will they do all 
things in charity (i Cor. xv 14). There is obviously no word 
here which can be legitimately construed into a command to 
direct all our actions to God by an actual or virtual intention 
of the will. Such a merely internal act would not tend to 
edify others, and in the text quoted this is what St Paul is 
urging the Corinthians to do. Other passages which are 
quoted in support of the opinion are similarly capable of being 
explained in a sense which affords the opinion no support. 
It is indeed a truth, which is insisted on by other theologians, 
that if an action be honest and good and performed because 
it is conformable to right order, it is thereby implicitly directed 
to God, who wills the observance of right order, and who is 
himself the end to which rightly ordered action tends. In 
this sense it is true that every good action must be referred to 
God ; but every good action is thus referred to him by the very 
fact that the object, the end, and the circumstances are good. 1 

2. Something else is required to make a naturally good 
action supernaturally meritorious. The question of merit 
belongs to the dogmatic treatise on grace; here it will be 
sufficient to give something about the subject in outline, in 
order to round off our treatment of human acts. 

Merit in general is a certain value in an action which gives 
the agent the right to be rewarded by him in whose behalf 
the action is performed. Merit, then, with God will be a right 
to be rewarded for one's actions by God. Theologians dis- 
tinguish between condign and congruous merit. The former 

1 V. Frins, De Act. Hum. 2, n. 290. 



28 HUMANACTS 

implies that there is some sort of equality between the value 
of the action and the reward, so that the reward is due to the 
agent in justice. If there is not this equality and title in 
justice, the merit will be only congruous. We can merit 
condignly an increase of grace, life eternal, and an increase of 
glory, as the Council of Trent defined. 1 Efficacious graces, by 
which we receive, preserve, and increase sanctifying grace, and 
the gift of final perseverance, are the objects of congruous merit. 

3. In order that an action may be condignly meritorious, 
two conditions are required on the part of the agent, two on 
the part of the action, and one on the part of God. 

The agent must be still on his probation in this present life ; 
there is no meriting when man's day is done. He must also 
be in the state of grace and friendship with God ; the actions 
of one who is out of grace and who is a rebel and an enemy 
of God cannot deserve any reward from him. 

The action itself must be morally good, not bad, as is 
obvious; and it must be supernatural, elicited by means of 
grace and from a motive which is rooted in faith. Otherwise 
it will be merely of the natural order, deserving indeed of a 
natural reward, but having no proportion to the supernatural 
end to which we know by faith that man is destined by God. 

On the part of God there must be a promise made by him 
to grant such a reward to such an action. For otherwise, 
after doing all that we can, we must acknowledge that we are 
useless servants, who cannot claim anything as due to them 
in justice from God, their Creator and Lord. He has every 
claim to our service without our having a strict right to any 
reward in return. According to the very probable teaching 
of St Thomas, 2 all the deliberate actions of one who is in a 
state of grace are either meritorious or sinful. In order to 
be in a state of grace, such a one must have fulfilled all the 
duties which bind him under pain of grievous sin, and among * 
these is the obligation of eliciting at the proper times an act 
of love of God. By such an act the just man refers himself 
and all he does to God, and thus his good actions are elicited 
by the help of grace and tend to man's supernatural end, the 
beatific vision of God. In any case, if we are careful fre- 
quently to renew our intention of pleasing God, and with his 
grace remain free from mortal sin, we may rest in the assured 
hope that all our good actions are meritorious of life eternal. 

1 Trent, sess. 6, can. 32. 

2 De Malo, q. 2, a. 5, obj. 10; in lib. 2, dist. 40, a. 5, ad 6. 



BOOK II 
ON CONSCIENCE 

CHAPTER I 
THE NOTION OF CONSCIENCE 

i. THE voice of conscience is the authoritative guide of man's 
moral conduct. Not that the individual conscience is inde- 
pendent of all authority ; if the individual conscience is right, 
it proclaims the duty of submitting to all properly constituted 
authority, and especially to the supreme and absolute authority 
of God. It is, as theologians are fond of saying, the herald 
or ambassador of God to each individual, making known to 
him and applying the eternal law of God to the conduct of life. 

Although the term is also used with other meanings, here 
conscience signifies a dictate of the practical reason deciding 
that a particular action is right or wrong. The process by 
which we arrive at this judgement of the practical reason may 
be put in the form of a syllogism. The major premise will 
be some general law of conduct, the minor will be its applica- 
tion to the particular case, the conclusion will be the judge- 
ment, which is nothing else but conscience. Thus when a 
precept has been given by one who is in lawful possession of 
authority, the dictate of conscience is implicitly arrived at 
somewhat as follows : I must obey all who command me with 
lawful authority. A. B. commands me with lawful authority. 
Therefore I must obey him is the conclusion and the dictate 
of conscience. 

2. Conscience is said to be certain, dubious, or probable, as 
the motive on which it is grounded is morally certain, doubtful, 
or only probable. 

A right conscience is in accordance with the eternal law of 
morality; an erroneous conscience gives a false instead of a 
true judgement. If the mistake could and ought to have been 
avoided by the agent who has a false conscience, the conclu- 
sion is vincibly erroneous ; otherwise it is invincibly erroneous. 

A strict conscience is one which is apt to decide that there 
is an obligation when none exists, or a greater obligation than 
there really is; a lax conscience, on the contrary, is apt to 

29 



30 ON CONSCIENCE 

deny an existing obligation or to make it less than it is in fact ; 
a scrupulous conscience without sufficient reason apprehends 
sin where there is none. 

A dictate of conscience which precedes the action, judging 
it to be right or wrong, is said to be antecedent; that which 
follows an action, approving it as rightly done, or condemning 
it as wrong and disturbing the inward peace of the soul, is 
consequent. 



CHAPTER II 
ON THE CERTAIN CONSCIENCE 

i . CERTAINTY in general is a firm assent of the mind to some- 
thing known, without the fear of mistake. In mathematics 
and in other branches of exact science we can often attain 
absolute certainty, which rests on the evident truth of the 
principles which are employed to arrive at it. For anyone 
who is capable of following the demonstration there can be 
no manner of doubt that the angles of a triangle are together 
equal to two right angles. In the science of morality we have 
frequently to be content with a lower degree of certainty than 
this; there is often some obscurity about the principles to be 
applied, and human acts are not the matter of necessary and 
unvarying law. We have to be content with what is called 
moral certainty; but this again is of various degrees. I am 
morally certain of the existence of Berlin, though I never saw 
the city. Any person who doubted of its existence would be 
thought to be insane. The grounds on which the judgement 
that Berlin exists are based are so many and so strong that 
they leave no room for prudent doubt in the matter. In such 
cases we have perfect moral certainty. In other cases I may 
be conscious that mistake is possible but not probable, as 
when a man has been condemned on evidence which has 
satisfied a jury of intelligent men. In such cases if there can 
be no prudent doubt about the justice of the verdict I have 
moral certainty of an imperfect but real kind. If I could not 
safely rely in guiding my conduct on such a degree of certainty, 
I should have to abstain from action altogether. Ordinarily 
greater certainty cannot be obtained in human affairs. 

2. In order to act lawfully and rightly, I must have at least 
moral certainty of the imperfect kind that the proposed action 
is honest and right. This degree of certainty will be sufficient, 
for ordinarily no greater can be had, as we have just seen. 
It is also required for right action ; for if I am not at least to 
this extent morally certain that my action is right, I am con- 
scious that it may (be wrong. In |this case I am bound to 
pause, and satisfy myself that it is right before acting ; for if 
I do not do so my will is ready to embrace what may be wrong 



33 ON CONSCIENCE 

I am ready to do the action whether it is in right order or not. 
But such a will is malicious ; it is not firmly set on doing what 
is right; and sin is thereby committed. 

A subjectively certain conscience then, which tells me 
without prudent doubt that the action is right, is required 
for lawful action; " All that is not of faith is sin," as St Paul 
says. 1 It will be sufficient if we have imperfect moral certainty, 
as we have seen. 2 

3. If I have this imperfect moral certainty that my action 
is right, I am justified in acting, and if with such certainty 
my conscience tells me that I am bound to act, I must do so, 
even though my conscience be erroneous. For my action is 
morally good if my will be good. My will is good when it 
tends to a good object as represented by my intellect, 
not as it is in itself. But if my will follows my conscience 
and determines on what it prescribes, my will then tends to 
a good object as represented by my intellect and is a good will. 
So that even though my conscience be erroneous, I am justified 
in following it, and I am bound to follow it when it prescribes 
any action to be performed. 3 

This is true whenever I have a certain conscience that is, 
when I have no doubt or suspicion about the honesty of my 
action, even though my conscience be erroneous. If I were 
the wilful cause of my conscience being in error by not taking 
means to inform it correctly, then any objectively wrong action 
that I perform is voluntary in the cause, and so far imputable 
to me, but here and now I must follow my conscience. 

I am said to be bound by my conscience because it compels 
me to follow it under pain of doing wrong, committing sin, 
and being exposed to the pangs of remorse. It binds me also 
in the name of God, whose will it makes known to me. It 
speaks, therefore, with the authority of God, it sternly bids 
me follow his behests, and it reproves me with the authority 
of a superior if I neglect to follow its promptings. As repre- 
senting the will of God its authority is greater, as St Thomas 
teaches, 4 than that of any merely earthly superior. 

4. The question as to whether in any particular case a 
person acted with an erroneous conscience is a question of 
fact, which only he and God can decide. Still, following 
approved theologians, we may make use of certain presump- 
tions drawn from the nature of things and from experience. 
It may be admitted that ignorant and dull people may have 

1 Rom. xiv 23. 2 St Thomas, 2-2, q. 70, a. 2. 

3 St Thomas, 1-2, q. 19, a. 5. 4 De Verit., q. 17, a. 5. 



ON THE CERTAIN CONSCIENCE 33 

an invincibly erroneous conscience concerning the malice of 
merely internal sins committed in thought only ; but we should 
except efficacious desires to do what is known to be wrong. 
A person can scarcely know that the external action is morally 
wrong and be ignorant of the malice of an effective desire to 
commit such an action. 

Again, the first principles of morality, which are certain 
general axioms of conduct, such as, Do to others as you would 
be done by, can scarcely fail to be known by anyone who has 
the use of reason. Even the secondary principles of the 
moral law, or the precepts of the Decalogue, are usually known 
by those who have attained the use of reason among civilized 
men; if in any case there is ignorance of them, it is vincible 
ignorance, and so more or less culpable. Theologians readily 
admit the possibility of an invincibly erroneous conscience 
concerning the application of the general principles of morality 
to concrete cases. The theological disputes which they 
chronicle are proof of the fact. 1 

1 St Thomas, 1-2, q. 94, aa. 4, 6. 



i. 



CHAPTER III 
ON A DOUBTFUL CONSCIENCE 

i. WHEN we have some knowledge of a matter which does 
not amount to a certainty, various states of mind may be 
distinguished with respect to the mind's inclination to form 
a judgement about the matter in question. If no reasons are 
known for either affirming or denying a proposition, or if there 
are as weighty reasons for one as for the other, the mind 
suspends judgement, and is said to be in doubt. Doubt, then, 
is the suspending of judgement about a matter apprehended 
by the mind. A doubtful conscience, therefore, will be a 
suspension of judgement about the lawfulness of some 
action. 

If some slight reason draws the mind in one direction, we 
have then a suspicion about the matter. If there be a good 
solid reason or reasons for forming a judgement in a particular 
sense though there is not sufficient ground for certainty, and 
it is felt that the opposite may be true, the mind then forms 
an opinion on the matter. 1 

Theologians distinguish a negative from a positive doubt. 
There is negative doubt when the mind suspends judgement 
for want of reasons on one side or on the other ; if there is an 
apparent equality of reasons on either side, the doubt is 
positive. In this chapter we confine our attention to negative 
doubt, the sense in which the term doubt is usually understood 
in theology. A speculative doubt has reference to some 
question in the abstract apart from present action, as when 
I doubt whether it is allowed to fish on Sundays, though I 
have no intention of actually fishing: a practical doubt has 
reference to the lawfulness of an action which there is question 
of performing here and now. 

A doubt about law has reference to the law's existence or 
its interpretation; a doubt about fact has reference to fact. 

2. It is not lawful to perform an action with a practically 
doubtful conscience as to whether the action is right or wrong. 
The reason is obvious; for, as we saw in the last chapter, we 
must have a certain conscience that the action is right before 

1 St Thomas, 2-2, q. 2, a. i. 
34 



ON A DOUBTFUL CONSCIENCE 35 

performing it, otherwise sin is committed, and one who has 
a doubtful conscience has not a certain conscience. 

The sin which is committed by one who acts with a practi- 
cally doubtful conscience as to whether the action is right takes 
its species and gravity from the doubtful conscience. If I 
eat meat with a practical doubt as to whether it is not forbidden 
on that day by the Church, I commit a sin of the same kind 
and malice as if I ate meat knowingly on a day of abstinence. 
The reason is obvious from what was said about a certain 
conscience. Trie species of a sin and its malice depend upon 
the mind and will of the agent, and when one acts with a 
doubtful conscience the will is prepared to commit a sin of 
the kind apprehended, and by that very act it commits the sin. 

3. As long as the conscience is in a state of practical doubt, 
one may abstain from action altogether, or do what in any 
case would be licit. There is no danger of sin if, while doubt- 
ing whether it is allowed to eat meat, one abstains from food 
altogether, or eats only what is allowed on days of abstinence. 
The axiom In dubio pars tutior est sequenda is to be taken 
in this sense. An effort may also be made to resolve the 
doubt by making inquiries of those who know, by consulting 
authorities, or by making use of certain principles of conduct 
which are approved by law and right reason. In this manner 
a certain conscience may frequently be formed. 

4. There are various principles or axioms suitable for the 
purpose of forming one's conscience when in doubt. They 
are for the most part taken from canon law, but they are also 
used in questions belonging to the forum of conscience. 

In dubio melior est conditio possidentis. Possession is properly 
a physical fact, and consists in the corporal detention of a 
thing. In a wider sense rights are objects of possession, as 
a right of way, or the right to one's liberty; so that if one's 
liberty has hitherto been unrestricted, it is said to be in posses- 
sion. The very fact of possession gives a right to continue 
in possession unless there is an adverse and stronger claim. 
There is also in the possessor a presumption of title to possess, 
for all men are jealous of their rights, and usually do not 
allow their property or rights to be held by others as owners. 
If, then, I am in possession of some object or right, and a doubt 
supervenes as to whether I am entitled to possession in the 
case or not, the question may be solved in the forum of con- 
science as it would be in a court of law, by applying the maxim 
In dubio melior est conditio possidentis^ 

1 Cf. Irish Eccles. Record, Sept. 1899. 



36 ON CONSCIENCE 

If, then, a doubt arises as to whether I have said my breviary, 
I must say it, for the law is in possession; if on the contrary 
a doubt comes into my mind as to whether I have taken food 
after midnight, I may go to Holy Communion, because my 
right to receive is in possession. 

5. In dubio standum est pro eo pro quo stat praesumptio. A 
presumption is a probable conjecture about an uncertain event. 
The conjecture is such as would be formed in the circum- 
stances by a man of ordinarily sound judgement and prudence. 
This is called a praesumptio hominis to distinguish it from a 
praesumptio juris, which the law itself sanctions in certain 
circumstances. Thus, according to the old canon law, if the 
parents of a boy and girl promised them in marriage and they 
did not express dissent, there was a, praesumptio juris that they 
gave their consent, and they were reputed betrothed to each 
other. 1 This praesumptio juris admits, indeed, of proof to the 
contrary ; in cases where proof to the contrary is not admitted, 
there is praesumptio juris et dejure, as it is called. 

When in doubt, I can frequently form my conscience by 
the aid of this axiom. If, for example, I am in the habit of 
saying my little hours after breakfast, and some evening a 
doubt occurs to me whether I said them on that day, I need 
not say them then, the presumption being that I said them 
in the morning as usual, and In dubio standum est pro eo pro 
quo stat praesumptio. 

6. In dubio factum non praesumitur sed probari debet. Simi- 
larly, Nemo praesumitur mains donee probetur. These axioms 
are understood of some principal fact, the fact of baptism, for 
example, or the commission of a crime, which obviously should 
not be presumed. If on the contrary the principal fact is 
certain, and a doubt arises as to some accessory circumstance, 
then other axioms should be used to guide the conduct: as, 
In dubio omne factum praesumitur recte factum; or, In dubio 
praesumitur factum quod de jure faciendum erat; or, In dubio 
standum est pro valore actus. So that if I am certain that I 
baptized a child, but begin to doubt whether I anointed the 
head with chrism, according to the ritual, I am not bound to 
supply the ceremony afterwards. 

1 Cap. un., de despon. impub. in Sexto. 



CHAPTER IV 
ON THE PROBABLE CONSCIENCE 

i. A SUBJECTIVELY certain conscience that the proposed action 
is lawful is required before performing any action, as we have 
already seen. A great difficulty a difficulty which has to be 
faced by all moralists arises from this principle in consequence 
of the uncertainty as to whether many actions in the concrete 
are lawful. One need not consult the works of moralists to 
find out what difference of opinion there is among experts on 
many practical questions of morals; It will be sufficient to 
consult one's own experience. In the conflict of rights and 
duties, and in the obscurity which exists as to the application 
of moral principles to concrete cases, we are frequently at a 
loss as to what course duty prescribes. The cases which are 
constantly submitted to the decision of courts of law, but 
which also belong to morality, illustrate the familiar truth that 
opinion and not certainty is very often alone attainable in the 
field of conduct. But if this be the case, what is a conscientious 
man to do ? He finds himself in a difficulty ; what the right 
thing to do under the circumstances may be is not clear. A 
young man has promised to marry a girl somewhat his inferior 
in social position ; they are both satisfied that the union would 
be a happy one for both, but the young man's parents will not 
hear of the thing, and strictly forbid him to see the girl again. 
Must he obey his parents, or may he follow his inclinations 
and keep his promise ? He consults those whose knowledge 
and judgement he respects, and they give him contrary 
decisions. He goes to recognized authorities on morals, and 
finds the same difference of opinion. 

This example is but a type of innumerable questions which 
constantly arise in everyday life. Is it possible to lay down 
any universal principle for the solution of such doubtful cases, 
so as to be able to act with a certain conscience ? 

Catholic theologians answer this question in the affirmative, 
but they are not agreed as to what the principle is. A prob- 
abiliorist would tell the young man that he must obey his 
parents and break off the engagement unless the opinion that 
he may marry the girl in spite of the prohibition is distinctly 

37 



38 ON CONSCIENCE 

more probable than the opposite. An equiprobabilist would 
say that he may marry the girl if the weight of opinion is fairly 
equal on either side. A probabilist would maintain that he 
may marry her if there is a solidly probable opinion which 
favours that course. The terms are technical, and their 
meaning should be carefully studied. 

An opinion, as we have already gathered from St Thomas, 
is an adhesion of the mind to one proposition, but with a 
consciousness that the opposite may be true. 

A probable opinion is one which rests on good and solid 
grounds, such as would incline a man of prudence and judge- 
ment to embrace it. If the intrinsic reasons of the opinion are 
the grounds for embracing it, we have an intrinsic probability ; 
if authority is the ground, we have an extrinsic probability. 

A more probable opinion is one which rests on weightier 
reasons than the opposite, but which leaves the opposite still 
probable. 

A very probable opinion rests on such solid grounds that 
the opposite is not considered solidly probable. 

A morally certain opinion excludes even slight probability 
in the opposite ; it is an adhesion of the mind to a truth without 
any fear of mistake. 

2. In this difficult question, the Catholic Church so far has 
been content to condemn extreme views, and allows her 
children to follow any of the moderate systems mentioned 
above. Alexander VIII 1 condemned rigorism, which required 
direct moral certainty in all cases about the lawfulness of an 
action, and denied that it is ever lawful to follow' an opinion 
which is very probable among several. Laxism was con- 
demned by Innocent XI, since it taught that one might lawfully 
act on a slight probability. 2 The systems which are known 
as Probabiliorism, Equiprobabilism, and Probabilism all have 
their adherents ; the Catholic moralist is free to follow whichever 
he wishes. 

To us it seems that probabilism is the true system, and if it 
be rightly understood, as it is taught by its moderate supporters, 
and not as it is misinterpreted by its opponents, we are con- 
vinced that it will recommend itself to practical common sense. 

Its maxim may be formulated thus: When there is only 
question of committing sin or not, it is lawful to follow a 
solidly probable opinion, even though the opposite may be 
more probable. 

1 Prop. 3, condemned December 7, 1690. 

2 Prop. 3, condemned March z, 1679. 



ON THE PROBABLE CONSCIENCE 39 

The wording of the formula should be carefully weighed. 
The words " when there is only question of committing sin 
or not " limit the application of the principle to cases where 
the only question is whether by following such a course sin 
will be committed because a certain law, human or divine, will 
be broken. Probabilism, then, cannot be applied to cases 
where the validity of an act is in question, where some end 
must be obtained, or where there is question of the certain 
right of some other person which must be respected. In all 
these cases we are bound to safeguard the end by taking means 
that are sure and not merely probable. These are not so 
many exceptions to the use of probabilism; there is a certain 
obligation to use secure means to obtain the end in view in 
such cases, and so there can be no question as to whether 
probabilism is applicable or not. This will explain why 
Innocent XI condemned a proposition which asserted that it 
is not unlawful for a minister of the sacraments to follow a 
probable opinion about their validity when administering 
them; and another, which taught that a judge might use 
probabilism in giving sentence in a court of law ; and a third, 
which excused an infidel who followed a probable opinion and 
remained in infidelity. 1 In all these cases there is not merely 
question of sin, but the certain rights of others are at stake, 
or there is question of an end which cannot lawfully be exposed 
to risk. 

Again, the words " it is lawful to follow a solidly probable 
opinion " should be noted. It is not a question as to what 
is more perfect, what the noble and generous thing to do may 
be. The rule merely asserts that there is no obligation under 
pain of sin to follow the more perfect course, if in the case 
there be one. 

Finally, the words are added " even though the opposite 
may be more probable." For the greater probability of the 
other view does not make it certain, nor is the supposed greater 
probability a sure guarantee that the more probable view is 
the more true. It very frequently happens that an opinion 
which is considered more probable at one time is thought less 
probable or altogether improbable at another. Moreover, 
degrees of probability are very difficult to determine. What 
seems more probable to one theologian seems less so to 
another, or even to the same at a different time. And even if 
it be granted that one opinion is certainly and absolutely more 
probable, the opposite may for all that remain solidly prob- 

1 Decree March a, 1679, props. I, a, 4 



40 ON CONSCIENCE 

able. With these provisos the proof of the thesis is not very 
difficult. 

3. Whenever there is a solidly probable opinion that a 
particular action is lawful, there is no certain law forbidding 
one to perform it. But it is lawful to do what no certain law 
forbids. Therefore when there is only question of committing 
sin or not, it is lawful to follow a solidly probable opinion even 
though the opposite may be more probable. 

The major premise of this syllogism is obvious. No opinion 
can be probable which has a certain law against it. The 
certain law imposes a certain obligation. On the other hand, 
if an opinion is probable and acknowledged as such by five 
or six experts, good, prudent, and learned men, it is impossible 
that there should be a law contrary to the probable opinion. 
Or if there is such a law, the law cannot be sufficiently promul- 
gated, or else it would be known to the experts. But a law 
which is not sufficiently promulgated does not bind ; ignorance 
excuses from its transgression. The minor premise, too, is 
clear. We are at liberty to do what no certain law prohibits. 
If indeed I doubt whether an action is forbidden, I am bound 
to inquire and satisfy my conscience on the point. But when- 
ever there is a probable opinion, this inquiry has been already 
made by experts, and with the result that no law forbidding 
the action can be discovered, otherwise the opinion will not 
be probable. The conclusion then is certain. 

Therefore in cases where there is a probable opinion, or a 
positively doubtful conscience, I may arrive at a certain con- 
science required for lawful action by reasoning implicitly 
somewhat as follows : The opinion is probable that this action 
which I am contemplating is lawful for example, marrying 
according to my promise a good and suitable person in spite 
of the prohibition of my parents which indeed does not seem 
to be reasonable. But if this is so, there is no law forbidding 
me to do it ; I violate no obligation in marrying her. Therefore 
I may marry her. 

4. The proof of probabilism from what we must call at 
least the toleration of the Church for some centuries will 
perhaps appeal still more strongly to Catholic minds. 

The guardianship of faith and morals has been committed 
to the Church by her divine Founder. He has promised that 
she shall not fail in the task committed to her even to the end 
of time. But if a false doctrine is widely held and publicly 
taught for some centuries in the Church, and she does not 
condemn it, does not protest against it, the promise of Christ 



ON THE PROBABLE CONSCIENCE 41 

fails to be effective, which is impossible. So that probabilism, 
which has been widely held and publicly taught for some 
centuries as a theory of morals without being condemned by 
the Church, cannot be a false system. 1 A third argument 
may be drawn from the approbation of the works of St Alphon- 
sus Liguori by the Holy See. The decree of May 18, 1803, on 
the revision and approbation of the works of St Alphonsus 
with a view to his beatification, gives a list of his works and 
expressly states that after careful examination nothing repre- 
hensible was found in them. Among the works mentioned is 
a dissertation on the moderate use of a probable opinion when 
it conflicts with a more probable opinion on the other side, 
published in 1755. In this dissertation St Alphonsus clearly 
and ably defends and proves probabilism; he never withdrew 
or corrected this dissertation, though to save his Congregation 
and the doctrine he afterwards modified the statement of his 
views. He followed probabilism in his choice of opinions 
while writing his great work on moral theology which sub- 
sequently, though he admitted corrections in details, remained 
substantially the same. 

5. It has been already pointed out that, although we may 
lawfully adopt and follow a probable opinion, there is no 
obligation of doing so, and it will frequently be more perfect 
to follow an opposite opinion. It is not intended to propose 
probabilism as the ideal of Christian conduct ; we go to ascetical 
writers and elsewhere for that. 2 Probabilism is especially 
an instrument of moral theology, to be wisely and prudently 
used by the confessor in the confessional, as the doctor uses 
his medicines in the sick room. 

6. Theologians warn us that only experts can judge of the 
intrinsic probability of an opinion. Others must be content 
to be able to discover extrinsic probable opinions. They can 
do this by consulting approved authors. If they find that an 
opinion is held as probable by five or six authors of repute, 
and it has not become obsolete by new legislation, by decrees 
of the Holy See, or by the progress of theological opinion, they 
may act upon it as solidly probable. The Sacred Penitentiary, 
July 5, 1831, declared that a professor of theology or a con- 
fessor might follow in practice the opinions of St Alphonsus. 
In thus adopting extrinsically probable opinions with regard 
to conduct, the priest or the layman only does what anyone 

1 St Alphonsus, Dissertation, anno 1755, n. 10. 

2 Cf. -Rodriguez, On the Practice of Christian and Religious Per- 
fection, i, c. 8. 



43 ON CONSCIENCE 

not skilled in law would do in a difficult legal case he would 
consult an expert whom he could trust. 

7. A limitation to the use of probabilism is mentioned by 
theologians. When one has decided on any course of conduct, 
he must loyally adhere to the consequences which the decision 
involves. He must not use a probable opinion to gain an 
advantage, and then in the same matter adopt the contrary 
opinion in order to shake off a burden. And so when a 
probable opinion has been adopted in favour of the validity 
of a will in my behalf, I cannot also adopt a contrary opinion 
that the will is invalid and refuse to pay the legacies. 



CHAPTER V 
ON THE SCRUPULOUS CONSCIENCE 

i . A SCRUPLE is a groundless fear that there is sin where there 
is none. Hence a scrupulous conscience (the term is ordinarily 
used of the habit, not of the single act) is one which from 
some frivolous reason judges that a harmless action is sinful. 
A person, moreover, is not said to be scrupulous because of 
a scrupulous conscience in a single instance ; the term is used 
of one who, either in some matter or in all his actions, is apt 
to be disturbed with unfounded scruples. 

2. An upright, straightforward, and well-balanced con- 
science is what it is desirable to have, and so a scrupulous 
conscience is in itself a bad habit. A scrupulous conscience 
may indeed be useful for a time to purify the conscience, and 
to make it more delicate and sensitive to even the appearance 
of evil; it is sometimes permitted by God for this and other 
reasons. But if it continues for a long time it causes great 
trouble of mind, injures the health of body and soul, and 
sometimes drives its poor victim to desperation, so that he 
gives up all attempt to be good, or even loses his senses. 

3. The confessor, then, should know how to recognize a 
scrupulous person, what the causes of scruples are, and what 
are the suitable remedies in particular cases. 

The prudent confessor will not at once believe a penitent to 
be scrupulous merely because he says that he is. Some people 
who are anything but pious think that it is a fine trait of 
character to be scrupulous, or they honestly think that they are 
scrupulous for want of self-knowledge, and tell the confessor so. 
He would obviously make a great mistake if he applied the 
rules for scruples to such cases. Nor can the confessor safely 
conclude that a penitent is scrupulous because he mentions 
in confession minute faults which common penitents hardly 
trouble themselves about. He may have before him a soul 
of great purity of conscience and great sanctity, who is in no 
sense scrupulous. Until he has heard a penitent's confession 
more than once the confessor will usually suspend his judge- 
ment. When the penitent keeps confessing things which are 
not sinful, when he says that he is troubled with doubts and 

43 



44 ON CONSCIENCE 

anxieties about his actions, when he is not satisfied with his 
confessions but keeps coming back, or running from one con- 
fessor to another; when he will not follow the advice the 
confessor gives him, but remains obstinately attached to his 
own will, the confessor may usually conclude that his penitent 
is really scrupulous. 

4. If he can find out how the scruples arose, the confessor 
will sometimes be able to apply a suitable remedy at once. 
They may arise from a variety of causes : from reading ascetical 
or theological books which are too rigorous or which are not 
suited to the person's state of conscience; from associating 
with scrupulous people and contracting their malady; from 
a naturally weak judgement or from bad health; from im- 
moderate and indiscreet fervour and spiritual pride ; from the 
temptation of the devil, who wishes to ruin his victim, and 
from the permission of God, who for his own wise ends 
permits the evil for a time. 

5. The confessor will then seek to apply a proper remedy. 
He may ask the scrupulous penitent whether he is prepared 
to follow his advice and direction. If the penitent will not 
do this, but goes from one confessor to another, the confessor 
will be able to do no good with him, and had better tell him 
to find someone whose directions he will follow. With one 
who trusts him and tries to follow his advice, the confessor 
should be kind and patient; he should give short, clear rules 
to the penitent, without going into further explanations; he 
should tell him to despise his scruples and to go against them, 
boldly to do what he groundlessly imagines to be sinful; as 
of course he is justified in doing, for he knows that his fear 
of sin in the matter is an idle scruple. The confessor should 
tell him not to mention his scruples in confession, and when 
great harm seems to threaten the penitent from his scruples 
he may tell him not to say anything about them, even if on 
occasions he has really committed sins; for scruples may be 
a valid reason for not making a full confession. The confessor 
will exhort him to keep body and soul fully occupied in 
interesting work and never to be idle; an idle brain is the 
devil's workshop. 

Scruples commonly have reference either to past confessions, 
suggesting that they were not properly made, and were bad, 
or to temptations against some virtue, as faith or purity; or 
to one's actions in general, insinuating that they are sinful 
because not done with a proper motive, or for some other 
reason. With regard to the first class, the confessor will ask 



ON THE SCRUPULOUS CONSCIENCE 45 

the penitent whether he is certain that he left out of his con- 
fession some grave matter, or that it was sacrilegious. Unless 
he can say that he is certain, he will tell him not to think of 
the past, to leave it with our good God, but to direct his 
thoughts to the present and future. Even if he says that he 
is certain that something serious was left out, or that he had 
not proper sorrow for his sins, the confessor after once or 
twice hearing him will forbid him to mention the past again. 

One tempted against faith, purity, charity, or any other 
virtue, should be told that temptation is not sin, that sin is in 
the free consent of the will to evil, and that the best way to 
conquer such temptations is to despise them, to think as 
little as possible about them, and not to mention them in 
confession. 

The confessor should tell a penitent who through scruples 
thinks he commits sin in every action to act boldly and fear- 
lessly, that he may do whatever is not obviously forbidden, 
and that it is impossible for one who wishes to serve God to 
commit sin, especially grave sin, without being well aware 
of it. 1 

1 Reuter, Neo-Confessarius, n. 262. 



BOOK III 
ON LAW 

CHAPTER I 
THE NATURE OF LAW 

i. A LAW in general is a rule of conduct, but the term needs 
to be defined more exactly in order to mark it off from precepts 
and counsels. 

A law, then, in the strict sense of the word, is, according to 
St Thomas, an ordinance of the practical reason for the common 
good, promulgated by him who has care of a society. 1 

It is said to be an ordinance of the practical reason, for a law 
orders human actions with a view to a certain end, but to 
order and select proper means toward an end belongs to the 
reason; and since the ordering in question has reference to 
practice and is imposed by authority, it is attributed to the 
practical reason. Law, then, begets an obligation in the 
subject, and in this differs from a counsel. 

For the common good indicates the end of all good laws. 

By him who has care suggests the source of law which can 
only be one who has authority over the whole community. 
Regulations made by subordinate authorities are called in 
English by-laws, in ecclesiastical language, statutes. 

Of the society. These words imply that the subject of law is 
not a single person or a family; a law is made for a community 
more or less numerous. 

Promulgated. Promulgation is the publication of the law 
by legitimate authority with a view to imposing an obligation. 
Some sort of promulgation is required in order that subjects 
may know of the existence of the law and the time when it 
begins to bind. In English legislation the time when a law 
will begin to take effect is often set down in the law itself; 
otherwise it begins to oblige when it receives the royal assent, 
by which act it is also promulgated. 

There used to be a controversy as to what sort of promulga- 
tion is necessary in order that ecclesiastical laws may be 

1 St Thomas, 1-2, q. 90, a. 4. 
47 



48 ON LAW 

binding. Many canonists maintained that in this matter 
canon law followed the civil law, which required that a new 
ordinance should be promulgated in the different provinces 
of the Empire, and should begin to bind after a period of two 
months. In recent times the opinion has become prevalent 
that authoritative publication in Rome is, by the very fact, 
promulgation for the whole Church. This is certainly suffi- 
cient if the Supreme Pontiff makes known his intention to bind 
the whole Church by mere publication in Rome, as Leo XIII 
seems to have done in his legislation about forbidden books: 1 
Not unfrequently there is a special clause in ecclesiastical laws 
which defines the mode of promulgation, as in the decree 
Tametsi of the Council of Trent (sess. 24, De Ref. Matrim., 
c. i), in the Constitution of Clement XIV, Dominus ac Re- 
demptor, July 21, 1773, and in the Constitution of Leo XIII, 
Romanos Pontifices, May 8, 1881 . Sometimes a new law is sent 
to the Bishops, whose duty it is to see to the execution of the 
Pontiff's will. 

The new Code of Canon Law prescribes (Can. 9) that laws 
made by the Apostolic See are promulgated by their publica- 
tion in the official Acta Apostolicae Sedis, unless in particular 
cases some other mode of promulgation is prescribed ; and they 
only begin to have force after the elapse of three months from 
the date of the number of the Acta Apostolicae Sedis in which 
they are published, unless from the nature of the matter they 
bind immediately or a shorter or longer term is specially and 
expressly laid down in the law itself. 

The Fathers of a Plenary or Provincial Council themselves 
determine the mode and time of promulgation of the decrees 
of the Council after revision by the Sacred Congregation of 
the Council (Can. 291); a Bishop determines the mode of 
promulgation of his own laws in or out of Synod (Can. 335, 
sec. 2). 

2. From what has been already said it will be clear how a 
law differs from a precept. A law is a regulation made by a 
public authority for the common good, and directly affects 
a definite territory, and indirectly those who live therein. It 
is stable and permanent, as is the society for whose good it is 
made. A precept, on the other hand, is imposed also by 
private authority for the good of the individual, and directly 
affects the person haeret ossibus. Regularly a precept is 
limited in time and expires with the death or removal from 
office of him who gave it. 

1 Index librorum prohibitorum, 1900. 



THE NATURE OF LAW 49 

3. Laws are divine or human. Divine law is either natural 
or positive. The natural law is promulgated in the rational 
nature of man, and is a participation in human reason of the 
eternal law of God, which bids us observe right order, and 
forbids its disturbance. Positive divine law is made known 
by revelation. 

Human law is ecclesiastical when made by the authority of 
the Church ; municipal or civil when it is the ordinance of the 
civil ruler. The term civil is frequently restricted to the 
Roman civil law. 

Other divisions of law and their application will be clear 
from the chapters which follow. 



i. 



CHAPTER II 
ON THE POWER OF MAKING LAWS 

i. No body of men could live together in peace without being 
subject to a supreme authority whose function it is to look 
after the common weal by defending the rights of all, repressing 
and punishing crime, and taking measures in the common 
interest which are beyond the power of private enterprise. 
God, from whom all power is derived, has willed that there 
should be a separate supreme spiritual authority to look after 
the spiritual welfare of mankind, and another to look after its 
temporal welfare. As Leo XIII teaches, in his Constitution 
Immortale Dei, November i, 1885 : " The Almighty, therefore, 
has appointed the charge of the human race between two 
powers, the ecclesiastical and the civil, the one being set over 
divine, and the other over human things. Each in its kind is 
supreme, each has fixed limits within which it is contained, 
limits which are defined by the nature and special object of 
the province of each, so that there is, we may say, an orbit 
traced out within which the action of each is brought into play 
by its own native right. . . . One of the two has for its 
proximate and chief object the well-being of this mortal life; 
the other the everlasting joys of heaven. Whatever, therefore, 
in things human is of a sacred character, whatever belongs either 
of its own nature or by reason of the end to which it is referred, 
to the salvation of souls, or to the worship of God, is subject 
to the power and judgement of the Church. Whatever is to 
be ranged under the civil and political order is rightly subject 
to the civil authority. Jesus Christ has himself given com- 
mand that what is Caesar's is to be rendered to Caesar, and 
that whatever belongs to God is to be rendered to God." 

The spiritual and the civil power use their authority to 
make laws, and in this chapter we propose briefly to indicate 
those who have legislative authority in the Catholic Church. 

2. The power of making laws resides in the supreme 
authority in the Church, and in any person or body of men 
to whom the power has been communicated. 

(a) The Pope, by the primacy of jurisdiction which he 
receives from God, is the supreme lawgiver in the Church. 

50 



ON THE POWER OF MAKING LAWS 51 

He exercises this function either alone or in a general council. 
Sometimes he acts in his own name, sometimes he uses one 
of the Roman Congregations for his purpose. The Congrega- 
tion of Sacred Rites (S.R.C.) has received from the Pope 
authority to make laws for the whole Church in liturgical 
matters which have been entrusted to its supervision. 1 

The general decrees, then, of the S.R.C. bind the whole 
Latin Church by their own authority. The same must be 
said of special decrees which are comprehensive i.e., which 
merely interpret the meaning and application of a pre-existing 
law. Decrees made in answer to special questions, if they 
are not promulgated authentically, and especially if they are 
extensive i.e., if they contain a new provision of law bind the 
parties concerned, but probably impose no obligation on others. 

(b) The Bishops, assembled in national or provincial 
councils, or separately in their respective dioceses, make laws 
for their own subjects. 2 A Bishop's legislative authority is 
usually exercised in his diocesan synod; other ordinances are 
looked upon rather as precepts than laws, unless the Bishop, 
after consulting his chapter, specially expresses his mind to 
the contrary. By modern ecclesiastical law, an Archbishop 
has no legislative authority over his suffragans or their dioceses. 
He can hear appeals from their subjects, and in special cases 
he supplies for their neglect of duty (Can. 274). 

Bishops, inasmuch as they are subject to the common law 
of the Church and the decrees of the Holy See, can make no 
law which is contrary to these. 

(c) Religious Orders have power to make laws for their own 
members. The power is exercised according to the special 
Constitutions and Rules approved by the Holy See for each 
Order. Orders of women, however, have no legislative 
authority, though the superioresses, by virtue of what is called 
dominative power, can of course give binding precepts to their 
subjects. 

(d) Parish priests, since they have no jurisdiction in the 
external forum, are incapable of making laws. 

It belongs to canon law to treat more fully this and similar 
matters connected with laws ; nor is it any part of the duty of 
a moral theologian to inquire what is the legislative authority 
in civil matters. 

1 Pius IX, May 23, 1846; Can. 253. 2 Can. 335. 



CHAPTER III 
THE MATTER OF LAW 

i. IT is the duty of the legislative authority to promote the 
common good by wise, just, and useful laws. It should appor- 
tion burdens according to the principles of distributive justice, 
so that they may not press unduly on the shoulders of particular 
classes and persons. Over-legislation should be avoided; 
something must be left to private initiative; individuals and 
families should be allowed as much freedom as is compatible 
with the public welfare. Even prohibitive legislation will be 
kept within the bounds of moderation in a well-ordered State; 
not all evils will be forbidden, but some even of the more 
serious breaches of the moral code will be tolerated by the 
State, lest by trying to force people to be good greater harm 
may ensue. What is conducive to the common weal will be 
the legislator's guide in the framing of laws. 1 

2. Human laws cannot be contrary to the divine law, from 
which they derive all their force and efficacy, so that a law 
which prescribes something morally wrong is no law at all, 
and cannot exert any binding force on the conscience. There 
is nothing to prevent human law prescribing or forbidding 
what is already of obligation or forbidden by the divine law. 
A parent is bound by natural, divine, and human law to bring 
up his children properly; theft is forbidden by human and 
divine law. 

3. An obligation which is left indeterminate by the divine 
or natural law may be further determined by human law as 
to time, place, frequency, and other circumstances affecting 
the observance of it. And so the civil law determines at what 
age children attain their majority, and which near relatives are 
responsible for the support of the indigent poor ; the Church, 
too, determines the limits of the impediment of consanguinity 
as affecting marriage, the times for the reception of the sacra- 
ments of Penance and Holy Communion, and many other 
obligations left indefinite by divine or natural law. 

4. An act which in itself is indifferent may in certain cir- 
cumstances become opposed to the public welfare, or on the 

1 St Thomas, i-z, q. 96, a. 3. 
53 



THE MATTER OF LAW 53 

contrary may conduce to it. The legislative authority may, 
for the public good and to further the end for which the society 
exists, prescribe or prohibit such acts according to circum- 
stances. In itself it is indifferent on which side of the road 
a carriage is driven, and whether it passes another on the right 
or on the left ; but where traffic is considerable it is necessary 
that these matters should be regulated by law or custom. To 
eat meat on Friday is in itself as lawful as to eat it on any 
other day, but the Church has forbidden it in order that her 
children may exercise themselves in the practice of temperance 
and mortification of the sensual appetite. When an indifferent 
act or one which already belongs to some special virtue is 
commanded by the legislator from a motive which belongs to 
some other virtue, the act commanded henceforth belongs 
to the virtue which furnished the motive, if the legislator so 
wills. And so, inasmuch as the j Church prescribes fasting 
Communion out of reverence for the Blessed Sacrament, one 
who receives not fasting is guilty of irreverence and sacrilege, 
though, apart from the Church's law, to receive Holy Com- 
munion not fasting would not be sinful. For just as an action 
may get a special moral quality from the end for which the 
agent performs it, so the motive of the legislator may give 
a distinct moral quality to an act which he commands. The 
same holds good of prohibitive laws. 

5. Acts of heroic virtue which would be impossible for the 
body of the people cannot ordinarily be prescribed by law. 
A law must be morally possible of observance for the general 
body of the subjects. When, however, the public good 
requires acts of heroism, and especially when a state of life 
has been voluntarily assumed which demands heroism, acts of 
heroic virtue may then become matter of law. The soldier 
must obey orders at the risk of life, and the Church is justified 
in prescribing celibacy to all who freely choose to enter sacred 
orders. If anyone feels that he cannot observe the law, let 
him not volunteer for the service. 

6. Merely internal acts which do not conduce to the common 
good of civil society, cannot be the subject-matter of civil law. 
The Church's end is the spiritual welfare of her children, to 
which internal acts contribute much ; and so, many theologians 
hold that the Church may prescribe merely internal acts. 
She certainly has the power of prescribing internal actions 
concomitantly, as it is said, when they form part of a whole 
human action. Therefore, in commanding her children to 
hear Mass on Sundays, she bids them have the necessary 



54 ON LAW 

intention, without which a human act is impossible. The 
Church also has authority over internal acts when she deter- 
mines the divine law about articles of faith, declaring that such 
a truth is to be believed, or that acts of faith, repentance, or 
charity are to be elicited at certain times. Moreover, in the 
internal forum of Penance the priest can impose internal acts 
of virtue as satisfaction for sins confessed. Religious, too, 
who have voluntarily by vow subjected themselves to their 
superiors, are bound to obey the rules and constitutions which 
prescribe times for meditation and prayer. All theologians 
are agreed on these points. But apart from these special cases, 
it is the more common teaching of theologians and canonists 
that the Church has no power to make laws about merely 
internal acts. For such acts are not cognizable in the external 
forum of the Church, and, since the legislative power is co- 
extensive with the judicial, it would seem that she cannot 
make laws about them. 1 

1 Inn. Ill, c. 34, de Simonia; Trent, 34, c. i, de Ref.; St Thomas, 
3-3, q. 104, a. 5. 



CHAPTER IV 
THE SUBJECTS OF LAW 

i. ALL those are subject to the law and bound to yield it 
obedience who live under the authority of the legislator. 
And so, inasmuch as the natural law is derived from the 
eternal law of God, and is nothing else than the rule of action 
suited to human nature as such, all who participate in human 
nature are subject to the law of nature. Infants and madmen 
who do something forbidden by the law of nature are indeed 
excused from formal sin for want pf knowledge, but anyone 
who wilfully provokes them to such actions commits sin by 
their means in so doing. 

2. Human law is intended to be a guide for reasonable 
human beings, and so the habitual use of reason is required 
in order to be subject to human law. Imbeciles and children 
who have not yet attained the use of reason are not subject 
to positive law. Regularly the Church presumes that at seven 
years of age children attain the use of reason, and inasmuch 
as the law provides for what ordinarily happens we may say 
that at seven years children begin to be obliged to hear Mass 
and to fulfil the other duties of the Christian life (Can. 12). 
It is well that they should be accustomed to obey such laws 
as those of hearing Mass and abstaining even earlier. There 
are special reasons for deferring the obligation of fasting, and 
sometimes for deferring for a time that of receiving Holy 
Communion (Can. 859). 

Drunken people remain subject to the Church's law, for 
habitually they have the use of reason. 

3. Men become subject to the Church by Christian baptism, 
and so all baptized persons, and these alone, are subject to 
the laws of the Church. Heretics and schismatics who are 
validly baptized are per se subject to the Church's laws, but 
a probable opinion teaches that it is not the Church's intention 
to bind them by such of her laws as proximately regard the sanc- 
tification of individual souls rather than the public good. Such 
are the laws of keeping certain days holy, of abstaining, of fast- 
ing, of hearing Mass on Sundays. Harm rather than good would 
follow from intending these laws to bind heretics and schismatics. 

55 



56 ON LAW 

4. Particular ecclesiastical laws are made for particular 
countries, or provinces, or dioceses, by the competent authority, 
and bind all subjects living within the territories in question. 
One is subject to local law by having a domicile or quasi- domi- 
cile in the territory for which the law is made. To constitute 
a domicile in ecclesiastical law, two conditions are required. 
The person domiciled must have taken up his abode in a 
parish, or quasi-parish, or at least in a diocese, vicariate 
apostolic, or prefecture apostolic; and this abode must be 
joined either with the intention of perpetually remaining there, 
if they are not called away, or with the actual dwelling there 
for ten years. 

A quasi- domicile is acquired by taking up his abode in the 
place as above, joined with the intention of remaining there 
for the greater part of a year if not called away, or with the 
actual dwelling there for the greater part of a year. 

A domicile and a quasi- domicile are lost by those who have 
them leaving their abode with the intention of not returning 
there ; but wives always retain the domicile of their husbands 
unless they are lawfully separated from them, and minors that 
of their guardians (Can. 13, 92, 93, 95). 

Whoever, then, resides in a place, having therein a domicile 
or quasi- domicile is subject to the particular laws of that place. 
Contracts, too, are governed by the law of the place where 
they are made, and whoever commits a crime is amenable to 
the law of the country where it is committed. 

While outside the limits of the territory in which one is 
domiciled, there is no obligation to obey the particular laws 
of that territory, for the law is territorial and does not bind 
beyond the limits of the territory for which it was made. 

A stranger (peregrinus), or one who has a domicile in another 
place, but at present is staying elsewhere, is not bound by the 
particular laws of the place where he is staying ; for he is not 
subject to their authority by having either a domicile or a quasi- 
domicile in the place. And so, if an English Catholic happened 
to be in Dublin on the feast of St Patrick, which is kept there 
as a day of obligation, he would not be bound to hear Mass ; 
nor would a Dublin man who happened to be staying on that 
day in England. However, a stranger staying in a place where 
the common law of the Church is observed is bound to act 
according to its provisions, though there may be a dispensation 
from its observance in the place where he has his domicile. 
And so an English Catholic staying in Rome should abstain 
from flesh meat on Saturday as well as on Friday in Ember 



THE SUBJECTS OF LAW 57 

week. Moreover, any contracts that he may enter into or 
crimes that he may commit subject him to the laws of the 
country where he is staying in those respects (Can. 14). 

Homeless people (vagi) are bound by the general and par- 
ticular laws which are in force in the place where they are 
staying (Can. 14, sec. 2). 

Regulars and their monasteries are exempt from episcopal 
authority, and so in general are not subject to the laws 
made by the Bishops for their dioceses. There are, how- 
ever, many exceptions to this general rule, for in spite of 
their exemption regulars have in special cases been subjected 
by the Holy See to the ordinary or else delegated authority 
of diocesan Bishops. The special cases are treated of by 
canonists (Can. 615). 



CHAPTER V 
ON THE ACCEPTANCE OF A LAW 

i. LEGISLATIVE authority in the Church is derived from God 
and not from the people, so that an ecclesiastical law receives 
its binding force not from the will of the people but from the 
will of the legislator, made known by the promulgation of a 
law. An ecclesiastical law, then, binds those for whom it is 
made, independently of the acceptance of the law by the 
people (Can. 218). 

2. Practically, however, if a law is not accepted or acted on 
by the people, it may in various circumstances be said no 
longer to be of obligation. If the law was never put in force, 
and acts contrary to it were known to and connived at by 
authority, the law may be said not to bind for want of accept- 
ance. Really it does not bind because the ruler does not 
urge it, but tacitly consents to its non-observance. Similarly, 
if the greater and saner portion of a community do not observe 
a law, it may be presumed that it is not the legislator's will to 
bind the rest. It is obvious that there is question here only 
of disciplinary laws, for if the law decides matters of faith, 
obedience is at once imperative. 

3. It is the duty of Bishops to make known to their people 
and to execute new laws made by the Holy See, especially if 
the new laws were sent to them for the purpose, or if it is 
thought likely that they will be useful to the diocese. 

If, however, a Bishop thinks that a new pontifical law is 
not suited to his diocese, he not only may, but it is his duty 
to represent the matter to the Holy See, and in the meantime 
the obligation of the law is suspended. If the Holy See, after 
weighing the matter, insists on the observance of the law, 
obedience must be rendered to lawful authority. 1 

1 Ben. XIV, De Synodo, 9, c. 8. 



CHAPTER VI 
ON THE OBLIGATION OF LAW 

i. BY obligation we here understand a moral necessity arising 
from a law to do or to forbear doing something. It is said 
to be a moral necessity, not physical, because it does not subject 
the person bound to physical but moral constraint to act 
according to the law ; he must act thus if he would do his duty, 
if he would act reasonably, if he would escape guilt, sin, and 
punishment. 

In a slightly restricted sense a moral obligation is said to 
be imposed on those subject to a law which binds in conscience 
under pain of committing sin. Such a law is called a moral 
law. If the intention of the legislator is not to bind the con- 
science under pain of sin, but only under pain of paying the 
penalty imposed, the law is called a penal law. If the law 
binds under pain of sin, and also imposes a penalty on trans- 
gressors, it is called a mixed law. 

\2. The obligation of a law depends primarily on the will of 
the legislator. For we are here considering not the natural 
law, which is imposed by the very nature of things and by 
God, but positive law, which depends on the will of the legis- 
lative authority for its existence, and so also for the kind and 
quantity of obligation which it imposes. The legislator may 
intend to impose a moral obligation under pain of sin, for God 
commands us to obey our lawful superiors when they impose 
a strict precept on us, and disobedience to them is an offence 
against him an4 a sin. If the matter is of sufficient importance, 
he may intend the obligation to be serious, so that a breach 
of it would be grievously sinful, or he may intend it to be 
only slight, whose breach would be a venial sin. It would 
be unreasonable to intend to bind under pain of grave sin in 
a light and trivial matter, and so a human legislator cannot do 
this. The legislator may also, if he choose, intend to bind 
only under pain of paying the penalty, and then the subject 
in case of violation of the law will only be bound in conscience 
to do this. The kind of obligation, then, which a law imposes 
depends principally on the will of the legislator, but secondarily 
also on the matter of the precept. 

59 



60 ON LAW 

3. The kind and quantity of obligation imposed by any 
particular law may be gathered from the express mind of the 
lawgiver. If the matter be capable of a grave obligation, and 
in making the law words indicating a strict precept are used 
e.g., we command, we severely ordain the presumption is that 
the law imposes a grave moral obligation. The same may be 
said if a grave censure or other grave penalty is imposed on 
transgressors. The interpretation of Doctors, and the way 
in which custom interprets a law, are also guides to its binding 
force. 

4. An affirmative law, which commands something to be 
done, is said to bind always but not for always. Thus we are 
commanded to pray always i.e., never to abandon prayer 
though we are not obliged continually to pray all day long, 
but only at suitable times. A negative precept, on the other 
hand, binds always and for always, so that we must continually 
act according to its prescriptions. At no time on days of 
obligation may we do servile work. 

5. A law imposes in the first place an obligation on those 
subject to it to inform themselves of its existence and pro- 
visions, for it imposes the duty of observing it, and this cannot 
be done unless the terms are known; knowledge of the law 
is the necessary means to the end. A law also forbids us to 
put ourselves in the proximate occasion of transgressing it, 
for the avoidance of such proximate occasions is also a necessary 
means for the observance of the law. 

6. A negative law is observed by abstaining from what is 
forbidden, for that is the intention of the lawgiver. Provided 
that we abstain from servile work on a Sunday, we fulfil that 
part of the law; no special intention of riot working or of 
fulfilling our obligation is required. An affirmative law which 
prescribes something to be done sometimes requires a con- 
scious human act for its fulfilment; sometimes it does not. 
If the obligation be merely real, as the duty of paying a debt, 
even unconscious payment will suffice, provided that the 
creditor gets what belongs to him. If a personal obligation 
is imposed of performing some action e.g., hearing Mass the 
action must be performed in a human manner, by a conscious, 
voluntary act. It is not, however, necessary to intend to fulfil 
the purpose of the law ; we satisfy the precept of hearing Mass 
by intending to hear it and actually doing so ; to fulfil the obliga- 
tion it is not necessary to intend to honour God, nor even to 
be in a state of grace ; the end of the precept does not fall under 
the precept, as the adage has it. 



ON THE OBLIGATION OF LAW 61 

7. We may sometimes satisfy two obligations by one and 
the same action, as when a day of abstinence, on account of 
a vigil, falls on a Friday, or a day of obligation falls on a Sunday. 
Sometimes, however, the nature of the obligation or the 
presumed will of the legislator prohibits this being done. 
If a confessor imposed the hearing of Mass for sacramental 
penance, it would ordinarily be intended that a Mass not 
otherwise of precept should be heard. Nothing hinders the 
simultaneous fulfilment of two different obligations by actions 
which do not clash. A priest may well say his breviary while 
hearing a Mass of ob'igation. 

8. If the whole of an obligation cannot be fulfilled, we are 
not thereby excused from fulfilling a part, if the matter is 
capable of being divided, and thus in some degree the end of 
the law is secured. If a priest, for example, cannot say the 
whole breviary, he must say what he can, if the portion which 
he can say be considerable and the form prescribed by the 
Church be observed. However, if a Bishop could not go the 
whole way to Rome to make his visit ad limina, there would be 
no obligation of going as far as he could. 

9. When a fixed time is appointed for the fulfilment of an 
obligation, sometimes, according to the will of the legislator, 
after the term has passed, the law no longer binds ; sometimes, 
on the other hand, the obligation must still be fulfilled. Thus, 
if a priest lawfully or unlawfully has omitted his breviary, he 
is not bound to make it up on the following day, or if one of 
the faithful miss Mass on a Sunday, he is not bound to supply 
the omission by hearing it on a week day. On the other hand, 
if a debt has not been paid on the date agreed on, it must be 
paid as soon as -possible afterward, and if the Easter Com- 
munion has not been made at the proper time there still 
remains the duty of making it. 



CHAPTER VII 
ON THE INTERPRETATION OF LAW 

i. THE interpretation of law is its genuine explanation accord- 
ing to the mind of the lawgiver. 

(a) This interpretation may be authentic, doctrinal, or 
customary. 

Laws are authentically interpreted by the lawgiver, his 
successor, and by him to whom this power of interpreting 
the law has been granted by them. 

An authentic interpretation set forth by way of law has the 
same force as the law itself; and if it only declares the words 
of the law which in themselves are certain, it does not need 
to be promulgated and it has a retrospective force; if it restricts 
or extends the law or if it explains a doubtful law, it has not 
a retrospective force and it should be promulgated. But 
if it is given by way of judicial sentence or rescript in a par- 
ticular matter, it has not the force of law, and it only binds the 
persons and affects the matters for which it was given (Can. 17). 

Doctrinal interpretation is that which doctors and lawyers 
make according to the recognized rules of legal interpretation. 
It has weight according to the knowledge, skill, experience, 
and standing of him who makes the interpretation. 

Customary interpretation is that which a law receives from 
the practice and conduct of those who are subject to it. It 
has very great authority, for it is presumed to have at least 
the tacit approval of the lawgiver, and indeed, according to the 
adage, " Custom is the best interpreter of law " (Can. 29). 

(b) A strict interpretation takes the words of the law in their 
literal meaning; a wide interpretation takes the words in a 
looser sense. 

2. Many rules are given by canonists for the doctrinal inter- 
pretation of law. The following are the most important for 
our purpose in moral theology : 

(a) The words of the law must be taken in their obvious 
and natural meaning. The lawgiver must be supposed to 
have wished to express himself as clearly as possible, and to 
have said what he meant. Sometimes, however, legal terms 
have a technical meaning which must be attended to. Thus, 

62 



ON THE INTERPRETATION OF LAW 63 

legitimate in ecclesiastical law is used of children who have 
been legitimatized as well as of those who were born in lawful 
wedlock. 

(b) The mind of the legislator and the scope of the law must 
be attended to. This rule does not imply that we must try 
to get at the private intention and object which the lawgiver 
had in view in making the law. It means that we must con- 
sider the circumstances which gave rise to the law, the object 
which it was designed to attain as expressed in the law itself, 
especially in the narrative or historical portion of it. The 
whole law should be pondered, not merely an isolated section ; 
and if there is question of interpreting an answer or rescript 
sent in reply to a question or petition, this latter must be 
carefully considered. 

(c) Laws which impose some new burden or restriction 
receive a strict interpretation, those which confer a favour a 
wide interpretation. For the lawgiver is presumed to be 
benignant towards his subjects, and to have expressed himself 
with precision and strictness in the disagreeable task of laying 
burdens on his people. In such a law, then, the word clerk 
will only comprehend the lower ranks of the clergy, whereas 
it will comprehend dignitaries and religious in favourable 
matters. 

(d) A law must not be extended from one case to another 
even if the same reason exist in the two cases, for the reason 
of the law is not the law. And so although parish priests are 
bound to offer Mass on holy days of obligation for their 
parishioners, this obligation must not be extended to a parish 
priest's assistants, for such priests, though they have the care 
of souls, are not parish priests (Can. 475). If, however, 
anything unjust, inequitable, or absurd would follow from 
the application of this rule, then it must not be applied. And 
so, generally, where the law punishes the adultery of the 
husband, it must be applied to an adulterous wife; where 
power is granted to make a will, legacies may be left too. 
The less is contained in the greater (cf. Can. 18 ff.). 

3. Epteikeia, or equity, is a benign and equitable interpre- 
tation of the law, by which it is not deemed to apply to some 
particular case. For cases arise where, if the law were applied, 
hardship and harm would be the result. The law is made 
for ordinary conditions and is intended to apply in ordinary 
circumstances; the lawgiver could not foresee all possible 
cases, and he is not presumed to intend the law to press unduly 
on individuals, so as to cause special hardship. So that when 



64 ON LAW 

the observance of the law in any particular case would cause 
special hardship which the lawgiver cannot be presumed to 
have intended, the person so situated is excused from obeying 
the law by an equitable interpretation of it. If, for example, 
I should incur serious risk of contracting some disease if I 
went out to hear Mass on a Sunday, I am excused from obeying 
the precept. 

Such equitable interpretations are specially permitted in 
affirmative laws, not in those which make an act done contrary 
to them null and void. The common good requires that 
these should be observed even with grave personal incon- 
venience. And so the diriment impediments of marriage do 
not cease to bind even when they cause serious inconvenience 
in particular cases. 



CHAPTER VIII 
WHAT EXCUSES FROM OBSERVING THE LAW 

i . THE natural law continues to have binding force even though 
its observance entails great inconvenience. We must not 
commit murder to save the State, nor are we allowed to 
tell a lie in order to preserve human life/ Positive law, 
however, does not bind with the same rigour. Our Lord 
taught us 2 that even the positive divine law does not bind 
men when great inconvenience would follow from its observ- 
ance. It is an axiom that necessity has no law. This is all 
the more true of positive human law, which must be accom- 
modated to the moral strength of the majority of the people, 
otherwise it will be impossible to observe it, and nobody can 
be bound to do what is impossible. So that not only physical 
impossibility excuses from the observance of the law, but also 
any relatively great difficulty or serious inconvenience which 
constitutes moral impossibility (Can. 2205). 

No general rule can be given for estimating the degree of 
difficulty which would excuse from the duty of observing any 
particular law in the concrete. The importance of the law, 
the intention of the legislator, the results of non-observance 
of the law, the degree of difficulty in the special case, must all 
be considered, and a prudent judgement given in view of all 
the circumstances. 

2. A law binds those to its observance who are subject to 
it, but it does not oblige people to remain subject to it. If I 
do not like living under a particular law, the law does not 
prevent me from going elsewhere into territory where it does 
not bind, and thus freeing myself from the duty of observing 
it. If I do not like abstaining from flesh meat on days of 
abstinence, I may lawfully go and live in Spain, get my Bulla 
Cructata, and enjoy my flesh meat. Such an action will be 
perfectly lawful, even if I directly intend to withdraw myself 
from the authority of the law. I have the right to use my 
liberty to go and live where I choose as far as the law is con- 
cerned. And when I am outside the particular territory 
subject to the law, it no longer binds me. 

1 Inn. Ill, c. Super eo, de usuris. a Matt. xii. 

' 65 5 



66 ON LAW 

3. As long as a person remains subject to a law he must 
have the will to fulfil its obligations as far as he can, so that 
he must not do anything with the intention of making it 
impossible for him to observe the law. Moreover, he must 
take reasonable means to be able to do what the law com- 
mands, for one who is bound to secure some end is bound 
to use the necessary means. And so a priest who is going to 
travel must take his breviary with him so as to be able to say 
his Office ; and time must be made by all Catholics for hearing 
Mass, receiving the sacraments, and fulfilling other religious 
duties. The question as to what obstacles to the observance 
of a law I am bound to remove as far as I can, or whether 
and when I commit a sin by doing something which will make 
the observance of the law impossible, is one of great practical 
difficulty. We have already seen that it is not lawful to put 
obstacles in the way of observing a law with the intention 
of escaping the obligation. But suppose there is no such 
intention, does the precept of hearing Mass, e.g., forbid me 
to go to a seaside place where there is no Catholic church, 
and where I foresee that I shall not be able to satisfy the 
precept ? 

This is a type of many practical questions which occur and 
for which it is difficult to find a general answer. The law 
in question, the intention of the lawgiver, the practice of good 
men, and other circumstances, must be weighed in each case. 
The answer given by theologians to the special question 
proposed may be taken as a guide toward a solution in other 
similar cases. They say that such a precept does not oblige 
us to foresee and make arrangements for its observance a long 
time ahead ; such an obligation would be a great inconvenience 
and seriously interfere with our liberty. So that any time 
within the week I may go where I like without regard to the 
necessity of hearing Mass on the following Sunday. However, 
when Sunday is practically at hand, say on Saturday evening, 
the precept of hearing Mass begins to be urgent, and forbids 
me to do anything without necessity which would make it 
impossible for me to fulfil the precept. 

In this question, as in others, we are considering what is 
of strict obligation under pain of sin ; a good Catholic would 
of course try as far as possible to have the opportunity of 
fulfilling t his religious duties on a Sunday. 



CHAPTER IX 
ON THE CESSATION OF LAW 

A LAW may cease to bind in various ways. It may be abro- 
gated or altogether withdrawn by the legislator, or his successor, 
or his superior. For he who made the law can unmake it. 
Derogation is the annulling of some portion of the law, while 
the rest remains intact. The law may fall into desuetude 
from non-observance, or on account of a contrary custom 
being introduced. It may also cease to bind because it no 
longer attains the purpose for which it was made, and has 
become useless. It may cease to bind in particular cases 
because a dispensation has been obtained. Something must 
be said on custom, on a law becoming useless, and on dis- 
pensations. This will be done in the three following sections. 

SECTION I 
On Custom 

1. A custom in the technical sense must be distinguished 
from a mere use. A use is a constant manner of acting but 
without binding force. Thus we take holy water on entering 
the church, and receive blessed ashes on Ash Wednesday, 
and palms on Palm Sunday, but there is no obligation of 
doing so, and no sin is committed if we neglect these pious 
practices; they are only uses. A custom has the force of 
law from which it only differs in its origin. It arises from the 
repeated acts of the community which it binds. However, 
inasmuch as in ecclesiastical matters at least, the community 
as such has no legislative authority, the binding force of 
ecclesiastical customs is derived from the express, tacit, or 
legal consent of the legislative authority. Legal consent to 
all customs which have the requisite qualities is given in the 
last chapter of the Title on Custom in the Decretals, and 
Can. 27. 

2. A custom is said to be according to the law if it confirms 
and interprets the law by long- continued usage. 

It is beside the law if it introduces a new law in a matter 
for which no written law exists. 

67 



68 ON LAW 

It is contrary to the law when the acts by which the custom 
was introduced were forbidden by law. There is nothing 
repugnant in the notion of a lawful custom being introduced 
by wrongful acts, for when the custom is formed the acts 
cease to be forbidden, because the contrary law has in fact 
ceased to exist. 

3. In order that a custom may have the force of law it must 
be reasonable and it must fulfil certain other conditions. 

A custom will be reasonable if it is not against the natural 
or divine law, against which no custom can prevail, nor fur- 
nishes the occasion nor is an incentive to sin, nor is pernicious 
and hurtful to the common good. Inasmuch as custom has 
the force of law, it cannot be introduced by individuals or by 
private families, for whom precepts may be given but laws 
cannot be made. 

It must be introduced by the repeated acts of the greater 
portion of a community or corporate body which is capable 
of being the subject of law. How many acts are required to 
form a custom depends much on the matter, and must be 
left to the prudent judgement of experts. 

The acts by which the custom is introduced must be volun- 
tary, not the product of ignorance or mistake, and unless the 
tacit consent of the legislator is given before, they must 
continue for a long time that is, forty years (Can. 27). 

4. As custom depends on the will of the ecclesiastical 
superior, he may refuse to admit or he may abrogate a 
custom. 

The clause " Notwithstanding any custom to the con- 
trary," which frequently occurs in pontifical legislation, merely 
annuls general customs to the contrary, not special ones nor 
immemorial customs, nor those of a hundred years' duration. 
These require special mention in papal but not in episcopal 
legislation. The reason of the difference lies in the fact that 
the Pope may easily be unaware of local customs, and he does 
not annul what he does not know. But a Bishop is presumed 
to know the customs of his diocese, and if he makes a law 
which is against a custom he thereby abrogates the latter. 

Only a reasonable custom which is immemorial or of a 
hundred years' duration can prevail against a law which 
contains a clause forbidding future customs to the contrary 
(Can. 27). If, however, a law reprobate contrary customs as 
abuses, they cannot be introduced as long as the circumstances 
remain the same. Such customs would be unreasonable, and 
could not have the consent of the legislator. 



ON THE CESSATION OF LAW 69 

SECTION II 
A Law Become Useless 

1. A law should further the common good; if it ceases to 
do this, it becomes useless, and ceases to be a law. A law 
then ceases to bind when it ceases to be useful for the object 
for which it was made. However, it not unfrequently happens 
that a law was designed to further several objects, and it may 
well be that, though it is useless for one purpose, it is of use 
for another. The law which requires banns to be published 
before marriage is designed to discover impediments if there 
be any, and also to secure the publicity of marriage. It may 
be absolutely certain that there are no impediments, but for 
all that the other object of the law, remains to be secured, and 
prevents the law from being useless. The law remains in 
force as long as it serves its purpose to some extent, though 
it may not attain all the objects for which it was made. 

2. A positive law ceases to be of obligation in a particular 
case if it becomes hurtful, or if it cannot be observed without 
serious inconvenience. But does a law cease to bind in a 
particular case when it becomes merely useless, when it fails 
in that particular case to attain any of the objects for which 
it was made ? This question is disputed among theologians. 
The better and more common opinion is that the law does 
not then cease to bind. For the law is made for the com- 
munity, and if it continues to promote the common good it 
retains its binding force for the community. Nor can indi- 
viduals shake off the obligation of such a law on the ground 
that it is useless for them; they are bound to conform their 
actions to the rules which govern the community of which 
they are members. Besides, there is always danger of self- 
deception in such matters, and it would be a dangerous prin- 
ciple to admit that one who thinks that a law is useless as 
a guide for his own conduct need not obey the law. If, 
however, there be no danger of self-deception, and if it is 
quite certain that a law has ceased to be of any use in some 
special case, several theologians of weight admit the probability 
of the contrary opinion. 1 

Canon 21 enacts that laws made to guard against a general 
danger continue to bind even though the danger may not 
exist in a particular case. 

1 Bucceroni, i, n. 172. 



70 ON LAW 

SECTION III 
On Dispensations 

i . A dispensation is a relaxation of the law in a particular 
case for some special reason. The law still remains in force, 
but ,by a dispensation one who would otherwise be bound to 
conform to it is withdrawn from the operation of the law. 
When a law forbids something to be done without leave, as 
when a religious is forbidden to go out without the leave of 
his superior, the going out with leave is not against the law, 
but is in keeping with it. On the other hand, when one eats 
meat on a Friday, with a dispensation, the act is against the 
law, but the obligation of the law has been removed from the 
person dispensed. As jurisdiction is required to make a law, 
so ordinary or delegated jurisdiction is necessary for granting 
a dispensation. Ordinary jurisdiction is that which by law 
is annexed to an office ; delegated jurisdiction is exercised by 
the commission of one who has ordinary jurisdiction (Can. 



A good cause is always required in order that a dispensation 
may be lawfully asked for and granted. All should conform 
to the laws made for the common good, and the superior who 
without just cause exempts anyone from the duty of obeying 
a law is unfaithful to his office, and commits the sin of accept- 
ance of persons. If such a superior uses only delegated 
authority to dispense, he acts not only unlawfully, but invalidly, 
because he received his authority to grant dispensations only 
for a good cause. He therefore exceeds the limits of his 
authority by attempting to dispense without good reason. 
Similarly, one who asks for a dispensation without good cause 
does wrong. 

A good .cause for granting a dispensation must not be 
altogether trivial, nor is it so grave that of itself it exempts 
from the obligation of obeying the law. Beyond saying this, 
it is difficult to be more precise. Much depends on the 
particular law in question, and on the circumstances of the case. 

2. A legislator can dispense in his own laws, in those of his 
predecessors, and in those of his subordinates by his ordinary 
jurisdiction; he cannot dispense in the laws of his superior 
unless he has received delegated authority for the purpose. 

(a) The Pope, then, can dispense in all ecclesiastical laws, 
even in those which have been made in a general council. 
He cannot dispense in the natural or divine law; but in vows, 



ON THE CESSATION OF LAW 71 

oaths, and in marriage which has not been consummated, the 
Pope can for good cause dispense in the name of God, or at 
least declare that in certain circumstances they have ceased 
to exist; for whether he then in the strict sense dispenses, or 
only declares the sense of the divine law, is a disputed point. 
In practice there is little difference between the two views. 

(b) Bishops can dispense in episcopal laws, and even in 
those of a provincial or plenary council, unless such authority 
has been reserved. Although they have no authority over 
the common law of the Church per se, yet by custom and the 
presumed consent of the Pope, Bishops can in particular 
cases dispense from the common law in trivial and doubtful 
matters, in matters which are of frequent occurrence, as in 
abstinence, fasting, observance of days of obligation, in the 
divine Office, and even in other matters of greater moment 
which admit of no delay. 1 

Bishops can dispense not only their own subjects, but 
strangers also, in such matters as fasting, abstinence, observance 
of days of obligation, vows, etc. 2 

(c) Regular prelates have quasi- episcopal authority over 
their own subjects, and can do for them what Bishops can do 
for their subjects. Moreover, many privileges have been 
granted by the Popes to regular Orders, by virtue of which 
they can dispense not only their own subjects but others also. 

(d) Although parish priests per se cannot dispense either 
in general or in particular laws (Can. 83), yet the power is 
expressly granted to them to dispense in particular cases and 
for a good reason even outside their parishes particular indi- 
viduals and families subject to them, and within their parishes 
strangers also, from the common law of observing feast days 
and also from the observance of fasting or abstinence or of 
both fasting and abstinence (Can. 1245). Those who have 
the cure of souls in places where there are no parish priests 
in the strict sense have the same authority from the necessity 
of the case, from custom, and often by implicit or explicit grant. 3 

3. If there be a good and sufficient cause for granting a 
dispensation, the superior may ordinarily either grant it or 
refuse to do so, as he judges fit ; but if serious public or private 
harm would follow from not granting a dispensation, charity 
may require that the favour should be granted. But even in 
that case, unless the inconvenience is so serious that it excuses 

1 St Alphonsus, i, n. 190. 

2 Can. 1245, 1313. 

3 Concil. Westmon., d. 23, nn. 1,3. 



72 ON LAW 

from the obligation of the law, if a dispensation is refused, 
the law must be obeyed. 

4. The power of granting dispensations in general but not 
for a particular case (Can. 85) is of wide interpretation, for 
it exists for the common good; a dispensation, however, is a 
wound inflicted on the law, for the law should be uniformly 
observed by all as far as possible, and so a dispensation is of 
strict interpretation, and when in doubt as to whether it 
extends to some particular case the law should be observed. 

5. A dispensation granted for a country, province, or 
diocese, may be taken advantage of by all who are staying 
even for a time in the territory, but no one may use it outside 
the territory for which it is granted. The law for the time 
being does not bind within the territory dispensed, but it 
does bind outside. On the other hand, a personal dispensa- 
tion, like a precept, follows the person, and may be used any- 
where, unless specially restricted, as is the case with the 
dispensation to eat meat granted by the Bulla Cruciata, which 
cannot be used outside the limits named in the Bull. 1 

6. A dispensation ceases by being recalled by the legislator. 
One who has granted a dispensation by delegated authority 
may also for good reason recall his dispensation, and in that 
case the law begins to bind again. However, one who has 
been dispensed from a vow cannot again be bound by vow 
without his own free consent. The person dispensed may 
also renounce a dispensation granted in his favour, and, in 
the case of a dispensation granted from a vow, by renunciation 
of the dispensation the vow binds again. However, the obliga- 
tion of a law can only be reimposed by the competent authority, 
so that the renunciation of a dispensation from a law must 
be accepted by the superior in order to be effective. A dis- 
pensation also ceases if the whole cause for granting it cease 
before the execution of the dispensation, or, if the cause is 
continuous, whenever it entirely ceases. And so if a dispensa- 
tion from abstinence was granted on account of a weak state 
of health, the dispensation will cease and the law will again 
bind when the health has been completely established. If, 
however, a dispensation has been put in execution, or has 
been granted absolutely, it will not cease even though the 
cause no longer exists. And so a dispensation to marry, 
granted and already executed ad prolem legitimandam, will not 
cease though the child die before the marriage. 

1 " Intra limites tantum Hispanicae ditionis." A.S.S. 35 , p. 565. 



CHAPTER X 
VARIOUS SPECIES OF LAW 

SECTION I 
The Natural Law 

i. CERTAIN actions are in themselves conformable to right 
reason, while others are opposed to it. On account of the 
relation between parent and child, right reason tells us that 
it becomes a child to show love and reverence toward his 
parents ; on the other hand, hatred and ill-treatment of one's 
parents are opposed to right reason. Conscience tells us, 
moreover, that it is our " duty " to love and reverence our 
parents, that we " ought "to do so, that we are " bound " to 
do so; thereby making known to us the will and precept of 
a superior, the will and command of God, the Author of 
nature, and our Lord and Master. He cannot be indifferent 
as to whether we follow the dictates of right reason or not; 
he necessarily, as he is good and holy, wills that right order 
should be observed by us. 

The rules of conduct which right reason manifests to us, 
and conscience, the voice of God, commands us to follow, 
constitute the natural law, which is a participation in human 
reason of the eternal law of God, willing that right order 
should be observed, forbidding it to be disturbed. 

2. The objects, then, of the natural law are all those actions 
which in themselves are conformable or not conformable to 
rational human nature. They are actions which are neces- 
sarily prescribed, because they are demanded by human 
nature, or, on the contrary, they are necessarily forbidden, 
because they are contrary to the demands of human nature. 
They are good or evil, not merely because they are com- 
manded or forbidden by lawful authority, but because in 
themselves they are becoming or unbecoming for man to 
perform because human nature is what it is. This is the 
ground of the well-known distinction between mala in se and 
mala quia prohibita. 

3. As rational human nature remains substantially the same, 
and its essential relations do not change, it follows that the 

73 



74 ON LAW 

duties which the natural law imposes on man do not change 
substantially either. The natural law, then, in itself and 
objectively is universal and unchanging ; it binds all men at all 
times. However, it does not follow that the natural law is 
always and everywhere equally well known. In its broad 
general principles, indeed, it has been known and taught at 
all times; it would be impossible for human society to con- 
tinue unless the general principles of the natural law were 
known and acted on. Any serious departure from the law 
of nature soon brings with it its own remedy and correction 
by the stern elimination of the delinquent. Still there may 
be, and there is, ignorance of particular details and applications 
of the law of nature, even in matters of importance and of 
frequent occurrence. This is true not only of savage and 
untutored races, not only of primitive races, but even of 
civilized and Christian peoples. Theologians readily admit 
this. Many theologians of note allow that among such peoples 
there may exist ignorance of the malice of fornication ; they 
warn us that other acts against the natural law are sometimes 
done in good faith, without any knowledge of their malice. 
The presumption, then, is that among Christians the general 
principles of the law of nature are known, but the confessor 
must be prepared to meet with cases of ignorance of the 
particular details and applications of it. 



SECTION II 
The Positive Divine Law 

i. Besides the natural law, there are certain positive pre- 
cepts which God has imposed on mankind. These are known 
to us from the manifestation of the divine will which we have 
in revelation, and especially in the Old and New Testament. 
Theologians divide the positive laws of the Old Testament 
into ceremonial, judicial, and moral precepts. The ceremonial 
precepts had reference to the system of religious worship 
established by God under the Old Law, the judicial regulated 
the civil polity of the chosen people of God, and when the 
old dispensation gave place to the new at the coming of our 
Lord both ceased to have binding force. Our Lord, however, 
by no means abolished the moral precepts contained in the 
Old Law; on the contrary, he promulgated them anew and 
perfected them. 1 

1 Matt, v 17. 



VARIOUS SPECIES OF LAW 75 

2. In the New Law of Christ there are no new moral 
precepts except such as follow from the truths of faith which 
our Lord made known to us, and from the institution of the 
sacraments. We are under moral obligation to believe 
explicitly in the Blessed Trinity and in the Incarnation, as 
well as in other articles of the Christian faith. We are bound 
to receive the holy Eucharist and other sacraments instituted 
by Christ. But besides such as these, it is the common 
teaching of theologians that the Christian dispensation contains 
no new moral precepts. If our Lord called his precept of 
love new, he did not mean that the great commandment did 
not bind under the Old Law, but only that he urged it anew, 
gave us new motives to practise it, and especially his own 
divine example and wish. He also corrected some false inter- 
pretations of the moral law, which were current among the 
Jews of his time ; he developed what was implicitly contained 
in the moral precepts of the Decalogue, and he added to the 
precepts counsels of great perfection, which he proposed as 
the ideal of the Christian life, but which he did not command 
all to follow under pain of sin. In moral theology we abstain 
as a rule from treating of what concerns perfection ; it is our 
task to distinguish between what is sinful and what is not, 
for the use of the confessor in the sacred tribunal of Penance. 

3. The law of Christ is meant not for a particular nation, 
but for all men. Christ commanded his followers to preach 
to the whole world, to teach all men to observe whatsoever 
he had commanded, and the new dispensation was not to be 
merely temporary, like the old, but it was to last to the end 
of time. 1 

SECTION III 
On Ecclesiastical Law 

We saw above that the Catholic Church has received from 
her divine Founder full and independent authority to make 
laws, binding upon all her children in matters which pertain 
to religion and the salvation of souls. She has constantly 
used this power which Jesus Christ gave her. Various col- 
lections of Church law were made from an early period in her 
history, but those which are contained in the Corpus Juris 
are the most celebrated. The Corpus Juris is usually divided 
into two volumes. The first contains the Decretum of Gratian, 
a Benedictine monk, who composed his work about the middle 

1 Matt, xxviii 19. 



76 ON LAW 

of the twelfth century. It is a private collection, and so the 
documents of which it is composed have only the authority 
derived from their origin, unless custom or subsequent appro- 
bation has given special canons greater weight. The second 
volume, on the contrary, contains several official collections, 
made by the authority of the Holy See. These are the 
Decretals of Gregory IX, the Sext, and the Clementines. 
Any papal constitution contained in these collections has 
authority from the very fact of its insertion in the Corpus 
Juris. The second volume also contains the Extravagants 
of John XXII, and the Common Extravagants, both of which 
are private collections, although inserted in the Corpus Juris. 

The Corpus Juris contains the ancient law of the Catholic 
Church, which has been modified and accommodated to the 
times by more recent councils and constitutions of the Holy 
See. The Council of Trent especially made many changes 
demanded by the altered circumstances of the times, and the 
Popes have at different times issued a great number of con- 
stitutions and laws to meet the constantly changing wants 
of the Church. These constitutions are usually quoted by 
giving the Pope's name and the initial words, together with 
the date of the document. 

Early in the year 1904 Pius X ordered the common law 
of the Western Church to be codified. The work was finished 
and promulgated by Benedict XV on Whit Sunday, 1917. 
This new Codex Juris Canonici came into force on May 19, 
1918. It has binding force throughout the Western Church. 
Besides the common law which binds the whole Church, 
each country, province, and diocese has its own special laws 
and customs. The four Councils of Westminster contain the 
special provincial laws which bind the Catholics of England 
and Wales. 

SECTION IV 
On Penal and Voiding Laws 

i . We saw in Chapter VI that if the legislator chooses, and 
if he thinks it will be for the public good, he may intend a 
positive law made by him to bind, not under pain of com- 
mitting sin by its mere violation, but only under pain of being 
obliged to pay the penalty imposed. Such a law is, as we 
saw, called by theologians a penal law. Besides the rules and 
constitutions of certain religious orders, ecclesiastical legis- 
lation does not afford many examples of penal laws. As a rule, 



VARIOUS SPECIES OF LAW 77 

ecclesiastical laws are either moral laws or mixed ; they forbid 
or command an action under pain of sin, and frequently they 
impose a penalty on transgressors. 

It may be asked whether ignorance excuses from the penalty 
imposed by a law. This question is now settled by Canon 
2229. 

Sec. i. Affected ignorance, whether of a law or of a penalty 
only, excuses from no penalties latae sententiae. 

Sec. ii. If a law has the words, shall have presumed, dared, 
knowingly, studiously, rashly, designedly done it, or other similar 
phrases which require full knowledge and deliberation, any 
diminution of imputability whether on the part of the intellect, 
or of the will, exempts from penalties latae sententiae. 

Sec. iii. If a law has not those words, ignorance of the law, or 
even of the penalty alone, if it were crass or supine, exempts 
from no penalty latae sententiae; if it Were not crass or supine 
it excuses from medicinal penalties, but not from vindictive 
penalties 'la tae sententiae. 

2. Some penalties are by the will of the legislator incurred 
by the very fact of committing the crime to which the penalty 
is attached ; others require the sentence of the judge. Penalties 
which require some action on the part of the delinquent, and 
especially if deprivation of office is annexed to it, as a rule 
require the sentence of a judge; the guilty party cannot be 
expected to punish himself. 

3. In order to make sure of attaining the end he has in 
view, the legislator sometimes annuls and makes void some 
act which otherwise would have its natural effect. Such 
a law is called a voiding or annulling law, and there are many 
examples of it both in civil and ecclesiastical legislation. Thus 
a deed is void unless sealed, signed, and delivered; a will is 
void unless made with the requisite formalities; marriage 
between near relations is null and void. Sometimes the law 
makes an act voidable only, and not immediately void, at the 
instance of someone who must move in the matter ; otherwise 
the act will remain valid. Thus a contract entered into under 
constraint is voidable by English law; a gift made of his 
property by a religious under simple vows is voidable by his 
superior, unless it has taken effect and a third party has thereby 
acquired rights. Sometimes the law does not annul the act 
or make it voidable, but it refuses to grant an action to vindicate 
a claim or it bars the remedy. Thus English law will not 
aid the winner to recover a wager, nor does an action lie to 
recover payment of a debt barred by lapse of time. 



78 ON LAW 

4. A voiding law sometimes directly affects the act, and 
makes it of no effect, as does an impediment of marriage ; some- 
times it immediately affects the capacity of the person, as eccle- 
siastical law deprives religious who are solemnly professed of the 
capacity to make a valid will ; sometimes it annuls an act desti- 
tute of certain formalities, as a clandestine contract of marriage. 

5. If a voiding law also prohibits the acts which it annuls, 
it binds subjects not to perform such actions; charity and 
justice require also that a lawyer employed to make a will 
should draw it validly according to the law; otherwise one 
who performs an act made void by law, but which is not 
morally wrong or injurious to others, does not commit a sin. 

6. Neither ignorance, nor grave fear, nor serious private 
inconvenience avail to make valid an act which has been made 
void by the law. For none of these causes affects the objec- 
tive validity of the act which the law strikes at for the common 
good. If, however, a voiding law causes great public incon- 
venience, then it ceases to be for the common good; it ceases 
to be useful, and thereby ceases to be a law with binding force. 

SECTION V 
On Civil or Municipal Law 

i. The civil authority has full power to make laws in order 
to the attainment of its own special end, which is the common 
temporal welfare of its subjects. If these laws are just, they 
cannot be ignored by the moral theologian, for very many 
practical questions will depend on them for their solution. 
When the classical authors published their folios on moral 
theology, they appealed for the most part to the jus commune, 
the common law of Christendom, which was the Roman civil 
law slightly modified by local enactments and customs. 
Nowadays this cannot be done. The unity of Christendom 
with its common, universally accepted stock of ideas and laws, 
no longer exists, and regard must be paid to municipal or 
local law. Especially in England and in America must this 
be done, for the system of law which is in force among us is 
distinct from the Roman civil law, and from thk modern 
European systems which are largely based upon it. 

In this section, then, we will consider the bearing of English 
law on questions of conscience, and try to lay down certain 
general principles which will guide us towards the solution 
of particular cases as they arise. 

We saw above that the legislative authority in civil matters 



VARIOUS SPECIES OF LAW 79 

can bind the conscience under pain of sin by its laws, if it 
so choose, for God bids us obey lawful authority. It is clear, 
too, that if the civil authority transgresses the limits assigned 
to it, and makes laws which conflict with the law of God, or 
with the law of the Church in her own sphere, such civil 
ordinances have no binding force. Laws, then, which affect 
to dissolve the bond of marriage, which refuse to acknowledge 
rights of religious granted by the Church, and others of a similar 
nature, are no true laws at all, and need not be regarded, 
except in so far as is necessary to avoid greater evil. 

2. With regard, however, to such laws as it is within the 
competence of the State to make, conscience obliges us to 
pay loyal obedience to those which urge and apply the law 
of nature. Near relatives are bound to support the indigent 
poor because it is their natural duty, and also because the 
State commands it; and, similarly, ' crime must be avoided 
because it is wrong, and because the State forbids it. Where 
the law of nature is indeterminate and vague, but where the 
positive law has stepped in to define rights for the common 
good, conscience must also submit to the civil law. Unless 
we admit this, we shall have to say that in such matters there 
is no certain and definite rule for conscience to follow; rights 
and obligations will be left in uncertainty, to the serious 
disturbance of men's consciences and the public inconvenience. 
Laws, therefore, which govern prescription, the rights of 
inventors and authors, the distribution of the property of 
intestates, the property rights of married women, the capacity 
of minors, and contracts, will have binding force in both the 
external and internal forum. 1 

3. Certain laws merely refuse an action to vindicate a claim 
or bar the remedy. Such laws do not annul or invalidate any 
natural right which may exist in the case; the law cannot 
produce an effect which was never intended by the legislator, 
and which is repudiated by those who administer the law. 
A debt, then, which is barred by statute still remains a debt, 
and must be paid; an unstamped document may suffice to 
prove an obligation in conscience, though it would not be 
admitted in a court of justice until the defect was made good ; 
contracts seriously entered into and completed will bind the 
conscience, even though the law will not enforce them because 
they are not in writing, or because there is not the considera- 
tion which is required by law. 

1 D'Annibale, i, n. 206. Codex juris canonici, passim. See Slater , 
Points of Church Law, 35. 



8o ON LAW 

4. A very probable opinion of long standing in England 
maintains that merely positive laws are penal, and do not bind 
under sin except to submit to the penalty in case of violation, 
and if it be imposed. Of course, it is [well that all subjects 
should loyally obey all the just laws of their country, and good 
citizens will make a point of doing so ; but in moral theology 
we are concerned with the question of sin, and it is probable 
that one who violates a positive law of England does not 
commit sin thereby if he be prepared to submit to the penalty, 
if imposed. This is the teaching of Blackstone, and although 
other views concerning legal obligation have become fashion- 
able since he wrote, his opinion would seem not to be materially 
affected thereby. According to Austin, the chance of incurring 
the evil imposed by the legislator on those who transgress his 
laws is the only possible obligation of law a doctrine which 
would make all laws penal, and nothing else but penal. The 
idealist school does not accept Austin's views, but its only 
conception of moral obligation is that it is self-imposed; it 
denies that moral obligation is or can be imposed by a legis- 
lator. 1 It is true that if the legislator wished to impose a 
strict and perfect obligation by positive law, the subject would 
be bound under sin to conform to it, but the English legis- 
lature cannot be said to do this, as the common opinion in 
the country, on one ground or another, is that a moral obliga- 
tion under pain of sin is not imposed by positive law. 

5. The effect of voiding laws in English jurisprudence seems 
to be not to invalidate an act or a contract which is otherwise 
valid, but to empower the party concerned to annul it if he 
choose to take advantage of the law. Unless the party con- 
cerned move in the matter, the act struck at by a voiding law 
will remain valid. This seems to be the view which lawyers 
take of the effect of such laws ; it is in keeping, too, with a very 
prevalent theological opinion concerning the nature of voiding 
laws in modern jurisprudence. 2 

SECTION VI 
On Privileges 

i. A privilege is, as it were, a private law which grants a 
special favour to some person. 

It is a law, because although as a general rule no one is 
bound to use a privilege, since what is granted as a favour 

1 T. H. Green, Lectures on the Principles of Political Obligation, 

2 Encyclopedia of the Laws of England, s.v. "Null and Void," 



VARIOUS SPECIES OF LAW 81 

should not become a burden and a restriction to liberty, yet 
it lays on all the obligation of respecting the privilege, and of 
doing nothing contrary to it. Moreover, those privileges 
which are granted not to individuals, but to bodies of men 
like clerics and religious, cannot be dispensed with or used 
at the good pleasure of members of the privileged bodies. 
Individuals cannot renounce the privileges of their order, but 
they are bound to act in accordance with them. 

2. A privilege is against the law if it derogates from the 
law in favour of the privileged person ; it is beside the law if 
there be no law from which it derogates. 

The lawgiver to whom the law is subject can alone grant a 
privilege against the law, and within the territory subject to 
his jurisdiction. Within that territory all, whether subjects 
or strangers, may enjoy the privilege,; no one may enjoy it 
outside the territory of the grantor, unless it be in the nature 
of a personal dispensation from the law. A privilege which 
is against no law may be granted to anyone. 

A personal privilege is directly and immediately granted 
to a physical or moral person; a real privilege is granted 
directly and immediately to a place, office, dignity, or thing, 
and mediately to persons with respect to the place, office, 
dignity, or thing. 

3. Privileges are to be interpreted according to the terms in 
which they are granted. And thus if a privilege is granted 
by the Pope to a confessor by which he may absolve from 
cases reserved to the Holy See, he cannot thereby absolve 
from specially reserved cases, much less from the cases 
most specially reserved to the Holy See, and which can only 
be absolved by faculties specially .delegated by the Holy See. 

Privileges granted to corporate bodies, such as Religious 
Orders, inasmuch as they are rewards for services rendered 
to the Church, and are for the common good, admit a wide 
and favourable interpretation. Even privileges granted to 
individuals, if they cause no prejudice to others, such as leave 
to eat meat on days of abstinence, receive a wide interpretation. 
Personal privileges, however, which benefit the privileged 
while curtailing the rights of others, as exemption from paying 
tithes, are regarded as a wound inflicted on the law which 
should be equally observed by all, and so they receive a strict 
interpretation. 

4. Although privileges are in general granted in perpetuity, 
yet they cease in many ways : by revocation of the competent 
superior, by renunciation accepted by the competent superior, 

i. 6 



82 ON LAW 

by such change in circumstances that in the judgement of the 
superior they have become harmful ; a personal privilege is 
extinguished by the death of the privileged person, real privi- 
leges cease by the total destruction of the thing or place, but 
the latter revive if the place be restored within fifty years ; 
they cease also by the lapse of the time or the completion of 
the number of cases for which the privilege was given (Can. 
72-77). 

5. On the privileges of the clergy see the Code of Canon 
Law, Canon 118 ff. 

6. Religious Orders have at different times received very 
ample privileges from the Holy See, so as to enable them to 
work for God and the Church with the greater freedom and 
fruit according to their Institute. These privileges are 
granted immediately to the religious superiors, and are by 
them communicated as occasion requires to their subjects. 
The regular or mendicant Orders, who take solemn vows, are 
exempt from the jurisdiction of the Ordinaries, and subjected 
immediately to the Holy See. Exemption, however, and 
many other privileges of religious have been largely curtailed, 
especially since the time of the Council of Trent, and now, 
as far as their work among the faithful is concerned, and their 
public conduct, regulars are to a great extent subject to the 
authority and correction of the Ordinary. 



BOOK IV 
ON SIN 

PART I 
ON SIN IN GENERAL 

CHAPTER I 

THE NATURE OF SIN 

r. A SIN is nothing but a bad human' act, and it may be defined 
as a free transgression of the law of God. For a bad human 
act is a disturbance of right order either because in itself it is 
against right reason, as murder or suicide, or because it is 
against the command of a legitimate superior, which imposes 
a strict obligation, and which right reason bids us obey. But 
such a disturbance of right order is against the law of God. 

Every voluntary act against right reason is an offence against 
God and a sin, for although the sinner in committing sin 
does not always think explicitly of God, yet he always appre- 
hends that he is doing a wrong action, an action which his 
conscience condemns, and in the condemnation of conscience 
is implicitly contained the condemnation of God himself. 

A sin must be distinguished from an imperfection, which is 
either negative or positive. A negative imperfection is merely 
the omission of a good action which is not of precept; and 
such an omission when grace moves one to perform the act, 
though not a sin, yet is a falling short of the perfection which 
was within one's reach. A positive imperfection is a violation 
of God's will made known to us, but which does not strictly 
oblige us. God wishes a religious to observe his rule, but 
frequently this does not bind under sin. A positive imper- 
fection, then, is a falling short not only of the perfection 
which was offered to us and which we might have had, but 
also of that which God wished us to have, though he did not 
oblige us to have it. 

2. Sin in the sense defined is called actual sin; habitual sin 
is the state which follows the commission of actual sin until 
this be forgiven. 

83 



84 ON SIN 

A formal sin is committed knowingly and wilfully; a material 
sin is committed without knowledge or free consent. 

Sin is said to be against God, our neighbour, or ourself, 
as it is against some virtue which immediately regards God, 
or our neighbour, or ourself. All sin is ultimately against 
God. 

Sins of ignorance are committed through culpable ignorance ; 
sins of infirmity through passion or bad habit; sins of malice 
with cool deliberation and forethought. The last, as is 
obvious, are the least excusable. 

A sin of commission is an act against a negative precept; a 
sin of omission is the wilful neglect of a positive precept. 

The meaning of the terms sins of thought, word, and deed, 
is obvious. 

3. To commit sin there must be actual advertence to the 
malice of the action done, either when the action is performed, 
or when the cause is put. This follows from what was said 
above about human acts, which must be voluntary either in 
themselves or at any rate in their cause. But no act is volun- 
tary without previous knowledge and advertence. It is not 
sufficient, then, for sin that a man could physically advert to 
the wrongfulness of his action, and should have done so ; if there 
was no advertence, either at the time of the action or when 
its cause was put, there is no sin. However, advertence to 
what is likely to follow when the cause is put is sufficient to 
contract the malice of sin ; and so wrong done through wilful 
negligence, or passion, or habit, or carelessness, is imputable 
to the agent. 

Advertence to an evil thought or motion does not con- 
stitute sin without free consent of the will. The will consents 
when it voluntarily accepts an evil suggestion presented by 
the mind, and it is immaterial whether the evil originates in 
the will, or whether the will accedes to evil when suggested 
to it from without. For sin, then, there must be both ad- 
vertence to the evil and free consent to it; a man who takes 
another's money, thinking it to be his own, does not commit 
theft, nor does the kleptomaniac who is powerless to refrain. 



CHAPTER II j 

THE GRAVITY OF SIN 

i. WITH reference to the gravity of its malice, sin is divided 
into mortal and venial. Holy Scripture teaches us that there 
are certain sins which exclude from the kingdom of God, 1 
and, on the other hand, that the just, even while they remain 
just, frequently fall into slight faults. 2 The same truth is 
taught by the Church. 3 There are, then, mortal and venial 
sins. 

The essence of mortal sin consists in turning aside from 
God, our last end, and virtually placing our supreme happiness 
in some created good. But our last end is the vital and 
guiding principle of moral conduct, and to throw that aside 
is to make complete shipwreck of the moral life. It is not 
merely to wander out of the direct path, as is done by com- 
mitting venial sin ; however much this is done, if the ship be 
kept moving toward the port, it will come to harbour at last; 
but if the ship be steered altogether away from the port, it 
will never get there. By committing mortal sin, then, we turn 
away from God, our last end ; we rob our souls of the sancti- 
fying grace of God which is their life, and we incur liability 
to eternal separation from God and punishment in hell. Venial 
sin is indeed an offence against God, but it does not turn the 
soul away from him, nor rob it of his sanctifying grace ; and 
it is more easily pardoned than mortal sin. 

2. Mortal sin is sin in the fullest and most complete sense; 
it is an act of consummate wickedness. A bad act must have 
three conditions in order to be mortally sinful : 

(a) There must be full advertence to the grave malice of 
the act. A child that has not yet attained the full use of 
reason, a person half asleep, or half drunk, or half-witted, 
cannot know and appreciate sufficiently the malice of mortal 
sin, and so cannot commit it. It is not, however, necessary 
to reflect explicitly on God; or on the grave wickedness con- 
tained in the act in order to sin mortally. It will be sufficient 
if one who has the full use of reason consciously does what 

1 i Cor. vi 9. 2 Prov. xxiv 16; Jas. iii 2. 

3 Trent, sess. 14, c. 5. 

85 



86 ON SIN 

he knows to be seriously wrong, although there is no actual 
weighing of motives for doing or avoiding the act, no actual 
thought of God, no explicit calling to mind of the terrible 
consequences of mortal sin. Men who never think of God 
from morning till night, men who do not believe in hell, 
certainly commit mortal sins when they do what their con- 
sciences tell them is seriously wrong. Their conscience, as 
we saw above, is the voice of God. 

(Z>) Besides advertence of the mind to the malice of the 
act, there must be full and free consent of the will to do it. 
If a man does not give full consent, but only dallies with the 
temptation, there is venial but not mortal sin; if, through 
being only half conscious or partially deranged, he has not full 
control over his will, he cannot be guilty of mortal sin. 

After a temptation to sin is over, the conscience is some- 
times uncertain and troubled as to whether full consent was 
given to sin. Often one may form one's conscience on the 
point by reflecting whether he was fully awake or conscious 
of what he was doing, whether the sinful act to which tempta- 
tion impelled him was executed if there was the opportunity 
of doing so. If doubt remains, it should be settled by pre- 
sumptions drawn from what usually happens. If he usually 
yields to such temptations, the presumption is that he did 
so on this doubtful occasion ; the presumption is in his favour 
if he does not usually yield consent. 

(c) The object or the matter to which consent is given must 
be seriously against the moral law in order that a sin may 
be mortal. 

The matter is serious as a rule when the sin committed is 
directly against our duty to God, as blasphemy, heresy, hatred 
of God, idolatry, despair of God's mercy. 

The matter is also serious when the sin causes great harm 
to our neighbour, as do sins against justice, charity, and 
obedience. 

When sins cause great harm to the sinner himself the 
matter will also be serious and the sins mortal. This is the 
case with sins of intemperance and lust. 

3. Some grievous sins are always mortal if there be full 
advertence and consent in the act. They do not admit parvity 
of matter, as theologians say. On the other hand, some sins, 
which if the matter be serious are mortal, become venial when 
the matter is light; sins against justice and charity are of this 
kind. It is a mortal sin to steal ten pounds, it is a venial sin 
to steal a penny. Some sins are of their nature venial, and 



THE GRAVITY OF SIN 87 

only become mortal when they contract some special malice 
from the circumstances. Fidelity to a simple promise binds 
under pain of venial sin, but when the promise is bilateral 
and the matter serious, as in espousals, it binds under grave 
sin and in justice. 

4. From what has been said about mortal sin, it will be 
clear that a sin will be venial if anyone of the three conditions 
required for mortal sin be wanting. 

5. Mortal sin may in certain circumstances become venial, 
and, on the contrary, venial sin may become mortal. The 
following paragraphs will make this clear : 

(a) Mortal sin may become venial on account of an erroneous 
conscience which wrongly judges a grave sin to be only venial. 

(6) The same may happen on account of imperfect ad- 
vertence or imperfect consent to an act which in itself is 
gravely sinful. ' 

On the other hand, a venial sin may become mortal : 

(a) On account of an erroneous conscience which falsely 
judges a venial sin to be mortal. 

(b) On account of a gravely sinful intention with which 
a venial sin is committed, as when a lie is told in order to 
commit adultery. 

(c) On account of the proximate danger to which one is 
exposed of committing grave sin, as when one reads a slightly 
indecent book, but foreseeing that it will be the proximate 
occasion of grave sin. 

(d) On account of grave scandal caused by venial sin. 

(e) When light matter coalesces and becomes grave by 
additions, as when one who is bound to fast frequently in the 
day takes small quantities of food, which are notable in the 
aggregate I r when a considerable amount of money is stolen 
in small thefts. 

Although no mere multiplication of venial sins can ever 
amount to a mortal sin, yet venial sin frequently committed 
disposes the soul to commit mortal sin both directly and 
indirectly. Directly, by forming a habit which becomes 
stronger and stronger, continually requiring greater indulgence 
for its satisfaction, and finally leads to mortal sin. This is 
often seen in such sins as theft and lust. Indirectly, because 
venial sin familiarizes the soul with wrongdoing, lessens the 
fear of God in the soul, diminishes the fervour of charity, and 
causes God to withhold those more abundant graces which 
he would otherwise give, and which would preserve the soul 
from sin, but without which the soul falls grievously. 



88 ON SIN 

6. To deliberate whether we shall commit mortal sin or 
not, weighing the reasons on either side, is itself a grievous 
sin. It is against the precept of charity, by which we are 
obliged ever to cling unswervingly to God; it is a grievous 
injury to God, as if a subject were seriously to deliberate 
whether he should or should not be faithful to his king and 
country. 

7. In this chapter we have for the most part kept in view 
the objective malice of sin. As a rule, the confessor should 
judge of sins confessed according to the objective malice, but 
he will, of course, bear in mind that the subjective malice of 
sin may be very different from the objective. The subjective 
malice of sin will depend upon the degree of instruction and 
knowledge, the graces which the sinner had received, the 
violence of the temptation to which he was subjected, whether 
he was influenced by habit, perhaps unconsciously formed, 
or whether he was the subject of hereditary tendency, and 
many other considerations. It is obvious that the question 
of subjective malice must be generally left to the infinite 
knowledge of God, who alone sees and penetrates the inmost 
recesses of the heart. 



CHAPTER III 
ON DIFFERENT SPECIES OF SINS 

i . THE Council of Trent teaches 1 that all Catholics are bound 
by divine law to confess to a priest all the mortal sins into 
which they may have fallen after baptism. A confession of 
sin in general terms will not suffice, but as far as is possible 
the confession must be integral that is, each and every mortal 
sin must be confessed according to number and species. The 
confessor, then, must know when this duty is sufficiently 
fulfilled, or he must know how to distinguish the different 
species of sin. To enable him to do this, theologians have 
formulated three rules, of which sometimes one, sometimes 
another, is more serviceable for determining the species of 
any particular sin. 

2. RULE I Sins differ specifically according as their formal 
object differs. This rule is merely an application of the 
universal principle that acts are specified by their formal 
objects. Sins are bad human acts, and so, as we saw when 
treating of human acts, their formal object gives them their 
specific moral quality. The formal, not the material, object 
specifies the sin that is, the object, inasmuch as it is morally 
wrong, causes the will which tends to it to be a vicious will 
in a certain definite way. And so adultery is a specifically 
different sin from fornication, because in the former case right 
order is doubly violated in a way that does not belong to 
fornication. 

3. RULE II Sins are specifically different according as they 
are opposed to specifically different virtues. The reason of 
this rule is fundamentally the same as that of the former, for 
virtues are specifically distinguished according to their acts, 
and acts are specifically distinguished according to their 
formal objects. And so, inasmuch as charity is a different 
virtue from justice, hatred, as being opposed to charity, is a 
specifically distinct sin from theft or detraction, which are 
against justice. 

4. RULE III Those sins are specifically distinct which are 
transgressions of formally distinct laws. 

1 Trent, sess. 14, c. 5. 
89 



90 ON SIN 

Laws, however, are formally distinct not because they are 
made by different authorities ; the same sin of theft is against 
the natural, divine, ecclesiastical, and civil law. But when 
the motives of two laws are different, and the legislators wished 
to impose on their subjects the obligation of the special motive 
which they had in view, the laws will be specifically different, 
and sins against them will be specifically distinct. Thus the 
Church commands her children to abstain from flesh meat 
on Fridays, in order to exercise themselves in the virtue of 
temperance by curbing their appetite; she forbids anyone to 
receive Holy Communion who has not been fasting from 
midnight, out of reverence to the Blessed Sacrament; these 
two laws, then, are formally different laws, and violations of 
them are specifically distinct sins. Sometimes the Church, 
in forbidding an action, does not choose to clothe her precept 
with the obligation of the motive which induced her to make 
the law, and then violations of the law will be simply sins of 
disobedience. Thus bad books are frequently forbidden with 
a view to safeguarding the faith, but one who reads such 
books unlawfully does not thereby and necessarily sin against 
the faith. 



CHAPTER IV 

THE NUMERICAL DISTINCTION OF SINS 

i . IF a man steals five pounds from A on one day, and another 
five pounds from B the day after, he commits two distinct 
sins of theft. There is no difficulty about such cases. But 
how many sins does a man commit who, with the intention 
of seducing a woman, begins with bad talk, immodest looks 
and touches, and finally attains his end ? Or how many sins 
are committed by one who is almost all day long occupied 
with bad desires, which are, however, interrupted by his taking 
his meals and by other occupations ? Or how many sins does 
he commit who sets fire to a building where a dozen people 
were asleep who all perished in the flames ? In order to 
decide as far as possible such difficult questions as these, and 
enable penitents to confess the number of their sins according 
to the divine precept, theologians have drawn up the follow- 
ing rules : 

2. RULE I There are as many sins as there are total objects 
in sinful actions. By total object is meant an object of the 
will which either in itself or by the intention of the agent 
forms a complete whole, and is not referred to another action 
as a part of the whole. Thus the theft of a sum of money is 
a complete whole in itself, and forms a total object of the will. 
Immodest touches may form a complete whole if the intention 
be restricted to them without an idea of going farther ; but if 
immodest touches are intended as a means to commit further 
sin, they form one complete whole with the subsequent sin, 
and make one sin with it. 

The reason of the rule is clear from what has been said 
before. The object specifies the act, and if there be one whole 
object from a moral point of view, there will be one complete 
moral action and one sin. 

3. RULE II There are as many sins as there are moral 
interruptions in the sinful act. We say " moral interruptions " 
because the laws for confession are to be understood according 
to the common estimation of ordinary men, not according to 
the subtle distinctions of the philosopher. And so, if common 
sense tells us that on account of some interruption in the course 

91 



93 ON SIN 

of a bad desire, there are two human [acts, and not |one con- 
tinuous action, there will be two sins and not one. However, 
the main difficulty in this question is to decide what moral 
interruption is sufficient and necessary to break the moral 
continuity in an action and to multiply the sin. 

It is clear that if a person gives up his sinful design, and 
then returns to it again, there will be a break of continuity, and 
two distinct sins. Moreover, without explicitly relinquishing 
his evil design, there may be such an interruption in entertaining 
it that when it is taken up again there will be a new action 
and a distinct sin. The interval which is necessary for such 
an interruption will vary according to the nature of the act 
and the circumstances. 

(a) In merely internal sins of thought, any complete cessa- 
tion from the bad thought would seem to be sufficient to 
interrupt the moral continuity of the action and to multiply 
the sin. However, if the interval is short, and the thoughts 
proceed from the same impulse of passion, or one depends 
on another and issues from it, the moral unity will not be 
broken, and there will be only one sin. 

(b) A determinate purpose to commit an external sin 
murder, for example is not multiplied by ordinary inter- 
ruptions demanded by sleep, meals, or daily occupations. 
Such a purpose, persevered in for a week or so, would con- 
stitute only one sin. The same would hold for a longer period 
if the purpose were renewed at short intervals, and never 
retracted. If, however, it were not renewed within a short 
interval, mere lapse of time would eventually cause the purpose 
to evaporate and cease to exist, so that renewal of the purpose 
after a considerable interval would constitute a new and 
distinct sin. 

It is very difficult to define precisely what interval of time 
would be required to break the moral continuity of the act. 
Much depends upon circumstances; a longer interval would 
be required when the act was not renewed through forgetful- 
ness, or because no occasion of renewal presented itself; a 
shorter would suffice if the ceasing to entertain the sinful 
purpose were voluntary. No better rule can be given than 
that the question of time must be left to the judgement of a 
prudent man. 

(c) If the purpose to commit sin is from time to time ex- 
ternalized by the taking of some means to the end in view, 
the act remains one and the same for a long interval of time, 
and such a purpose entertained for months and years under 



THE NUMERICAL DISTINCTION OF SINS 93 

those circumstances would constitute only one sin. Similarly 
a purpose persevered in for years not to pay a debt that is 
owing constitutes only one sin, though, of course, it is more 
grievous the longer it is entertained. 

4. It is a disputed point among theologians whether a sinful 
act which is directed to many distinct objects is only one or 
many sins. An example will illustrate the difficulty. If an 
anarchist throws a bomb into a crowd of people and kills a 
score of them, does he commit a score of distinct sins of murder 
which must be mentioned in confession if he goes to con- 
fession, or does he commit only one big sin, whose malice 
indeed equals twenty, but which is adequately confessed by 
saying, " I killed a number of people by throwing a bomb " ? 
It will not suffice to say, " I committed homicide," for that 
would mean the taking of one life only, which was not precisely 
what was done. 

In this controverted question it would seem better to dis- 
tinguish, and say that if the objects were capable of being 
grouped together and actually were conceived as one object 
by the mind, there was one act and one sin. If, however, 
the criminal distinctly thought of the several objects and 
intended to kill each and all, there will be as many sins as 
there are distinct objects. A priest who, when starting for 
a fortnight's holiday, intends to omit his breviary during the 
whole time, commits one big sin ; but if he executes his design, 
he commits a new sin every day that he neglects his duty, 
for the Office of each day forms one total object, and the precept 
of saying the divine Office is virtually multiple, and falls on 
each and every day. 

5. If the means used to commit a sin are themselves evil and 
of the same species as the sin, and if they can be regarded as 
parts of one total object, as, for example, immodest talk and 
touches with a view to fornication, such means need not be dis- 
tinctly confessed, as we saw above. If, however, the evil means 
are of a different species from the sinful end, as, for example, 
lying in order to commit a theft, the evil means are a separate 
sin, and must be distinctly confessed. If the means used to 
commit a sin are not in themselves sinful, they need not be 
confessed, unless the end was not attained, and in that case 
it will be sufficient to express in general terms in confession 
the use of means to give effect to a sinful purpose, by saying, 
for example, " I tried to commit theft," if the intending thief 
merely entered a house, but failed to effect his design. 



PART II 
ON CERTAIN KINDS OF SINS 

CHAPTER I 
ON SINS OF THOUGHT 

i. THERE are as many kinds of bad thoughts as there are 
different kinds of sin, but for the purpose of this chapter they 
are commonly reduced by theologians to two kinds: bad 
desires and morose pleasure in evil imaginations. Desire, 
therefore, is here understood in a wide sense and comprises 
a longing, a wish, purpose, or intention of doing something 
wrong. Morose pleasure is voluntary joy, delight, and satis- 
faction in an evil imagination, and what is said about it is 
also applicable to voluntary sadness and sorrow on account 
of something good, which should cause the opposite sentiments. 

Desires are efficacious when there is the intention of taking 
the necessary means to obtain what is desired; they are in- 
efficacious or conditional when this is not the case. 

2. An efficacious desire of doing what is wrong is a sin of 
the same kind as the external action would be; it contracts 
the malice of the object and of all the circumstances of the 
object. The reason is plain. The external action in the 
concrete with all its circumstances is the object to which the 
will tends in forming an efficacious desire; and as an act is 
specified by its object, the evil desire belongs to the same 
species of sin to which the external act would belong when 
performed in the circumstances contemplated. 

The same must be said of inefficacious or conditional desires, 
unless the condition takes away all the malice of the act, as 
it frequently may do. There is no harm, for example, in 
saying, " I should like to eat meat on a Friday, unless the 
Church forbade it "; and the same is true generally whenever 
the condition, "if it were lawful," is annexed to a merely 
positive prohibition. If this condition is annexed to a- desire 
against the natural law, as " I should like to steal if it were 
lawful," or " I should like to commit fornication if it were 
not forbidden," the condition does not remove all the malice 
of the vicious will, for the very tendency of the will toward 

94 



ON SINS OF THOUGHT 95 

such objects is against right reason. Such conditional desires, 
then, are sinful, unless they indicate a mere propensity towards 
such sins without any voluntary affection of the will. In any 
case, however, they are dangerous, and should not be indulged 
or expressed. 

3. Morose pleasure in the imagination of what is evil is 
what ordinary Catholics mean by a bad thought in the restricted 
sense. It is sinful when voluntary, for it is an approbation, 
a satisfaction in what is wrong ; it is an act of the will which 
is specified by a bad object, and so it derives its special character 
and malice from the object. To take pleasure, then, in the 
thought of revenge, is a different sin from taking pleasure in 
the thought of adultery. 

There is a difference, however, between the source of the 
malice of evil desires and of morose pleasures. We have seen 
that evil desires contract all the malice of the object and of its 
circumstances. Morose pleasure, too, contracts the malice 
of its object and of any circumstance which is a motive of the 
pleasure, but not of other circumstances which may belong 
to the object in the concrete. For the will in morose pleasure 
tends to the object not as it exists in the concrete with all its 
circumstances, but as it is represented in the imagination, 
and precisely in so far as the object thus represented allures 
the appetite. Morose pleasure, then, takes its malice from 
the object, but not from all the circumstances of the object. 

Taking pleasure in an evil imagination must be distin- 
guished from taking pleasure in the thought of sin. It is not 
sinful to take pleasure in thinking about pride, for example, 
and trying to penetrate its malice. Knowledge naturally 
gives pleasure and in itself is not sinful. But it is dangerous 
to think about some sins, about sins of lust or revenge, for 
example, and on account of the danger it is wrong to think 
about sins of the flesh without good reason. Thinking about 
such sins with good and sufficient reason is not sinful, for 
the danger of sin is not sin, and it may be neglected for suffi- 
cient cause; if there is not sufficient reason and the danger 
of consent is small, it will be a venial sin; if the danger of 
consent be proximate and the matter grave, the sin will be 
mortal. 

4. Morose pleasure in certain definite sins of one's past 
life has for its object the sins as they were actually committed 
with all their circumstances, and so it will be infected with 
all the malice of the circumstances. Morose pleasure in past 
sins is thus similar in its malice to evil desires, and on this 



96 ON SIN 

account obtains the special name of " joy " in theology. A 
penitent who has been guilty of this sin should say what sins 
they were whose remembrance gave him pleasure. 

5. Those who are not yet married and those who have been 
married may not take pleasure in the thought of what is 
allowed to married people, for in practice such pleasure can- 
not be confined to the intellect; it also excites the sensual 
appetite and this causes temptation and sin. 

6. It is not sinful to take pleasure in a good result which 
followed from some evil, as, for example, in the good results 
of a war or of a revolution. We may lawfully rejoice in the 
death of someone who was causing great harm to public 
morality, or to the public good in general, not precisely because 
he is dead, but for the reason that the cause of public harm 
is removed. We prefer the public good to the good of the 
individual, especially if he is doing harm. In this connection 
mention may be made of certain propositions condemned by 
Innocent XI, of which the following is a specimen: "It is 
lawful for a son to rejoice that he killed his father in a drunken 
fit on account of the great wealth to which he has thereby 
succeeded." It is obvious that such joy is morally wrong, 
for the act of parricide was at any rate materially wrong even 
when committed while drunk, and joy on account of what 
was, and is, wrong is unlawful; nor does succession to the 
father's wealth, a good of a lower order than human life, 
especially a father's life, furnish a just cause for such unfilial 
rejoicing. 

7. As it is unlawful to take pleasure in evil, so it is sinful 
to entertain voluntary sadness on account of good. To be 
sorry, therefore, for what is good and matter of precept is a 
mortal or a venial sin according as the precept binds under 
mortal or venial sin ; and so a reprobate sins grievously who 
laments the years that he spent in leading a virtuous life. 
Even though the good be not matter of precept, as, for example, 
the vows of religion, it is irrational and at least venially sinful 
to be sorry for having taken them; it will be grievously sinful 
if it leads to the danger of transgressing them. 

On the questioning of penitents concerning bad thoughts, 
see Genicot, i, n. 175. 



CHAPTER II 
THE CAPITAL VICES 

THEOLOGIANS divide the chief vices to which human nature is 
subject into seven heads or capital sins, as they are called. 
The name implies that they are the source and origin of inany 
more, inasmuch as the inordinate love of any temporal good 
is apt to give rise to many inordinate ways of pursuing it. 
The seven capital sins are : Pride, Covetousness, Lust, Anger, 
Envy, Sloth, Gluttony. 



On Pride 

i. Pride is the inordinate love of our own pre-eminence. 
There is a tendency deeply seated in human nature, which arises 
from the self-love which is innate in every man, and which 
leads him to prefer himself to others, to wish to lord it over 
them, and to bear with impatience the yoke of subjection to 
authority. Truth requires that we should look upon any 
qualities and gifts that we possess as coming to us from the 
bounty and goodness of God, and as giving us no right to exalt 
ourselves above others who have received similar or even 
greater benefits from the generosity of our common Father. 
Pride, on the contrary, would willingly close its eyes to this 
salutary and humbling truth; it looks upon whatever it pos- 
sesses as its own, as the fruit of its own labour and merit ; it 
is prone to magnify its gifts, and to consider them to be greater 
than they really are, while on the other hand it is blind to 
the good qualities of others. This leads to the growth of a 
spirit of independence which is impatient of subjection to 
any authority, human or divine, and to a depreciation and 
contempt of others. The proud man has no need to ask 
God for anything ; he thanks him that he is not as the rest of 
men; he is self-sufficient and independent of all the world. 
This is the pinnacle of pride, the inordinate love of one's own 
pre-eminence. 

Consummate pride, which refuses to be subject to God and 
to lawful authority, and which looks down upon other men 
i. 97 7 



98 ON SIN 

with profound contempt, is a mortal sin. If it does not go to 
these lengths, but merely magnifies self without grave in- 
subordination and contempt of others, it is a venial sin. 

Pride is so serious an evil because it strikes at the root of 
the primary obligations of reverent obedience towards our 
Lord God and love of our neighbour, because it is opposed to 
the truth, and because of its universality ; it is in the heart of 
every man and quickly grows to fearful dimensions unless 
corrected and subdued. 

2. To pride is opposed humility, the virtue which occupies 
the mean between the two extremes of pride and pusillanimity 
or mean-spiritedness. The mean-spirited man refuses to take 
the place for which his talents fit him, and which God intends 
for him. He puts himself beneath his equals and inferiors 
to the detriment of his dignity and office ; he is afraid to exercise 
the authority entrusted to him, and the public good suffers 
in consequence. Humility, on the other hand, keeps a man 
in his place both with respect to God and his fellow-men. It 
is grounded on the knowledge of God and of self; the humble 
man knows and acknowledges that he has nothing but what 
he has received from God, that he is utterly and entirely 
dependent on God every moment of his life, that if left to 
himself he will fall into the lowest depths of sin and degrada- 
tion; and this knowledge causes him to think much of God 
and little, very little, of self. This is the virtue so much recom- 
mended by our divine Lord: " Learn of me, because I am 
meek and humble of heart." 1 

Pride leads to many other vices, among which are: pre- 
sumption, ambition, vainglory, boasting, and hypocrisy. 

(a) Presumption is the inclination and wish to undertake 
what is above one's capacity. Ordinarily it is a venial sin, but 
it will be mortal if it is the occasion of serious harm to the 
cause of God or our neighbour. 

(b) Ambition is the inordinate striving after dignities and 
honours. The inordinateness consists in striving after honours 
to which one has no just claim or greater than one's due, or 
by unlawful modes and means, or with too great eagerness. 
Apart from such inordinateness it is not sinful to seek after 
honours and dignities, as these belong to the class of things 
that are in themselves indifferent; it is a meritorious act to 
seek with moderation after dignities and honours in order 
thereby to be able to do more for God and one's fellow-men. 
" If a man desire the office of a bishop, he desireth a good 

1 Matt, xi 29. 



THE CAPITAL VICES 99 

work." 1 Such an act belongs to the virtue of magnanimity. 
Ambition is commonly a venial sin, but it becomes mortal 
when it is the cause of serious harm, or when the means em- 
ployed to attain its. end are grievously sinful. 

(c) Vainglory is the inordinate striving after the esteem and 
praise of men. It is not wrong but praiseworthy to seek after 
and preserve a good reputation, which, as Holy Scripture 
teaches, is better than great riches. 2 But inordinateness, 
vanity, and sin come in when the esteem and praise of those 
men is sought whose esteem is not worth having, or when 
esteem is sought for what does not deserve esteem, or not 
so great as is sought after, or when glory is not referred to 
the proper end. It is usually a venial sin, but may become 
mortal in the same way as ambition. 

(d) Boasting is the inordinate bragging about one's own 
good qualities or gifts, or even about what is sinful. If the 
inordinate display is in action rather than in word it is called 
ostentation. 

(e) Hypocrisy is the feigning of virtues and qualities that 
one does not possess. 



On Covetousness 

i. Covetousness or avarice is the inordinate love of wealth. 
It is not sinful to value and seek after money in moderation, 
but the love of money becomes inordinate when it causes a 
man to be too close and niggardly in spending it, too eager 
and absorbed in acquiring it, and ready to do what is wrong 
in order to come at it. 

It is of itself a venial sin, but it becomes mortal when it 
leads to the transgression of a precept which binds under 
grievous sin. Although it is of itself only a venial sin, yet 
it is very dangerous because of man's proneness to it, and 
because the vice is apt to grow fast by what it feeds upon, 
until it becomes mortally sinful. Holy Scripture frequently 
condemns it and warns us against it. 3 

z. Covetousness is opposed to liberality by defect, while 
prodigality is opposed to liberality by excess. Liberality is 
the virtue which moderates the love of wealth and inclines us 
to spend it well, according to the dictates of right reason. 
Prodigality inclines a man to squander his wealth on unworthy 

1 i Tim. iii i. 2 Prov. xxii i. 

3 i Tim. vi 9, etc. 



ioo ON SIN 



objects, or to give more than he should do, so that he is not 
able to live according to his state of life, or he is unable to 
fulfil his obligations, or he reduces his family to beggary. 



On Lust 

Lust is an inordinate appetite for the pleasure which has 
its seat in the organs of generation. A wise and provident 
Creator has taken care that those actions which are most 
necessary for the individual or for society should be accom- 
panied by great pleasure in order that they may be exercised 
more certainly and more readily. If there were no pleasure 
connected with eating and drinking, few men would trouble 
themselves about those necessary actions. The great pleasure 
felt in the act of procreation induces men to do what is neces- 
sary for the preservation of the race which otherwise would 
excite only shame and disgust. This, however, can only be 
done lawfully in wedlock. It is lawful then, according to the 
rules of married life, for husband and wife to indulge in venereal 
pleasure ; outside marriage it is inordinate and sinful. 

Any act of wrongful indulgence in venereal pleasure by 
those who are not married is grievously sinful if directly sought 
for or to which deliberate consent is given. But the fuller 
treatment of this subject must be left till we come to the 
Sixth and Ninth Commandments. 



On Anger 

i. Anger is the inordinate appetite for revenge. 

Revenge is the infliction of pain in satisfaction for an injury. 
As private individuals we are not allowed to avenge injuries 
which have been done us: " To no man rendering evil for 
evil. . . . Not revenging yourselves, my dearly beloved, but 
give place unto wrath, for it is written : Revenge to me ; I will 
repay, saith the Lord," 1 Sometimes, however, in trivial 
matters the immediate punishment of an injury is allowed to 
private persons, in order to prevent a recurrence of the in- 
justice, or under circumstances in which such an action is 
really an act of self-defence. In other cases private revenge 
is not allowed, but belongs to those whose duty it is to correct 

1 Rom. xii 17. 



THE CAPITAL VICES 101 

delinquents and to avenge outraged justice. Anger, then, 
will be inordinate whenever revenge is sought without just 
cause, or more severe than the cause requires, or when private 
vengeance is indulged in, or when it is sought merely to satisfy 
hatred and spite. In these cases anger is of itself a grave sin 
because it is against justice and charity; if there be merely 
want of moderation in the manner of seeking or executing 
lawful vengeance, the sin will be venial. 

2. To be angry in moderation for a just cause is not sinful: 
" Be angry, and sin not." 1 Sin may even be committed 
through defect of anger, as when a parent or superior is never 
moved to anger against the faults of children or subjects, but 
permits them to go unpunished to their loss and the public 
inconvenience. 

3. The daughters of anger, or the sins which spring from 
the same root, are indignation and he swelling of passion, 
blasphemy, imprecation, quarrelling, and contumely ; fighting, 
sedition, striking, and wounding; which are for the most part 
treated of in other chapters, or present no difficulty. 

Contumely is an insulting word or gesture said or done in 
order to dishonour our neighbour. It is against charity, and 
of itself is a mortal sin except when the matter is trivial. A 
superior may, however, with moderation and caution treat a 
subject contumeliously, not in order to dishonour him, but 
to correct or humble him. Chaffing another about his foibles 
for the sake of recreation is not sinful unless it goes too far 
and provokes to anger or cuts too deep. 



On Envy 

Envy is sadness on account of another's good, inasmuch as 
it is regarded as lessening one's own. It is directly opposed 
to charity, which inclines us to rejoice in the good of our 
neighbour, and is mortally sinful if the matter is serious. We 
must carefully distinguish envy from various other disposi- 
tions which bear some resemblance to it. Thus, if one is 
sorry because another has obtained something desirable, thereby 
making it impossible for himself to obtain it, it is not envy 
but emulation, which in itself is praiseworthy. Sadness 
because another has obtained a post of influence of which he 
is unworthy, is not envy nor sinful. In the same way, if one 

1 Eph. iv 2,6. 



102 ON SIN 

is sad because his enemy has obtained the means of doing 
him harm, there is no sin in such a disposition. Envy 
comes in where an equal, or one who is not much more 
than an equal, rises in position, power, or influence, and his 
rise is regarded with ill will because it seems to lower one's 
self. 

The ambitious are usually also envious, inasmuch as they 
see others enjoying what they wish to have for themselves. 
The mean-spirited, too, are commonly envious, since they 
look upon trivialities as matters of great importance, and the 
promotion of others, especially of the young, as a lowering 
of themselves. 

6 
On Sloth 

Spiritual sloth is a sluggishness of the soul in the exercise 
of virtue. If the reason for the sluggishness is the labour and 
difficulty which accompany the practice of virtue, sloth will 
be a mortal sin whenever on account of it a grave precept 
is violated; otherwise it will be a venial sin. If sloth makes 
the friendship of God tedious and irksome because of the 
trouble it takes to preserve it, it is a mortal sin, inasmuch as 
it is directly against our obligation of loving God with our 
whole heart. 



On Gluttony 

1. Gluttony is the inordinate indulgence in food or drink. 
The use of food and drink should be regulated by temperance 
according to right reason. As a standard right reason will 
be guided by the necessities of bodily health and strength, 
interpreted in a wide sense, and the uses of the society in 
which one lives. Inordinateness will come in if through 
appetite we anticipate the proper time for taking refreshment, 
or demand too exquisite dishes, or indulge in excess, or devour 
our food voraciously, or require too great care in the prepara- 
tion of food, paying a chef as much as all the other servants 
put together. 

2. Gluttony is of itself a venial sin, but it becomes mortal 
if it leads to violating precepts, such as those of fasting and 
abstinence, which bind under grave sin, or if it seriously injures 
health, or if it makes a man unfit to pursue his ordinary avoca- 



THE CAPITAL VICES 103 

tibns, or if eating and drinking become the end for which a 
man lives, whose God is his belly, 1 or if it causes complete 
loss of reason through drunkenness. 

3. Complete drunkenness which deprives a man of the use 
of reason, so that he cannot distinguish between what is right 
and wrong, is a mortal sin, for St Paul numbers it among those 
vices which exclude from the kingdom of God. 2 The malice 
of this sin does not consist merely in the depriving one's self 
of the use of reason, for it is allowed to do that for a good 
cause, but in the depriving one's self of the use of reason in 
such an unnatural way by the inordinate use of drink for a 
considerable time during which the recovery of the use of 
reason is out of one's power, and without any just cause. 
Theologians more commonly teach that if there were a sufficient 
cause, it would not be morally wrong to make a man drunk 
as a substitute for the use of chloroform, or in order to counter- 
act the effect of poison. 

To drink to excess but not so as to be perfectly drunk is 
only a venial sin per se, but it may become mortal on account 
of the serious harm done thereby to one's own health, or the 
spending in drink of money which is required for the support 
of one's family or the payment of one's creditors, or on account 
of grave scandal caused by such a sin, or on account of other 
sins to which it gives rise. 

4. If a man could be prevented from committing a more 
serious sin, as murder, for example, in no other way except by 
making him drunk, many theologians teach that this would 
not be unlawful. For very probably I may induce another 
who is determined to commit some grave crime to be content 
with doing something which is less bad. Under such cir- 
cumstances, to persuade another to do what is a less evil is 
a good action. 3 

5. Bad actions committed in drink are imputable to the 
agent if they were foreseen in some confused way, for they 
are voluntary in their cause. The same must be said of 
blasphemy, indecent language, and other sins of word which 
retain their objective malice even when said by a drunken 
man. Mere abuse of others, inasmuch as nobody cares what 
a drunken man says, would not be sinful. However, when 
sins in word are committed in drink, there is something wanting 
to them for their full and proper signification, and so, if 
blasphemy, for example, were punished by ecclesiastical censure 

1 Phil, iii 19. 2 Gal. v zi. 

3 St Alphonsus, 2, n. 57. 



104 ON SIN 

or reservation, these would not be incurred for blasphemy 
uttered while drunk. 

6. Morphia may be given to ease pain, and brandy to 
strengthen a sick person, even though they cause loss of 
reason. This follows from what has been said and from the 
principle of a double effect. It is not lawful to administer 
such medicines in order to deprive a dying man of the use of 
reason, so that he may die while unconscious. The time just 
before death is very precious ; a sinner may then be reconciled 
with God and save his soul; one who is in the state of grace 
may very much increase his merit by a good use of that time. 
Euthanasia then, in this sense, is unlawful; it is virtually 
shortening a man's life. 

7. The terrible evil of drink should be combated by all 
the means, spiritual and temporal, which are at the disposal 
of the Christian. The general means which may be used are 
especially the frequent reception of the sacraments, the 
avoiding of dangerous companions and the occasions of sin, 
the cultivation of modes of taking innocent recreation while 
not at work either at home or outside, the joining of Catholic 
temperance societies whose members encourage each other 
by mutual example, and the taking of the pledge if its nature 
and obligations be properly understood. 



BOOK V 
ON THE THEOLOGICAL VIRTUES 

FAITH, hope, and charity are called theological virtues because 
they relate immediately to God, having God for their material 
and formal object. They thus hold the first place among 
the Christian virtues ; they are of the greatest importance, are 
most meritorious; and sins against them are the most grievous. 
In moral theology the acts belonging to these virtues and the 
sins opposed to them are treated of; the treatment of the 
virtues is reserved to dogmatic theology. 

PART I 
ON FAITH 

CHAPTER I 
THE NECESSITY OF FAITH 

i . FAITH is here understood in the sense in which it is used 
by the author of the Epistle to the Hebrews 1 and elsewhere 
in Holy Scripture. It is an act of the intellect assenting to the 
truth of a proposition, not because it is evident to reason, but 
because its truth is vouched for by someone who knows and 
whom we can trust. The word has this sense among others 
in English. We say: " I should not like to pin my faith to 
such a proposition on that writer's authority." Here there 
is question of human faith resting on human authority. God 
can manifest the truth to us, and we believe that he has done 
so. " God, who at sundry times and in divers manners, spoke 
in times past to the fathers by the prophets, last of all in these 
days hath. spoken to us by his Son." Whatever God makes 
known to us mediately or immediately we are justified in 
believing on his authority. He can neither deceive us nor be 
himself deceived; and we are bound to believe all that we 
know God to have spoken or revealed, otherwise we implicitly 

1 Heb. xi. 
105 



106 ON THE THEOLOGICAL VIRTUES 

accuse God of lying or of ignorance. An act of divine faith, 
then, is an act by which we believe whatever God has revealed 
on the authority of God himself. God has taken care that 
we should know for certain what he has revealed in times past 
for man's benefit and guidance by founding the Catholic 
Church. The Catholic Church is the pillar and the ground 
of truth, whose chief function it is to bear witness to God's 
revelation, and to teach it to all men even to the consummation 
of the world. God's Holy Spirit, the Spirit of Truth, ever 
abides with the Church, to enable her faithfully and infallibly 
to perform her task. Faith, then, considered as a habit, is 
a theological virtue by which we believe all that God has 
revealed and the Church proposes to our belief on the authority 
of God himself. An act of faith is an act of this virtue. 

2. God has destined us for a supernatural end of eternal 
happiness, consisting essentially of the beatific vision of 
himself, as we know from revelation ; he wishes that we should, 
as rational and free beings, work consciously for the 
attainment of that end. We cannot do this without believing 
in God and without believing that he is a rewarder of those 
who do well and a punisher of those who do ill ; faith, then, 
is the necessary foundation of the Christian life. " Without 
faith it is impossible to please God. For he that cometh to 
God must believe that he is, and is a rewarder of them that 
seek him." 

Faith is, then, necessary for salvation, not merely because it 
is of precept like the Commandments, but because it is a 
necessary means to attain the supernatural end to which we 
are destined by God. Without taking the necessary means 
the end cannot be attained. Those, then, who have come to 
the use of reason, so that they can know God and know what 
he has revealed, are bound to make an act of faith; otherwise 
they cannot be saved. The habit of faith is infused into the 
soul together with sanctifying grace at the reception of baptism, 
and this habitual faith is sufficient for such as have not the 
use of reason, like children or those who have always been 
insane. 

3. Our act of faith must implicitly extend to everything that 
God has revealed; we cannot accept some articles on his 
authority and reject others which are vouched for by the 
same authority. But it is not sufficient to make an act of 
implicit faith comprising all that God has revealed. We are 
bound to know and believe certain revealed truths explicitly. 
Some of these truths must be believed explicitly as a necessary 



THE NECESSITY OF FAITH 107 

means to salvation ; explicit belief in others is only of precept, 
and the want of it, if inculpable, will not be a bar to salvation. 
Explicit belief in the existence of God, the rewarder of them 
that seek him, is necessary for salvation, and probably also 
belief in the mysteries of the Blessed Trinity and the Incarna- 
tion. Explicit belief in these mysteries is certainly of precept. 1 
A Christian is bound also to know and believe the substance 
of what is contained in the Creed, the sacraments which are 
of obligation, the precepts of God and of the Church, and the 
Lord's Prayer. It is sufficient to have implicit faith in other 
truths of revelation. 

4. It is not sufficient to have believed the necessary articles 
of the faith once in a lifetime. Our acts of faith must be 
frequently renewed ; we must lead lives of faith, according to 
the divine precept. 2 This divine precept is sometimes of 
obligation per se, as when the truths of revelation first become 
known to a man and he becomes conscious of his obligation ; 
sometimes it is of obligation per accident, as after a sin against 
the faith has been committed, or when a duty has to be fulfilled 
which requires an act of faith. However, for such as have 
once made their act of faith, it will be sufficient in order to 
fulfil the divine precept if the act of faith is renewed implicitly, 
as is done whenever we pray, assist at Mass, or receive any 
of the sacraments. It is well, however, especially in these 
days of unbelief, to renew frequently explicit acts of faith 
according to the wish and practice of the Church. They are 
acts of very great merit with God. 

1 Props. 22, 64, condemned by Innocent XI. 

2 Props. 16, 17, condemned by Innocent XI. 



CHAPTER II 
THE EXTERNAL PROFESSION OF THE FAITH 

i. WE do not fulfil our duty as Christians and Catholics if 
we keep our religious faith concealed within our own breasts. 
Our duty to God, to our neighbour, and to ourselves some- 
times requires that we should make open profession of the 
faith which we hold. When our public profession of the 
faith would render great honour to God, or prevent great 
dishonour being shown him, or prevent the true religion from 
being publicly despised and contemned, we must, even at the 
risk of great temporal loss, boldly come forward and proclaim 
our religious belief. We must be ready to do the same if our 
example would gain others to God or prevent them from 
falling away from him; for charity towards our neighbour 
sometimes requires that we should sacrifice our temporal 
interests for the spiritual good of others. Again, if we never 
made open profession of our faith, there would be grave 
danger of its becoming weak and altogether dying away; so 
we must sometimes perform external acts of our religion in 
order to keep the faith alive within us. The necessity of 
doing this is shown by the gradual falling away from their 
religion of Catholics who have no priests, and no churches 
wherein to practise their religious duties (Can. 1325, sec. i). 

2. The positive law of the Church requires that a solemn 
profession of faith be made by those who are about to be 
baptized, or received into the Church, or at least in their 
name if they are unable to make it for themselves. The 
occasions and persons who are bound by canon law to make 
profession of faith are laid down in Canons 1406-1408. 

3. It is gravely sinful to deny the faith, or to do or say 
anything which is equivalent to a denial of it, or which shows 
that we are ashamed of it. " For he that shall be ashamed 
of me and of my words, of him the Son of man shall be ashamed, 
when he shall come in his majesty, and that of his Father, 
and of the holy angels." 1 However, the obligation of pro- 
fessing the faith is affirmative, and so always binds but not 
for always. In other words, we may never deny the faith, 

1 Luke ix 26. 
1 08 



THE EXTERNAL PROFESSION OF THE FAITH 109 

but we are only bound to profess it openly when the divine, 
or natural, or positive law require it. A man might travel 
for months among heathen or heretics without making his 
faith known to anyone. As a rule, it is better openly to profess 
one's religion, so that all may know that we are Catholics; 
but under certain circumstances it might be lawful to conceal 
one's conversion to the faith for a time. 

A Catholic who on being asked denies that he is one does 
not necessarily deny the faith. Such an answer might merely 
be a fitting reply to an impertinent question. It will, however, 
be a denial of the faith when the circumstances require that 
an open profession of it should be made. A Catholic who 
flies from persecution, or disguises himself, or eats meat on 
days of abstinence in order to avoid detection, does not thereby 
deny the faith. It is better never to enter non- Catholic places 
of worship, or be present at non- Catholic religious functions, 
and this is of obligation whenever such acts would be inter- 
preted as countenancing a false religion, or as showing a spirit 
of indifferentism, or whenever there would be scandal or 
danger of perversion, or whenever lawful authority forbids 
them. Otherwise, merely to enter an heretical place of 
worship, or to be present at a non- Catholic religious function, 
such as a burial or a marriage, without taking part in the 
ceremony, is not sinful, [and may be permitted for a good 
cause (Can. 1258). 

4. All communication with non- Catholics in their religious 
rites and ceremonies is as a rule forbidden to Catholics. To 
take part in such rites and ceremonies is to take part in a form 
of religious worship which is not approved by God and by 
the Church ; it is a virtual adhesion to a false form of worship, 
or it shows approbation of it. A Catholic, then, may not act 
as a sponsor in a non- Catholic baptism, or take an active part 
in a non- Catholic marriage or funeral. On certain rare 
occasions, as when in danger of death and a Catholic priest 
cannot be had, a Catholic may accept the ministrations of a 
schismatic or heretical priest, as was done by some Catholic 
Japanese officers who were captured by the Russians and shot 
in the Russo-Japanese War. 

Inasmuch as heretics and schismatics are excommunicated, 
the Church forbids prayers, suffrages, or Masses to be publicly 
offered for them (Can. 2262). 

5. Experience shows that very little good and much harm 
may come from disputes and controversies about religion. 
Ordinarily such disputes leave the parties concerned more 



no ON THE THEOLOGICAL VIRTUES 

obstinate than ever in their convictions. Grave scandal, too, 
and great dishonour to God result from the public and con- 
temptuous denials of sacred truths and the ridicule thrown 
on them in the heat of controversy. The mind of the Church 
is that, as far as possible, and except for the necessary defence 
of the faith, such disputes should be avoided whether they be 
public or private (Can. 1325, sec. 3). 



CHAPTER III 

SINS AGAINST FAITH 

THE chief sins against faith are infidelity, heresy, and apostasy. 

1. All who have sufficient knowledge of the Gospel are 
bound to embrace and believe it: " He that believeth and is 
baptized shall be saved; but he that believeth not shall be 
condemned." 1 A grave sin, then, is committed by one who 
rejects the faith when it has been sufficiently made known 
to him with adequate grounds for believing, and this grave 
sin is called infidelity. This positive infidelity is distinguished 
from privative and negative infidelity. One who has the 
opportunity of knowing the faith, and recognizes the obliga- 
tion of making inquiries about it, but neglects to do so, com- 
mits the sin of privative infidelity. This is also a grave sin 
if the degree of negligence be grave. One who has no oppor- 
tunity of learning the faith, or who does not advert to the 
obligation of making inquiries, is in negative infidelity. This 
is not sinful, but St Thomas 2 teaches that it is the penalty of 
sin, inasmuch as if a man were faithful to the light that he 
has in natural reason, God would take care that he should 
have an opportunity of knowing the faith even if it were 
necessary to send him a special messenger, or an angel from 
heaven, to make the Gospel known to him. If, then, the 
Gospel is not preached to every man, not God but men are 
to be blamed for it. 

2. Heresy is the rejection by one who has embraced the 
faith of some portion of revealed truth which is proposed by 
the Church for our belief. If the rejection is voluntary and 
accompanied with full knowledge that what is rejected is 
proposed by the Church as an article of faith, the heresy is 
formal. Otherwise it will only be material. 

It is not heresy, though sinful, to reject what is known to 
have been revealed by God in a private revelation; private 
revelations are not proposed by the Church for our belief. 
Nor is it heresy, but disobedience, to reject what is proposed 
by the infallible authority of the Church for our acceptance, 
but which forms no part of divine revelation. One who 

1 Mark xvi i. 2 De Verit., q. 14, a. n, ad I. 

in 



ii2 ON THE THEOLOGICAL VIRTUES 

denied that a canonized saint is in heaven would not be a 
heretic, but he would be disobedient to the Church, who 
assures us with divine authority that he is in heaven, and bids 
us honour him as a saint. Formal heresy is committed not 
only by knowingly and wilfully rejecting a revealed truth 
which is proposed for our belief by the Church, but by wilfully 
doubting about such a revealed truth. For such a one posi- 
tively doubts whether a portion of God's revelation is true, 
and thereby injures him as much as if he asserted that it was 
untrue. Similarly one who would not submit to the Church's 
decision, even if she defined some doctrine to be of faith, is 
a formal heretic. Negative doubt, by which assent to a 
revealed truth is withheld or suspended, and voluntary ignor- 
ance of the true Church or of other necessary truths of faith, 
are sinful, but they do not constitute formal heresy. Great 
numbers of baptized Christians who were born of schismatical 
and heretical parents, and who do not know the true Church, 
are material, not formal heretics. When they begin to doubt 
about their position, and advert to the obligation they are 
under of making inquiries, they sin against the faith, more or 
less grievously according to their negligence, if they remain 
as they are. They do not become formal heretics until the 
truth fully dawns upon them, or they are so disposed that 
they would not submit to the Church even if they knew that 
she alone is the true Church of Christ. 

3. Heresy is punished by the Church as a crime which 
attacks the foundations and the very raison d'etre of her exist- 
ence. In order to incur the penalties inflicted on heresy, the 
sin must be both formal and external, for the Church in her 
external forum does not take cognizance of sins of thought. 
The external act must be such as of its own nature, or from 
custom, or from the special circumstances, is held sufficient to 
manifest an heretical mind. The reception of the sacrament 
in an Anglican church, or being married in a non- Catholic 
place of worship by a non- Catholic minister, are considered 
acts of heresy and punished as such by excommunication. 

A special form for the reception of converts into the Church, 
based on various Roman decrees, has been approved by the 
English Bishops. 

4. Apostasy from the faith is the grave sin committed by 
one who throws the faith overboard entirely. The apostate 
not only rejects special dogmas like the heretic, but wholly 
abandons the Catholic faith, and becomes a free-thinker, 
atheist, materialist, Mohammedan, Buddhist, etc. 



PART II 
ON HOPE 

CHAPTER I 
THE NATURE OF HOPE 

i . AN act of hope is an act of the will by which we 'desire the 
possession of God and of heaven, and firmly trust that we 
shall obtain them together with the necessary means through 
the goodness of God and God's fidelity to his promises. The 
material object, then, of hope is God, Ijieaven, and the super- 
natural helps necessary to attain thereto. The formal object 
is God's infinite goodness towards us, his omnipotence, and 
his faithfulness to his promises. God is infinitely good and 
wishes us to be happy with him for ever ; he has promised that 
we shall be happy with him if only we persevere to the end. 
He will enable us to do this by his all-powerful grace. 

2. Hope is necessary for salvation for all who have come to 
the use of reason. The sinner must hope in order to ask for 
pardon and to be able to rise from his sin. The just man 
must hope, otherwise he will not pray, and without prayer it 
is impossible to persevere in the grace of God. Hope is also 
matter of precept, which obliges sometimes per se, at other 
times per accident, in much the same way as the precept of 
faith. Explicit acts of hope, however, are not necessary in 
order to fulfil this precept ; what was said above about the acts 
of faith is applicable to acts of hope. Implicit acts contained 
in prayer, the reception of the sacraments, and other works 
of piety are sufficient to fulfil the obligation. Nobody, then, 
who is complying with the ordinary obligations of a Christian 
life need be anxious whether he is fulfilling the precept of 
eliciting acts of the theological virtues ; but it is well, as a matter 
of counsel, to renew them frequently and explicitly. 

3 . The chief sins against hope are despair, presumption, and 
aversion for God and heavenly things. 

Despair is a voluntary diffidence about obtaining heaven and 

the means necessary thereto. If it arises from mistrust of the 

goodness, power, and fidelity of God, it is gravely injurious 

to him, and is always mortally sinful. In an improper sense, 

i. 113 8 



n 4 ON THE THEOLOGICAL VIRTUES 

despair. sometimes springs from an overpowering idea of one's 
own weakness and fickleness, and then it is frequently only 
venially sinful; it is not directly against hope, but rather a 
failure to make use of the motives to encouragement which 
hope furnishes. 

Presumption here signifies a sin against hope by excess, and 
is an inordinate confidence in the attainment of heaven without 
using the necessary means. It is of itself a grave sin, but 
admits of parvity of matter, as when through such inordinate 
confidence one commits venial sin. 

Aversion for God and heaven is distinguished from hatred 
of God, which is directly against charity, in that it does not 
wish evil to God, but prefers earth and earthly joys to God 
and heaven. It is, as is obvious, a mortal sin. 



PART III 
ON CHARITY 

CHAPTER I 
THE NATURE OF CHARITY 

i . CHARITY, as treated of here, is an act of the will by which 
we love God for his own sake above all things, and our neigh- 
bour for the sake of God. The love of charity, then, is 
different from the love of concupiscence, by which we love 
God as our reward exceeding great, and desire to possess him 
in whom our supreme and perfect happiness is placed. This 
love of concupiscence is good and belongs to the virtue of 
hope, but it is imperfect. By charity we rise above the con- 
sideration of our own reward and happiness; we see in God 
the infinite Good, the Source and Origin of all good, and we 
rejoice in his infinite Perfection. We wish him all honour 
and glory and every good, and desire, as far as we can, to 
obtain it for him, because he is infinitely worthy of our whole- 
hearted devotion. So that the formal object of charity, the 
reason why we love God, is his own infinite goodness and 
worth; for this reason we love him and our neighbour, for 
such is his will. He has made us all in his image and likeness ; 
all rational creatures form the great family of God, our common 
Father ; all are capable by grace of eternal happiness with him 
in heaven. 

2. The most intimate union with God by charity is the end 
for which we were created, and it is our duty to prepare our- 
selves for this high destiny by exercising ourselves in charity 
while on earth. It is the highest and the noblest of virtues, 
the queen of all the virtues, the seal and bond of human 
perfection. That we might cultivate charity all the more 
assiduously God has commanded it in express terms: " Thou 
shalt love the Lord thy God with thy whole heart, and with 
thy whole soul, and with thy whole mind. This is the greatest 
and the first commandment. And the second is like to this: 
Thou shalt love thy neighbour as thyself." 1 We are bound, 

1 Matt, xxii 37. 
"5 



n6 ON THE THEOLOGICAL VIRTUES 

then, to love God above all other things, to cling to him, come 
what may, never to allow ourselves to be separated from him 
by sin, for: " He that hath my commandments and keepeth 
them, he it is that loveth me." 1 If we do this, we need have 
no scruples about our charity; even though we seem to have 
a tenderer feeling for husband, child, or friend than for God, 
we may call to mind that charity belongs essentially to the will ; 
if our will is firmly fixed on God, so that we are prepared to 
suffer the loss of anything rather than of God, we substan- 
tially fulfil the greatest of the precepts, on which the law and 
the prophets hang. 

All rational beings that are capable of friendship with God, 
and of becoming his children by grace, are to be loved for the 
sake of God in charity. This love of charity towards our 
fellow- men does not exclude love for them as friends or relatives. 
Love of others for any honest motive is good and praiseworthy, 
and may by being supernaturalized become supernaturally 
meritorious with God. By the precept of charity towards our 
neighbour we are bound to wish well to all, to pray for all, 
never to allow ourselves any thought, word, or deed which is 
incompatible with mutual love, and we are bound to help 
others in their necessities as far as we can. 

3. As charity is the queen of all the virtues, it binds of itself 
under pain of grave sin, but when the matter is light the sin 
will be only venial. Sins, then, against charity are grievous of 
themselves, as we shall see while treating of them separately. 

We are bound sometimes to elicit acts of charity, but, as 
we have already seen, it is very difficult to determine exactly 
how frequently. Nor is it necessary to attempt the task, for 
implicit acts such as are contained in a devout recital of the 
Our Father, sorrow because God is continually being offended, 
by sin, pious meditation on the Passion of Christ, suffice for 
the fulfilment of the obligation. We must not suppose that 
it is difficult to love God with the love of charity, for God has 
commanded it, and his infinite love towards us and the desire 
he has of being loved by us in return prompt him to give us 
abundant grace to enable us to comply with his precept. By 
becoming bone of our bone and flesh of our flesh in Jesus 
Christ, God has made it especially easy for us to love him, 
inasmuch as it is easy for us to understand and to appreciate 
the infinite tenderness and loveliness of the Sacred Heart of 
Jesus. It is of such great merit that an act of perfect charity 
at once blots out all sin and reconciles the sinner with God. 

1 John xiv 21. 



CHAPTER II 
WELL-ORDERED CHARITY 

i. THE law of charity is not fulfilled by a general and equal 
esteem for all mankind. Such a vague and general regard for 
others would probably he inoperative, and charity is above 
all things active. Charity, then, to be genuine must be well 
ordered and discriminating. It must look at the claims which 
others have on our charity; it must appreciate things at their 
true value, otherwise in wishing to confer a favour it will do 
harm to the object of love ; it must assist others wisely accord- 
ing to their necessity, otherwise it will foster hypocrisy and 
produce professional and able-bodied beggars. In other 
words, as theologians teach, the order of charity has reference 
to the persons who claim our love, to the advantages which we 
desire to procure for them, and to the necessity in which they 
are placed. 

2. God, the fountain and reason of charity, the infinite 
source of all good, has the first and highest claim on our love. 
" He that loveth father or mother more than me is not worthy 
of me ; and he that loveth son or daughter more than me is not 
worthy of me." 1 Next to God we must love ourselves with 
that genuine charity which makes one's own salvation the first 
great duty of every man " For what doth it profit a man if 
he gain the whole world, and suffer the loss of his own soul ?" 2 
We are never justified, then, in committing the slightest sin 
for the love of anyone or anything whatsoever. 

Neither must we without good cause expose ourselves to the 
proximate occasions of sin. If duty demands it and if proper 
precautions be taken, we may confidently trust in the pro- 
tection of God, and expose ourselves to risk for the sake of 
our neighbour. We may, too, forego a small spiritual ad- 
vantage which is not matter of precept for the sake of our 
neighbour. Moreover, we are sometimes called upon to 
sacrifice our own good of a lower order for the higher good 
of our neighbour. In this connection we may distinguish a 
triple order of goods, those which pertain to the salvation of 
the soul; the intrinsic and natural goods of soul and body, 

1 Matt, x 37 2 Matt, xvi 26. 

117 



u8 ON THE THEOLOGICAL VIRTUES 

consisting in life, health, knowledge, liberty, etc. ; and extrinsic 
goods consisting in reputation, wealth, etc. Theologians also 
distinguish three degrees of necessity in which one in need 
of charity, spiritual or temporal, may be placed. If he is in 
danger of damnation or of loss of life, or of other good of almost 
equal importance, and can do nothing to help himself, he is 
said to be in extreme necessity. If he is in similar danger 
but can do something to help himself, though not without 
grave difficulty, he is in grave necessity. Ordinary sinners 
and beggars who can help themselves without grave difficulty 
are in common necessity. 

3. Every man, as far as he can, is bound to help his neigh- 
bour in extreme spiritual necessity even at the cost of his 
own life: " In this we have known the charity of God, because 
he hath laid down his life for us; and we ought to lay down 
our lives for the brethren." 1 However, we do not lie under 
so serious an obligation unless the spiritual necessity of our 
neighbour is certain, the prospect of our being able to render 
effective help is equally certain, and no help is forthcoming from 
elsewhere. Neither should we be bound to risk our lives in 
order to help another in extreme spiritual need if greater 
harm would follow from our making the attempt. So that it 
is not often that ordinary people are bound to expose their 
lives to fulfil this obligation of charity; the obligation more 
frequently presses on Bishops and priests who have the cure of 
souls, and who are bound to execute their charge in justice 
as well as in charity. These are bound to expose their lives 
for their flock not only in extreme but also in grave necessity. 

Except in the case of extreme spiritual necessity, we are not 
bound by the precept of charity to risk life or limb or expose 
ourselves to any serious inconvenience. The reason is because 
we are not bound to use extraordinary means and suffer serious 
inconvenience in order to preserve our own lives, and we 
cannot as a rule be bound to do more for our neighbour than 
we are bound to do for ourselves, especially as in grave or 
common necessity he can help himself. We might be obliged 
to do more for one whose welfare was of public importance. 
However, when our neighbour is in grave or even in common 
necessity, we must be prepared to undergo some inconvenience 
and trouble in order to help him. More precise rules on the 
subject will be given below. 

It is a disputed question among theologians whether one is 
allowed to sacrifice his own life in order to save the life of 

1 i John iii 16. 



WELL-ORDERED CHARITY 119 

another whose welfare is not of public importance. Many deny 
that it is lawful, for we should love ourselves in the first place 
when there is question of equal good ; charity begins at home. 
Others, however, more probably teach that it may lawfully 
be done, and that it is an act of heroic virtue ; so that in yielding 
a plank to another in a shipwreck and permitting himself to be 
drowned, a man does not prefer the life of another to his own, 
but he sacrifices his life for the sake of virtue. 

4. The more important spiritual goods of the soul should 
be the first objects of our solicitude, then the intrinsic goods 
of the soul and body, finally the extrinsic goods of reputation 
and wealth. 

With the love of complacency which inclines us to show 
reverence, honour, and respect to others, we should give the 
preference to those who are more worthy of it on account of 
their closer union with God. The love of benevolence, on 
the other hand, leads us to prefer those who are nearer to us 
in sharing with them the goods which are specially due to 
them on account of their union with us. Although no absolute 
and universal rule can be laid down to guide us as to whom 
the preference should be given when we cannot help all, yet 
there is general agreement among theologians that the claims 
of our neighbour rank somewhat in the following order : wife, 
children, parents, brothers and sisters, other relatives, friends, 
domestics, those Jwho live in the same place, country, and 
finally all others. 



CHAPTER III 
LOVE OF ENEMIES 

i. NOT even enemies and those who injure us are excluded 
from the law of charity ; in spite of their ill will and malice they 
remain our neighbours, and our Lord expressly bade us love 
them: " I say to you: Love your enemies; do good to them 
that hate you, and pray for them that persecute and calumniate 
you." 1 We are bound by this precept to put out of our hearts 
all ill feeling and desire of revenge against those who dislike 
and wrong us, and furthermore we are bound to show them 
those common marks of Christian charity which are due to all 
and may be refused to none. What those common marks 
of Christian charity are depends much on the usages of time 
and place, and of the society to which the parties belong. 
Those marks which are common to members of the same 
family are not due to outsiders; those which are mutually 
shown to neighbours of the same social standing are not due 
to utter strangers or to persons in a lower social position. 
Among the common signs of charity which may be refused to 
none are reckoned the following: general prayer for all which 
we offer up when we say the Our Father, answering a question 
or returning a salute, selling in open market to all comers, 
refraining from excluding individuals from general invitations 
or general benefactions. 

It is not of precept but of counsel to show one's enemies 
unusual signs of forgiveness and charity. Such signs are to 
pray expressly for an enemy in particular, to visit him, to 
console him in affliction, to treat familiarly with him. 

2. In certain circumstances, however, we are bound to 
show even these unusual signs of charity to our enemy, as 
when they cannot be refused without scandal to others who 
will think that they are refused through hatred, or when they 
are required to prevent our enemy from falling into serious 
sin as, for example, by conceiving a deeper hatred for us. If 
a former friend asks our pardon for an injury which he has 
done us, and if the friendship was not a freely accepted union 
between us, but was more or less required by our mutual 

1 Matt, v 44. 
1 20 



LOVE OF ENEMIES 121 

relations, we must be ready to show him again unusual signs 
of charity. If the friendship depended merely on our mutual 
liking, there will be no obligation to show unusual marks of 
charity after receiving an offence; what was freely given may 
be freely withheld, always supposing that there is no ill will. 
We may for a time even refuse the common and ordinary 
signs of charity toward another for a good reason. A superior, 
for example, may do so in order to correct an inferior who 
has offended him. An equal may do so for a time immediately 
after receiving an offence while the injury is still rankling in 
his heart ; to require not only repression of ill feeling, but the 
immediate exhibition of marks of charity for the offender, 
would be to lay too heavy a burden on poor human nature. 
It may also be lawful to refuse the ordinary signs of charity 
for a time toward one who has offended us in lighter matters 
as a suitable punishment, and as a means of preventing a 
repetition of such offences in future. 

3. When one who has offended us apologizes and asks for 
pardon we are bound to forgive him and also at the proper 
time to show him the ordinary signs of charity. If, however, 
he has injured us, we have a right to compensation for the 
injustice, and charity does not compel us to forego our right. 
We may then require satisfaction for the injury and even 
bring an action in a court of law to recover it against the 
wrongdoer, without, of course, indulging any ill will. 

4. With a view to reconciliation between enemies, it is the 
duty of him who gave the offence to apologize and to ask for 
pardon, unless a position of superiority makes this inadvisable. 
As a rule, it will not be necessary to make a formal request 
for pardon; satisfaction can usually be given to the offended 
party in a less formal way, and in a way that is less embarrassing 
to both parties. If both were in the wrong, the one who was 
most so, or the inferior, should be the first to seek recon- 
ciliation. 

5. We sometimes find it difficult to associate with certain 
people; they try our temper; we can scarcely talk or think of 
them with patience. This is sinful, of course, if it is volun- 
tary, and if it arises from ill will towards the person in question. 
It sometimes, however, comes not from ill will towards the 
person, but from incompatibility of characters and dispositions. 
We dislike in him some quality or mannerism, or something 
which we cannot precisely define. It is what theologians call 
the hatred of abomination, not of enmity, and it may be 
without fault, as when it leads us to fly his company not in 



122 ON THE THEOLOGICAL VIRTUES 

order to wound his feelings, but to escape a trial of temper 
and probable unpleasantness. 

To refuse the ordinary signs of charity so as not to speak 
to another, or to refuse to have anything to do with him out 
of ill feeling, and to foster this for a considerable time, is of 
itself a grave sin. But in estimating the gravity of such a sin 
in practice, the cause and the strength of the ill feeling should 
be considered. If the refusal to have anything to do with 
another come from serious ill will, it will be a grievous sin ; 
otherwise it may be only venial, or if there be no ill will and 
a just cause, no sin at all. 



CHAPTER IIV 
ON ALMSGIVING 

i. ALMSGIVING is here taken in a wide sense for any of the 
corporal works of mercy by which our neighbour's necessity 
is relieved. Inasmuch as the law of charity binds us to help 
all who are in need as far as we can, almsgiving is obligatory 
by the law of nature. The obligation is frequently inculcated 
in Holy Scripture: " Defraud not the poor of alms," we read 
in Ecclesiasticus. 1 Our Lord in severe terms enjoined on his 
followers the exercise of the works of mercy. 2 

2. In order to measure as precisely as possible the gravity 
of the obligation of almsgiving, we must consider the necessity 
in which our neighbour is placed and our ability to help him. 
We are only bound to help those who are in real need; we 
should be fostering idleness and hypocrisy, and squandering 
on unworthy objects what is sorely needed by others, if we 
distributed our alms to the unneedy. 

Theologians commonly distinguish thre.e degrees of neces- 
sity, as we saw in a former chapter. Extreme necessity is the 
condition of one who from want is in danger of death or some 
equally serious evil, and who can do nothing to help himself. 
If in similar circumstances he can, though with difficulty, do 
something to help himself, he is said to be in grave necessity. 
Beggars and the indigent poor generally are in common 
necessity. These distinctions cannot be applied with mathe- 
matical accuracy; they are necessarily somewhat loose and 
vague, but they represent real differences which, broadly 
speaking, are capable of being appreciated without much 
difficulty. 

With regard to the ability of him who is called upon to 
relieve the needy, theologians distinguish between what is 
necessary to support the lives of a man and his family, what 
is necessary to support one's position, and what remains over 
and above and is superfluous. 

3. Except in the case of extreme necessity, which in ordinary 
circumstances is rare, there is no obligation to give alms out 
of what is necessary either for the support of life or position. 

1 Ecclus. iv i. 2 Matt, xxv 41. 

123 



134 ON THE THEOLOGICAL VIRTUES 

Charity, as we have seen, begins at home, and it rather forbids 
us to prefer the needs of outsiders to our own and to the needs 
of our family. We are, as a general rule, only bound to give 
alms out of our superfluity, " That which remaineth give 
alms." 1 Some theologians maintain that this precept imposes 
an obligation of giving all one's superfluous wealth to the 
poor; but others hold that this is only of counsel, that the 
precept is a general one directed to all the rich, and that it 
will be fulfilled if each gives something of his superfluity so 
that the necessities of the poor may be relieved by the common 
contributions of all. How much must be given according to 
this opinion depends upon circumstances, and is better left 
to the judgement of a prudent man after due consideration of 
all the circumstances of the case. 

4. When our neighbour is in extreme or almost extreme 
necessity we are under a grave obligation of helping him even 
out of what is necessary to support our position in life, provided 
that it can be done without impoverishing ourselves or being 
compelled to give up our reasonable and justly acquired style 
of living. We are not obliged to pay large sums of money 
to ransom a captive from the hands of bandits, or to send a 
sick pauper to the Riviera for the winter; we should not be 
obliged to take such extraordinary means even to preserve 
our own life. 

5. We are also under a grave obligation, according to the 
common teaching of divines, of helping the poor who are in 
grave necessity out of our superfluity. It is difficult to recon- 
cile the words of Holy Scripture with any more lenient doctrine 
on this point. 2 However, we should be slow to decide that 
in any particular case a rich man has sinned mortally by 
refusing to help one in grave necessity. For although there 
be a grave obligation occasionally to help the poor in serious 
want, it cannot be concluded that a grave obligation binds 
any one particular person to assist all such; that would be an 
impossible burden. Furthermore, in practice it is frequently 
difficult to decide when a man is in grave necessity, and whether 
he will not be more conveniently helped by someone else. 
Besides, there are not wanting theologians who teach a more 
lenient doctrine as to the gravity of the obligation of assisting 
those who are in grave need. 

A rich man cannot be excused from sin who makes it a 
practice never to give anything in alms on the plea that the 
poor can go to the workhouse, and that he pays his poor rates. 

1 Luke xi 41. 2 Matt, xxv 41 ; i John iii 17. 



ON ALMSGIVING 125 

For cases of grave and sometimes of extreme necessity arise 
where it is practically impossible to seek relief in the work- 
house ; and wherever there is a case of true necessity there is 
an obligation to help as far as one can. 

6. The rich are also under an obligation of sometimes 
helping those who are in common necessity, for the texts of 
Holy Scripture seem to refer to cases of ordinary need such 
as are commonly met with, and if no one ever helped the poor, 
their lot would soon become desperate. A man, therefore, 
who makes it a rule never to give alms to ordinary beggars 
certainly commits sin; he is not obliged to help all who apply, 
but out of his superfluity he must help some. It is a disputed 
point among theologians whether this obligation binds under 
pain of mortal or venial sin only. The severer view is the 
more common, but the milder is defended by many approved 
authors, on the ground that the necessity of the common beggar 
is tolerable, and is not so irksome as to impose on others a 
grave obligation of helping him. 



CHAPTER V 
ON FRATERNAL CORRECTION 

i. BY fraternal correction is meant a brotherly admonition 
given out of charity to a sinner to induce him to amend his 
ways. If such brotherly admonition is likely to do good and 
have its effect in procuring the amendment of the delinquent, 
charity requires that it should be given ; for if charity obliges 
us to assist our neighbour when he is in temporal need, much 
more does it oblige us to do what we can for one who is in 
spiritual necessity. Our Lord, too, insisted on the fulfilment 
of this duty: " But if thy brother shall offend against thee, go, 
and rebuke him between thee and him alone. If he shall hear 
thee thou shalt gain thy brother." 1 This obligation is of 
itself grave, as it belongs to the grave precept of charity, and 
like charity it binds all men. However, as we shall see, there 
are several conditions to be fulfilled in order that this precept 
may oblige in the concrete, and in practice private persons are 
rarely compelled under grave sin to exercise fraternal correc- 
tion. Bishops, parish priests, and others who have the cure 
of souls, as well as parents, are more frequently obliged under 
pain of mortal sin to admonish those committed to their charge. 
2. Theologians enumerate the following conditions as 
requisite in order that there may arise an obligation of giving 
fraternal correction : 

(a) It must be certain that a grave sin has been committed 
and that the delinquent has not corrected and will not of himself 
correct his fault. There is no general obligation to correct the 
venial sins of anothe raccording to a very probable opinion ; in 
religious communities, or in other circumstances where un- 
corrected venial sin might lead to serious relaxation of discipline 
or other harm, superiors are sometimes bound under grave 
sin to correct venial faults, or even faults against the rule 
which are not necessarily sinful. The grave sin must be 
certain without the necessity of making inquiries, which would 
be unwarrantable in a private person. 

(b) If there is someone else who can and will give the neces- 
sary admonition, the obligation will not rest upon me. 

1 Matt, xviii 15. 
126 



ON FRATERNAL CORRECTION 127 

(e) There must be a reasonable expectation that the ad- 
monition will do good; there is no obligation to do what is 
useless. Neither should it be given if it is doubtful whether 
it will do good or harm. 

(d) As charity does not bind with relatively serious incon- 
venience to one's self, there will be no obligation to correct 
another if this cannot be done without serious inconvenience. 
This rule applies to such as are bound only out of charity to 
correct others fraternally; Bishops and priests are bound to 
do so also in justice, which obliges more strictly than does 
charity. 

3. Our Lord not only inculcated the duty of fraternal cor- 
rection, 1 but he taught that in the first instance it was to be 
done in private, then in the presence of witnesses, and finally 
the delinquent was to be denounced to the public authorities 
in order that public morality might be safeguarded and the 
sinner more effectually corrected. This order should, of 
course, be followed per se, for charity and justice demand that 
our neighbour's secret fault should not be made known to 
others except in special cases and for good cause. However, 
cases are not infrequent in which it is lawful to denounce a 
delinquent immediately to the superior without first attempting 
to correct him fraternally. Such cases are the following : 

(a) If the sin be public, the sinner's reputation is not injured 
unjustly by at once informing the superior, which accordingly 
may be done. 

(b) If the paternal admonition of the superior will in all 
likelihood be more sure and efficacious than the fraternal 
correction of a private person, the superior may be immedi- 
ately informed as a father, whose duty it is to correct his 
children for their good, not as a judge, whose duty it is to 
safeguard public interests by punishing crimes. 

(c) If harm threatens the community from the action of the 
delinquent, and it can only be effectually prevented by the 
intervention of the superior's authority. 

(d) If the delinquent be one of a religious community 
whose members have voluntarily renounced their rights in this 
matter, and agreed that anyone who becomes aware of their 
faults may straightway inform the superior, such a one suffers 
no injury if the rule be acted on. However, even in this case 
there must be good reason for making the fault known to the 
superior, such as the sinner's correction, the good name of 
the community, the preservation of discipline. If the sin was 

1 Matt, xviii 15. 



128 ON THE THEOLOGICAL VIRTUES 

committed in the past, and there is now no good reason for 
making it known to the superior, it would be sinful to make 
it known to him. Religious have a right to their reputation. 

Sometimes members of communities, and boys or girls at 
school, who know that serious harm to morals is being done 
by a black sheep among the flock, are bound under penalty 
of grave sin to give information to superiors so that the suitable 
remedy may be applied. Such cases require careful treatment 
from the confessor, who is bound to instruct his penitents 
concerning their obligations, and to refuse them absolution if 
they are not prepared to fulfil those obligations which bind 
them under penalty of grave sin. On the other hand, the seal 
of confession must be safeguarded at any cost. 

4. It is the better opinion that private persons are not 
regularly .obliged to admonish another for committing a 
material sin through ignorance or inadvertence. Sometimes, 
however, harm would follow even if material sin were to go 
uncorrected and, inasmuch as charity requires that we should 
prevent harm when we can, in these cases admonition should 
be given. Those also who are placed in authority and have 
the duty of instructing their subjects, preventing scandal, and 
maintaining discipline, are bound to correct even the material 
sins of those under their charge. 



CHAPTER VI 
ON SCANDAL 

i. SCANDAL in its theological sense is any word or action 
which has at least the appearance of evil and is the occa- 
sion of sin to another. This is the received definition of 
active scandal. Passive scandal is the sin which another is led 
to commit through active scandal. It is quite immaterial 
whether passive scandal be a sin of the same species as the 
scandal which caused it or not; a priest who gets drunk may 
cause scandal by inducing others to follow his example, or by 
causing others to speak ill of priests or of the Catholic Church. 

Scandal is direct when it is foreseen and intended. If it 
is intended precisely in ord.er that another may fall into sin, it 
is called diabolic ; if it is intended on account of the advantage 
it will bring to him who gives it, it is simply direct scandal. 

Indirect scandal is foreseen by him who gives it, but it is 
not intended. 

Scandal of the weak is caused by the ignorance or frailty 
of him who suffers it ; pharisaic scandal is caused by his malice, 
as was the case with the Pharisees taking scandal at the words 
and actions of our Lord and his Apostles. 

2. Giving scandal is of itself gravely sinful, as it is against 
charity ; and it is a special sin against the precept of fraternal 
correction which obliges us to do what we can to rescue a 
fallen brother, whereas one who scandalizes his brother causes 
him to fall. 1 Although of itself scandal is a grave sin, it is 
frequently .only venial in the concrete. The gravity of the sin 
is not measured by the malice of the sin which causes scandal, 
but by the malice of the sin which he who gives scandal fore- 
sees will certainly or at least probably be caused in another. 
Thus a gravely sinful word or act may be a venial sin of scandal, 
and a venially sinful word or act may be a grave sin of scandal. 
It is plain, too, that not every sin committed in the sight of 
others is a sin of scandal, but then only when it is foreseen 
that at least probably it will cause others to commit sin. 

3 . There is a twofold malice in sins of direct scandal ; such 
sins are against charity and also against that special virtue 

1 Cf, Matt, xviii 7. 
i. 139 9 



1 30 ON THE THEOLOGICAL VIRTUES 

which he who suffers scandal violates. So that when A incites 
B to drink to excess, A sins against charity and against tem- 
perance, wjiich not only prescribes moderation in one's own 
actions, but forbids one to be the cause of its violation by 
another. 

The question whether indirect scandal in the same manner 
also contains a twofold malice is disputed among theologians. 
The negative opinion is probable, for although the virtue of 
temperance, for example, forbids me to induce another to sin 
against it, and I violate temperance if I do so, yet temperance 
does not require of me that I should prevent others from 
sinning against it; I may sin against charity if I do not try 
to prevent a sin of intemperance in another, but I do not sin 
against temperance. And so when indirect scandal is given, 
thereby causing another to drink to excess, there is a sin 
against charity; but the sin of scandal does not contain in 
addition the malice of a sin against temperance. 

When A solicits B to commit sin with him and B consents, 
both sin against charity and also against the virtue which is 
specially violated; so that although solicitation causes A's sin 
to be greater, it does not constitute a specific difference, and 
need not be confessed. 

4. If I foresee that scandal is likely to be caused by an action 
of mine which has the appearance of being wrong, but which 
in fact is perfectly lawful, I am under the obligation of re- 
moving the danger of scandal by explaining my conduct, or 
omitting the action altogether if I can do so conveniently. 
If I cannot explain or omit the action without serious incon- 
venience, I am justified in performing the action and per- 
mitting the scandal, for charity does not bind to one's own 
serious inconvenience. 

5. On the other hand, I am not justified in omitting an action 
which is prescribed by the natural or divine law on account 
of the scandal which the action would give, and so when God's 
honour or the salvation of my neighbour or my own requires 
that I should make public profession of the faith, I am bound 
to make it though my profession will make the enemies of the 
faith blaspheme. 

Even a positive precept does not cease to bind on account 
of a general fear of scandal ; whether it ceases to bind or not 
on account of scandal in a particular instance is a disputed 
point. Some theologians maintain that if a woman knows 
that her presence at Mass is a cause of grave sin to another 
and she cannot hear Mass elsewhere, she is obliged to abstain 



ON SCANDAL 131 

from hearing Mass at least for a Sunday or two, because the 
natural precept of avoiding scandal is more important than 
the positive precept of hearing Mass on Sundays. Others, on 
the contrary, hold that inasmuch as the scandal is taken and 
not given, the obligation of hearing Mass does not cease to 
bind in such a case. Practically, therefore, one is free to 
follow either opinion. This disputed question refers to 
scandal of the weak, for positive precepts do not cease to be 
obligatory on account of pharisaic scandal. 

A good action without any appearance of evil which is not 
prescribed, and which can without inconvenience be omitted, 
should be omitted when it would cause scandal. If it cannot 
be abandoned without some inconvenience, there is no obliga- 
tion to abstain from it; and so I may receive the sacraments 
even when they are not obligatory from a priest whom I know 
to be in a state of sin and unworthy to administer them. 

6. If I suspect the honesty of a servant, I do nothing wrong 
if I leave a sum of money where I know he will see it with 
the object of finding out whether he will steal it. If he is an 
honest man, no harm will follow; if he is a thief, my action 
does not make him one ; I do but furnish the opportunity for 
him to betray himself, and in my own defence I am justified 
in doing that. It is of course morally wrong to use agents 
provocateurs in order to detect criminals; they are the cause 
of another's sin, not merely the occasion. > 

7. If I know that someone has made up his mind to commit 
sin and there is no other way of preventing him, I may lawfully 
induce him to be satisfied with some less offence of God than 
he was bent on committing. And so if a man was determined 
to commit adultery, I do nothing morally wrong, but rather 
the contrary, by persuading him to commit fornication instead. 
Many theologians, indeed, deny this doctrine on the ground 
that we must not do evil that good may come of it. But there 
is no question here of doing evil one's self ; we are not justified 
in doing a less moral evil instead of a greater ; we must abstain 
from all evil, great and small. The question is whether it is 
an evil action to persuade someone bent on committing a great 
sin to be satisfied with a less. This is denied by those who 
defend the above doctrine. And reasonably so, for it is a 
good action to persuade another to do less evil than he was 
bent upon doing. To lessen evil is surely to do good. This 
is the more probable view, according to St Alphonsus. 1 

1 Theol. Mor., a, n. 57. 



CHAPTER VII 
ON CO-OPERATION IN ANOTHER'S SIN 

i. CLOSELY connected with scandal is the subject of co-opera- 
tion or participation in the sin of another; indeed, they are 
often treated of together, but on account of the importance of 
the latter it seems desirable to devote a special chapter to it. 

Co-operation, then, may be formal or material. Formal 
co-operation is concurrence in the bad action of another and 
in the bad intention with which it is performed. Material 
co-operation is the concurrence in the external action of 
another but not in the evil intention with which it is done. 

Co-operation is proximate or remote according as the action 
of the secondary agent is more closely connected with the 
action of the principal agent or less so. 

One is said to co-operate positively when he does something 
which influences the action of the principal agent ; one is said 
to co-operate negatively when he does not hinder a bad action 
which he is bound to prevent. 

2. It is never lawful to co-operate formally with another's 
sin, for it is obviously to wish evil, which is always sinful. 
Nor is it lawful to co-operate materially with the sin of 
another when the action of the secondary agent is itself 
wrong, as is also clear. But provided the action of the 
secondary agent is not itself wrong, but right, or at least 
indifferent, and he has no evil intention, and furthermore 
there is a just cause for permitting the sin of the principal 
agent, material co-operation in the sin of another is not wrong. 
In such circumstances, the secondary agent does nothing that 
is wrong in itself; he foresees, it is true, that another will take 
advantage of his action in order to commit sin, but the 
secondary agent is only bound to prevent this out of charity, 
which does not bind with relatively serious inconvenience, and 
this is present whenever there is a just cause for permitting 
the sin of the principal agent. This is merely the application 
of the principle of a double effect which was laid down in the 
Book on Human Acts. 1 

The cases to which this doctrine may be applied are very 

1 St Alphonsus, lib. a, tract. 3, n. 63. 
132 



ON CO-OPERATION IN ANOTHER'S SIN 133 

numerous, but the safe application is difficult and attended 
with risk. The chief difficulty lies in determining the gravity 
of the cause which will justify one in co-operating materially 
in another's sin. No general rule can be laid down on the 
point beyond saying that a graver cause is required when 
there is question of a graver sin, when the co-operation is 
more proximate, and when it is more probable that the sin 
would not be committed at all if the co-operation were denied. 
The following examples taken from approved authors are 
given as illustrating the application of the doctrine, and they 
may be used to show what may be done in similar cases. 

(a) I may lawfully ask for the sacraments from a bad priest, 
though he commits sin in administering them, for he need 
not sin thereby unless he likes, and his malice should not 
deprive me of the benefit of the sacraments to which I have 
a right. 

(b) A dealer may sell to all buyers things which are in them- 
selves indifferent, though they can be put to a bad use, as 
firearms, unless he is certain that they are required for a bad 
purpose. Even in the latter case a correspondingly serious 
inconvenience or loss will excuse his selling, especially if his 
refusal will not hinder the sin on account of the buyer being 
easily able to procure what he wants elsewhere. 

(c) Intoxicating drink may not be sold to one who has 
already had too much. Many authors, however, allow this 
to be done when it cannot be refused without provoking to 
violence and quarrelling. This excuse would rarely avail in 
England at present, because the law forbids such sale, the 
strong arm of the law thus being on the side of morality. 

(d) It is not lawful to sell things of which the use is ordinarily 
sinful, except when their lawful use is guaranteed. And so 
booksellers are not allowed to sell infidel or immoral books 
except to such as require them for good reasons and with the 
requisite permission. The same doctrine applies to drugs 
and instruments used for immoral purposes, as well as to 
poisons. Publishers, too, sin by publishing books which are 
dangerous to faith or morals. Compositors and others em- 
ployed in printing should not work for firms which are known 
to publish bad books ; as they are usually ignorant of the nature 
of the work which they help to bring out, their ignorance, the 
remoteness of their co-operation, and the ease with which 
other workmen can be found to supply their place, will 
ordinarily excuse them from sin if an odd bad book or two 
are published by an otherwise respectable firm. 



134 ON THE THEOLOGICAL VIRTUES 

(e) Dancing may be a perfectly innocent amusement and 
it may be a dangerous occasion of sin. No general rule, there- 
fore, can be given as to when dancing must be avoided. Much 
depends upon the company who join in the dance, upon the 
way of dancing, and upon the subjective disposition of the 
dancers. If there be nothing objectionable in any of these 
respects, there is no reason why a young man or a young 
woman should not be allowed to dance with due caution. If 
there be ground for objection, and especially if sin has already 
been frequently committed in similar circumstances, there is 
an obligation to abstain, unless the occasion of sin is necessary 
and can be made remote by taking proper precautions. If sin 
only follows occasionally, there will be no strict obligation to 
abstain from dancing, provided due precautions be taken in 
future. 

(/) The question of theatre-going is settled on similar 
grounds. There are all sorts of theatres and all sorts of plays 
represented in them, and all sorts of actors and actresses. To 
go and listen to a bad and suggestive play arouses the passions, 
leads to sin, and encourages evil in many ways. It will, then, 
as a rule, be grievously sinful to go to the theatre to see such 
a play. The confessor will usually be able to judge best 
whether in any particular case it is lawful to go to the theatre 
by asking whether in the past it has frequently led to sin. If 
it has done so, it is a proximate occasion of sin, and must be 
avoided as far as possible. In other cases, unless the play or 
the theatre is known to be bad, there will be no strict obligation 
to refrain from going. 



BOOK VI 
PRECEPTS OF THE DECALOGUE 

PART I 
THE FIRST COMMANDMENT 

CHAPTER I 
THE MATTER OF THE COMMANDMENT 

THE great precepts of the natural law which binds all men 
are summed up in the Ten Commandments given by God 
to the Israelites, which our Lord i declared that he came 
not to destroy but to fulfil. They bind all men, and they will 
continue to do so as long as human nature is what it is; if 
only they were observed, the blissful state of happiness of which 
poets have dreamed, and reformers have striven in vain to bring 
about, would indeed be realized on earth. The first three 
Commandments lay down our duty toward God and constitute 
the first table ; the rest, forming the second table, contain our 
duties toward our neighbour and our self-regarding duties. 

The First Commandment, in the words of Exodus, is: "I 
am the Lord thy God . . . thou shalt not have strange gods 
before me." 1 

Here God solemnly declares to us that he is our Lord God 
from whom we have all that we possess, on whom we depend 
absolutely, to whom we altogether belong. From this, our 
essential relation with God our Creator, is derived immediately 
our duty to worship him as our first beginning and last end. 
The fact that we derive our bodily origin under God from our 
parents lays upon us certain obligations in their regard; 
similarly, our relation to God imposes on us our highest duty 
of worshipping God, our Creator. 

The acts of this worship, which natural reason thus pre- 
scribes, belong to the virtue which theologians call religion. 
They are acts such as prayer, worship in the stricter sense, 
sacrifice, offerings, tithes, vows, oaths, etc. Most of them 
will be more suitably treated of elsewhere ; in this part we will 
consider the subject of prayer and worship, and then the chief 
sins against the virtue of religion. 

1 Exod. xx 2, 3.. 
135 



CHAPTER II 
ON PRAYER 

i. PRAYER sometimes means any pious affection by which 
the mind and heart are raised to God. More strictly, it is the 
petitioning of God for what we stand in need of, and this is 
called the prayer of petition to distinguish it from the more 
general signification of the term. 

Mental prayer is made with the internal faculties of the 
soul, while vocal prayer is made with the lips also. 

Public prayer is offered in the name of the Church by 
authorized ministers in forms approved by the Church; all 
other is private prayer. Public worship is subject to the 
authority of the Church, which has regulated it by a large body 
of laws and decrees. Unauthorized forms of prayer may not 
be used in public worship, and it has been prescribed that 
only the litanies which are found in the Breviary and in the 
more recent editions of the Ritual, or such as have been specially 
approved by the Holy See, may be used in public. Moreover, 
no litanies may be published even for private use without the 
approbation of the Ordinary (Can. 1259). 

2. For adults, prayer is a necessary means of obtaining 
salvation; for there are certain graces necessary for salvation, 
such as final perseverance, which God only grants in answer 
to prayer, as St Augustine teaches. 1 Prayer is also of precept: 
" We ought always to pray and not to faint." 2 This precept 
is grave of itself, and for its fulfilment requires that we should 
pray frequently. Beyond saying this, it is difficult to deter- 
mine precisely what neglect of prayer is required for a mortal 
or a venial sin. It would seem certain, however, that grave 
sin would be committed by altogether neglecting prayer for 
a whole year. The faithful rightly accuse themselves in 
confession when they have omitted morning or night prayers, 
for those times are the most suitable for fulfilling this duty, 
and if no prayers are said then, they will hardly be said at 
other times; moreover, the omission will usually be due to 
sloth or carelessness about spiritual things. 

3. Our Lord promised that prayer when rightly made 

1 De bono persev., c. 16. 2 Luke xviii i. 

136 



ON PRAYER 13? 

would be heard by God: " I say to you, Ask and it shall be 
given you : seek and you shall find ; knock and it shall be opened 
to you." 1 We learn from his teaching and from the nature of 
prayer what qualities it must have in order to be acceptable 
to God and heard by him. The object prayed for must be 
necessary, or at any rate useful for salvation. Not only 
spiritual blessings are proper objects of prayer but temporal 
blessings as well, as far as they conduce to the welfare of the 
soul. Prayer must be persevering : God has promised to hear 
prayer, but he has not promised to hear it at once. The time 
must be left to his wisdom and providence with due conformity 
to his holy will. Prayer must come from a humble heart, in 
which faith, hope, and charity dwell, in order to merit the 
promises of God. Moreover, God will not do violence to 
man's free will, and so if prayer is offered for someone else, 
its effect to some extent depends on that person's dispositions 
and free will. He may, if he pleases, put obstacles in the 
way, which will prevent the prayer from obtaining the precise 
effect wished for in his regard. Theologians conclude that 
prayer must be made for one's self in order to be infallibly 
heard by God. 

4. We are obliged by precept only to pray to God, unless 
we admit with the common opinion that anyone who should 
never pray to the blessed Virgin Mary would sin venially by 
neglecting so powerful a means of salvation. We may, how- 
ever, lawfully and with fruit pray to the angels and saints, 
more probably to the holy souls detained in purgatory, and in 
private to anyone whom with reasonable certainty we believe 
to be with God in heaven, that they may intercede with him 
for us. 

5. We should pray for all men whom it will benefit without 
excluding anyone in our private prayers. It is useless praying 
for the damned, and the Church forbids her ministers to pray 
publicly for those who are excommunicated. 

1 Luke xi 9. 



CHAPTER III 
ON WORSHIP 

i. WORSHIP here signifies any external action by which we 
show deference and respect to another. Such an act is 
grounded on the persuasion that the person honoured is 
worthy of our esteem, and that it is proper to mark our esteem 
by such an external act of deference. 

If the qualities which command our respect belong to the 
sphere of civil life, our worship is civil ; if they belong to the 
sphere of religion, it is religious worship. Religious worship 
which is paid exclusively to God on account of his infinite 
and uncreated excellence is called by divines latria. That 
paid to the saints is called dulia, while the special worship with 
which we honour the blessed Virgin Mary, the Mother of 
God, on account of her created but pre-eminent excellence is 
called hyperdulia. 

Worship is absolute when the excellence which grounds our 
esteem is in the object honoured; it is relative when paid to 
some object on account of its connection with a person worthy 
of our esteem and honour. 

2. In this chapter we will briefly consider the regulations 
of the Church with regard to the worship of the saints, their 
relics and images, and the principles which underlie that 
worship. We suppose the truth of the Catholic doctrine on 
this subject that the worship which the Church authorizes 
to be paid to the saints, to their relics and images is lawful, 
praiseworthy, and meritorious. In the first place, then, we 
are allowed privately to show that inferior worship, which is 
called dulia, to anyone whom we know with moral certainty 
to have died in the grace and friendship of God. We may 
also show marks of relative worship to anything connected 
with him during life. It is evident that there is nothing repre- 
hensible in such worship; the world is accustomed to show 
similar marks of its esteem to its great statesmen, generals, poets, 
and inventors. The Church does not interfere with private 
worship provided there is nothing in it that is objectionable. 

3. Public worship, however, is subject to the authority of 
the Church, and she regulates it both as to its manner and 

138 



ON WORSHIP 139 

objects. No signs of public worship may be used besides 
those which are sanctioned, nor may the accustomed and 
approved signs of honour be shown to any except those who 
have been canonized or at least beatified by the Holy See. 
Only the saints, not the beatified, are invoked in the public 
litanies, and ( ordinarily it is not lawful to erect churches or 
altars in honour of the beatified ; this mark of honour is reserved 
for the canonized saints. The pictures of the saints are 
painted with aureoles, those of the beatified with rays. With 
the permission of the Ordinary it is not forbidden to place 
statues of men who have not been canonized or beatified in 
our churches provided there be no marks of religious worship 
shown them; and paintings of such men may, under the same 
condition, be placed on the walls or windows of a church. 
Such paintings, however, may not be placed over an altar. 

4. The Church is very careful to guard against abuse and 
fraud in the worship of the saints, their images and relics, as 
is shown especially by the wise decree of the Council of Trent 
on the invocation of the saints and the veneration paid to 
their relics and images (sess. 25). In that decree it is specially 
prescribed that no new relics or miracles are to be admitted 
except with the Bishop's approbation after making a diligent 
inquiry into the truth of the matter. The question of the 
authenticity of relics is one of fact and proved by the ordinary 
rules of evidence. When there seems to be moral certainty 
of the genuineness of a relic, the Church permits relative 
honour to be paid to it on account of the spiritual excellence 
of the person with whom it was connected. The honour is 
thus referred to the person of the saint and to God who is 
glorified in all his saints. It is quite possible for mistakes to 
be made about the genuineness of a relic; the infallibility of 
the Church does not enter here. When a mistake is detected, 
of course the honour previously paid to a false relic should 
stop. No one need be scandalized or distressed when any 
such discovery is made. The merit of the worship previously 
paid in good faith is not lost; the saint whose relic it was 
supposed to be was really honoured by marks of devotion 
shown to it out of love for him. It is as if a devotee of Shake- 
speare were to keep a bust in his room, and show it marks of 
honour because he supposed it to represent the great poet ; if 
he found out that it was a bust of Thomas Cromwell, he would 
be disappointed, but neither he nor Shakespeare would have 
suffered any great loss. 



CHAPTER IV 
ON SUPERSTITION 

SINS may be committed against the virtue of religion by 
excess or by defect in the same way as against other moral 
virtues. Sins against religion by excess come under the 
general term of superstition, of which there are several species. 
For the sin of superstition may be committed by worshipping 
the true God in the wrong way or by worshipping false gods. 
We will first briefly treat of the wrong ways of worshipping 
the true God, and afterwards of worship paid to false gods. 

SECTION I 
Wrong Ways of Worshipping God 

1 . God may be wrongly worshipped either by false worship 
or by superfluous worship being paid him. Worship of God 
is false when its meaning is not in accordance with fact, or 
when the falsehood is in the person who performs the act of 
worship, as when a layman performs the duties of a priest, or 
when someone tries to gain credence for false miracles or false 
relics. The ceremonies and practices of the Jewish religion 
signified that the Messiah was to come, and so now, after the 
coming of our Lord, they could not be employed without 
superstition. Inasmuch as falsehood in religion is a grave 
injury to God, this species of superstition is mortally 
sinful. 

2. Anything in the worship of God which does not tend to 
his honour and glory, or which is against the ordinances and 
practice of the Church, to whom the regulation of religious 
worship exclusively belongs, is superfluous worship and super- 
stition. This sin is committed by attributing an infallible 
effect to a fixed number of prayers or acts of piety, or to the 
mere material wearing of scapulars or medals, or by unwar- 
rantably acting against the rubrics while saying Mass or 
administering the sacraments or sacramentals of the Church. 
The intention of the Church is that scapulars, medals, and 
other pious objects should be used by the faithful with con- 
fidence in the goodness and power of God, whose aid is invoked 

140 



ON SUPERSTITION 141 

on the wearers by the blessing of the Church. Ordinarily, 
however, this kind of superstition will not be more than a 
venial sin. 

SECTION II 
On Idolatry 

The sin of superstition is also committed by giving divine 
honour to false gods. This is done by idolatry, divination, 
vain observance, and magic. 

By material idolatry divine worship is given to a creature 
through fear or for some other reason merely externally, 
without any intention of honouring it as God. It is a grave 
sin, for it is directly against the obligation of making external 
profession of the faith, and contains the grave malice of a lie 
in matters of religion. ; 

Formal idolatry is perfect or imperfect. The former con- 
sists in honouring a creature as God, falsely thinking it to be 
God. The latter knowingly honours a creature as God, 
without any excuse of ignorance, out of hatred towards him, 
or wishing to obtain something thereby. Both are grievous 
mortal sins, but the latter is the more grievous on account of 
the greater knowledge and malice. 

SECTION III 
On Divination 

i. We here suppose that the devil, a wicked spirit of great 
intelligence and power, but subject to God, exists and con- 
tinually interferes in the affairs of men in order to ruin them. 
This truth belongs to the Catholic faith and cannot be denied 
without sin. The sin of divination is committed when the 
devil is invoked expressly or tacitly in order to discover what 
is secret and hidden. There is express invocation of the devil 
when his aid is expressly implored. The devil is tacitly 
invoked when altogether inadequate means are used to find 
out what is occult, means which are not sufficient for the 
purpose naturally, and which have not been ordained by God 
for that purpose. The devil is eager to be appealed to in order 
the more easily to attain his own ends, and anyone who uses 
such inadequate means to find out hidden secrets virtually 
appeals to the devil to help him. A great variety of such 
means of divination has been in use from the earliest times 
among all nations ; and periods which have witnessed a decay 



. 143 PRECEPTS OF THE DECALOGUE 

of faith have also witnessed a recrudescence of these super- 
stitions. The following are some of the better known methods 
of divination practised from the earliest times. The devil 
sometimes takes possession of the body of a human being and 
manifests what is secret through it ; this was called pythonism. 
The devil had his prophets as God had. In necromancy the 
devil answers through the dead called to life again. At certain 
places he gave oracles through idols. Sometimes he com- 
municated with men through dreams. In all the foregoing 
methods we have the express invocation of the devil. He is 
tacitly invoked when the lines of the hand are consulted as 
indications of the future, as is done in chiromancy; or the 
course of the stars, as in astrology; or the flight or song of 
birds, as in augury ; or some chance event is taken as foretelling 
what is going to happen, as in omens. 

2. Divination is mortally sinful, for it is a great insult to 
God to hold intercourse with and seek aid from the devil, his 
bitter enemy ; and, besides, it is most dangerous to the parties 
concerned. He is wont gradually to insinuate himself until 
he has his victim within his power, and then he works on him 
his evil will. Such practices as those of divination are specially 
declared to be hateful to God in Holy Scripture : " Neither let 
there be found among you anyone that shall expiate his son 
or daughter, making them to pass through the fire; or that 
consulteth soothsayers, or observeth dreams and omens, neither 
let there be any wizard, nor charmer, nor anyone that con- 
sulteth pythonic spirits, or fortune-tellers, or that seeketh the 
truth from the dead. For the Lord abhorreth all these things, 
and for these abominations he will destroy them at thy 
coming." 1 Although tacit as well as express divination is 
grievously sinful of itself, yet it is frequently only venial on 
account of the ignorance and simplicity of those who indulge 
in it, or because they do not entirely believe that the future can 
be known by such methods, and they use them in joke or out 
of curiosity. In this way young people who consult gipsies 
or palmists are ordinarily excused from grave sin. 

3. We know from Holy Scripture that almighty God has 
sometimes made known his will to men by means of dreams, 
and the devil, too, is able to fill the mind with his suggestions 
during sleep. If God in some rare instance uses dreams to 
make known his will, he should of course be lovingly obeyed. 
The suggestions of the devil, on the contrary, should be 
repelled and despised. We can distinguish between the two 

1 Deut. xviii 10-13. 



ON SUPERSTITION 143 

sources by observing whether the impulse received is towards 
good or evil, whether what is suggested is worthy of God, whether 
it tends to disturb our peace or leaves us tranquil and disposed 
to the service of God. Dreams have ordinarily a natural 
cause, but they are no indication of what the future will bring. 
We may not, then, guide our conduct by dreams; God has 
given us our reason and the Church to teach us what we 
should do ; we must follow these anld not dreams if we would 
act aright. Constantly to guide ourselves by dreams would 
be mortally sinful, to allow them to influence us occasionally 
and in matters of little moment would not be more than a 
venial sin. 

4. There is no harm in casting lots to decide a doubtful 
claim; the parties merely agree to stand by what turns up by 
chance. It is superstitious and sinful to cast lots in order to 
discover some secret, or with a view to shaping one's life 
according to the issue. Sometimes this method of deciding 
doubts has been adopted by holy men in consequence of an 
intimation received from God, or sometimes because no better 
way out of the difficulty appeared. 

The use of the divining-rod under the belief that a stick of 
a special shape cut from a particular kind of tree or bush will 
point out hidden treasure, or mines, or springs of water, is 
superstitious and sinful. For it is certain that there is no 
natural force which acts in the arbitrary manner in which the 
divining-rod is said to act under the circumstances. It is not 
impossible but that particular individuals may be very sensitive 
to the presence of water or minerals even when hidden under 
the surface of the earth, and perhaps the frequent finding 
of springs by dowsers is partially to be explained in this way. 
Then by practice and experience a power of detecting the 
presence of underground water from the vegetation or other 
signs on the surface may be developed. There is also without 
doubt a great deal of fraud in such matters. Finally, the devil 
may sometimes intervene. 

5. Modern spiritism is obviously the pythonism, necro- 
mancy, and other forms of divination which have been men- 
tioned above. It is gravely sinful, therefore, to act as a 
medium or to consult one with a view to finding out something 
which is not known. Crystal-gazing, table-turning, the use 
of the planchette for occult purposes, is also divination and 
grievously sinful. It is not impossible that the movements 
of the table in table-turning and of the planchette are due to 
the unconscious action of the sitters. On this hypothesis it 



144 PRECEPTS OF THE DECALOGUE 

would not be unlawful to make experiments with a view to 
finding out the truth; divination comes in when by such 
means the sitters seek to discover what it is certain none of 
them knows, consciously or unconsciously. 

It is well to bear in mind a remark which St Thomas 
Aquinas makes after St Augustine, that the devil wishes to ex- 
cite among men a greater curiosity about occult matters " so that 
being implicated in these observances, they may become more 
curious and get themselves more entangled in the manifold 
snares of pernicious error." 1 

SECTION IV 
On Vain Observance 

1. The term vain observance is used by theologians to 
designate various kinds of superstition by which altogether 
disproportionate means are employed to procure a sure and 
certain effect. It comprises the use of charms, spells, and 
cabalistic signs, which are used to preserve persons and things 
from harm, or cure wounds and diseases, or acquire knowledge 
without the labour of study. It also signifies the superstitious 
observance of chance events and days, some of which are 
considered lucky, others unlucky. Magic is the art of wonder- 
working by the help of the devil. 

2. Vain observance, or witchcraft and magic, is gravely 
sinful for precisely similar reasons as divination is. There is 
only an accidental difference between these kinds of super- 
stition, for while divination uses disproportionate means to 
discover what is hidden by the help of the devil, witchcraft 
uses disproportionate means to obtain certain and wonderful 
effects by his help. Morally, therefore, there is no difference 
between divination and witchcraft. Like divination, witch- 
craft may contain an express or tacit compact with the devil, 
and although if the compact be express there will always be 
mortal sin, there will frequently be only venial when the com- 
pact is tacit. Ignorance or good faith or want of full confidence 
in the effect will in that case frequently excuse from serious 
sin. Moreover, there must be advertence to the total in- 
adequacy of the means to obtain the effect desired, and to the 
danger of the devil's intervention, otherwise there will not be 
the sin of superstition. And so people who do not like to 
undertake any journey on a Friday, or to sit down with thirteen 

1 Summa Theol., 2-2, q. 96, a. 3, ad 2, 



ON SUPERSTITION 145 

at table, because they have always heard that it is unlucky, and 
because their fathers had similar scruples, may often be excused 
from sin. 

3. In a case of doubt whether a particular effect is to be 
ascribed to natural causes or not, we should rather ascribe it 
to natural causes than to the devil, for we must not bring in the 
preternatural without necessity, and we do not yet know all 
the forces of nature. Thus many believe that telepathy really 
exists and is due to natural causes. In such a case of doubt, 
then, we may experiment and investigate the matter; it is 
advisable to renounce all intention of dealing with the devil 
as a precautionary measure. If, on the contrary, it is certain 
that the effect is not attributable to natural causes, it should 
be ascribed to the devil rather than to God in case of doubt; 
for God does not work miracles without good reason, and 
ordinarily the sanctity of the person concerned and other cir- 
cumstances clearly show divine intervention when it takes 
place. 

4. Many theologians hold that the phenomena of hypnotism 
are due to preternatural causes, and consequently they maintain 
that it is unlawful to induce the hypnotic state or to have any 
part in it. Others more probably think that the state itself 
and the susceptibility of the hypnotized subject to suggestion 
on the part of the hypnotizer, together with those phenomena 
which affect the bodily organs and the imagination, are due to 
natural causes. The rarer phenomena of clairvoyance by 
which scenes and passing events at a great distance are seen, 
or by which an ignorant medium shows knowledge which is 
not possessed in the normal state, must be attributed to preter- 
natural causes. For it seems impossible that natural forces 
should be able to produce effects altogether beyond their 
range. Even if we admit that the hypnotic state and the 
bodily phenomena are due to natural causes, it does not follow 
that anyone may induce the hypnotic sleep merely for the sake 
of experiment or out of curiosity. Such a practice would be 
accompanied with grave dangers, moral and physical, and it 
is not lawful to permit one's self to be deprived of the use of 
reason, and to subject one's self to another's control, without 
good cause and proper safeguards. Medical men, however, 
and other persons of skill and experience cannot be precluded 
from using a means which is very probably innocent, with 
proper precautions and for a good reason. 



10 



CHAPTER V 
ON TEMPTING GOD 

i . IN this and the two following chapters we will treat of sins 
against religion by defect. The first of these is tempting 
God, which a person commits by saying or doing something 
by way of experiment to discover whether God is wise, power- 
ful, good, or endowed with some other perfection. There is 
a formal sin of tempting God when there is a positive intention 
to make an experiment with God ; the sin is virtual when that 
intention is absent, but something is said or done which can 
have no other meaning than to find out whether God has 
some perfection or not. Even in this case there must be some 
reference to God, some desire or wish to implore his help; 
otherwise there cannot be any tempting of God. 

2. Formal tempting of God is a mortal sin, as is obvious; 
for it is a grave insult to the divine Majesty, who has graciously 
given men all the knowledge about himself that they require, 
and it contains the malice of unbelief as well. 

3. God is virtually tempted when, contrary to the designs 
of his Providence, we neglect natural means, trusting that he 
will give us special help. This too is of itself a grave sin, 
but it often becomes venial on account of want of knowledge, 
consideration, or advertence. Thus people are guilty of grave 
sin who refuse to send for the doctor and will not use the 
ordinary remedies when they or their children are seriously 
ill, trusting that God will work a miracle. A preacher who 
neglected to prepare properly for his sermon, or one who 
exposed himself to some slight danger through improper trust 
in the divine help, would only sin venially. After doing what 
we can, or if we can do nothing, then we may at once with full 
confidence have recourse to God in our necessities. The 
trials by ordeal, which were in vogue in the Middle Ages, 
were in the ninth century condemned by the Church as 
superstitious. 



146 



CHAPTER VI 
ON SACRILEGE 

i. SACRILEGE is defined to be the irreverent treatment of 
sacred persons, places, and things. The irreverence consists in 
doing something which is specially repugnant to the sanctity 
of the object in respect of its sacred character. A person, 
place, or thing becomes sacred by being dedicated to the 
service of God by public authority, for it does not seem possible 
that the dedication of an object to God by private authority 
should be able to lay an obligation jon others to treat it with 
the reverence due to sacred things. Such an effect requires 
public authority. 

Objects become sacred in consequence of being dedicated 
to God's service by an authorized person according to the form 
prescribed by the Church. Not every form of blessing, how- 
ever, makes the blessed object sacred. We must distinguish 
between blessings which invoke the divine favour on the use 
of certain things, but which do not make them sacred, and 
blessings which hallow and consecrate the object so that it 
can no more be lawfully used for profane purposes. Food, 
or candles, or holy water, which are blessed in the former way, 
do not thereby become sacred, and may still be used for 
ordinary purposes; churches, chalices, and baptismal water 
are consecrated by special blessings and may only be used 
for the purposes to which they are dedicated (Can. 1147- 
1150). 

The sanctity which belongs to a consecrated person is 
different from that which belongs to holy places, and this again 
is different from that which belongs to sacred things. So that 
the sins by which sacred persons, places, and things are violated 
are specifically different from each other. Theologians dispute 
whether these three species of sacrilege contain other lower 
species or whether they are themselves the lowest. Many of 
them hold that they are the lowest, and this seems to be the 
opinion of St Thomas. 1 

2. Sacrilege in all its species is a grave sin of itself, inasmuch 
as irreverence shown to sacred things |redounds to the dis- 

1 Summa, 2-2, q. 99, a. 3, ad 2. 
147 



148 PRECEPTS OF THE DECALOGUE 

honour of God, to whose service they are dedicated. If, 
however, the matter be trivial, as, for example, some slight 
irreverence to the Blessed Sacrament, sacrilege will only be 
a venial sin. 

3. Personal sacrilege is committed in three ways: 

(a) By violating the privilege of the canon, by which it is 
forbidden under pain of excommunication to lay violent hands 
on the clergy or on religious (Can. 2343). 

(b) By violating the privilege of the immunity of the 
clergy from civil jurisdiction, as far as this is still in 
force (Can. 120). 

(c) When persons consecrated to God by the vow of chastity 
violate their vows. Such persons are all those who are in 
sacred orders, and all religious who take public vows even 
though they be simple and not solemn. All sins, therefore, 
against purity, whether internal or external, which these 
persons commit, or which others commit with them, are 
sacrileges. It is a disputed point among theologians whether 
a private vow of chastity makes the person sacred, so that sins 
committed against the vow are sacrilegious. Both opinions 
are extrinsically probable, though the negative view seems 
more in accordance with what was said above, in keeping with 
the common teaching of divines. The question is not of great 
practical importance, since sins committed against chastity by 
those who are under a private vow have certainly a twofold 
malice, one against chastity, and the other against religion; 
and sins against religion are called sacrileges in a wide 
sense. 

4. Local sacrilege is also committed in three ways : 

(a) By violating the immunity of sacred places as far as this 
is still in force. 

(b) By committing certain crimes in a church or public 
oratory, which has been consecrated or at any rate blessed, 
by which crimes they are polluted according to canon law. 
Those crimes are homicide, suicide, any shedding of blood by 
violence which constitutes a mortal sin, the putting of the 
church to impious and base uses, and the burial within a 
church or oratory of an unbaptized person, or of one who has 
been excommunicated after a condemnatory or declaratory 
sentence (Can. 1172). 

(c) By performing certain actions and by committing 
certain sins which of their nature or by special disposition of 
law are especially repugnant to the reverence due to holy 
places. Sacrilege is thus committed by holding a public 



ON SACRILEGE 149 

market in a church, or a banquet, or using it to stable horses 
or cattle. There is, to be sure, a special indecency and irre- 
verence in committing any sin in church, but the malice 
contracted from this circumstance will only be mortal in 
certain special cases. 

On this ground it is probable that only external and con- 
summated sins against chastity contract the grievous malice of 
sacrilege from being committed in a church; internal or not 
consummated sins against purity probably do not contract 
the grave malice of sacrilege if they are committed there. 

5. Real sacrilege is also committed in three ways : 

(a) By treating with irreverence sacred things, such as the 
sacraments, Holy Scripture, relics, sacred images. 

It is a sacrilege to administer or to receive the sacraments in 
a state of mortal sin, to quote the words of Scripture for the 
purpose of making an obscene joke, 'to treat sacred images and 
relics with contempt. 

(b) By theft of sacred objects. Sacrilegious theft is com- 
mitted by stealing a sacred object from a sacred place, or a 
profane object from a sacred place, or a sacred object from a 
place that is not sacred, according to an old decree of canon 
law. 1 In the first of these cases a double sacrilege is com- 
mitted, local and real, as when a chalice is stolen from the 
tabernacle ; in the last case real sacrilege only is committed, as 
when a chalice is stolen from a priest's room. Local sacrilege 
only is committed in the second case, and, indeed, according to 
a probable opinion, then only when the object stolen belongs 
to the sacred place, or has been entrusted specially to the 
sacred place for safe keeping. If a thief picks a pocket in church, 
his sin probably has not the malice of a grievous sin of sacrilege, 
although it may be grievous as against justice. 

(c) By committing the sin of simony, the treatment of which 
is reserved for the next chapter. 

6. Theft of ecclesiastical property or wilful damage done 
to it is sacrilege, for although the money or other property 
belonging to the church is not sacred in itself, still by damaging 
or stealing it an injury is done to those sacred persons, places, 
and causes that are supported by church property. The 
private property belonging to a cleric is not ecclesiastical 
property, but only that which belongs to a church, Religious 
Order, or pious institution erected by episcopal authority. 
Theft, therefore, of the private money of a cleric is not 
sacrilege. 

1 c 21, C. 17, q. 4. 



ISO PRECEPTS OF THE DECALOGUE 

7. It is not lawful, except for clerics or others who have 
care of them, to touch the sacred vessels which are used to 
hold the Blessed Sacrament. Palls, corporals, and purifi- 
cators should after use be washed by a cleric preparatory to 
their being washed in the ordinary manner. A violation, how- 
ever, of these regulations would not be a grievous sin of itself; 
indeed, when there was a just cause, it would be no sin at all 
(Can. 1306). 



CHAPTER VII 
ON SIMONY 

i. SIMONY derives its name from Simon Magus, who, as we 
read in the Acts of the Apostles, 1 desired to buy with money the 
power of giving the Holy Spirit. It is defined to be a studious 
wish to buy or to sell for a temporal advantage something which 
is spiritual, or which is annexed to what is spiritual. The terms 
of this definition are technical and require some explanation. 

Simony, then, is said to be a studious wish to buy or to sell, 
in order to emphasize the fact that although no explicit contract 
is entered into by the parties, there may still be simoniacal 
dealing between them. Thus, if a person makes a money 
present to a priest with the intention of obliging him to give 
him absolution for his sins in return, he commits a sin of 
simony, though there is no express bargaining between them. 

In simony a temporal advantage is exchanged for something 
which is spiritual. The temporal advantage may be money 
and whatever is exchanged for money, or a service rendered, 
or favour, patronage, and defence. The spiritual object which 
is given for the temporal advantage is whatever has relation 
to the salvation of the soul. It may, then, be grace or the gifts 
of the Holy Ghost, or the sacraments and sacramentals, or 
prayer, or the use of spiritual power for absolving, dispensing, 
blessing, excommunicating, and so forth. 

Something may be annexed to what is spiritual either ante- 
cedently or concomitantly or subsequently. The material of 
which a chalice is made is said to be annexed to a consecrated 
chalice antecedently, inasmuch as it existed and had its 
value before the chalice was consecrated. Something is 
annexed concomitantly and extrinsically to what is spiritual 
when it is associated with what is spiritual but only acci- 
dentally, as the extra labour associated with singing a late Mass. 
It is concomitantly and intrinsically annexed to what is spiritual 
when the connection is necessary, as the labour which must of 
necessity accompany any spiritual function. A temporal ad- 
vantage is annexed to what is spiritual consequently, when it 
follows from and is derived from what is spiritual, as the right 

1 Acts viii 1 8. 



152 PRECEPTS OF THE DECALOGUE 

to the revenues of the parish is derived from the office of 
parish priest. There is no simony in buying or selling what 
is antecedently annexed to something which is spiritual, 
provided that the price be not increased on account of the 
connection with what is spiritual, and provided the Church 
has not forbidden it. It is lawful to sell consecrated chalices 
or the fabric of a church for what the materials are worth. 
The Church has forbidden any money to be received for the 
holy oils, even so much as the cost of the oil. Similarly it is 
not simony to receive payment for extra labour spent on some 
religious function. It is simony to receive money for what is 
concomitantly and intrinsically annexed to that which is 
spiritual, for they are regarded as identical. It is also simony 
to buy or sell that which is consequently annexed to what is 
spiritual, for the accessory follows the principal. 

2. Simony is called mental when no express contract is 
entered into between the parties. It is purely conventional 
if the contract has been expressly entered into, but has not yet 
been executed by either party ; it is partly conventional when 
the contract has been executed by one of the parties. Simony 
is real when the contract has been executed by both parties to it. 

Simony which is committed with reference to the presenta- 
tion and election to benefices, or the resignation or reservation 
of them, is called confidential simony, in contradistinction to 
common simony which is committed in other matters. 

Furthermore, simony is of divine law when it is against the 
law of God; it is of ecclesiastical law when it has been con- 
stituted by the prohibition of the Church. For, in order to 
remove all danger of simony against the law of God, the 
Church forbids certain contractual dealings where spiritual 
things are exchanged. Thus it is unlawful without due 
authorization to exchange benefices, which therefore would be 
simony by ecclesiastical law. Similarly the Church in certain 
cases forbids the sale of what is antecedently annexed to some 
spiritual object. It is thus unlawful to take money for the 
cost of the material in the holy oils, or to sell blessed rosaries or 
indulgenced crucifixes and other objects of piety. If this is done, 
simony is committed, and the objects lose all their indulgences. 1 

3. Simony, like sacrilege, is a grave sin, and if it is against 
the divine law, it is always mortal. For it is a grave injury to 
divine things and to God to barter even a small spiritual thing 
for any temporal advantage whatever. If the simony be 
merely of ecclesiastical law, it is also of itself a mortal sin, 

1 S.C. Indulg., July 12, 1847. 



ON SIMONY 153 

but inasmuch as it is constituted by ecclesiastical prohibition 
and a sin of disobedience is only venial when the matter is trivial, 
there may consequently be venial sins of that simony which is 
merely of ecclesiastical law. 

4. It is not simony to receive stipends for saying Mass 
according to the intention of the giver, nor to take stole fees 
on occasion of certain priestly ministrations. The stipends 
and the fees are not given as the price of the spiritual ministra- 
tions, but the occasion of these ministrations is taken for the 
fulfilment of the duty which is incumbent on the faithful of 
supporting religion and its ministers. " The Lord ordained 
that they who preach the gospel should live by the gospel." 1 
The amount of these offerings, as well as the occasions on which 
they are made, are regulated by ecclesiastical law and custom, 
and no change should be made in these ordinances by private 
authority. The priest has a strict' title in justice to receive 
them from all who are competent to pay. On the other hand, 
he has no right to demand more than the authorized amount. 

5. The Church has enacted many stringent laws against the 
crime of simony. Thus by Canon 2392 those who are guilty 
of the crime of simony in any ecclesiastical offices, benefices, 
or dignities incur excommunication latae sententiae simply 
reserved to the Holy See. Ipso facto they are for ever deprived 
of the right of electing, presenting, and nominating if they 
have any. Besides, they are to be suspended if they are 
clerics. Simony committed in the conferring or reception of 
Orders and of other sacraments brings the delinquent under 
suspicion of heresy, and, moreover, clerics incur suspension 
reserved to the Holy See (Can. 2371). 

Simoniacal election to ecclesiastical benefices is null and 
void, and the incumbent thus elected obtains no right to the 
revenues of the benefice, which accordingly he is bound to 
restore to the Church, to the poor, or to his lawful successor, 
if he has already received them (Can. 729). 

If commutative justice has been violated in other simoniacal 
transactions, restitution must, of course, be made; unless 
justice has been violated there will be no obligation to make 
restitution or to rescind the contract, though it was sinful to 
enter into it. Restitution, then, would have to be made by 
a priest who exacted more than the accustomed stipend for 
a Mass, for he has a just title to receive that amount and no 
more ; restitution need not be made when a relic has been sold, 
even though the transaction was sinful. 

1 i Cor. ix 14. 



PART II 
THE SECOND COMMANDMENT 

THE Second Commandment of the Decalogue is, " Thou shalt 
not take the name of the Lord thy God in vain." 1 It prohibits 
all irreverent use of the name of God, blasphemy, unlawful 
oaths, and violation of vows. Inasmuch as it is virtually 
positive, it commands us, always to speak of God with reverence 
and respect. 

CHAPTER I 
THE IRREVERENT USE OF GOD'S NAME 

WE take God's name in vain and break the Second Command- 
ment when we use the word " God " as an exclamation of 
wonder or impatience, or merely as an interjection in such 
phrases as " good God," " my God," " by God." If these 
phrases are used at fitting times and with due reverence they 
are, of course, not sinful but meritorious; the sin consists in 
using them without due reverence, too frequently, and merely 
as expletives, for such an abuse of the holy name of God shows 
a want of reverence to him and is displeasing to him. 

This irreverence, however, is not grave, and so the sin of 
taking God's name in vain is of itself only venial ; indeed, want 
of advertence will often prevent it from being even venially 
sinful. Still, care should be taken to correct any bad habit 
that may have been contracted in this matter. 

What has been said of the name of God may be applied with 
due proportion to those of our Lord, the Blessed Virgin, and 
the saints. 

1 Exod. xx 7. 



iS4 



CHAPTER II 
ON BLASPHEMY 

i. BLASPHEMY is an imprecatory or a contumelious speech 
against God. Not only words, but actions also, which express 
contempt, insult, derision, or imprecation against God are 
blasphemies. 

Blasphemy is direct when the dishonour of God is intended ; 
if the dishonour of God is not intended in itself but it is fore- 
seen that it will be the consequence of one's word or actions, 
it is indirect. ' 

Blasphemy which is against God in his own person is 
immediate ; if it immediately affects some creature which has 
a special relation toward God it is mediate. 

2. Blasphemy is a grave insult to almighty God, and is 
always a serious mortal sin if it is committed with full ad- 
vertence and consent. To deny the existence of God, to 
complain against his Providence and assert that he is unjust, 
to deny the perpetual virginity of the Blessed Mother of God, 
are so many heretical blasphemies and grievous sins. 

It is a disputed question among theologians whether blas- 
phemy against the saints which is only mediately against God 
is of the same species of sin as blasphemy which is immediately 
against him. Many assert that the species is different inas- 
much as the honour due to the saints is outraged as well as 
that which is due to God. Ordinarily, however, it is God 
who is chiefly dishonoured by insults offered to his saints, 
and so practically we may follow the opinion of other theo- 
logians and hold that there is no specific difference between 
the two sins. 

3. To utter imprecations or to speak injuriously against 
creatures which have a special relation to God is blasphemy. 
Thus it is grievously sinful to call down maledictions on one's 
fellow-men, wishing that they may perish eternally. Such 
acts are seriously against charity as well as religion. To utter 
imprecations against brute beasts or other creatures which 
have no special relation to almighty God is not blasphemy, 
and will not ordinarily exceed a venial sin. Profane words 
and vulgar expressions like " damn," " bloody," and so forth, 



156 PRECEPTS OF THE DECALOGUE 

are commonly used without definite meaning, and at most are 
venial sins, because they are unbecoming, shock others, or are 
manifestations of anger and impatience. It is sometimes said 
that blasphemy is most common where faith is strong, and 
this may be a reason why real blasphemy is not so common 
perhaps with us in ordinary conversation as with some 
nations. 



CHAPTER III 
ON OATHS 

i. AN oath is the calling on God to witness to the truth of 
what we say. This calling on God may be express or tacit; 
it is express when God is mentioned, as, " I swear by God "; 
it is tacit when we swear by some creature which in a special 
way shows forth the Divinity or has some special relation to 
him, as, " I swear by the Christian Faith," " by the Gospel," 
" by Heaven." 

In an assertory oath we call God to witness to the truth of 
a present or past event; in a promissory oath we call him to 
witness to some future event. 

A solemn oath is clothed with the ceremonies prescribed 
by law, such as holding up the right hand or kissing the Bible ; 
a simple oath is devoid of such ceremonies. 

An imprecation is sometimes added to an oath by such 
words as, " so help me God "; in this case we have an im- 
precatory oath ; otherwise it is an invocatory oath. 

2. There cannot be an oath strictly so called unless there 
be the intention of swearing and a suitable form of words be 
used which express that intention. One who uses the col- 
loquialism, " I swear it is so," usually has no intention of 
taking an oath, nor do the words signify an intention of calling 
on God to witness to the truth of what is said. The same 
must be said of phrases like " on my honour," " by my faith," 
" God knows "; and a fortiori the mention of fabulous gods, 
as > " by Jupiter," etc. However, if there be an intention to 
take an oath, this will be sufficient to make it binding in con- 
science whatever the form of words may be, so that perjury 
will be committed if what is asserted is not true. If the form 
of words is suitable for an oath, the intention to swear is 
presumed. 

3. If the requisite conditions be fulfilled, oaths are lawful, 
and indeed they are an act of divine worship, for they are an 
acknowledgement of the omniscience and veracity of God, as 
well as a public profession of belief in him. This has been 
the constant teaching of the Church, teaching which has ample 
warrant in both the Old and New Testament. The prophet 



158 PRECEPTS OF THE DECALOGUE 

Jeremias lays down the conditions which justify an oath, and 
many instances of oaths are found in the epistles of the Apostle 
of the Gentiles. The words of our Lord 1 do not prohibit the 
taking of oaths if the requisite conditions be present. They 
give expression to his desire that all Christians should be so 
truthful and sincere that it will not be necessary for them 
to use oaths to confirm the truth of what they assert. The 
conditions which make an oath lawful are given in the words 
of Jeremias: 2 " And thou shalt swear, As the Lord liveth, in 
truth, and in judgement, and in justice." 

We swear in truth when we are morally certain that what 
we assert under oath is according to fact. We are not justified 
in asserting that to be true which we do not know to be true, 
and we commit the grave sin of perjury if we swear to what 
we know to be false. 

We swear with judgement when there is a just cause for 
invoking the testimony of God and it is done with proper 
consideration and reverence. A just cause will be any matter 
of some importance for the welfare of either soul or body, 
whether it be public or private. We are not, therefore, justified 
in swearing to every assertion which we believe to be true; 
there must be some special reason for employing the name 
and authority of God to confirm what we say. However, 
provided that the other conditions are not wanting, the defect 
of judgement in swearing will not be more than a venial sin, 
for it is no more than the idle use of the name of God. 

It is an insult to God to invoke his testimony to a sinful act 
or in furtherance of what is sinful. If this is done, the oath 
is unlawful on account of the want of justice. Justice, then, 
in this connection requires that the assertion in an assertory 
oath should not be sinful, such as a sin of detraction or boasting 
about past sins. In a promissory oath, that which is promised 
must be honest and lawful. 

There is some difficulty and dispute among theologians 
about the gravity of the sin which is committed when an oath 
wants justice. If in an assertory oath the testimony of God 
is unjustifiably invoked to promote a seriously sinful object, 
the want of justice in the oath will be gravely sinful. If, on 
the contrary, the testimony of God does not further the end 
in view, the want of justice will probably be only venially 
sinful, because the assertion is true, as is here presumed, and 
the irreverence committed against God by invoking his testi- 
mony even to a gravely sinful act does not seem to many to be 

1 Matt, v 34. Jer. iv a. 



ON OATHS 159 

more than a venial sin. An oath, therefore, taken to confirm 
detraction in a grave matter is mortally sinful; an oath con- 
firming a boast about grave sins committed in the past is 
probably only venial. 

Somewhat similarly in a promissory oath, if the act promised 
be gravely sinful, the defect of justice makes the oath gravely 
sinful; for it is a great insult to God to use his testimony to 
further what is mortally sinful. If the act promised is only 
a venial sin, a probable opinion^ holds that the oath is only 
venially sinful, against a more probable contrary view. 

4. The effect of a promissory oath is to bind the person 
swearing to do what he promises by an additional obligation 
derived from the virtue of religion, which requires that out 
of reverence for God we should religiously perform what we 
promised under oath. If we fail to do this in a matter of 
moment, grave sin will be committed, as all acknowledge. 
Moreover, as is obvious, if when the oath is taken there is no 
intention of keeping it, a grave sin of perjury is committed, 
for perjury is never venial on account of triviality of matter. 
If, however, when the oath was taken there was a serious 
intention of keeping it, but afterwards there was a failure to 
do so in a matter of small moment, a probable opinion holds 
that such a want of fidelity in a small matter cannot be more 
than a venial sin. 

5. The obligation imposed by a promissory oath is of strict 
interpretation, and follows the nature of the act or contract 
to which it is annexed, so that it is dependent on all the condi- 
tions and limitations with which law, or custom, or the cir- 
cumstances invest the act or contract. For a promissory oath 
is accessory and follows the nature of the principal act to 
which it is annexed. And so an oath to observe the rules 
or statutes of a corporation is understood to refer only to those 
that are in force. 1 

6. An oath should conduce to the service and honour of 
God; it cannot be a bond of iniquity; and so an oath to do 
what is wrong is sinful and of no effect. Similarly, an oath 
to do what is useless, or which hinders greater good, is null 
and void. In case, however, another party has acquired rights 
under an oath, justice requires that this should be kept, and so 
the mission oath, by which a sworn promise is given to serve 
a particular church or mission, binds a missionary priest even 
though he is persuaded that he has a vocation to the religious 
state. 

1 Can. 1318, 1321. 



160 PRECEPTS OF THE DECALOGUE 

7. In accordance with rules of canon law, an oath extorted 
by violence or grave fear is valid, but it can be dispensed by 
an ecclesiastical superior. Moreover, an oath taken without 
violence or fraud by which one renounces a private advantage 
or favour granted him by law must be kept as long as it can 
be kept without sin (Can. 1317, sec. 2, 3). 

8. An oath may cease to bind from intrinsic or from ex- 
trinsic causes. If circumstances produce a change in the 
matter of the oath so that it has become unlawful, or useless, 
or an obstacle to greater good, or if some condition is not 
fulfilled, the oath no longer binds. The same must be said 
when the motive of a promissory oath no longer exists, as if 
I swore to help a poor person with money who subsequently 
becomes rich (Can. 1319). 

An oath may be annulled, dispensed, commuted, or relaxed, 
in much the same way as a vow, and it will be more convenient 
to treat of these extrinsic causes for being released from the 
obligation of an oath in the next chapter, where the doctrine 
is applicable to vows and oaths alike (Can. 1320). 



CHAPTER IV 
ON VOWS 

i. A vow is a promise made to God about something which 
is good, possible, and better than its omission. 

It is, then, a promise, a contract with God, a deliberate taking 
on one's self of a new obligation which binds the conscience; 
and in this it differs from a mere purpose to do better, which 
imposes no new and special obligation. Such an act must be 
perfectly human, performed with full knowledge and with 
complete use of reason, so that a vow taken by a man who 
was half drunk, or who had not the full use of reason, would 
not be valid. A vow, however, does not require actual and 
explicit consent when the obligation is assumed; it will be 
sufficient if there is virtual and implicit consent. A person 
who receives the subdiaconate, to which he knows that the 
Church has annexed a solemn vow of chastity, takes the vow 
by the very fact of being ordained, though at the time he is 
not thinking of it. 

A vow in {the [strict sense is an act of divine worship offered 
to God alone, and so we cannot take a vow to the Blessed 
Virgin Mary or to the saints. 

The matter of a vow must, of course, be something which 
is lawful and good ; it would be an insult to God to promise 
him to do something wrong. It must be something which 
is possible, both physically and morally, for there can be no 
obligation to do what is impossible. A vow, then, to avoid 
all sin, even the slightest, would be invalid, for without a 
special privilege of God it is impossible. The matter of a 
vow must not only be good, but better than its omission or 
its opposite. For what is promised to God in a special manner 
and under a fresh obligation must be something that will be 
pleasing to him, but a promise to do something which had 
better not be done cannot be pleasing to God, who desires 
our perfection. 

A vow is absolute when it has no condition attached to it, 
otherwise it is conditional. 

A personal vow makes a promise of some action to be 
performed; a real vow dedicates a thing to God. 

i- 161 ii 



1 62 PRECEPTS OF THE DECALOGUE 

Vows are perpetual if the obligation is undertaken for life ; 
otherwise they are temporary. 

A solemn vow is one which is invested by the Church with 
special force and stability, together with certain legal effects; 
others are simple. The vows taken by religious in regular 
orders specially approved by the Pope, and by those who 
receive sacred orders, are solemn. 

2. Substantial mistake about the matter of a vow or about 
the circumstances which are regarded as entering into the 
substance of the matter invalidates a vow. For substantial 
mistake hinders consent of the will; consent was given to 
something which was not there, and so there was no contract. 
A vow, then, dedicating to God a chalice which is thought 
to be silver, while in reality it is gold, would be invalid, just 
as a sale of it would be under the same mistake. Merely 
accidental mistake about things of little moment which were 
not really the motive for taking a vow does not invalidate it. 
However, according to St Alphonsus, 1 it is a probable opinion 
that a mistake about something connected with a vow, which 
if it had been known before would have prevented its being 
taken, is sufficient to invalidate it. This doctrine may be 
applied to private vows, but it cannot be extended to the vows 
of religion, which place the religious in a permanent state of 
life. In order to invalidate these, mistake must be substantial. 
For just as the perpetuity of the state of marriage, 4 the good 
of the parties concerned, and the public good, require that 
only substantial mistake should invalidate marriage, so for the 
same reasons only substantial mistake invalidates the vows of 
religion, by which the religious enters into mystical espousals 
with Christ. 

Fear arising from natural causes, provided that it does not 
take away the use of reason, does not invalidate a vow. If, 
however, grave fear be unjustly caused with a view to com- 
pelling another to take a vow, the. vow is null and void (Can. 
1307). The same is probably true even if the fear be slight. 
For God cannot be supposed to accept a promise which 
has not been freely given, but on the contrary extorted by 
unjust violence. 

3. A vow, as we have seen, imposes a special obligation on 
him who has taken it to perform what he has promised: " If 
thou hast vowed anything to God, defer not to pay it ; for an 
unfaithful and foolish promise displeaseth him : but whatsoever 
thou hast vowed, pay it." 2 If a special time was fixed for the . 

1 Theol. Mor., 3, n. 226. 2 Eccles. v 3. 



ON VOWS 163 

fulfilment of the vow, with the intention that it should be 
fulfilled then, and at no other time, it must be fulfilled at the 
time appointed under pain of sin, and it no longer binds after 
the time has elapsed. If, on the contrary, it was intended 
that it should continue to bind even after the time fixed had 
elapsed, then the obligation still remains. The obligation 
should be fulfilled at the proper and reasonable time, and 
unreasonable delay will be sinful: " When thou hast made a 
vow to the Lord thy God, thou shalt not delay to pay it. ... 
And if thou delay, it shall be imputed to thee for a sin." 1 It 
is not clear, however, whether even notable delay in the 
execution of a vow is always mortally sinful. Notable delay 
without just cause would be a mortal sin if the obligation of 
the vow were grave, and if the delay endangered its execution 
altogether or made the matter of the vow notably less than 
was promised. On the other hand, if a rich man vowed to 
give a large sum of money to the poor, assigning no particular 
time for the execution of the vow, it is probable that he would 
not commit a grave sin, even if he deferred giving the money 
until his death, and then gave it by his will. For in these 
circumstances the matter of the vow is not seriously affected 
by the delay, which therefore cannot be a grave sin. 

The measure of the obligation of a vow is the will of him 
who takes it, much in the same way as the obligation of a law 
depends on the will of the lawgiver. Ordinarily it will be 
presumed that in grave matter, such as the Church considers 
to be sufficient for a precept to bind under mortal sin, a vow 
also binds under pain of grave sin, for the intention of him 
who took the vow is presumed to accommodate itself to the 
matter. Nothing, however, prevents him from limiting the 
obligation of a vow even in grave matter, so that transgressions 
of it will be only venial sins, if he expressly intended it. This, 
however, must not be understood of the essential vows of 
religion, nor of the solemn vow of chastity annexed to sacred 
orders. These vows are regulated by the Church, and accord- 
ing to her intention they bind under pain of grave sin in grave 
matter. Another exception must be made to the general rule 
that the obligation of a vow depends on the will of him who 
takes it ; for if the matter be light it cannot form the ground 
for a grave moral obligation, when this is imposed by a human 
will. As a contract binds only the parties who agree to it, 
so no one can be bound by a vow made by someone else. 
In former times it was not uncommon for parents to vow a 

1 Deut. xxiii 21. 



1 64 PRECEPTS OF THE DECALOGUE 

child to religion. Such a vow put no obligation on the child, 
but the parents were bound by it to give the child the oppor- 
tunity of entering religion if he desired to do so. There are 
also instances of communities who have jointly taken a vow 
to observe a certain day as a fast or a feast. Thus the Romans, 
in the year 1703, vowed to observe as a fast day the vigil of 
the feast of the Purification of the Blessed Virgin Mary in 
thanksgiving for being preserved from an earthquake. The 
successors of those who took such a vow are bound to fulfil 
it, much in the same way as they are bound to pay interest 
on the National Debt. Their predecessors had the power to 
bind themselves and their successors, for the community 
remains the same moral entity. 

We saw above that the matter of a vow must be something 
which is physically and morally possible. It may happen that 
he who took the vow may be able to fulfil it in part only and 
not wholly. He will be bound to do at least this when the 
matter is capable of being divided and is usually so treated, 
for the obligation of the vow then falls on the whole and 
on its several parts. Otherwise he will not be bound, nor 
will he be bound to do something which was a mere accessory 
of the substance of the vow, even if it be possible. And 
so one who should vow to fast for a week, if he found this 
impossible, would not be excused from fasting on the days 
that he could do so. But if he had vowed to build and decorate 
a church and afterwards found this to be impossible, he would 
not be bound to build a portion of it, nor to decorate some 
other church. 

4. A vow may cease to bind for intrinsic or for extrinsic 
reasons. It will cease to bind intrinsically if the matter cease 
to be a better good or become impossible. Thus if a young 
man had vowed to enter religion, but his parents afterward 
became dependent on him so that he could not leave them 
without a violation of duty, his vow would cease to bind as 
long as the same conditions lasted. Or if a wealthy man 
vowed to spend a considerable sum of money in charities 
every year, if he became poor his vow would no longer bind 
him. And generally a vow, like any other promise, will cease 
to bind if circumstances supervene which at the outset would 
have prevented the vow from being taken. A vow ceases to 
bind extrinsically if it is annulled or dispensed or commuted. 
We will treat of these extrinsic causes of the cessation of a 
vow in the following paragraphs. 

5. The annulment of a vow may be direct or indirect. By 



ON VOWS 165 

direct annulment the obligation of a vow is altogether removed 
by one who has authority over the will of the person who took 
the vow. For those who are placed in such a state of de- 
pendency on their superiors cannot undertake any absolute 
obligation; they can only bind themselves conditionally, 
supposing that their superior consents. If he does not con- 
sent, the obligation falls to the ground (Can. 1312). 

By indirect annulment the obligation is suspended by one 
who has authority over the matter of the vow. For it is not 
just that an obligation should be undertaken which interferes 
with the rights of someone else. And so if a servant took 
a vow to hear Mass every morning, her mistress, whose rights 
are infringed thereby, might suspend the obligation of the 
vow as long as the servant remains with her, for no service 
is rendered to God by injuring a fellow- creature. When the 
term of service expired, the obligation of the vow would 
revive. 

The annulment of a vow will be valid even when it is done 
without just cause and against the will of the subject, for even 
then a condition is wanting on which the validity of the vow 
depended. It will be lawful as well, if there be a reasonable 
cause, which need not necessarily be a very serious one. 

All religious superiors can directly annul the vows taken 
by their subjects after their religious profession, and indirectly 
the vows taken by them previously, as far as they prejudice 
religious discipline or the rights of superiors. The vows of 
poverty, chastity, and obedience the essential vows of religion 
by the taking of which a person becomes a religious cannot 
be annulled; for it is only by them that religious superiors 
receive their authority over the wills of their subjects, and 
authority is powerless against its own source. 

Parents can directly annul the vows of their children taken 
before the age of puberty, when children become independent 
of the authority of their parents in matters relating to the 
service of God. They can indirectly annul the vows of their 
adult children as long as they continue to live with them. 

A husband can directly annul the vows of his wife taken 
after marriage, and indirectly those taken previously. A wife 
can annul the vows of her husband only indirectly, as far as 
they prejudice her rights. 

6. A dispensation from a vow is a remission of the vow 
made in the name of God for a just cause by one who has 
spiritual jurisdiction in the external forum. The Church has 
always understood that the power to dispense vows is con- 



i66 PRECEPTS OF THE DECALOGUE 

tained in the authority granted by our Lord to his Church. 1 
She exercises this power in the name of God, not arbitrarily, 
but for just cause, which is required not merely for the law- 
fulness, but also for the validity of the act. As examples of 
a just and sufficient cause theologians give the following : the 
public good or the private spiritual advantage of him who is 
dispensed; unusual difficulty in the observance of the vow; 
the fact that the vow was taken without sufficient deliberation 
or in immature age. 

The power of dispensing vows belongs to the public author- 
ity granted by God to the Church in order that she may rule 
and legislate for her people. It does not belong to the power 
of remitting sins which is exercised in the sacrament of Penance. 
All ecclesiastical prelates, then, who exercise jurisdiction in 
the external forum in their own name can dispense from vows, 
except in so far as their authority has been limited by a superior. 
Other ecclesiastics can only dispense from vows by delegated 
authority and according to its terms and conditions. 

(a) The Pope can for just cause dispense any of the faithful 
from any vow. 

(b) For a good reason and provided that the dispensation 
does not injure the rights of others, local Ordinaries can dis- 
pense their subjects and also strangers from private vows 
which are not reserved to the Holy See. The only private 
vows which are now reserved to the Holy See are a vow of 
perfect and perpetual chastity and a vow of entering into a 
religion of solemn vows, if they were taken absolutely and after 
the completion of the eighteenth year of age (Can. 1309, 1313). 

(c) Prelates of Religious Orders have quasi- episcopal juris- 
diction over their own subjects, and as a general rule have 
the same power over these as a Bishop has over his subjects. 
Besides, they receive by their privileges ample delegated 
authority to dispense not only their own subjects, but seculars 
and lay people as well. The privileges granted to the re- 
spective Orders should be consulted concerning this special 
authority and the conditions of its exercise. 

(d) Parish priests and confessors have no jurisdiction in the 
external forum, and can only dispense from vows by delegated 
authority. They should consult their faculties to know 
what powers they have received from their Bishop. 

When a vow has been made in favour of a third person and 
accepted by him, such a vow cannot lawfully be dispensed 
without his consent, otherwise justice would be violated. And 

1 Matt, xviii 18. 



ON VOWS 167 

so, although a Bishop has power to dispense members of 
diocesan congregations from the vows of religion, he cannot 
do this lawfully without the knowledge and consent of the 
superiors of the Order. 1 The religious vows of congregations 
which have in any way been approved by the Holy See are 
reserved to the Pope. 

The vow of chastity imposes a serious and arduous obliga- 
tion which should not be undertaken without mature delibera- 
tion and knowledge of one's own strength. A confessor 
should be slow to approve of such a vow being taken, especially 
if it is to be perpetual. When there is just cause for a dis- 
pensation being granted, it is the practice of the Church to 
commute, rather than altogether to dispense, a perpetual vow 
of chastity. This practice, though not of obligation, should 
be adhered to by those who have authority to dispense from this 
vow. It may be commuted into the obligation of receiving 
the sacraments at least once a month, saying the rosary every- 
day, or other works of piety. 

7. A vow is commuted when another good work to be 
performed under the same obligation is substituted for that 
which was promised. 

All who can dispense from a vow can also commute it, for 
the less is contained in the greater. It is obvious, however, 
that it must not be done to the injury of a third person. The 
person who is under vow may commute it into some good 
work which is evidently better than what was promised, for, 
as the rule of canon law has it, he does not violate his promise 
who changes it into something better (Can. 1314). He may 
also commute his vow into something that is of equal merit; 
but to avoid the danger of self-deception, and because it is 
not easy to say when good works are of equal merit, it is better 
to have recourse to one's confessor. Special authority is 
required to commute a vow into something which is less good, 
for such a commutation is a sort of dispensation from the 
vow. In order that commutation into something which is 
less good may be lawful, a just cause is required, though less 
than is required for dispensation ; probably, however, if there 
be no just cause the commutation will be valid, but the obliga- 
tion will remain of supplying the deficiency as in human 
transactions. No special cause is required for commuting 
a vow into something which is evidently better ; greater readi- 
ness in fulfilling one's obligation will be a sufficient cause for 
commuting a vow into something of equal merit. 

1 Constitution of Leo XIII, Conditae, December 8, 1900. 



1 68 PRECEPTS OF THE DECALOGUE 

One whose vow has been commuted is always at liberty to 
return if he pleases to the observance of his vow, for the com- 
mutation was made in his favour, and he may renounce it. 

When a vow has been commuted by competent authority 
its obligation is extinguished or transferred to the new work, 
and it does not revive even if the performance of the sub- 
stituted good work is found to be impossible. On the con- 
trary, when the substitution has been made by private authority, 
in case the performance of the substituted work is impossible, 
the original obligation revives. 



PART III 
THE THIRD COMMANDMENT 

THE Third Commandment is: " Remember that them keep 
holy the sabbath day." 1 This precept of the Old Law is 
partly ceremonial, and in so far it has been abrogated by the 
preaching of the Gospel, and partly it belongs to the law of 
nature, which binds at all times and in all places. The sabbath, 
the day of rest, 'was the last day of; the week under the Old 
Dispensation, and the manner of observing it was strictly 
regulated. The natural law prescribes that we should occa- 
sionally offer to God an external and public worship, inasmuch 
as he is the Creator of body and soul and the Author of 
human society. The necessity, too, of keeping up within us 
a lively sense of God's existence and of our dependence on him 
compels us to give outward expression to our religious in- 
stincts, otherwise they will quickly evaporate. The Christian 
Church, using the power given to her by her divine Founder, 
and asserting her independence of the yoke of Jewish legalism, 
determined the natural law in this matter by assigning a 
definite time and mode for its observance. Instead of the last 
day of the week she chose the first, the day on which Christ 
rose from the dead, and the day on which the Holy Spirit 
came down on the Apostles. This she called the Lord's Day, 
and commanded her children to keep it holy by hearing Mass 
and resting from servile work. 



CHAPTER I 
ON HEARING MASS OF PRECEPT 

i. ECCLESIASTICAL laws of the early Christian centuries show 
us that the precept of hearing Mass on Sundays dates from 
the earliest times. This obligation is grave, for Innocent XI 
condemned a proposition 2 which asserted the contrary. 

1 Exod. xx 8. 2 Prop. 53. 

169 



i?o PRECEPTS OF THE DECALOGUE 

Besides hearing Mass it is a laudable thing to spend some 
time on Sundays in other acts of piety and prayer, as all 
good Catholics do. Still there is no other positive obligation 
besides that of hearing Mass which binds under sin. It is 
not a sin, then, to omit evening service or Benediction of 
the Blessed Sacrament; and when it is impossible to hear 
Mass, there is no strict obligation to have private devotions 
instead. 

In order to fulfil the precept of hearing Mass according to 
the mind of the Church, the whole of Mass must be heard, 
in the proper place, while bodily present where it is being 
celebrated, with devout attention. Something must be said 
on each of these points. 

2. The whole of Mass must be heard, so that at least a 
venial sin is committed if one be wilfully absent during any 
portion of it. The sin will not be grave unless a notable part 
of the Mass be missed. What is a notable part depends partly 
on its importance, partly on the length or quantity. Inasmuch 
as the essence of the Mass in all probability consists in the 
act of consecration, to be voluntarily absent during the con- 
secration would be mortally sinful ; one would not have heard 
Mass. Certainly it is a grave sin to be wilfully absent during 
both the consecration and the communion. Up to the offer- 
tory is called the Mass of the catechumens, and as this forms 
a kind of introduction to the Mass proper, to come in only 
at the offertory probably does not amount to more than a 
venial sin. We may take it as a general rule that a mortal sin 
is committed if a third part of Mass be missed, and less is 
sufficient for a grave sin when any action of special importance 
in the sacrifice is in the portion missed. In case of involuntary 
absence during a notable portion of Mass there will be an 
obligation of making it up by hearing that portion of another 
Mass if there be an opportunity of doing so on the same 
day. The consecration, however, and the communion 
must always be in the same Mass. There is no obligation 
to make up small portions of the Mass which have not been 
heard. 

A proposition condemned by Innocent XI falsely asserted 
that one might satisfy the precept of hearing Mass by being 
present while two portions were being said by different 
priests. 1 

3. In order to satisfy the precept, Mass must be heard in 

1 Prop. 53. 



ON HEARING MASS OF PRECEPT 171 

the proper place. By a decree S.R.C. (January 23, 1899) the 
faithful may satisfy the precept by hearing Mass in any public 
church or public or semi-public oratory. A semi-public 
oratory is there defined as one which by the authority of the 
Ordinary is erected in a place which is not absolutely public, 
but more or less private, for the use not of all the faithful, 
nor of a particular person or family, but of a community or 
society of persons. No one besides those who are mentioned 
in the indult can satisfy the precept by hearing Mass in a 
strictly private oratory, which by an indult of the Holy See 
is erected in a private house for the use of a particular person 
or family (Can. 1249). 

As Benedict XIV teaches, 1 Bishops cannot compel the 
faithful to hear Mass in their parish churches; they have no 
power to abrogate a universal law and custom of the Church 
or a decree of the Sacred Congregatibn of Rites. The liberty, 
however, of hearing Mass in any place of worship except 
strictly private oratories, does not exempt the faithful from 
contributing to the support of their own pastors according to 
their means. 2 

4. One would not hear Mass so as to satisfy the precept if 
he were stationed apart at a considerable distance from the 
place where it was being celebrated, even though he might be 
able to see and hear what was being done. He must be morally 
present so as to form one of those who are together hearing 
and offering up the Holy Sacrifice. It is not necessary that 
he should be able to see the priest or the altar, nor even to 
hear what is said. It will be sufficient if he follows the prin- 
cipal parts of the Mass. So that a person could hear Mass if 
he were stationed in a side chapel of a great cathedral while 
Mass was being said at the high altar, though he might not 
be able to hear or see anything that was going on. Similarly, 
if Mass is being said for a large army or crowd of people, those 
on the outskirts of the multitude may hear Mass, though they 
are at a great distance from the altar. If the church is full 
and large numbers cannot get inside, still these latter may 
hear Mass being celebrated inside. On the other hand, if 
while Mass is being said in a church, someone were posted 
on the opposite side of a wide street or square, he could 
not hear the Mass so as to satisfy the precept, though he 

1 De Synodo, xi, c. 14. 

2 i West., d. 23, n. 5. 



172 PRECEPTS OF THE DECALOGUE 

might be able to see what was going on through the open 
door. 

5. It is necessary to have the intention of hearing Mass, 
and it must be done with the requisite attention. The Church 
prescribes a human action to be performed in the service of 
God, and so there must be the necessary constituents of a 
human act. The act, then, must be voluntary; there must 
be the wish or the intention to hear Mass. So that one who 
was forced to be present against his will, or who came to 
church merely as a companion to another, or to hear the music, 
would not hear Mass. 

Attention is an act of the mind by which we advert to what 
is going on. This is attention in the proper sense of the term, 
and is called internal to distinguish it from external attention, 
which is the avoidance of any external action which is in- 
compatible with internal attention. Thus if one is distracted 
during Mass and thinking of other things, but does no external 
action which is incompatible with hearing Mass, he has 
external, but not internal attention. If during Mass he 
engages in a prolonged conversation with a neighbour, or 
reads a profane book, or paints, he has not even external 
attention. 

The Church commands at least external attention while 
Mass is being said, otherwise the precept will not be fulfilled. 
All, too, admit that voluntary distractions during Mass are 
venially sinful, just as they are during ordinary prayer. It is 
a disputed point among theologians whether internal attention 
is also necessary for the observance of the Church's law. The 
more common opinion holds that it is. The contrary, how- 
ever, is probable, for actual attention does not seem to be an 
essential element of prayer; the form of Extreme Unction, 
which is a prayer, is certainly valid even if said by a priest 
without internal attention. The Church's law, therefore, 
which directly provides for external decorum in the service 
of God, would seem to be fulfilled, provided that there is at 
least external attention while hearing Mass. This opinion 
does not foster the careless hearing of Mass, but it does 
serve to relieve the scrupulous conscience from needless 
anxieties. 

6. We have here to do with a positive precept, and any 
serious inconvenience or loss, spiritual or temporal, affecting 
one's self or one's neighbour, which would follow from hearing 
Mass, will excuse the faithful from fulfilling the obligation. 



ON HEARING MASS OF PRECEPT 173 

So that the sick, the convalescent who could not venture out 
of doors without danger, those who have to take care of the 
sick, mothers of families who have little children to attend 
to, those who live at such a distance that it would take them 
more than an hour to walk to church, all these are excused 
from hearing Mass regularly. 



CHAPTER II 
ON SERVILE WORK 

i. IN order that all, and especially the poor, may have the 
opportunity of fulfilling their religious duties, the Church 
has forbidden servile work to be done on Sunday. Servile 
work is the rougher and harder sort of manual labour which 
is done by common workmen and labourers, and which used 
to be done by slaves. It comprises ploughing, digging, 
building, sewing, and similar occupations. It is distinguished 
from liberal and from mixed work. Liberal work is done 
mainly by the intellect, and comprises writing, studying, 
painting, and so forth. Mixed work comprises a class of 
occupations which are neither exclusively liberal nor servile, 
but which are done indifferently by all conditions of men. 
In this class are hunting, fishing, travelling, and similar occu- 
pations. Of these only servile work is forbidden on Sundays, 
and in determining what is servile work, and therefore for- 
bidden, we must consider not only the nature of the work 
itself, but also the way in which it is done, the light in which it 
is commonly regarded, and other circumstances. Thus it is 
usually held that although the rougher work of the sculptor 
is servile and unlawful, the more delicate is liberal and may 
be done on a Sunday. Similarly, fishing with rod and line 
is not unlawful, but going out to sea with a fishing-smack 
and plying the trade in the ordinary working- day way is 
forbidden. In the same way one who lives by photography 
should not ply his trade on a Sunday, but it would not be 
wrong for an amateur to do the same work on that day by way 
of recreation and amusement. 

2. This part of the precept of keeping the Sunday holy also 
binds under pain of grave sin. If, however, the matter be 
light, the doing of a little servile work on a Sunday will be 
only a venial sin, and none at all if there be good reason for it. 
According to the common opinion, it would be necessary to 
work for well over two hours at something which is forbidden 
in order to commit a grave sin. Still longer time would be 
required for a mortal sin in doing servile work of a lighter 
kind, which had for it some sort of excuse on the ground that 



ON SERVILE WORK 175 

it helps on the cause of religion and charity. Making rosary 
beads or scapulars belongs to this category. 

3. Public trading is also forbidden on Sundays, as well 
as judicial proceedings in the exercise of contentious juris- 
diction, and the solemn and public taking of oaths (Can. 
1248). 

English municipal law goes farther than the law of the 
Church in its provisions for the due observance of the Lord's 
Day. Thus not only is Sunday a dies non for the sitting of 
courts or the meeting of public bodies, but contracts such as 
are within the ordinary calling of tradesmen, workmen, 
labourers, or other persons of the same sort, made and com- 
pleted on Sunday, are void, and abstention from work and 
even from play is required by a series of statutes. 1 

Although these provisions of the civil authority do not 
impose an obligation in conscience under pain of sin, yet 
indirectly they have caused the Sunday to be observed among 
us with greater strictness than is absolutely required by 
ecclesiastical law. 

4. As we saw with regard to the hearing of Mass, so in this 
matter too, if the precept cannot be observed without serious 
inconvenience, it ceases to bind. And so, work in foundries 
or in agriculture which cannot be stopped without grave in- 
convenience and loss may be done on Sundays. Work, too, 
in the direct service of religion, or necessary works of charity 
connected with the care and nursing of the sick, or the burying 
of the dead, are not forbidden. Custom permits of the sweep- 
ing of the house and the cooking of meals, and certain other 
more or less necessary occupations on Sunday. Finally, 
ecclesiastical authority can, for good reason, dispense in the 
observance of this law. Not only Bishops, but priests who 
have the cure of souls, have discretionary power to give dis- 
pensations in particular cases. 2 

1 Encyclopedia of Laws, s.v. Sunday. 

2 i West., d. 23, n. i; Can. 1245, sec. i. 



PART IV 
THE FOURTH COMMANDMENT 

THE Fourth Commandment is: " Honour thy father and thy 
mother." 1 By this Commandment not only are children 
bound to be dutiful in their conduct towards their parents, 
but these latter are also implicitly bidden to perform all the 
obligations which nature imposes on them towards their 
offspring, inasmuch as rights imply corresponding obligations. 
The mutual obligations of parent and child may be extended 
to all who hold an analogous position towards each other, and 
so under this heading theologians ['commonly treat of the 
mutual obligations of other relations, and of superiors and 
subjects, both ecclesiastical and civil. 



CHAPTER I 

ON THE DUTIES OF CHILDREN TOWARDS 

PARENTS 

i. CHILDREN owe their existence to their parents, and for 
many years, until they come to maturity, they stand in need 
of their constant care and direction. It is but right, therefore, 
that children should love, reverence, and obey the authors of 
their being and their natural guardians. This is due to 
parents from their children on account of the special relation- 
ship in which they stand towards them, and so, as St Thomas 
teaches, 2 there must be a special virtue which regulates the 
mutual obligations of parent and child. This virtue is called 
piety in Catholic theology, and it regulates not only the mutual 
offices of parents and children towards each other, but our 
duty to other near relatives, and to our country and fellow- 
countrymen. It is a virtue similar to charity, but it binds 
more strictly, so that while charity prescribes a general love 

1 Exod. xx 13. 2 Summa, 2-2, q. 101, a. 3. 

176 



THE DUTIES OF CHILDREN TOWARDS PARENTS 17? 

for all mankind, piety obliges us to a special love for those 
who are near to us, and for the country in which we were 
born. 1 

If, then, hatred or want of love for our fellow- men is of 
itself a grave sin, as we saw above, it will be still easier to 
commit a grave sin by want of proper affection for our parents. 
To show dislike of them or contempt for them, or to show 
that we are ashamed of them, will be a grave sin if our unfilial 
conduct is likely to cause them serious grief. In the same 
way, serious want of reverence and respect shown in word or 
action is grievously sinful. To strike a parent, or even to 
threaten to do so, will usually be mortally sinful. 

By the duty of obedience children are bound to obey their 
parents in all that belongs to their bringing up and to domestic 
discipline. Sins of disobedience will be grievous if the matter 
is sufficiently important and the command is given with the 
serious intention of imposing a strict obligation. 

Children are only bound to support their parents when they 
cannot support themselves, for whatever property a child may 
have or may acquire belongs exclusively to him. Among the 
working classes it is usual for elder brothers or sisters who 
have begun to work to throw their earnings into the common 
stock for the support of the family until they leave home and 
get an establishment of their own. This is quite as it should 
be, for the money which they earn is scarcely sufficient to 
pay for their own keep; or if it does more, there are little 
brothers and sisters or aged parents who are dependent on 
them, and whom they are bound to help to support. 

2. The other obligations of children towards their parents 
are permanent and last as long as life, but that of obedience 
ceases with their emancipation. In England children are 
emancipated from the control of their parents when they be- 
come twenty- one years of age, when they marry, or when they 
enter into religion ; for as soon as they have attained the age of 
puberty they are independent of their parents in what concerns 
the salvation of their souls and the choice of a state of life. 

A minor may also enlist as a soldier without his parents' 
consent according to the English law. 

Moreover, when a child has attained years of discretion, 
which he is considered to do at sixteen, it would seem that 
he may lawfully depart from home and provide for himself, 
if it be for his advantage. This, of course, supposes that the 

1 St Thomas, Summa, a-a, q. 101, a. i. 
i. 12 



I7 8 PRECEPTS OF THE DECALOGUE 

necessities of his parents or of his brothers and sisters do not 
require that he should remain at home. If a youth has acted 
in this way, and it appears to be for his benefit, English courts 
will not compel him to return home, and it was the common 
teaching of the classical moralists that in acting thus a youth 
would do nothing wrong. 1 

1 Laymann, lib. 3, tract. 4, c. 8, n. 13. 



CHAPTER II 
THE DUTIES OF PARENTS TO CHILDREN 

i. NATURE herself teaches parents their duties towards the 
offspring that they have brought into the world, and which 
stands in need of their loving care for many years before it 
arrives at maturity, so as to be able to lead an independent 
life. 

Parents, then, are bound first and, foremost to love their,, 
children with that special affection which belongs to the virtue 
of piety. They will commit grievous sin if they are indifferent 
to their children's welfare, if they deliberately curse them, if 
they show great and foolish preference for one child over 
others to the serious discontent of the latter. 

They are bound to support their children until these can 
support themselves. Even before the child's birth, the mother 
must take care not to risk its life or natural development. 
After birth she is bound at least under venial sin to nourish 
it with her own milk, unless some good reason excuse her. 
Then there is the obligation of providing sufficiently for the 
child's maintenance, according to its position in life, by a 
prudent administration of the family property, or by earning 
money and saving what is necessary for the purpose. Grave 
sin is committed by a father who will not work, or who 
squanders his wages in drink or gambling, so that wife and 
children are deprived of proper support. Parents are bound 
to instruct their children in all that is required to enable them 
to lead a good Christian life ; they must warn them of dangers 
into which their inexperience would lead them, and correct 
them when they do wrong. Above all, they must be careful 
to give them good example by leading a good Catholic life 
themselves, and by never being a source of scandal to their 
children in word or deed. They must watch to see with 
what companions their children associate, what they read, and 
what places they frequent. 

The Elementary Education Act, 1876, declared it to be the 
duty of the parent of every child between the ages of five and 
fourteen years to cause it to receive efficient elementary in- 

179 



i8o PRECEPTS OF THE DECALOGUE 

struction in reading, writing, and arithmetic; and penalties 
were imposed on parents who neglected this duty. As such 
an education can in most cases only be given in a school, it 
becomes a practical moral question of great importance as to 
what sort of school Catholic parents should select. The 
education of their children belongs primarily by the law of 
nature to the parents, and if they entrust a portion of their 
task to others they are bound to select such as can and will 
educate them according to Catholic principles. The Church, 
too, has received a divine commission to teach, and those who 
by baptism have become subject to her authority are obliged 
to be guided by her directions in this all-important matter. 
The Church condemns all non- Catholic schools, whether they 
be heretical and schismatical or secularist, and she declares 
that as a general rule no Catholic parent can send his young 
children to such schools for educational purposes without 
exposing their faith and morals to serious risk, and therefore 
committing a grave sin. A Catholic child, if educated away 
from home, should be placed in a Catholic school, under 
Catholic masters or mistresses. Sad experience in many 
different countries has shown how necessary this is for the 
preservation of the Catholic faith. If, however, there is no 
suitable Catholic school to which children can be sent, they 
may be sent to a non- Catholic school provided that the proxi- 
mate danger can be made remote by using the proper means, 
and provided that the parents see to the religious instruction 
of their children. In many countries, as in England, the 
Bishops have reserved to themselves the decision as to whether 
in any particular case these conditions are fulfilled. A priest, 
therefore, should not take it upon himself to deny the sacra- 
ments to parents who send their children to a non- Catholic 
school; the case should be sent to the Bishop (cf. Can. 1113, 



2. What has just been said applies specially to primary 
and secondary schools, for the question about non- Catholic 
universities is somewhat different. The Church would indeed 
wish that all who desire it might be able to obtain a higher 
education in a Catholic university. As this, however, is 
impossible in England, the Holy See has permitted Catholic 
parents to send their sons to Oxford or Cambridge on account 
of the grave necessity, and because when a young man has 
already received a sound secondary education among Catholic 
surroundings, if there is any character in him, he can be 
trusted to hold his own. Suitable safeguards, however, are 



THE DUTIES OF PARENTS TO CHILDREN 181 

prescribed for the young men who avail themselves of this 
permission, among which is the obligation of attending Catholic 
lectures which are provided by the Bishops. 

3. In order that parents may fulfil their obligations towards 
their children, the law of nature itself confers on them the 
requisite authority and the right to look after their children 
until these can provide for themselves. It would, then, be 
against natural justice if children were removed from their 
parents' control or if there were any interference with the 
parental authority as long as it is rightly exercised. 1 Although 
parental authority is derived from the law of nature, yet its 
precise extent and its limits are not defined by natural law; 
this is left to positive law, ecclesiastical and civil. 

Parental authority extends to the person and to the property 
of a child. 

i. (a) The right to the custody of the person of a child 
belongs to the father during his life, and after his death to 
the mother. Until emancipation at the age of twenty- one or 
until marriage a father can enforce his right by writ of habeas 
corpus. 

An action also lies for loss of services against anyone who 
entices a minor away from the custody of his parents. More- 
over, abduction of a girl under sixteen or under eighteen for 
immoral purposes is rigorously punished by English criminal 
law. 

However, if a child who has reached years of discre- 
tion chooses to depart from home, our courts will not 
compel him to return, if the departure seems to be for his 
benefit. 

(b) A parent or one who is in loco parentis may moderately 
chastise a minor who has been guilty of fault. 

(c) The consent of the parent is required for the lawfulness 
of a minor's marriage. 

ii. The parent as such has no rights over the property of 
his child according to English law. If, however, no other 
guardian has been lawfully appointed, the father will be 
regarded as the guardian of his child, and he will be compelled 
to administer its property for its benefit, and he can be com- 
pelled to render an account of his administration. Gifts 
which have been freely made by children to their parents are 
considered valid by our law, but there is a presumption against 
their being free gifts, unless this is proved. 

1 St Thomas, Summa, 1-2, q. 10, a. xa. 



1 82 PRECEPTS OF THE DECALOGUE 

4. The duties of parents extend to illegitimate as well as 
to legitimate children. The duty of caring for an illegitimate 
child falls primarily on the mother, who, before a year has 
elapsed from its birth, may obtain from the magistrates a 
maintenance order against the reputed father, providing for 
the child's support and education at his expense. 

A husband is bound by our law to support the children of 
his wife by a former husband as well as his own. 



CHAPTER III 
THE DUTIES OF RELATIVES AND GUARDIANS 

i. WHAT has been said concerning the mutual obligations of 
parent and child applies proportionately to those of other near 
relations. These are also bound to love each other, not only 
out of charity, but out of piety, and they are under a grave 
obligation of rendering each other assistance not only in 
extreme but also in grave necessity. English law only en- 
forces on relatives the obligation of maintaining a poor relation 
who is unable to support himself when he would otherwise 
be chargeable to the parish where he happens to be. Those 
who are so compellable are the wife and husband, the father 
and grandfather, the mother and grandmother or the children 
of the pauper. The law of charity and piety obliges more 
frequently and extends further. 

2. Guardians are sometimes appointed according to law 
to take care of the person and property of minors. 

Parents are legally the guardians by nature and nurture 
of the persons of their children until these reach the age of 
twenty-one, as we saw above. 

Of the many kinds of guardians recognized by English 
law the following are still of practical importance: Statutory 
guardians, guardians appointed by the high court and guar- 
dians appointed for special purposes. 

(a) Statutory guardians. By a statute of Charles II a 
father may appoint by deed or by will a guardian or guardians 
to have the custody of his infant child, and to manage its 
property until it reach the age of twenty-one. The Guardian- 
ship of Infants Act, 1886, made the mother on the death of 
the father the guardian of her infant children, either alone if 
no guardian was appointed by him, or jointly with the guardian 
or guardians appointed by the father. The mother can also 
by deed or will appoint one or more guardians to act after her 
death and that of the father. She may also appoint a guardian 
to act provisionally after her death jointly with the father. 

(b) Guardians appointed by the High Court. An infant may 
be made a ward of court by settling a sum of money on it 
and bringing a suit for its administration. This may be done 

183 



1 84 PRECEPTS OF THE DECALOGUE 

even though the father be still alive, or a testamentary guardian 
has been appointed. Where the court is satisfied that it 
would be for the good of the ward, it may remove a guardian 
from his office and appoint another in his place, even though 
the infant be not a ward of court. 

(c) Guardians for special purposes are sometimes appointed 
to consent to an infant's marriage, or for some other object 
under different statutes. 

A guardian has a right to the custody of the person of his 
ward, and in general he exercises the rights, and is under the 
obligations of a father towards his ward. He administers the 
ward's property, and must render an account of his adminis- 
tration. 

No one may marry a ward of court or remove it out of the 
jurisdiction without the court's permission. 

The wishes of the father, as a general rule, according to 
English law, must be followed with regard to the religion in 
which a ward is educated by his guardian. 



CHAPTER IV 
THE OBLIGATIONS OF HUSBAND AND WIFE 

BESIDES the obligations which are treated of under Marriage, 
and the rights and obligations arising out of property belong- 
ing to married people, which are discussed under the Seventh 
Commandment, there are certain obligations arising from 
marriage inasmuch as it places the husband in a ..position of 
authority and the wife in one of subjection. A word must 
here be said concerning their mutual obligations in this respect. 

The wife becomes by marriage subject to her husband, and 
owes him love, reverence, and obedience, as to a superior. 
" Let women be subject to their husbands as to the Lord," 
says St Paul. " Because the husband is the head of the wife: 
as Christ is the head of the Church. . . . Therefore as the 
Church is subject to Christ, so also let wives be to their 
husbands in all things." 1 

However, a wife is not the slave or servant of her husband, 
but rather his companion, and so, though subject and bound 
to obey in all that relates to family life and conduct, yet she 
should be treated with love, consideration, and deference, and 
consulted in what concerns the family affairs. 

The wife will commit grave sin if she shows great contempt 
for her husband, habitually neglects his commands, and 
arrogates his authority to herself without just cause. 

The husband is bound to support his wife and family 
according to English law, who therefore have a claim in justice 
upon him as well as in piety. The husband sins grievously 
by treating his wife with habitual harshness and neglect, and 
by not providing for her necessities and those of her children. 
In this latter case the wife would not be guilty of sin if she 
took from her husband without his knowledge what was 
necessary for the decent support of the family. 

1 Eph. v 33-34. 



185 



CHAPTER V 
THE DUTIES OF MASTERS AND SERVANTS 

i. SERVANT is here understood in a wide sense so as to com- 
prise both domestic servants and workmen who work for a 
master. The relation in modern times arises out of a contract 
freely entered into by the parties, and it is less intimate than 
that which in ancient times subsisted between the lord and 
the slave or serf. In spite of this, however, the nexus of cash 
payment is not the only bond between master and servant. 
By the very fact that one enters into the service of another, the 
latter becomes his superior, assumes the duty of caring for 
him, and in fitting proportion he acquires a claim to those 
marks of honour and reverence which are due to all who 
exercise authority over us. 1 

2. Servants, then, owe to their masters reverence, fidelity, 
and obedience. 

(a) They are bound to show their masters due honour and 
respect, and grave sin may be committed by displaying open 
contempt for them, ridiculing them, and making known their 
secret defects. " Whosoever are servants under the yoke, let 
them count their masters worthy of all honour." 2 

(b) They must faithfully discharge the duties imposed on 
them by the nature of their charge. If they waste the time 
which belongs to their master, wilfully neglect their duties, 
damage or destroy the property of their master by not taking 
ordinary care of it, they sin against justice and are bound to 
restitution. If special charge of what belongs to the master 
is committed to a servant, he will be obliged to guard it against 
damage or loss caused by others, and he will sin against justice 
and be bound to make restitution if he fail to do so. Where 
no such special charge has been laid on a servant, he will only 
be bound in charity, not in justice, to protect the property of 
his master. 

(c) A workman who does not live in his master's house will 
be bound to obey his master's commands in all that relates 
to the work that he undertook to do. 

A domestic servant is a member of the master r s household, 

1 St Thomas, Summa, 2-2, q. 102, a. I. ' 2 i Tim. vi i. 

186 



THE DUTIES OF MASTERS AND SERVANTS 187 

and the obligation of obedience extends to what concerns 
domestic discipline, as well as to the special work which was 
expressly undertaken by the contract. " Servants," says 
St Paul, " be obedient to them that are your lords according 
to the flesh, with fear and trembling in the simplicity of your 
heart, as to Christ: not serving to the eye, as it were pleasing 
men, but as the servants of Christ, doing the will of God 
from the heart, with a good will serving, as to the Lord, and 
not to men." 1 Still one who contracted to be a cook would 
not be bound to obey if ordered to do housemaid's work; 
neither explicitly nor implicitly was such an obligation under- 
taken when the contract was entered into. 

These duties of a servant toward his master are touched 
upon by Leo XIII in his encyclical letter on the condition of 
the working classes, May 15, 1891. " Thus religion teaches 
the labouring man and the artisan to carry out honestly and 
fairly all equitable agreements freely entered into; never to 
injure the property, nor to outrage the person, of an employer ; 
never to resort to violence in defending their own cause, nor 
to engage in riot and disorder ; and to have nothing to do with 
men of evil principles, who work upon the people with artful 
promises, and excite foolish hopes which usually end in useless 
regrets, followed by insolvency." 

3. The duties are not all on one side and the rights on the 
other in the relation of master and servant. Each has his 
rights and each his duties, and their good and the good of the 
community largely depends on both sides faithfully and loyally 
fulfilling their mutual obligations. 

(a) A master must treat his servant not as a mere instrument 
of production, but as a fellow- Christian: " Religion teaches 
the wealthy owner and the employer that their work-people 
are not to be accounted their bondsmen; that in every man 
they must respect his dignity and worth as a man and as a 
Christian; that labour is not a thing to be ashamed of if we 
lend ear to right reason and to Christian philosophy, but is 
an honourable calling, enabling a man to sustain his life in 
a way upright and creditable; and that it is shameful and in- 
human to treat men like chattels to make money by, or to look 
upon them merely as so much muscle or physical power." 2 

(b) " Again, therefore, the Church teaches that, as religion 
and things spiritual and mental are among the working man's 
main concerns, the employer is bound to see that the worker 
has time for his religious duties; that he be not exposed to 

1 Eph. vi 5-7. 2 Leo XIII, I.e. 



1 88 PRECEPTS OF THE DECALOGUE 

corrupting influences and dangerous occasions, and that he 
be not led away to neglect his home and family or to squander 
his earnings." 1 The general obligation of fraternal correction 
will more frequently impose a duty on the master of ad- 
monishing and correcting a domestic servant than an ordinary 
workman of his. 

(c) " Furthermore, the employer must never tax his work- 
people beyond their strength or employ them in work unsuited 
to their age or sex." 2 

According to English common law, the contract between 
employer and employed involves on the part of the former 
the duty of taking reasonable care to provide appliances and 
to maintain them in a proper condition, and so to carry on his 
operations as not to subject those employed by him to un- 
necessary risk. This common law liability has been further 
increased and defined by the Employers' Liability Acts and 
Workmen's Compensation Acts, which, however, will as a rule 
only affect the conscience after the sentence of a competent 
authority, except in so far as there was grave culpable negli- 
gence on the part of the employer. 

(d) The employer's " great and principal duty is to give 
everyone a fair wage. Doubtless before deciding whether 
wages are adequate, many things have to be considered; but 
wealthy owners and all masters of labour should be mindful 
of this, that to exercise pressure upon the indigent and the 
destitute for the sake of gain, and to gather one's profit out 
of the need of another, are condemned by all laws, human and 
divine. To defraud anyone of wages that are his due is a 
crime which cries to the avenging anger of heaven. Behold, 
the hire of the labourers . . . which by fraud hath been kept 
back by you, crieth aloud; and the cry of them hath entered into 
the ears of the Lord of Sabaoth. 3 

" Lastly, the rich must religiously refrain from cutting down 
the workmen's earnings, whether by force, by fraud, or by 
usurious dealing; and with all the greater reason because the 
labouring man is, as a rule, weak and unprotected, and because 
his slender means should in proportion to their scantiness be 
accounted sacred. Were these precepts carefully obeyed and 
followed out, would they not be sufficient of themselves to 
keep under all strife and all its causes ?" 4 

Sums must not be deducted from a servant's wages on 
account of temporary illness, though by English law a master 

1 Leo XIII, I.e. 2 ibid. 

3 Jas. v 4; Can. 1524. 4 Leo XIII, I.e. 



THE DUTIES OF MASTERS AND SERVANTS 189 

is not bound to provide medical aid or medicines for a sick 
servant, though he is for an apprentice. If he sends for 
medical assistance for a servant whilst under his roof, he is 
liable. 

In the same encyclical of Leo XIII a general rule is laid down 
for deciding what a fair wage is : " Let it, then, be taken for 
granted that workman and employer should, as a rule, make 
free agreements, and in particular should agree freely as to 
the wages; nevertheless, there underlies a dictate of nature 
more imperious and more ancient than any bargain between 
man and man namely, that the remuneration must be suffi- 
cient to support the wage- earner in reasonable and frugal 
comfort. If through necessity or fear of a worse evil, the 
workman accept harder conditions, because an employer or 
contractor will afford him no better, he is made the victim of 
force and injustice." 

The workman, then, has a right to a living wage, and the 
employer who grows rich by sweating his work-people com- 
mits a sin against justice and is bound to make restitution of 
his ill-gotten wealth. If, however, the employer gives as 
good wages as he can afford, or as good as the labour is worth, 
he will be excused from any sin against justice ; occasionally 
in bad times he may be bound out of charity to give employ- 
ment without profit to himself or even at a personal loss. 

4. It is sometimes the duty of the State to interpose its 
authority in order to settle labour questions. As Leo XIII 
says : " If by a strike, or other combination of workmen, there 
should be imminent danger of disturbance to the public peace ; 
or if circumstances were such that among the labouring popu- 
lation the ties of family life were relaxed ; if religion were found 
to suffer through the operatives not having time and oppor- 
tunity afforded them to practise its duties; if in workshops 
and factories there were dangers to morals through the mixing 
of the sexes or from other harmful occasions of evil; or if 
employers laid burdens upon their workmen which were un- 
just, or degraded them with conditions repugnant to their 
dignity as human beings; finally, if health were endangered 
by excessive labour or by work unsuited to sex or age in 
such cases there can be no question but that, within certain 
limits, it would be right to invoke the aid and authority of the 
law." A little further on Pope Leo again refers to strikes: 
" When work-people have recourse to a strike, it is frequently 
because the hours of labour are too long, or the work too hard, 
or because they consider their wages insufficient. The grave 



i go PRECEPTS OF THE DECALOGUE 

inconvenience of this not uncommon occurrence should be 
obviated by public remedial measures, for such paralyzing of 
labour not only affects the masters and their work-people alike, 
but is extremely injurious to trade and to the general interests 
of the public; moreover, on such occasions, violence and 
disorder are generally not far distant, and thus it frequently 
happens that the public peace is imperilled. The laws should 
forestall and prevent such troubles from arising; they should 
lend their influence and authority to the removal in good time 
of the causes which lead to conflicts between employers and 
employed." 1 

It is unlawful for workmen to strike when by so doing they 
violate a just contract which they have freely entered into, 
or when they cannot hope to gain anything substantial, so 
that there is no adequate compensation for the sufferings, 
losses, and risks which generally accompany a strike. It is 
wrong to use violence and threats to compel other workmen 
to strike against their will, or to prevent them accepting work 
if they desire to do so. 

If, however, other means of obtaining redress or of securing 
their rights have failed, it is not wrong for workmen to strike 
in order to obtain a diminution of excessive hours of toil, or a 
just wage, or other just, reasonable, and adequate advantage. 

5. The contract of hiring may be terminated by mutual 
consent of the parties concerned, or for just cause by one of 
the parties, provided that the laws and customs which regulate 
the matter be duly observed. Generally speaking, a month's 
notice, or a month's wages, is required by English /law to 
determine a general hiring of a domestic servant. If, how- 
ever, the servant is incompetent to do what he undertook, is 
habitually disobedient, or is guilty of immorality, or un- 
lawfully absents himself from his work, he may be dismissed 
without notice. 

1 Leo XIII, I.e. 



CHAPTER VI 
THE DUTIES OF MASTERS AND SCHOLARS 

i. SCHOOLMASTERS and schoolmistresses are put in the place 
of the parents to educate children in letters and good conduct. 
They therefore to a certain extent share the obligations and 
the rights of parents. Furthermore, they are bound in justice 
by contract to fulfil the special duties which are annexed to 
their office of training the children committed to their charge. 
2. Pupils are bound to love, reverence, and obey their 
masters and mistresses in all things that pertain to their educa- 
tion in letters and morals. However, in estimating the gravity 
of sins of disobedience toward masters and mistresses, we must 
consider not only whether the matter be grave and there be 
a serious intention of imposing an obligation, as in other cases 
of disobedience, but also whether t the authority of the master 
or mistress enables them to give a precept which binds under 
pain of grave sin. Such ample authority is usually not com- 
mitted to inferior masters and mistresses. 



191 



CHAPTER VII 

THE DUTIES OF ECCLESIASTICAL AND CIVIL RULERS 

AND THEIR SUBJECTS 

i. ALL those to whom the care of souls is committed in the 
Church of God are bound by divine precept and by the very 
nature of their office to fulfil the duties of their charge. 1 If 
they fail in their duty, they sin not only against charity and 
obedience, but also against justice; for everyone who volun- 
tarily undertakes an office implicitly thereby undertakes to 
discharge the duties annexed to it. In general, therefore, 
ecclesiastical superiors are bound to love, watch over, and 
instruct by word and by example those committed to their 
charge. The special obligations of each one depend on the 
office which he holds, and are treated of elsewhere. 

2. Subjects also owe to their ecclesiastical superiors love, 
reverence, obedience in all that belongs to their office, and 
temporal support. This is obvious from what has already 
been said, and it is inculcated in several places of Holy Writ. 2 

3 . It has been the constant teaching of the Catholic Church 
that all public and legitimate authority is of divine right, in 
the sense that God is the Author of man's nature by which 
he is a social animal, formed to live in society, which neces- 
sarily implies a distinction of rulers and ruled. The rulers 
may, indeed, be designated in various ways, their power may 
be more or less absolute; this power may be in the hands of 
one or of many, but it is derived from God, the Author of 
man's nature and of human society. This is the teaching of 
St. Paul : " Let every soul be subject to higher powers ; for 
there is no power but from God; and those that are, are 
ordained of God. Therefore he that resisteth the power, 
resisteth the ordinance of God. And they that resist, purchase 
to themselves damnation." 3 As Leo XIII says in his encyclical 
letter, Diuturnum, June 29, 1881, this doctrine is taught in 
many passages of Holy Writ, and has been constantly incul- 
cated by the Catholic Church. 

i 

1 Trent, sess. 23, c. i, de Ref. 

2 i Tim. v 17; Heb. xiii 17. 

3 Rom. xiii 1-2. 

192 



ECCLESIASTICAL AND CIVIL RULERS 193 

In English-speaking countries the people have a large share 
in the election of their rulers, and such an important duty 
should be faithfully and religiously fulfilled. There may easily 
be a moral obligation to vote at elections in order to prevent 
the election of one who would do grave public harm if elected, 
or in order to secure the election of one whose election would 
be a great public benefit. If the only choice lies between 
candidates who are equally good or equally bad, there will be 
no moral obligation to vote. 

Those who hold any civil office are bound to perform its 
duties faithfully, not only out of charity, but out of justice. 

4. For Catholics it is a matter of religious obligation to love, 
reverence, and obey those who wield civil power. As Leo XIII 
teaches: " We are bound to love dearly the country whence 
we have received the means of enjoyment this mortal life 
affords, but we have a much more urgent obligation to love 
with ardent love the Church to which we owe the life of the 
soul, a life that will endure for ever. . . . Moreover, if we 
would judge aright, the supernatural love for the Church and 
the natural love of our own country proceed from the same 
eternal principle, since God himself is their Author and 
originating Cause. . . . Law is of its very essence a mandate 
of right reason, proclaimed by a properly constituted authority, 
for the common good. But true and legitimate authority is 
void t of [sanction, unless it proceed from God, the supreme 
Ruler and Lord of all. The Almighty alone can commit 
power to a man over his fellow-men ; nor may that be accounted 
as right reason which is in disaccord with truth and with 
divine reason ; nor that held to be true good which is repugnant 
to the supreme and unchangeable good, or that wrests aside 
and draws away the wills of men from the charity of God. 
Hallowed, therefore, in the minds of Christians is the very idea 
of public authority, in which they recognize some likeness 
and symbol, as it were, of the divine Majesty, even when it 
is exercised by one unworthy. A just and due reverence to 
the laws abides in them, not from force and threats, but from 
a consciousness of duty; for God hath not given us the spirit 
of fear." 1 

1 Leo XIII, Encyclical Letter, January 10, 1890. 



13 



PART V 
THE FIFTH COMMANDMENT 

THE Fifth Commandment is, " Thou shalt not kill." 1 

The crime of homicide is primarily forbidden by this 
precept, but inasmuch as quarrelling, fighting, wounding, lead 
up to homicide, these and similar acts are secondarily for- 
bidden. Implicitly, the precept prescribes the preservation of 
life, since death will follow if care be not taken to preserve life. 

CHAPTER I 
ON SUICIDE 

i . SUICIDE, or the killing of one's self, when one's own death 
is the direct and immediate object of the will, is forbidden 
by the Fifth Commandment and is grievously sinful. It is 
the same when death is not the direct object of the will, if 
some act is done of which the only immediate effect is the 
destruction of one's own life; for in that case by willing the 
action I implicitly will the effect. And so if, out of bravado, 
I jumped from the top of the tower of Westminster Cathedral 
into the street below, I should be guilty of the grave sin of 
suicide, even though that was not my direct object. 

The reason why suicide is unlawful is because we have not 
the free disposal of our own lives. God is the author of life 
and death, and he has reserved the ownership of human life 
to himself. We cannot leave the post where he has stationed 
us without his authority. Moreover, a man belongs to his 
country, and so suicide is a crime against the commonwealth, 
and as such is punished. There is a controversy among 
divines as to whether it would be lawful for a malefactor who 
had been condemned to death and entrusted by public 
authority with the execution of the sentence against himself 
to take his own life. Many hold that it would be lawful, for 
there seems no conclusive reason why the State might not 
appoint a man to be his own executioner. 

1 Exod. xx 13. 
194 



ON SUICIDE i9S 

2. It is not unlawful to do something which will cause one's 
own death provided that the action has some other immediate 
and good effect of great importance, which counterbalances 
the loss of human life, and this is not intended. This is 
merely an application of the principle of a double effect which 
was explained in the Book on Human Acts. The captain of 
a man-of-war, for example, which in time of war is in danger 
of falling into the hands of the enemy, might blow up the 
ship in order to prevent so great a disaster befalling his 
country, although the act would cause his own death and that 
of others in the ship. He does not intend the destruction of 
human life; the immediate effect of his action is to prevent 
the ship falling into the enemy's hands. The public advantage 
counterbalances the loss. 

3. Similarly, for good reason I may undertake dangerous 
work, go to unhealthy climates, or lead a kind of life which 
will lessen the number of years that I shall live. Somebody 
must do such things ; they are useful to the community or to 
myself, and I do not intend the shortening of my life. It 
would be wrong to expose my life to probable danger merely 
for the sake of getting money or notoriety; such reasons do 
not justify us in seriously risking human life. 

4. As we have not the ownership of life, so neither are we 
the owners of our limbs so as to be able to dispose of them at 
will. A man is not justified in mutilating himself in order to 
avoid military conscription, or to excite commiseration, or to 
gain money. The amputation of a limb is permissible when 
such an operation is necessary in order to preserve life; for 
we may sacrifice a part for the safety of the whole. 

5. We are obliged to take ordinary means to preserve our 
lives, for to do otherwise would be virtually to commit suicide. 
There is no obligation to take extraordinary, unusual, or very 
painful or expensive means to preserve our lives. And so 
one in feeble health, who will probably die if he spends the 
winter in England, is not bound to expatriate himself and go 
and live in a milder climate. Nor am I bound to undergo a 
painful and costly operation in order to save my life; I may 
if I like choose rather to die, unless my life is of great im- 
portance for the common good, for then the public good must 
be considered first. Except in such a case as this, a superior 
could not oblige a subject to undergo a very painful operation 
or to submit to the amputation of a leg; obedience to human 
authority does not seem to extend to such matters as these. 



CHAPTER II 
ON CAPITAL PUNISHMENT 

i . THE right of the State to punish criminals with the infliction 
of death is either expressly conceded or clearly supposed in 
Holy Scripture. 1 It is sufficiently evident, too, from natural 
reason, for the State should be endowed with all those powers 
which are necessary to secure its end, the temporal happiness 
of its citizens. But it would not be possible to keep human 
passion within bounds and ensure the safety of the lives and 
property of its peaceful citizens, unless the State had the 
power of inflicting death on those who have been guilty of 
great crimes. The practice of the most civilized states con- 
firms this view, and experience seems to demonstrate its truth. 
If the time should ever come when the infliction of less severe 
penalties will suffice to punish crime and safeguard life and 
property, then capital punishment should be abolished, but 
that time does not seem to be at hand yet. 

If the State has the right to deprive a criminal of life, 
a fortiori it may inflict lesser punishments, such as flogging 
and imprisonment. Indeed, certain persons who have 
authority over others, such as fathers of a family, captains 
of vessels at sea, and schoolmasters, have the power to inflict 
smaller punishments in moderation on delinquents under their 
authority. Before capital punishment can be inflicted the 
essentials of a judicial process by which a grave crime is 
brought home to the delinquent must be gone through. For 
the right of capital punishment belongs to the State as such, 
to the public authority, and so before punishment is inflicted 
it should be proved that the crime was committed by the 
person charged, and judicial sentence according to law should 
be passed upon him. In certain cases when the ordinary 
process of law cannot be followed, and there is danger in 
delay, the public authority might empower anyone to kill a 
notorious criminal, but in settled times and ordinarily this 
should not be done. It would be a very dangerous remedy 
for crime if the State empowered its citizens to punish delin- 
quents without previous trial and conviction. The innocent 

1 Rom. xiii 4. 
196 



ON CAPITAL PUNISHMENT 197 

sometimes suffer in spite of the elaborate precautions and 
delay of modern criminal trials. If these were abolished and 
every citizen became a judge and executioner for crime, the 
remedy would be far worse than the disease. The Roman 
law and that of some more modern states permitted a father 
or husband to kill a daughter or wife found in adultery. Such 
laws were not approved by the Church, and they could not 
in conscience justify one who took advantage of the immunity 
they gave to commit so cruel a murder. 

2. To take means to safeguard the public welfare, and 
especially to inflict the punishment of death on criminals, 
belongs to the public authority and not to private citizens, 
and so these cannot lawfully arrogate to themselves the power 
of inflicting capital punishment. Lynch-law, then, is against 
sound principles of morality. In places where no effective 
government exists, the people should constitute a government 
to safeguard the common interests and to punish crime; this 
duty must not be left in private hands. 

I quote the following from the Encyclopedia of the Laws of 
England, s.v. Escape : " Considerable controversy has from 
time to time arisen on the question whether the officers of 
the law or persons entitled to apprehend or detain a person 
accused or suspected of crime are entitled to kill him on 
pursuit if they cannot otherwise stop him, or to kill him to 
prevent his escape after arrest. It seems to be agreed that 
the custodian is not entitled to kill to prevent escape from 
custody on a civil charge, nor from custody on a charge of 
misdemeanour. Where the escaped prisoner is accused of 
a capital offence, the custodian appears to be entitled to kill 
him if he cannot otherwise retake him; but it is not clear 
whether the mitigation of the severity of the law as to punish- 
ments for felony during this century (the nineteenth) can be 
regarded as reducing the right of the officers of the law to kill 
a fugitive from justice. With respect to convicts under sentence 
of penal servitude escaping from prison, questions arose in 
1896 owing to the shooting of an escaping convict on Dartmoor 
which cannot be regarded as settled, and which have led to 
a revision of the Convict Prison Rules." 



CHAPTER III 
ON JUSTIFIABLE HOMICIDE 

i. IN defence of my own life from unjust attack I may use 
whatever violence is necessary and even go to the length of 
killing the aggressor, if I cannot otherwise save my life. This 
right of self-defence all laws, human and divine, concede, as 
Innocent III declared. Nature herself teaches us that an 
act which is necessary for self-defence is lawful, and even if it 
lead to the taking of the life of the unjust aggressor it does 
not cease to be lawful. A higher value must be set on the 
life of the innocent than on that of the guilty, especially when 
the guilty one is the cause of his life being put in jeopardy. 
No one is justified in using greater violence than is necessary 
for the purpose of self-defence, so that if by striking or wound- 
ing an assailant of my life I can effectually defend myself, I 
am not justified in killing him. On the same principle no 
private person can take vengeance for violence which has 
already been done, by offering violence in return; vindictive 
justice is reserved for public authority, at any rate in more 
serious matters. Nor may one whose life is threatened 
anticipate the attack; defence is only lawful when the attack 
is practically being made or is at any rate imminent. Unless 
the attack is practically imminent it is always possible to resort 
to other means than homicide for the defence of one's own 
life; one may invoke the protection of the law or at least fly 
the intending assailant. 

2. Under the same limitations it is lawful to kill the assailant 
not only of one's life, but also of limb, of chastity, and of 
property. For all these goods belonging to an innocent 
person may be lawfully defended by him even at the cost of 
the life of the unjust assailant of them, who is responsible for 
his own death by his unwarrantable action. When it is said 
that we may kill an unjust assailant in defence of property, 
it is supposed that the property which is threatened is of con- 
siderable amount. Innocent XI condemned a proposition 
which asserted that, " As a rule I may kill a thief for the 
preservation of a gold piece." This proposition is false, for 
a rich man would not be justified in shooting a thief whom he 

198 



ON JUSTIFIABLE HOMICIDE 199 

saw walking off with one of his silver spoons. If, however, 
the thief threatens property of considerable value say, twenty 
pounds or so and the only way of saving the money is by 
taking the life of the thief, this would be lawful. Moreover, 
when a highwayman demands my purse or my life, I am not 
bound to hand him my purse, even though it contain little 
money ; I may always defend myself from such unjust attacks, 
even though it finally involves the death of the aggressor. 

3. It is not lawful to kill another who attacks my honour 
with insulting words. The contrary used to be held by some 
theologians, but the doctrine was condemned by Alexander VII 
and Innocent XI. The reason of the difference between this 
case and the foregoing is that verbal insults are often not of 
very serious consequence ; they are better and more effectively 
met by quiet contempt than by being taken seriously, and that 
would be a perilous doctrine which taught that a man might 
avenge an insult with the death of the offender. What con- 
stitutes an insult is often a very subjective question, and the 
results of the doctrine would be deplorable. 

4. What one may lawfully do, that, as a rule, another may 
help him to do ; and so I may kill or maim an unjust assailant 
not only of my own life, limb, chastity, or property, but when 
any innocent person is similarly threatened I may also do the 
same in his defence. Although I may lawfully do this, yet 
there is seldom an obligation of doing it, for the obligation 
would only arise from charity, and as we saw above, this virtue 
does not usually bind with such serious inconvenience as 
would always be involved in taking life in defence of another. 
Those who have charge of the public peace and security are 
more strictly bound to perform their duty of protecting life 
and property even at the sacrifice of the lives of wrongdoers. 



CHAPTER IV 
ON KILLING THE INNOCENT 

i . IT is never lawful directly to kill the innocent, or, in other 
words, it is never lawful to kill the innocent when the death 
is intended in itself, or when it is inflicted as a means to the 
attaining of some other object. Such an act is expressly 
forbidden by God : " The innocent and just person thou shalt 
not put to death." 1 Reason, too, teaches us the same truth; 
for if ever it were lawful directly to kill the innocent, it would 
be so when such a death would be of great advantage to the 
commonwealth. But even to save the State an innocent 
man's life must not be taken directly, for the State exists that 
good men may lead honourable and peaceful lives; the State 
is for the good citizens, not the good citizens for the State. 
Not even the good of the State, then, makes it right to take 
an innocent man's life, and if that does not justify the act, 
nothing does. 

2. The death of the innocent may be permitted, not in- 
tended, when it follows from some action lawful in itself which 
also produces an equally immediate and good effect, and when 
this counterbalances the evil effect. This, again, is but the 
application of the principle of a double effect, and it is evident 
from what has been said before. The general of an army 
who orders the bombardment of a beleaguered town knows 
that his order cannot be executed without killing perhaps 
many innocent non-combatants, yet the action is not unlawful. 

3. Casual homicide which was not intended in itself, but 
which was the consequence of doing some dangerous action, 
as furious driving in a frequented street, is imputable to the 
agent if he adverted to the probable danger of killing someone. 
If such probable danger did not exist, or was not adverted to, 
casual homicide will not be imputable in conscience, although 
if the action be forbidden by law, even on other grounds than 
the chance of its causing another's death, and someone is 
killed by it, English law punishes it as manslaughter. 

4. It is usual to treat here of abortion, and of certain surgical 
operations concerned with child-bearing. Abortion is the 

1 Exod. xxiii 7. 
200 



ON KILLING THE INNOCENT 201 

premature ejection of the living foetus. The human foetus 
reaches maturity about nine months after conception, but it 
is capable of living even if born a considerable time before 
maturity. A child may live when born at seven months or 
even somewhat earlier, especially if artificial means are taken 
for preserving its life. When the fcetus is ejected at such a 
time that in the judgement of a skilled medical man it will 
probably live, this is called acceleration of birth rather than 
abortion in the strict sense. We are here concerned with 
the lawfulness of procuring abortion and of performing such 
operations as craniotomy and embryotomy, which destroy the 
life of the fcetus. There is only question of the living, not of the 
dead, fcetus, as is obvious. 

5. Inasmuch as it is never lawful directly to kill the innocent, 
it is never lawful directly to procure abortion at a time when 
there is no probability that the foetus can live outside the 
mother's womb. This is clear, for the fcetus is a human 
being, with a human soul, which, as is commonly held by 
theologians, is infused into it by God at the moment of con- 
ception ; it has, then, as much right to live as anyone else, and 
it certainly is innocent of all personal crime. To deprive it 
directly of the medium in which alone it can live is to kill it 
directly, just as to deprive a man of air by plunging him under 
water is to kill him directly. The direct procuring of abortion, 
then, is never allowed, inasmuch as it is the direct killing of 
the innocent, and intrinsically wrong. In the same way, 
anticipated homicide and a grievous sin are committed when- 
ever means of whatever sort are taken to prevent conception. 

6. However, just as the indirect killing of the innocent is 
lawful for a just cause, as we have seen, so a pregnant woman 
who is suffering from disease or tumour, or any complication 
which threatens life, may lawfully adopt the necessary means 
to save herself, even if what is a remedy for her causes the 
death of the foetus. In all these cases we have but the applica- 
tion of the principle of a double effect ; the mother is not bound 
to sacrifice her life by abstaining from adopting the remedy 
indicated, especially as her own death would also involve the 
death of the child. Thus we may approve of the following 
solution by Dr. Capellman of the " case where the uterus with 
the foetus is locked in the upper strait, as may happen through 
retroversion, sinking, and prolapsus of the pregnant womb. 
If all other known means of turning or replacing the uterus 
fail, I believe it to be allowable to induce abortion indirectly, 
by procuring the discharge of the waters, or by the perforation 



202 PRECEPTS OF THE DECALOGUE 

of the foetal membranes. " x On the same principle P. Antonelli 
thinks that it is lawful to remove an ulcerated womb which 
is threatening the life of a pregnant mother though the opera- 
tion cause the death of the foetus, as also to remove an extra- 
uterine foetus whose further growth would cause the certain 
death of the mother. 2 

All who unlawfully procure abortion incur the penalty of 
excommunication, the absolution of which is reserved to the 
Bishop by Canon 2350. 

7. Craniotomy, or any other similar operation which has 
for its immediate and direct effect the destruction of the life 
of the foetus, is a direct killing of the innocent, and is never 
allowed. If the child is already dead, there is of course no 
difficulty in permitting craniotomy or embryotomy, but if it is 
still alive it is not lawful to kill it, even if otherwise both child 
and mother were certain to die. Evil must not be done that 
good may come of it. The end does not justify the means. 
Some medical men consider the foetus, until it is born, as a 
portion of the mother which may be destroyed to save her life. 
This view is not in keeping with Christian principles, according 
to which the child has a soul of its own, and has its own inde- 
pendent right to live. 

Some theologians used to think that such operations were 
lawful if the mother's life could not otherwise be saved, because 
the child might be considered a materially unjust assailant of 
its mother's life, and so be lawfully killed; or because when 
there is a conflict of rights the stronger right should prevail. 
However, in no sense can it be allowed that the child is an 
unjust assailant of its mother's life ; it is where nature placed 
it, through no fault of its own, and it has a right to be there 
and to be born. If either is an unjust assailant of the other's 
life, it is the mother, who voluntarily undertook the obliga- 
tions of motherhood. In the same way, when the stronger 
of two conflicting rights prevails, this is due to the fault of 
the other party, and such fault is out of the question in this 
case. This doctrine is now theologically certain after the 
repeated declarations of the Holy See that no operation which 
tends directly to the destruction of the life of the foetus is 
lawful. 

When the child cannot be born in the natural way, and the 
life of both mother and child is in danger, Caesarian section 
or some similar operation may be, and should be, performed, 

1 Pastoral Medicine, p. 16. 

2 Medicina pastoralis, p. 220. 



ON KILLING THE INNOCENT 203 

by which the lives of both may very probably be saved. The 
operation which takes its name from Dr. Porro, and which 
consists in removing the uterus together with the foetus, 
requires some special reason to make it lawful, for such muti- 
lation of the mother is only allowed when it is necessary in 
order to save life. 

In all operations which involve danger to the life of the 
child, Catholic parents should be careful to have the living 
foetus baptized, which may be done by the doctor or nurse 
while it is still in the womb. But according to Canon 746 
this should not be done as long as there is any hope of the 
child being born alive. 



CHAPTER V 
ON DUELLING 

i. A DUEL is defined to be a premeditated and prearranged 
combat between two persons with deadly weapons, and usually 
in the presence of at least two witnesses, called seconds, for 
the purpose of deciding a quarrel, avenging an insult, or 
clearing the honour of one of the combatants or of some third 
party whose cause he champions. 

A duel, then, is a premeditated and prearranged single 
combat, for if two persons begin to quarrel and then come 
to blows, it is not a duel even if death be the result. Nor is it 
a duel if two enemies meet by accident and begin straightway 
to fight. A duel is a combat with deadly weapons, so that 
a fight with sticks or with the fists is not a duel. Although 
seconds are commonly present, yet their absence would not 
prevent a single combat from being a duel if the other con- 
ditions were verified. The duel is for the purpose of deciding 
a private quarrel, and for such a purpose it is unlawful even 
if it have the sanction of public authority, for there are other 
and lawful means of settling such matters. A single combat 
between champions of hostile nations entered into by public 
authority for the purpose of terminating the war, or giving 
courage to the army, would not be a duel, and might be 
permitted. 

2. It is never lawful to fight a duel by private authority, 
for it obviously exposes the parties to grave risk of killing or 
wounding, or of being killed or wounded, and this is never 
lawful by private authority except under the conditions which 
justify killing in self-defence, and these are not verified in 
the duel. 

The Council of Trent 1 very emphatically condemned duelling 
as a detestable practice and excommunicated the guilty parties, 
their seconds and abettors, as well as emperors, kings, and 
princes who permit it in their territories. This excommunica- 
tion is renewed by Canon 2351, and the power of granting 
absolution if it has been incurred is reserved to the Pope. 
Benedict XIV, by a constitution dated November 10, 1752, 



1 Sess. 25, c. 19, de Ref. 
204 



ON DUELLING 205 

condemned the following propositions as false, scandalous, and 
pernicious : 

" (a) A military man who, unless he offer or accept a duel, 
would be considered cowardly, timid, worthless, and unfit 
for office in the army, and so would be deprived of his post by 
which he gains support for himself and his family, or would 
for ever lose all hope of promotion otherwise due to him, 
would incur neither fault nor penalty if he offered or accepted 
a duel. 

" (b) Those who accept or challenge to a duel for the sake 
of defending honour or avoiding disgrace may be excused 
when they know for certain that the combat will not come 
off, inasmuch as it will be prevented by others. 

" (c) A general or officer in the army who accepts a duel 
through serious fear of losing reputation or office does not incur 
the penalties inflicted by the Church on those who fight a 
duel." 

The contradictory of these false propositions must be held 
by all who admit the authority of the Church. 

3. Clement VIII, in a constitution dated September i, 1592, 
declared that those incurred the penalties of duelling who 
fought under the stipulation that they would stop after a 
certain number of blows, or as soon as either was wounded 
or blood was drawn. Grave sin, then, would be committed 
by challenging or accepting a duel even under these conditions, 
at least on account of the scandal and disobedience to authority, 
if not on account of the danger. 

By English and American law duelling is illegal, and if death 
be the result, it is regarded as murder, and the seconds are 
liable to punishment as accessories. 



CHAPTER VI 
ON WAR 

i. WAR, or an armed struggle between sovereign states, is 
defensive when it is undertaken to resist attack; otherwise it 
is offensive when undertaken to avenge an injury, or in vindi- 
cation of a right. 

2. When a quarrel has arisen between two sovereign states, 
if it is clear that one of the parties is in the wrong, it is bound 
to make reparation to the offended party. In national quarrels, 
however, this is seldom the,,case ; as a rule, international disputes 
are matters of great complexity, and it is very difficult to say 
on which side right and justice lie. In ordinary cases, then, 
defensive war is always lawful, for if individuals have the right 
of self-defence the same right must a fortiori be conceded to 
a sovereign state. Even offensive war is lawful, provided that 
certain conditions be fulfilled. This is the certain teaching of 
Catholic theology, although the Church constantly prays to 
be delivered from all wars and from the terrible evils to which 
they give rise. Although war is a great evil, yet it is some- 
times a hard necessity if still greater evils are to be avoided. 
For there is no higher tribunal to which sovereign states can 
have recourse to settle their disputed rights, and nothing is left 
but the final arbitrament of the sword. In modern times 
arbitration courts have been established, and they have done 
useful work, but cases arise in which their aid cannot be 
invoked with effect. 

3. The conditions on which war may be lawfully waged 
are three : 

(a) The public authority of a sovereign state is requisite to 
declare war, for war, except in just defence, cannot be made 
on private authority, or by a less than sovereign state; for 
private persons and subject states can always have recourse 
to higher authority for the vindication of their rights. 

(b) A just and weighty cause is necessary, for the cause 
should be such as to outweigh the grave evils and risks which 
always accompany war. Such causes, in the judgement of 
divines, are : the retaking of a conquered country or rebellious 
province, the avenging of a grave insult or injury offered to 

206 



ON WAR 207 

the State, the freeing of the unjustly oppressed, the refusal of 
infidel states to allow the Gospel to be preached in their 
dominions. There is considerable difference of opinion as 
to whether certainty of the existence of a sufficient cause is 
required or not for the lawfulness of a war. Some divines 
hold that a probability of right is sufficient, for with such 
a probable right a private person may commence an action at 
law, and states should not be in a worse position than private 
persons in the prosecution of their claims. However, on 
account of the grave public evils connected with war, and 
because it is unlawful to deprive another of what he possesses 
on the ground that it is only probably mine, it would seem 
that at least a more probable right or even a moral certainty 
of right is required on the side of the state that begins the war. 

(c) There must be an upright intention of advancing the 
cause of good or preventing evil. Mere delight in the excite- 
ment of war, or the desire of showing one's prowess or obtain- 
ing promotion, would not justify war. 

When the end of the war has been sufficiently obtained the 
victorious party should be ready to make peace on proper 
guarantees being given. 

4. Where conscription exists or soldiers have already en- 
listed before the outbreak of war, they are not bound to make 
inquiries about the origin of the war in order to satisfy their 
consciences of its justice ; they may presume that their country 
is in the right unless it is evident that it is in the wrong, and 
in doubt they are bound to obey the commands of their lawful 
superiors. If the war is clearly unjust it only remains for the 
conscientious soldier to abstain from inflicting unjust damage 
on the enemy, otherwise he will be a co-operator in injustice. 
Volunteers who had not enlisted at the outbreak of war are 
bound to satisfy their consciences as to its lawfulness before 
they take any part in it, just as they are bound to form a morally 
certain conscience about the lawfulness of any action that they 
undertake, as we saw in the Book on Conscience. 

5. In a just war all means that conduce to the end of gaining 
victory over the enemy are lawful, provided that they are not 
against the law of nature and international law or agreement. 
International agreements are only binding if they are faithfully 
adhered to by the adverse party. In modern war it is the 
practice to spare the persons and property of non- belligerents 
as. far as possible. In naval warfare not only the enemy's 
ships of war may be attacked and taken, but his merchantmen, 
and any British vessel or vessel of an ally trading with or 



2o8 PRECEPTS OF THE DECALOGUE 

acting in the service of the enemy at war with England, or any 
neutral vessel engaged in the same way or in the carriage of 
contraband, and blockade runners, may be captured and made 
lawful prize by duly commissioned British ships. Booty of 
war on land is restricted to arms, ammunition, and military 
provisions and stores. Private property on land is no longer 
liable to capture and confiscation, but requisitions and con- 
tributions of men for labour, money, victuals, etc., are still 
levied on the invaded territory by duly qualified officials of 
the invading army. Beyond these limits, or at least beyond 
what is permitted by lawful authority, it is not allowed to 
appropriate private property belonging to the enemy. 



PART VI 
THE SIXTH AND NINTH COMMANDMENTS 

IT is usual to treat of these two Commandments together, for 
the Sixth, " Thou shalt not commit adultery," 1 in expressly 
forbidding the chief sin, implicitly forbids all other external 
sins against the laws of marriage, and the Ninth, " Thou shalt 
not covet thy neighbour's house, neither shalt thou desire his 
wife," 2 forbids internal sins of covetousness and lust. The 
general doctrine concerning internal sins was given in a former 
Book ; the special doctrine about covetousness in so far as it is 
against justice is clear from what was said about avarice and 
what will be said later about justice ; the doctrine about external 
sins of lust will be evident from what has to be said in this place. 

CHAPTER I 
THE NATURE OF IMPURITY 

i . THE means devised by God for the preservation and increase 
of the human race is the union of the sexes. This union has 
for its primary object the procreation of children, who require 
for their proper education the long and assiduous care of both 
father and mother. Nature, then, as well as the law of God 
and of the Church, requires that children should only be 
begotten of parents joined in lawful and indissoluble wedlock. 
As nature has taken care that the individual should take the 
food and drink necessary for his personal support by giving 
him the spur of appetite for nourishment and pleasure in 
taking it, so the same great Mother has taken care of the race 
by joining venereal pleasure to the act of procreating children. 
This venereal pleasure is lawful when indulged in between 
married people and according to the laws of marriage. In 
all other cases it is unlawful, and is forbidden by the Sixth 
and Ninth Commandments. 

Venereal pleasure must be distinguished from sensual and 
from venereo-sensual pleasure. Venereal pleasure has its seat 

1 Exod. xx 14. a Exod. xx 17. 

i. 309 14 



2io PRECEPTS OF THE DECALOGUE 

in the genital organs, and is caused by their motions, the 
irregular motions of the flesh. Sensual pleasure is other than 
venereal, and rises from indulgence of the senses, from the 
contemplation of a beautiful picture, from listening to sweet 
music, from touching the glossy and soft coat of a cat. This 
sensual pleasure is morally harmless in itself, but there is a 
certain kind of pleasure which is sensual in its origin but which 
is connected with, and ordinarily causes, venereal pleasure. 
It arises from such acts as voluptuous kissing, and is called by 
divines venereo-sensual. On account of its connection and 
tendency, venereo-sensual pleasure is evil, and ordinarily is 
more or less sinful, as we shall see in what follows. 

Sins of impurity are consummated or non-consummated. 
Peccata consummata procedunt usque ad perfectam vol- 
uptatem veneream, quae habetur per copulam vel per pollu- 
tionem. Sunt consummata juxta naturam si exinde generatio 
prolis sequi possit, aliter sunt consummata contra naturam. 
Non- consummata peccata sunt aspectus, tactus, colloquium 
impudicum, quae non pertingunt usque ad perfectam vol- 
uptatem veneream. 

2. All sins of impurity of whatever kind or species are of 
themselves mortal. This doctrine is taught in such passages 
of Holy Scripture as the following: i Cor. vi 9-10; Gal. v 19; 
Matt, v 28. Moreover, as we saw above, those sins are 
grievous which cause great harm to society or to the individual ; 
but there is scarcely any cause so prolific of public and private 
evil of all sorts as sins of impurity, so that we must conclude 
that they are grievous even by the light of reason. Further- 
more, all sins of impurity, if voluntary in themselves and fully 
deliberate, are mortal ; or in other words, it is grievously sinful 
directly to seek any even slight unlawful venereal pleasure, or to 
consent to it deliberately even when it has not been directly 
sought. 

This doctrine is the approved teaching of theologians, and 
it has a rational basis, inasmuch as the tendency of men to 
these sins is so strong and their weakness so great, that slight 
indulgence in venereal pleasure almost necessarily leads to grave 
excesses, so that even in light matter there is the whole reason 
of the prohibition, and so all sins of impurity, if fully deliberate 
and voluntary in themselves, are mortal, and there are none 
that are venial merely on account of parvity of matter. 

On the other hand, if venereal pleasure is not voluntary in 
itself but only in its cause, nor deliberately consented to when 
it arises, although it was foreseen that it would follow from 



THE NATURE OF IMPURITY an 

some other action, as from reading a lascivious book, or looking 
at an immodest object out of curiosity, it may be only venially 
or it may be mortally sinful, according to circumstances. In 
general, if in the case in question there is proximate danger 
of giving consent to the impure pleasure, or if its cause is of 
its nature such as to occasion great venereal pleasure, this 
will be mortally sinful even when only indirectly voluntary; 
in other cases it will be only venially sinful. 1 This same 
principle will guide us in questions concerning the greater or 
less malice of venereo-sensual pleasure. 

1 Cf. Book I, p. 8. 



CHAPTER II 
ON CONSUMMATED SINS OF IMPURITY 

THESE are commonly reckoned as six in number: fornication, 
adultery, incest, criminal assault, rape, and sacrilege. All 
are grave sins against chastity, and the last five contain grave 
malice against other virtues as well. Something must be said 
about each one. 

1. Fornication is the act of carnal intercourse between 
persons of different sex who are not married but who are free 
to marry. 

Holy Scripture teaches us that fornication is a grave sin, 
for " fornicators shall not possess the kingdom of God." 1 
" No fornicator hath inheritance in the kingdom of Christ 
and of God." 2 It is a grave sin not merely because it is for- 
bidden by positive law, but because it is intrinsically wrong 
and contrary to the law of nature. Innocent XI condemned 
the following proposition: " It seems so clear that fornication 
in itself is not wrong, and is only evil because it is forbidden, 
that the contrary is altogether against reason." 3 This truth 
is sufficiently clear to unaided reason, for the human offspring 
requires for long years the constant care not only of the mother, 
but of the father as well, and so nature requires that the father 
should be certain, otherwise so great a burden could not be 
laid upon him. But the fact of paternity would be very un- 
certain if fornication were allowed, and so we must conclude 
that it is wrong in the nature of things. As St Thomas 
observes, 4 the fact that in particular cases the paternity of a 
child born out of wedlock is sufficiently clear, and the child's 
education can be provided for, does not militate against the 
force of the general argument, for in striving to lay down 
general rules of conduct we must have regard to what would 
happen ordinarily if such an action were lawful, not to what 
takes place in special circumstances. 

2. Adultery is the act of carnal intercourse between persons 
of different sex of whom one at least is married to someone 

1 i Cor. vi 9; cf. Gal. v 19. 2 Eph. v 5. 

3 Prop. 48, condemned by Innocent XI, March a, 1679. 

4 Summa, 2-2, q. 154, a. 2. 

212 



ON CONSUMMATED SINS OF IMPURITY 313 

else. Besides being a grave sin against chastity, adultery is 
also a serious violation of justice, which prescribes fidelity to 
the marriage vows as long as they exist. Even if the other 
party whose marriage rights were violated by adultery should 
have given his consent to the sin, it still is against justice, for, 
like the right to life, marriage rights are inalienable, and cannot 
be renounced by those who own them. If both parties who 
sin together are married to someone else, there will be a double 
sin against justice committed by both of them, and the circum- 
stance should be mentioned in order to secure the integrity 
of confession. This is clear, and it is confirmed by the con- 
demnation of Proposition 50 by Innocent XI. 

3. Incest is carnal intercourse with relatives by blood or 
by marriage. Besides its general malice against chastity, incest 
is against the special virtue of piety, which prescribes due 
reverence toward, and abstention from carnal sins with, those 
who are nearly related. With regard to parents and children 
at least, this law of reverence belongs to the law of nature ; in 
other degrees of kindred up to the third, and of affinity up 
to the second, reckoned according to the rules of canon law, 
it is of positive ecclesiastical law; whether it is also of natural 
law in the nearer degrees is disputed. All carnal intercourse 
then, between relatives by blood up to the third degree, and 
between relatives by marriage up to the second degree, is 
incest either by natural or by ecclesiastical law. Community 
of blood and the close ties which exist between parent and 
child give a special and distinct malice to sins of impurity 
committed between them; in other degrees of kindred and 
affinity there is not the same community of blood nor equally 
close ties, and so the opinion of many approved theologians is 
probable that although incest in the first degree of the direct 
line of blood relationship is distinct in malice from the others, 
these latter are all of one moral species as far as the integrity 
of confession is concerned. 

Carnal sins committed between those who are united by the 
ties of spiritual or legal relationship are also distinct species 
of incest. 

4. Criminal assault is the using of violence against a woman 
to compel her to commit sins of impurity. It contains a grave 
and special sin against justice as well as the malice of impurity, 
and it is severely punished by criminal law. It is probable 
that there is no specific difference in the sin whether the 
woman be a virgin or not. 

5. Rape is the violent abduction of a person from a place 



214 PRECEPTS OF THE DECALOGUE 

of safety for the purpose of satisfying lust. The violence may 
be offered to the person abducted, or to the parents, or to 
those who have charge of her, and it adds a special malice of 
its own to the sin besides the malice against chastity. 

6. By sacrilege is here understood the violation by carnal 
sin of a person, place, or object, consecrated to God. The 
doctrine concerning it will be sufficiently clear from what was 
said above under the First Commandment. 



CHAPTER III 
DE PECCATIS CONSUMMATIS CONTRA NATURAM 

HAEC tria numerantur: pollutio seu mollities, sodomia, et 
bestialitas, de quibus in sequentibus articulis est agendum. 

ARTICULUS I 
De Pollutione 

1 . Pollutio est voluntaria seminis 1 humani extra concubitum 
effusio, unde vocatur etiam peccatum solitarium. 

Dicitur voluntaria sive in se sive in causa, ut distinguatur 
ab involuntaria quae ex variis causis oriri potest et praesertim 
naturaliter ad superfluitatem exonerandam in somno. 

Dicitur seminis effusio ut distinguatur a distillatione qua 
humor minus densus alterius omnino speciei ex urethra profluit 
apud puberes et impuberes sive cum excitatione venerea sive 
sine ilia. 

2. Pollutio directe voluntaria est intrinsece mala et peccatum 
mortale. Constat ex Sacra Scriptura 1 ac ex constanti Ecclesiae 
doctrina. Innocentius XI hanc propositionem condemnavit: 
" Mollities jure naturae prohibita non est. Unde si Deus 
earn non interdixisset, saepe esset bona et aliquando obligatoria 
sub mortali." Idem probatur ex pessimis effectibus qui ex 
hoc vitio sequuntur turn individuo, ejus vires mentis et corporis 
debilitando, turn societati quatenus illi qui hoc vitio implicantur 
contenti voluptate solitaria matrirnonii gravia onera fugerent 
cum ruina generis humani. In omni vero casu illicita est ita 
ut nulla exceptio detur, quia propter maximam proclivitatem 
hominum ad hujusmodi peccatum si unquam permitteretur 
facile occasiones sibi indulgendi fingerent ad propriam ruinam. 
Unde necesse est ut nunquam ne ad vitam quidem salvandam 
sit licita. 

Plures antiqui Doctores probabiliter juxta St Alphonsum 2 
tradiderunt licere semen corruptum sine sensu libidinis expel- 
lere. Moderni autem negant semen unquam corrumpi, unde 
fundamentum istius sententiae deesse videtur. Smegma vero 

1 i Cor. vi 10. z Theol. Mor., 3, n. 478. 

315 



216 PRECEPTS OF THE DECALOGUE 

congestum sub praeputio removere licet et expedit ad pruritum 
minuendum. 

3. Pollutio indirecte voluntaria est peccatum grave vel leve 
vel nullum juxta circumstantias. Si provenit ex causa graviter 
mala in genere luxuriae est peccatum mortale, quia volendo 
talem causam vult homo implicite etiam pollutionem. Si 
provenit ex causa leviter mala in genere luxuriae, ut ex curiosa 
lectione libri minus honesti, ipsa pollutio probabilius est 
tantum veniale, " quia cum pollutio non sit volita in se, sed 
tantum in causa, eo gradu mala erit, quo mala est ipsa causa." 1 
Si praevidetur secutura per accidens ex honesta actione ut ex 
equitatione, ex modo decumbendi rationabili causa assumpto, 
nullum erit peccatum. Si vero per accidens sequitur ex 
actione mala in alia specie quam luxuriae, ut ex ebrietate, ex 
violatione jejunii, videtur esse veniale, cum aliqua admittatur 
culpa etiam contra castitatem quando pollutio praevidetur 
secutura ex actione ad quam ponendam nullum detur jus. 
Aliqui excusant ab omni etiam veniali culpa pollutionem quae 
per accidens sequitur ex actione venialiter tantum mala in alia 
specie quam luxuriae. 2 Ut patet in hac quaestione prae- 
scindimus a periculo consentiendi in delectationem ex pollu- 
tione ortam, quod non supposuimus. 

Pollutio in somno quae accidit ex praevio peccato mortali 
in genere luxuriae, est ipsa peccatum mortale; si sequitur 
ex peccato veniali in genere luxuriae vel ex peccato mortali 
ebrietatis, est ipsa veniale ; aliter est nullum. 

Siquis pollutionem dum patitur evigilatus fuerit, non datur 
obligatio positive earn reprimendi, dummodo nullus consensus 
detur : mens debet ad Deum vel ad alia converti ne consentiat 
in malum. 

Dummodo adsit justa et proportionata causa exercendi 
actiones, ut a medicis qui mulieribus medentur, ex quibus 
praevidetur pollutio secutura quae non intenditur nee cui 
consensus datur, haec nullum erit peccatum, ut clarum est ex 
principio duplicis effectus. 

4. Quamvis mulieres semen non administrent sed ovum 
semine foecundandum in opere conjugali, similis tamen 
voluptatis completae solitarie sunt capaces sicut sexus virilis. 
Unde sicut apud viros specie distinguuntur peccatum tactus 
impudici incompletum et pollutio, ita apud feminas peccatum 
solitarium consummatum a peccato nonconsummato specie 
distinguitur. Ita cum communi sententia videtur tenendum. 
Non semper tamen apud feminas quae pollutionem patiuntur 

1 St Alphonsus, Theol. Mor., 3, n. 484. 2 ibid. 



PECCATIS CONSUMMATIS CONTRA NATURAM 217 

adest effusio extra vas, sed intus excretio manet. A pollutione 
vero, lit patet, sedulo sunt distinguenda menstrua, quae 
post pubertatem adeptam usque ad menopausim fere omnes 
feminae sine aestu libidinis singulis mensibus experiuntur. 

5. Impuberes qui semen prolificum non habent voluptatis 
perfectae quae peccatum consummatum comitatur sunt 
incapaces, unde saltern probabiliter peccatum pollutionis 
physice committere nequeunt. Voluntarie sibi complacendo 
motibus impudicis mortaliter quidem peccant impuberes, sed 
probabiliter propter dictam rationem est peccatum tantum 
tactus impudici. 

6. Vidimus pollutionem, quae ex causa leviter tantum mala 
in genere luxuriae sequitur et quae in se non est voluntaria, 
esse veniale tantum peccatum. Sed quaestio est apud Doctores 
controversa utrum si propter specialem alicujus dispositionem 
vel fragilitatem pollutio fere semper ex tali causa sequitur iste 
sub gravi ab actione ponenda teneatur eo quod causa tune 
graviter in effectum influere censeatur, an tantum sub levi. 
Si adsit proximum periculum consensus dandi, omnes ad- 
mittunt adesse obligationem ab actione ponenda abstinendi 
gravem, aliter vero probabilis videtur sententia plurium 
obligationem esse solummodo levem. Nam adhuc vera manet 
ratio a S Alphonso assignata doctrinae supra traditae, " quia 
cum pollutio non sit volita in se, sed tantum in causa, eo gradu 
mala erit, quo mala est ipsa causa." Ratio vero cur causa in 
hoc casu gravius influere in effectum videtur, est subjectiva 
agentis dispositio quae non est volita, nee proinde imputabili- 
tatem effectus afficit. 

ARTICULUS II 
De Sodomia 

Sodomia est actus venereus completus in vase indebito, et 
est peccatum gravissimum contra natura.m. Concubitus cum 
eodem sexu et copula per anum est sodomia perfecta, concu-: 
bitus diversorum sexuum et copula per anum est sodomia 
imperfecta quae specie a priori differt. Si sodomia reservatur, 
nisi aliud expresse a reservante declaratur, intelligitur sodomia 
perfecta. 

Plures tamen theologi docent sodomiam consistere in 
concubitu ad indebitum sexum, ita ut sit indifferens qua 
parte coeatur, si fiat applicatio membri virilis ad sexum in- 
debitum cum pollutione. Quae sententia sane est probabilis, 
imo ut aliqui dicunt communis, unde sufficit si confessarius 



2i 8 PRECEPTS OF THE DECALOGUE 

intelligat fuisse concubitum cum affectu ad sexum indebitum 
et cum pollutione, nee est necessarium inquirere de modo 
coeundi. 1 

Sodomia igitur consistit in concubitu cum sexu indebito 
cum pollutione, unde siquis se polluit simplicitur tangendo 
alium, malitiae ejus inconscium sine affectu ad personam, 
et sine concubitu, habetur pollutio non sodomia. Si alter 
etiam peccat, circumstantia complicitatis in confessione erit 
manifestanda. Probabile est specie non distingui peccatum 
agentis et patientis, si ex utraque parte adfuerit pollutio. 

ARTICULUS III 
De Bestialitate 

Bestialitas est concubitus cum bestia. 

Dummodo adsit pollutio indifferens est sive bestia sit 
masculina sive feminina, qua specie sit, vel qua parte coeatur, 
cum malitia hujus peccati consistat in accessu ad diversam 
speciem, quacum generatio haberi non possit. Gravius est 
peccatum quam etiam sodomia, cum in hoc peccato non 
servetur eadem species. Constat vero hodie generationem non 
sequi ex commercio hominis cum bestia. 

Sodomia et bestialitas gravissime lege ecclesiastica et 
etiam municipali puniuntur (Can. 2357, 2359). 

1 St. Alphonsus, 3, n. 466. 



CHAPTER IV 
ON NON-CONSUMMATED ACTS OF IMPURITY 

i. As we saw above, mortal sin is always committed when- 
ever venereal pleasure is directly sought or deliberate consent 
is given to it, even though the venereal excitement be little 
and stop short of consummated sin. In other words, there 
is no parvity of matter, as theologians say, in sins of impurity 
when the venereal pleasure is voluntary in itself. It follows 
from this that non-consummated .acts of impurity such as 
immodest touches, looks, talk, reading, will be mortally sinful 
whenever they are indulged in with a view to exciting venereal 
pleasure. 

2. Even though the excitement of venereal pleasure be not 
directly intended, yet immodest touches will be more or less 
sinful in proportion as they are more likely to excite venereal 
pleasure, and there is no just cause for allowing them. If 
there is a just and proportionate cause for permitting immodest 
touches and any venereal pleasure that may ensue is not in- 
tended or consented to, then there is no sin in them. When 
there is no good reason for allowing immodest touches, they 
will be mortally sinful if, as a general rule in normally con- 
stituted persons, they tend to cause great venereal excitement ; 
otherwise they will be venially sinful. 

Hinc: (a) Tactus in partes inhonestas alterius personae 
diversi sexus sunt mortalia, imo alterius personae ejusdem 
sexus, nisi leviter ex joco vel petulantia fiant. 

(b) Tangere genitalia brutorum, vel partes minus honestas 
alterius personae per se veniale non excedit. 

In the same way immodest looks may be gravely or venially 
sinful, or perfectly lawful, according to circumstances. When 
there is just cause for them and no harm is intended or con- 
sented to, they are lawful. If there is no good reason for them, 
and of their nature they tend to cause great venereal excitement, 
they are mortally sinful ; otherwise they are only venially sinful. 
Hinc : (a) Aspicere ex curiositate pudenda personae alterius 
sexus, vel concubitum humanum, est mortale peccatum, nisi 
brevissime fiat, vel a longa distantia, vel si aspiciens sit senex, 
frigidus, talibus assuetus, quia tales parum moventur. Facilius 

219 



220 PRECEPTS OF THE DECALOGUE 

a mortali excusatur qui ex curiositate aspicit picturas obscoenas, 
quae non ita commovere solent. 

(&) Leve peccatum per se non excedit aspicere ex curiositate 
animalia coeuntia, partes minus honestas mulieris, partes 
obscoenas ejusdem sexus. 

(c) Actus praedicti culpa vacant si ex proportionata utilitate 
vel necessitate exerceantur. 

Similarly immodest conversation will be mortally sinful if it 
is about very obscene subjects between young persons, especi- 
ally if they be of different sexes. It will be venially sinful if 
the subject be less objectionable, or if a dirty joke is made in 
passing. The confessor may, as a rule, presume that grown-up 
penitents, especially if they be married, who accuse themselves 
of immodest talk, are only guilty of venial sin ; and so he may 
spare himself and them any questioning on the matter. 

The reading of very obscene books without any good reason 
can hardly be excused from grave sin, unless by experience 
the reader knows that they have little or no effect upon him, 
and this should not be lightly presumed. Reading novels in 
which the passion of love is depicted in warm colours is very 
dangerous, especially for the young, and unless there is some 
good excuse for it can hardly be without some sin. This will 
all the more be true of novels which are suggestive of evil, 
and fill the mind with dangerous thoughts. 

3. The morality of kissing and embracing is regulated by 
the same principles as the above. Kissing in the ordinary 
way 4 of greeting or leave-taking between relations and friends, 
according to the custom of the country, as theologians say, is 
of course harmless and allowed. Even if such marks of pure 
affection or civility unintentionally sometimes cause venereal 
excitement, no notice should be taken of it. Apart from this, 
kissing and embracing, especially between different sexes, 
naturally tends to cause venereal excitement, and is more or 
less sinful. Mortal sin will be committed as a rule by in- 
dulging in passionate and prolonged embraces and kisses; 
otherwise the sin will be only venial. Those who .intend 
marriage and are already engaged to each other have an excuse 
for showing each other the ordinary signs of affection, but 
they should use their privilege with due caution and Christian 
prudence. As a rule, little harm will be done if they have 
a witness of their conduct, or if they only permit themselves 
to do what they would do if such a witness were present. 

4. Non-consummated sins of impurity are specifically 
di stinct from consummated sins, in the same way as attempted 



ON NON-CONSUMMATED ACTS OF IMPURITY 221 

homicide is specifically distinct from homicide. Impure 
touches, however, and lascivious kisses and embraces contract 
the malice^ of the circumstances of the object, just as con- 
summated sins do. For, just as fornication with one bound 
by a vow of chastity or with a relation is not simple fornication, 
but contracts the malice of sacrilege or incest according to the 
circumstances, so impure touches of the same persons would 
also be sacrilegious or incestuous. The reason is because sins 
receive their specific malice from the object, and sins of touch 
take their malice from the concrete object as it exists with its 
special circumstances. 

Impure speech and looks, on the contrary, do not seem to 
contract the malice of the circumstances of the object, for such 
sins are affected by the general character of the object only, 
and not by its special circumstances. This, at least, is the 
opinion of many theologians. ' 

It is a disputed point among divines whether impure touches, 
looks, talk, or reading, are specifically distinct from each other 
apart from any difference in the object. Would it, for example, 
be sufficient to say in confession, " I committed a sin by 
indulging in venereal pleasure by myself," without mentioning 
whether it was procured by touch, or look, or other means ? 
Although the common opinion is that such a general form of 
self- accusation would not be sufficient, and that the penitent 
must say whether the sin was one of touch, or look, etc., yet 
the contrary view seems probable, for such imperfect acts are 
wrong, not precisely in themselves, but on account of their 
tendency to excite venereal pleasure. The reason, then, and 
source of their malice is the same, and so they would seem not 
to be specifically distinct as sins, though they are physically 
distinct acts. 



PART VII 

THE SEVENTH AND TENTH 
COMMANDMENTS 

THE Seventh Commandment is, "Thou shalt not steal," 1 
and therefore directly and explicitly it forbids theft, but im- 
plicitly it commands us to observe justice in our dealings with 
others. The Tenth Commandment is, " Thou shalt not covet 
thy neighbour's goods," 2 and so it forbids internal sins against 
justice. The subject-matter, then, of these commandments 
is the virtue of justice, of which we have now to treat. 



DIVISION I 
On Justice and Right 

CHAPTER I 
THE NATURE OF JUSTICE AND RIGHT 

i. THE word "justice " is used in a variety of senses, but 
here it is used in its strict meaning to designate the moral 
virtue which inclines its possessor to give to everyone his due 
or his right. 

The habit of giving to everyone his due from principle 
because it is right and proper is obviously a virtue, and it is 
a moral, not a theological, virtue, for its immediate motive is 
not God, but the natural honesty and uprightness of so acting. 
Justice is a moral virtue which resides in and perfects the 
will, not the intellect, like prudence ; it inclines the will to wish 
and to execute what is right. Justice inclines the just man 
to give his due to everyone irrespective of who he may be. 
It does not consider the relation in which that other stands 
to God, or to one's self, as charity does; nor precisely what 
it is becoming in the just man to do, so that his actions may 
be worthy of himself, as does temperance, for example; it 
only considers what is owing to another, what is his due ; and 

1 Exod. xx 15. 2 Exod. xx 17. 

222 



THE NATURE OF JUSTICE AND RIGHT 223 

because it is the right thing that everyone should have his own, 
justice inclines to give it to him. 

What is due to another in justice and is therefore his strict 
right must be distinguished from what a man has a claim to 
on some other ground. A poor man who cannot support 
himself has a claim on our help, but out of charity, not out 
of justice. He is our brother ; he is a child of our common 
Father in heaven ; he is destined to be a fellow- citizen with us 
' for ever in the kingdom of heaven ; the bond of mutual love 
which binds all such in one body, and makes them one big 
family, requires that all who can, should, out of their abund- 
ance, assist those who are in want. But this does not cause 
the abundance of one to belong to a needy neighbour in justice ; 
it only prescribes that as much as is required to succour him 
in his necessity should be given him out of charity. A sufferer 
who is in pain has a claim on my sympathy and pity, not that 
it would be unjust to deny him my sympathy, but because 
pity and compassion require it of me. But when ten pounds 
are due to another in justice, those ten pounds belong to him; 
they are his property ; he has a right exclusive of all others to 
all the benefit that can be derived from them, because they 
are his. Because they are his he can dispose of them as he 
pleases ; he can put them in the bank, or spend them, or give 
them away; he would wrong no one even if he threw them 
into the sea. Anyone who steals them, or to whom he lends 
them, must, if he would be just, restore them to the owner, 
because justice requires that all should have their own. 

2. We may divide the species of justice into individual or 
commutative and social justice. 

Commutative justice regards the relations between man and 
man in their private and individual capacity. It supposes a 
perfect distinction of rights between them, and prescribes 
that these should 'be duly observed and respected. It exists 
between physical and moral persons alike, or between a physical 
and a moral person, provided that their rights are perfectly 
distinct from each other. 

Social justice regulates the mutual relations between the 
individual and the society or State to which he belongs. As 
a member of society the individual has certain duties toward 
it; he must contribute his share to the common burdens; he 
must be ready to defend the common weal at the call of 
authority; he must obey just and equitable laws. This duty 
of rendering to the State what is its due is called legal justice. 
On the other hand, the State has its obligations toward its 



224 PRECEPTS OF THE DECALOGUE 

subjects; it must distribute burdens, honours, and rewards 
equitably without showing favour to particular classes and 
persons; not indeed with absolute arithmetical equality all 
round, but according to respective merits. The virtue which 
should regulate the distribution of burdens and rewards among 
its subjects by the State is called distributive justice. To such 
as have committed crime and injured the common weal the 
State metes out condign punishment according as vindictive 
justice demands. 

There is a difference of opinion among Catholic writers as 
to whether legal, distributive, and vindictive justice, which we 
have grouped together under the name of social justice, are 
really subordinate species of the virtue, or whether commu- 
tative justice is the only species that may in strictness be so 
called. Whatever view be taken we must allow that in com- 
mutative justice alone is there a perfect distinction between 
debtor and creditor; it alone observes arithmetical equality in 
satisfying its obligations; it alone binds to restitution after 
being violated. In social justice, on the contrary, there is no 
perfect distinction between the State and its subjects; social 
justice does not prescribe the observance of arithmetical 
equality, nor does its violation bind to restitution, except 
when by the same act commutative justice has also been 
infringed. 

3. That which in justice is due to me is my right, as it is 
called. I have a right to my life, to my good name, to my 
property; and anyone who deprives me of these rights is .guilty 
of injustice. Rights, then, are the subject-matter of justice, 
and in this, its strict sense, a right may be defined as a moral 
power of having, doing, or exacting something. 

It is said to be a moral power to distinguish it from the 
mere physical capacity of brute force, which confers no rights 
of itself. It is a moral power which may not without injustice 
be interfered with. It is the power of having and possessing 
as one's own something which man values and which serves 
his convenience and wants; or of doing something, of giving 
scope to his bodily or mental activity; or of exacting some 
service as due to him from another. 

A right is in re or ad rem. A right in re is a right which one 
has to something determined and already his own. In order 
that one may have a right in re the object must already exist; 
it must not be merely possible or future ; it must be determined 
and separate ; it must belong to the person by a title of justice 
so that it is his. If one of these conditions is wanting but 



THE NATURE OF JUSTICE AND RIGHT 225 

notwithstanding someone has a claim in justice that something 
should become his property, he has a right ad rem to it. Thus 
a farmer has a right in re to his harvest after he has gathered 
it ; before it has grown he has only a right a d rem. The right 
of a servant to his wages is ad rem until they are paid ; after 
they are paid his right is in re. 

A right in re seems to be practically equivalent to ownership 
(dominium). Ownership is absolute or qualified. Absolute 
ownership is the unlimited power of disposing of a thing for 
one's own benefit. The absolute owner of a horse may use 
him, sell him, give him away, or kill him, without violating 
justice ; he may do what he likes with his own. If ownership 
is limited in some way so that the owner has not a right to all 
the uses to which the object may be put, the ownership is 
qualified. Qualified ownership of the thing while its use 
belongs to someone else is called direct; qualified ownership 
of the use of what belongs to someone else is called indirect 
ownership. 

According to English law, a subject is incapable of absolute 
ownership of realty ; he is only capable of a qualified ownership 
therein, although to all intents and purposes an estate in fee 
simple is equivalent to absolute ownership. A qualified 
property of many {different kinds may be [had in realty, and 
both an absolute and qualified property of many different 
sorts may be had in movables. The various kinds of property, 
especially in immovables, are recognized and determined 
by law, which enforces the rights and obligations annexed 
thereto. In different systems of law there will be different 
kinds of property recognized. It will be sufficient for our 
purpose merely to mention ususfructus, usus, habitatio, servitus, 
of the Roman and canon law. 

In English law the quantity of interest which a man has 
in lands and tenements is called an estate, of which there is 
a great variety : equitable and legal estates ; estates of inheritance 
and not of inheritance; estates of freehold interest and less 
than freehold, such as estates for years, estates at will, and 
estates at sufferance. 



15 



CHAPTER II 
OBJECTS OF OWNERSHIP 

i. WE will here consider the various objects which can be 
owned by men, and to the exclusive use of which they can 
lay claim as being due to them in justice. We saw above that 
God has reserved to himself the dominion of human life ; he 
is the God of life and of death, so that an injury is done to 
God by suicide or by unjustifiable homicide. Not even the 
State can have the absolute ownership of human life; it can 
never directly kill the innocent, although, as far as the common 
good demands it, the State may take the life of malefactors, 
and may require that each and all should be ready to defend 
the common weal even at the risk of life itself. No one, then, 
but God has the absolute ownership of human life or of man's 
limbs and members. 

Each one, however, has a qualified ownership in the faculties 
which God has given him. His activities of mind and body 
have been granted to man that by using them in a proper 
way he may do good and avoid evil, and thus secure the end 
of human existence. A man, therefore, is under the obligation 
imposed by God of making use of his mental and bodily 
faculties, and he has a consequent right to do so, as far as 
he does not thereby injure others. 

When man by his labour has produced something which 
serves his wants and convenience, he has a right to the fruit 
of his toil ; this is his property, and he cannot be deprived of it 
without injustice. This applies to what he has produced with 
his own toil, out of his own material, with his own resources. 

A man's reputation, then, inasmuch as it is the fruit of his 
merit and industry, is his property, and he cannot be un- 
warrantably deprived of it without injustice. He may, how- 
ever, surrender it himself for good reason ; he may write his 
confessions, like St Augustine, for the purpose of self-humilia- 
tion and for the instruction and edification of others; other- 
wise he must have a care of his own good name, without which 
he can do little good, and may do great harm to others. 

2. Similarly, by the law of nature a book, design, or com- 
position belongs to the author, and a new invention to the 

226 



OBJECTS OF OWNERSHIP 227 

inventor. These things and others of the same kind are the 
fruit of the author's or inventor's thought and labour, and 
anyone who stole them and published them without their 
owner's consent would commit a sin against justice. 

Among modern civilized nations these rights are protected 
by municipal laws and international agreements, and, inasmuch 
as these determine the vague and uncertain prescriptions of 
the natural law, they bind in conscience. 

The exclusive right of printing or otherwise multiplying 
copies of books, etc., is called in English' law copyright. It 
extends not only to books, but to every volume, part, or 
division of a volume, pamphlet, sheet of letterpress, sheet 
of music, map, chart, or plan separately printed; to engravings, 
prints, sculpture, models, busts, paintings, drawings, photo- 
graphs, designs, dramatic and musical representations. 

Copyright is protected throughout, the British dominions and 
the principal countries of Europe, which form the Copyright 
Union. On certain conditions copyright is now protected 
in the United States of America, and foreign authors may 
acquire copyright within the States by complying with those 
conditions. 

English law grants copyright for the author's natural life 
and for fifty years longer. 

In the United States the original terms run for twenty- eight 
years; it may, however, be renewed for a further term of 
fourteen years, making forty-two years in all. 

In the same way patent right, or the right of the inventor 
to reap the benefit of a new contrivance, is protected in England 
on certain conditions for fourteen years, which protection 
may be extended for a further period of seven or fourteen 
years if the inventor has not yet reaped the full benefit of his 
invention, and such patent is for the public benefit. The 
period to which patent right extends in the United States is 
seventeen years. 

There is a controversy among theologians as to whether the 
natural law of itself forbids the reissue by another without 
the author's consent of a book which has once been published. 
Some deny this on the ground that by being published, apart 
from the prescriptions of positive law, a book 'becomes public 
property, and anyone who buys a copy may make what use 
of it he pleases. He is merely disposing of what is his own. 
The contrary opinion, however, seems better grounded, for 
the author in publishing a book makes over indeed to the 
buyers of it certain advantages, but there is nothing to prevent 



228 PRECEPTS OF THE DECALOGUE 

him reserving the right of issuing it again to himself. The 
buyer of a copy may make the contents of the book his own 
and work them up again in any form of his own that he chooses ; 
he buys the material part of the book, paper, binding, etc., 
and may make what use of them he pleases ; but he does not 
purchase the right to issue the book again, and he violates 
justice if he does so against the author's wish. The same 
holds with regard to patent right. 

This controversy is of little practical importance, for suffi- 
cient protection is provided in most civilized countries by 
positive law. 

3. We saw above that no one except God can have an 
absolute property in man's life or members. No man, then, 
can become the chattel of another so that he may lawfully 
be disposed of like a brute beast. Christian teaching has 
banished such an idea from Christendom at least. On the 
other hand, there is no difficulty in admitting that one man 
may make over his services to another for as long as he pleases. 
Theoretically, therefore, there seems no reason for saying that 
slavery is against the law of nature. We here understand by 
the term the state of perpetual subjection of one to another 
so that he owes that other his life service in return for board, 
lodging, and clothes. Practically, great abuses usually accom- 
panied slavery, and we must allow that it is out of harmony 
with the spirit of the Gospel. Chiefly through the wise and 
gradual action of the Church, it has ceased to exist as an 
institution among civilized nations. However, we must not 
forget that penal servitude is still the just and recognized 
punishment for grave crime. Merely looking at the question 
from the point of view of the strict law of nature, we must 
acknowledge that a state of slavery arising from contract, or 
birth, or in punishment for crime, or as the result of a just 
war, is not in itself immoral. 

4. Animals and the earth, together with all that they pro- 
duce, may become man's absolute property. God has imposed 
on him the obligation of maintaining himself and those who 
are dependent upon him, and he has a consequent right to 
make his own whatever is necessary and useful for that pur- 
pose, if it has not been appropriated by someone else. He 
has a right to provide not only for his immediate wants, but 
for the future also ; not only for himself, but for his offspring. 
In other words, nature herself gives man the right of private 
property. This right is not given by the State; it is anterior 
to the State, and its preservation and defence is one of the 



OBJECTS OF OWNERSHIP 229 

chief reasons for the existence of the State. It may indeed be 
regulated by the State, as far as is necessary for the common 
good, but it is beyond the power of the State to do away with 
it. 1 No Catholic is at liberty to deny the lawfulness of private 
property and its necessity in the general conditions of the 
modern world. 

Socialists, indeed, advocate the nationalization of the land 
and of all the means of production and exchange as a sovereign 
cure for the economic evils of the world. The plan militates 
against the right of private property; it is unworkable, and 
even if it could be introduced it would be no cure for exist- 
ing evils, and would introduce other new ones. The fuller 
treatment of this, a practical question in our days, scarcely 
belongs to moral theology; it is not in the confessional that 
such questions are treated. The student should consult 
books on ethics, or special works written on socialism or 
collectivism. 

1 Leo XIII, on the Condition of Labour, May 15, 1891. 



CHAPTER III 
WHO MAY OWN PROPERTY 

SECTION I 
General Principles 

i. NONE but an intellectual being endowed with intellect 
and will can own property. For such alone, or persons as 
distinct from things, are the subjects of rights ; persons alone 
can freely dispose of objects which are necessary or useful for 
the attainment of man's destiny. Persons alone can suffer 
a formal injury by the wilful violation of their rights against 
their will, and so they alone are capable of having rights and 
holding property. 

2. God, who is the Creator of all things, is also their uni- 
versal Lord and Master. He can do what he pleases with 
his own ; however he may treat his creatures, they cannot com- 
plain of God's injustice toward them. He is bound only by 
the laws of his own infinite Goodness and Wisdom. 

Other pure spirits whom God has created might con- 
ceivably have rights of ownership, but as they have no use 
for material things with which we are specially concerned, we 
need not further consider them in this connection. 

3. All men, even imbeciles, who will never have the use of 
reason, and infants still unborn, are subjects of rights and 
capable of holding property. For they all require many things 
for their support,, preservation, and defence, for the perfect 
development of all their faculties, mental and bodily, and for 
the orderly and secure attainment of their end. As, then, they 
are under the obligation of striving for the attainment of their 
end, and they have the right to do so, they have also the right 
to the necessary means. This reasoning is not invalidated by 
the incapacity of infants and imbeciles to use their faculties 
and administer their property. Their rational nature gives 
them their rights ; their capacity to use them is not a necessary 
condition of their existence. A man who is asleep retains his 
rights, though he cannot then exercise them. Besides, what- 
ever defect there might be in the title of infants and imbeciles 
to the rights of men is supplied by the provisions of positive 

330 



WHO MAY OWN PROPERTY 

law, which confers rights of property independently of the 
knowledge or acceptance of the owner. 

4. Inasmuch as man is a social animal, and develops his 
faculties in the society of his fellows, whose help he constantly 
needs, nature herself has given him the right to form private 
societies, companies, or corporations, for the furtherance of 
common ends, independently of that larger public society 
which we call the State, and to which all belong. As Leo XIII 
teaches: "Private societies, then, although they exist within 
the State, and are severally part of the State, cannot neverthe- 
less be absolutely and as such prohibited by the State. For 
to enter into a society of this kind is the natural right of man ; 
and the State is bound to protect natural rights, not to destroy 
them; and if it forbid its citizens to form associations, it 
contradicts the very principle of its own existence; for both 
they and it exist in virtue of the like principle namely, the 
natural tendency of man to dwell in society." 1 

The State, of course, has the right of control over such 
societies as are founded for civil purposes, and they are subject 
to the just laws which the State may make in their regard. 
English law acknowledges both corporations aggregate, con- 
sisting of more than one person united for the purpose of 
pursuing a common end, and corporations sole, consisting 
of but one person like the sovereign or the rector of a church. 
A corporation is a moral entity, a fictitious person, with rights 
of its own, distinct from the rights of the physical persons 
who compose it. As far as property is necessary for the 
attainment of its end, a corporation has the right of ownership, 
though this right is subject to the control and regulation of 
the supreme authority. Leo XIII in his encyclical on labour 
warmly approves of workmen forming their own unions and 
societies for the defence of their rights and the furtherance of 
their welfare. 

SECTION II 
Property Rights of Minors 

i. Apart from positive law, a minor is capable of owning 
property in his own right just as if he were of full age. Con- 
siderable rights over a child's property were granted to the 
father by Roman law. The minor had, indeed, complete 
ownership of what he earned by military service or by any 
public office, but the usufruct of what came to the son in other 

1 Encyclical on the Condition of Labour, May 15, 1891. 



232 PRECEPTSKOF THE DECALOGUE 

ways belonged to the father. Similar rights are commonly 
granted to the father by those modern systems of law which 
are derived from the Roman. According to English law, 
however, the father as such has no rights over any property 
which belongs to his child. During the child's minority, if 
no trustee or guardian of his property has been appointed, 
the father will usually be appointed guardian, and in that 
capacity he is bound to administer the property for the benefit 
of his child, nor may he use it for his own profit. 

On the other hand, English law gives no right to children 
to share in their father's property except in case of intestacy, 
differing in this also from the Roman and derived systems. 
The parent may by our law leave his property to whomsoever 
he will, unless, of course, it is entailed. If a father die intestate, 
one-third of his real estate, if he was possessed of any, goes 
to his wife as dower, unless it is barred as it is in the majority 
of cases ; the rest goes to the eldest son or his issue, or if there 
were no son the rest is divided equally among the daughters. 
Of the personal estate of a father who died intestate one-third 
goes to the widow, and the other two-thirds to the children 
in equal shares. 

2. A child who has the means is under a moral obligation 
of supporting his parent when he is incapable of supporting 
himself, and this obligation is enforced by English law. 

Moreover, if a minor is earning wages the parent is not 
bound to support him free of cost, and until he is sixteen it 
would seem that the parent is justified in taking his earnings. 
Even after that age it may well be that an elder son or daughter 
who is in receipt of wages is bound to help to support younger 
brothers and sisters if the family is numerous. Apart from 
these obligations a minor acquires a full right to what he 
earns, and may enter into a contract with his parents for the 
payment of the cost of his board and lodging, reserving what is 
over of his wages for himself. If a minor works in his father's 
house no contract for wages will be presumed ; he is supposed to 
forego them, or his keep is supposed to be an equivalent, unless 
an express contract for wages is entered into between them. 

3. Minority ceases on the completion of the twenty-first 
year of the minor's age, or by emancipation. A minor is 
emancipated from his parents' control by marriage, by entering 
into religion, or when an adult child leaves the paternal house- 
hold and enters the army or ordinary service as a domestic 
servant or labourer. 1 

1 Eversley, Law of the Domestic Relations, p. 599. 



WHO MAY OWN PROPERTY 233 

SECTION III 
Property Rights of Married Women 

1. The fact that a woman marries does not of itself take 
away or lessen her natural capacity to possess property. Her 
husband is indeed the head of the family, and is presumed to 
be better able to administer family affairs than his wife. More- 
over, the law of England used to give the husband very exten- 
sive rights over his wife's property. For in general any 
freehold estate of which the wife was seized at the time of the 
marriage, or of which she became seized afterwards, became 
vested in her husband and herself during the coverture, and 
the husband was entitled to the profits, and had the sole control 
and management. By marriage a husband became possessed 
of his wife's leaseholds in her right. He was not only entitled 
to the profits and management of them during the joint lives, 
but he could dispose of them as he pleased by any act during 
the coverture. The personal chattels of the wife became in 
general the absolute property of the husband. 1 

By degrees inroads were made on the rigour of the common 
law, and means were found to secure separate property to 
a married woman. By the Married Women's Property Acts 
of 1870 and 1882 great changes were introduced, so that now 
a woman married after the first day of January, 1883, possesses 
as her separate estate all her property," whether acquired before 
or after the marriage. All women who were married before 
the above date similarly possess as their separate estate all 
property which comes to them after that date. Practically, 
therefore, during her life and that of her husband a married 
woman has rights of property as if she were single. 

Furthermore, she has a right to support for herself and her 
children, even those of a previous marriage, at her husband's 
expense, according to her condition in life, and she may effect 
an insurance on her own or on her husband's life for her 
separate use. ' 

2. Besides the foregoing advantages a married woman who 
survives her husband is entitled to dower, unless some act has 
been done to curtail her right that is, she is entitled to hold 
to herself, for the term of her natural life, the third part of all 
the lands and tenements of which he died seized in fee simple 
or fee tail, and of which any issue that she might have had 
could have been heir. 2 

1 Stephen's Commentaries, z, p. 277. 2 ibid., p. 283. 



234 PRECEPTS OF THE DECALOGUE 

If her husband dies intestate and without issue, the widow 
is entitled to the whole of her husband's estate, both real and 
personal, when such estate does not exceed five hundred 
pounds in value; if over that amount she takes five hundred 
pounds out of the real and personal estate ratably before any 
division is made, and after that the share in the remainder 
to which she was entitled before the passing of the Intestates' 
Estate Act, 1890. 

Before the passing of this Act a widow of a husband who 
died intestate took one-half of the personalty if there were 
no children of the marriage, otherwise she took one-third. 
Moreover, one- third of the intestate's real property went to the 
wife for life. These rights, therefore, she still possesses. 

3. A married woman can now make a will and leave her 
separate property according to law to whom she pleases. In 
conscience she must of course take account of the needs of 
her surviving relatives and of other legitimate claims on her 
remembrance. If she dies intestate, all her personalty goes 
to her husband ; her realty also goes to him for life, afterwards 
to trie only child, or to the eldest son or his issue if he be dead, 
or to the daughters equally. 



SECTION IV 
The Right of the Church to Possess Property 

i . We have already seen that not only physical persons but 
also corporations or societies can own property. The Church 
is a perfect, independent, and visible society founded by 
Christ our Lord, and endowed by him with all the rights 
and privileges which are necessary to enable her to attain her 
end. This end is the sanctification and salvation of souls 
by the preaching, propagation, and exercise of the Christian 
religion. It is obvious that for the support of the Church's 
ministers and missionaries, for the building and upkeep of 
churches, for the decent and proper exercise of religious 
worship, and for numerous other purposes, ample revenues 
and lands are required, and, inasmuch as the Church has the 
obligation and the right to work for the end for which she 
has been founded by God, so she has the right to the necessary 
means. This reasoning is confirmed by the condemnation 
by the Popes of several false propositions bearing on the 
Church's right of ownership 1 (Can. 1495). 

Props. 10, 32, 33, 36 of Wyclif; and Prop. 26 of the Syllabus. 



WHO MAY OWN PROPERTY 235 

2. The general truth that the Church has a right to own 
movable and immovable property is certain, and does not 
depend for its validity on the question as to .who is the definite 
owner of Church property. This was a disputed question, 
some theologians maintaining that God is the immediate as 
well as the ultimate owner, inasmuch as Church property is 
said to be given to God; others taught that the universal 
Church or the Pope is the owner ; others, again, that the cor- 
porations constituted by individual churches, dioceses, religious 
congregations, and orders are the real owners of the ecclesiastical 
property belonging to those institutions. This last opinion 
is commonly accepted nowadays, and it seems more in keeping 
with the intention of the donors of such property, which is 
usually the benefit of a particular religious institution for the 
honour of God, and in this sense they make their offering to 
God (Can. 1499, sec. 2). 

The administration and management of Church property 
belong to those ecclesiastics who have been lawfully placed 
over the churches, dioceses, institutes, etc., to which the 
property belongs ; and the Pope as the supreme head of the 
Church on earth has the supreme administration, or the altum 
dommium, as it is called. 1 

3. The profits derived from ecclesiastical property should, 
according to the Church's law and natural equity, be devoted 
to those purposes for which the donors gave the property. 
If this cannot be done because the object for which the property 
was given no longer exists or for some other legitimate cause, 
it is for the Pope to make the needful dispositions so that the 
intention of the donors may be carried out as far as possible 
(Can. 1514). 

No immovable ecclesiastical property, or even movable 
when it is of considerable value, may be alienated without the 
leave of the Holy See, and the penalty of excommunication 
is incurred by all who attempt to do so or to receive the same 
without the requisite permission. The Pope for good cause 
may of course alienate Church property, as he has not in- 
frequently done, especially in times of upheaval, as after the 
Reformation in England and after the French Revolution 
(Can. 2347). 

1 Can. 1519-1521, etc. 



236 PRECEPTS OF THE DECALOGUE 

SECTION V 
Property Rights of Clerics 

i . We do not propose to treat here of the capacity of religious 
to own property; that question will be best considered when 
we treat of the state of religious. Here we only inquire into 
the property rights of the secular clergy. 

The property of the clergy is divided by theologians into 
four kinds. What they possess as private persons, whether 
it has been given or bequeathed to them or they have inherited 
it, is called their patrimony. Quasi-patrimony is what they 
have obtained by the exercise of their ministry in stole fees, 
stipends, and casual offerings. Ecclesiastical goods are derived 
from the revenue of benefices. Savings are what a cleric has 
acquired by living sparingly and which he might have spent 
by living according to the ordinary standard. 

Of these different kinds of property, patrimony and quasi- 
patrimony belong to the cleric; they are his private property, 
of which he has the ownership just like anybody else, for he 
is not deprived of the right to possess property by becoming 
a cleric. What he saves also from what he might have spent 
lawfully on his support belongs to him, for the labourer is 
worthy of his hire ; he has a strict right to a decent living from 
the revenues of the Church, and what he saves from the sum 
required for this belongs to him as his own. 

There is a difficulty concerning the profits derived from his 
benefice if the cleric has one. He may, of course, use the 
income derived from this source for his maintenance accord- 
ing to his rank; but supposing that a balance remains over, 
what must he do with that ? Ecclesiastical law prescribes 
that he must employ it for pious purposes, and must not 
squander it or enrich his relations with it. He is bound under 
pain of sin to give it to the support of religion, or to the poor, 
or for educational or other pious causes. If he does not do 
this, he certainly sins against obedience; but does he also sin 
against justice, and is he therefore bound to make restitution ? 
This is a disputed question among divines. The more 
probable opinion is that he does not sin against justice and so 
is not bound to restitution; for the income derived from his 
benefice is his own property, and he may do what he pleases 
with his own, unless there be some law which restricts his 
free disposal of his property. In this case there is such a law, 
which must be observed, but which for all that does not make 



WHO MAY OWN PROPERTY 237 

an act which it prohibits unjust; it only makes it unlawful 
(Can. 1473). 

2. In English-speaking countries there are few well-endowed 
benefices, so that in general the clergy have to be supported 
by the offerings of the faithful. As Leo XIII says in his 
Constitution Romanos Pontiftces, May 8, 1881, the offerings 
of the faithful were not regarded as ecclesiastical property 
where religion and the clergy were sufficiently provided for 
from other sources. In Britain, however, the offerings of the 
faithful are almost the only means available for the maintenance 
of divine worship, the building and repair of churches and 
schools, the support of charitable institutions and of the clergy. 
Hence it becomes a matter of importance to be able to decide 
what offerings belong to the clergy as their own property, 
and what constitute ecclesiastical property and belong to the 
Church. Of the latter property the clergy are only the ad- 
ministrators, and they are bound to render an account of their 
administration to their superiors and to God. Rules for 
settling what offerings are private and what ecclesiastical 
property were drawn up by the Second Provincial Synod of 
Westminster, approved in the year 1856; and Pope Leo XIII 
sanctioned those rules and ordered them to be observed 
wherever his Constitution Romanos Pontifices should be in 
force. I here give Father Guy's version of the rules : 

" (i) Offerings of the faithful for the propagation and orna- 
ment of religion, for the support of the clergy, the relief of 
the poor, and other pious uses, are considered as made to God 
and the Church, and the administrators or guardians of them, 
whether ecclesiastics or laymen, are to be deemed merely 
dispensers of them, under an obligation of rendering an 
account to God of their stewardship. As here now it is 
required among the dispensers that a man be found faithful 
in those things which concern the rightful administration of 
Church property, it seems proper that in this synod we should 
treat this matter more fully, inasmuch as having been occupied 
with matters more important in the First Provincial Council, 
we deferred the consideration of this subject to a more con- 
venient opportunity. 

" (2) Every effort must be made to determine, if there be 
any doubt, the intention and purpose of the donor or testator 
of each fund, and that the proceeds of it may be rigidly applied 
to the use prescribed by him. 

" (3) If this intention cannot be ascer ained from any 
trustworthy document, rules or canons by which a safe 



238 PRECEPTS OF THE DECALOGUE 

judgement may be formed in such cases should be ob- 
served. 

" (4) Whenever a church or school or any other building 
intended for religious uses is erected or provided, either 
wholly or in part, from money contributed by the faithful, 
or granted by any society administering the alms of pious 
Catholics, every edifice of this kind is to be considered as 
belonging for ever to the place where it stands. 

" (5) The same judgement must be passed on buildings 
erected by any benefactor, unless it is clearly proved that he 
made a declaration that in erecting such an edifice he did not 
intend it for the advantage of the faithful of that place, but 
that he wished to confer a benefit on some particular order. 
The rules laid down in this and the preceding number as to 
rights in foundations are in the case of Regulars to be applied 
to new foundations only. 

" (6) But the Bishop shall not be allowed on this account 
to take away a mission lawfully entrusted to any religious order. 
These rules regard merely a case in which a religious body 
either cannot or will not retain the care of a mission for 
example, if a superior remove it to some other place, or for 
any other reason it there cease to exist altogether and not 
for a time only. 

" (7) If, however, any mission be founded altogether or for 
the most part by funds belonging to any religious body, which 
for good reasons may wish to leave entirely and go elsewhere, 
we recommend that a distinct agreement be made between 
the Bishop and the superiors of the order as to what has to 
be done ; so that on the one hand just rights may not suffer, 
and on the other no scandal may arise nor grievous loss of 
souls ensue. 

" (8) Much less is it lawful for any cleric, or even for the 
Bishop himself, to alienate Church property, as is evident 
from almost numberless decrees of canon law. If, however, 
on account of reasons approved of by the canons, such an 
alienation become necessary, the priest can never act in this 
matter without the authority of the Bishop, nor the Bishop 
without the precautions required by canon law. 

" (9) In every mission where money is contributed by the 
faithful in the ways hereafter described it is to be accounted 
Church property, and not a donation to the priest. For from 
this money he must provide not only for his own decent 
support, but for the expense of religious worship, for the 
maintenance of the fabric, for payment of debts, where there 



WHO MAY OWN PROPERTY 239 

are any, and for other wants. Wherefore, if any priest leave 
a mission during the course of the year, he has not a right 
to his proportion of the yearly income until the amount justly 
due for expenses be deducted. In like manner, what he has 
provided for the use of the church from the income of the 
church for example, wax candles, wine for the most holy 
Sacrifice, sacred furniture these he should leave behind him, 
without any compensation, unless he can clearly show that 
the supply is excessive. 

" (10) All are aware that there are now in operation different 
methods of raising money for the support of missions. The 
following in particular we do not disapprove of, till the charity 
of the faithful shall provide in a better way. They are: 
(a) Letting of seats or places in the church to certain persons 
or families at a fixed rent to be paid to the church, (b) Church 
collections made at the Offertory, (c) According to a custom 
prevailing generally in England, payment of a fixed sum, 
according to the part of the church which they occupy, by 
those who do not rent seats, yet are not content to occupy 
what is called the free space, (d) Sermons by some distin- 
guished preacher of the word of God, after which the alms 
of the congregation, whose number is often swelled by a con- 
course of strangers, are collected for the general or particular 
use of the church or for some special purpose, (e) Collec- 
tions which are either made from house to house, by persons 
appointed for the purpose, or by societies and confraternities 
lawfully appointed, or which are gathered from tens or hundreds 
as is done in the excellent society called the Society for the 
Propagation of the Faith, or contributions made by the more 
wealthy portion of the congregation at fixed times or yearly. 

" (n) Although it is certainly much to be desired that many 
of these methods of maintaining the Church were done away 
with, yet experience has taught that it is as yet impossible 
altogether to dispense with them. Wherefore, in those places 
where one or more of these methods prevail, they ought to 
be so kept on that no innovations be introduced without the 
authority of the Bishop. Especially the free space should 
not be diminished nor narrowed without consulting him. 
But whatever money comes to the mission by these means, it 
should be considered as belonging not to the priest personally, 
but to the general wants of the mission. Therefore, whatever 
furniture, either sacred or domestic, he acquires from these 
sources, or whatever he expends in keeping in repair the 
church or other buildings in any way belonging to it, in this 



240 PRECEPTS OF THE DECALOGUE 

expenditure he is not making provision for himself, but is 
providing for the mission from mission property. 

" (12) As soon, therefore, as any priest enters on a mission, 
an inventory of all property belonging to the mission should 
be placed in his hands by the dean or by someone deputed 
by the Bishop. The missionary is bound to keep the furniture 
and buildings in good repair, yea, rather to improve them, 
that he may deliver to his successor as much at least as he 
received himself. Should he provide for the renewing of 
what is grown old and mean, or procure something new and 
more elegant to ornament the place, a distinction must be 
made as regards the sources from which the expense is defrayed. 
(a) If the priest has procured these things from his own 
property, or from the gifts of friends well disposed towards 
him, or in fine, from that portion of the income of the church 
which he might have expended on his own decent maintenance, 
they are to be considered as his own property, provided he has 
kept all that he received in good order. (6) But if these things 
were procured out of the general revenues of the church, or 
by gifts and collections from the congregation, or by money 
granted by the Bishop or the administrators of the tempor- 
alities of the diocese, they are to be deemed entirely the property 
of the mission, nor is it lawful for the priest on any account 
to claim them. 

" (13) It is also to be generally understood according to a 
rule of canon law that things adapted for ecclesiastical purposes 
given to a missionary are, unless there is proof to the contrary, 
given to the mission; but things adapted for personal use are 
presumed to be given to the priest personally, as, are also such 
church things as are given by a flock to a priest as tokens of 
gratitude or affection. 

" (14) Retributions for Masses are the property of the priest. 
In like manner, where it is the custom, which is a very ancient 
one in England, of making presents to each priest at Easter 
and Christmas, these gifts of right belong to them. But the 
priest should be on his guard lest he incur the suspicion of 
avarice, by receiving anything on account of his administering 
the sacrament of Penance. 

" (15) As to the application of money derived from stole 
fees, there is no uniform practice throughout the whole Church. 
For though the Church detests all filthy lucre in extorting or 
exacting money for the administration of the sacraments, yet 
the Council of Lateran, held under Innocent III in the year 
1215, prescribed that the laudable customs in accordance with 



WHO MAY OWN PROPERTY 241 

which offerings were made by the faithful to the ministers of 
the altar, on occasion of the administration of the sacraments, 
should be observed. The proceeds derived from this source 
should be ordinarily considered as belonging to the priests; 
though they are distributed in different ways in different 
places. That distribution seems to be the best which is 
most conducive to alleviate the burthens of the mission. 

" (16) Whilst, therefore, we forbid anything to be asked for 
and much more anything to be exacted before the celebration 
of baptism and matrimony, and even after the celebration as 
a right, we leave it to the prudence of Bishops to determine 
in their diocesan synods what seems best adapted to the 
customs and state of places. Especially should they most 
vigilantly correct all abuses, if any exist, as to the amount or 
to the exaction of these offerings, by enforcing everywhere 
an equitable arrangement." 

These provisions seem to be in harmony with Canons 1182, 
1519-1528, etc., of the new Code, and so it would seem that 
they are still in force. 



i. 



16 



CHAPTER IV 
ON TITLE TO PROPERTY 

TITLE is a cause sufficient to confer property in a thing. There 
are several kinds of title, some derived from the natural law, 
others due to positive law, and others which have their effect 
from the will of private -persons. They may be reduced to 
title by occupation, by accession, by prescription, and by 
contract. On account of its importance and the abundance 
of material we will treat of contract in a separate Book; the 
other three titles must be considered here. 

SECTION I 
On Occupation 

i. Occupation is the taking possession of some material 
thing with the intention of making it one's own. It will be 
a lawful title to ownership of property if the thing occupied 
had previously no owner, and actual possession is taken of it 
with the purpose of making it one's own. If these conditions 
be fulfilled, it seems useless to investigate further how occupa- 
tion is capable of conferring property. Whether the fact of 
occupation sanctioned by the community is sufficient, or 
whether we say that by occupation a man's latour is mingled 
with the thing, and thus the connection of ownership is set 
up, is really immaterial. It is a title universally acknowledged 
and is derived from Nature herself. 

As is clear from the definition, there cannot be occupation 
without actual, or at least constructive, taking possession of 
the thing, whether it be movable or immovable; it is not 
sufficient merely to see the thing at a distance, nor is it enough 
to take hold of it with the intention of seeing what it is, without 
any idea of retaining it for one's own. 

Most things of value, especially the land, have owners 
already, and so a title to ownership by occupation can only 
arise with reference to certain classes of property which are 
not of very great importance. In moral theology this title is 
at the root of ownership derived from finding lost property, 
treasure- trove, and the capture of fish and wild animals. 

242 



ON TITLE TO PROPERTY 243 

Here English law only partially agrees with what seems safe 
in conscience. 

2. The finding of things of value without an owner confers 
ownership in the things found if they be taken possession of 
with the intention of making them one's own. Whether they 
ever had an owner or not is immaterial in conscience, provided 
that they have none at present. English law, indeed, grants 
property which belonged to someone who died intestate and 
without heirs to the Crown, under the name of bona vacantia, 
and when such property is claimed by the Crown, its title of 
course prevails. If the Crown does not claim the property, 
the first who should occupy it would seem to be safe in con- 
science if he kept it. The same doctrine may be applied to 
wreck found, which positive law requires to be delivered to 
the receiver of the district, and this officer, if no owner appear 
within a year, sells the same and pays the proceeds into the 
Exchequer. ' 

3. Any money, coin, gold, silver, plate, or bullion, found 
hidden in the earth or other private place, the owner thereof 
being unknown, is called treasure-trove. By English law it 
belongs to the Crown, but if the Crown does not claim it, the 
finder would be justified in keeping it. 

4. One who finds property that has recently been lost may 
be bound in charity to take possession of it and try to discover 
the owner, but there is no obligation to do so in justice. If, 
however, he take possession of it, he is bound in justice to 
take reasonable care of it, and to use ordinary diligence to 
discover the true owner. On the true owner being discovered 
the finder has a right to be compensated for any expenses he 
has been put to in consequence of keeping the property, but 
he must deliver it up to the owner. As English law does not 
grant prescription in movables, this doctrine will hold even 
though the owner be discovered after the lapse of years; if 
the property still remains intact or in its equivalent, it belongs 
to the original owner and must be restored to him. The 
finder of lost property acquires thereby a qualified property 
in it which is valid against all save the true owner, and if the 
true owner cannot be discovered within a reasonable time, the 
title of the finder becomes absolute, and he may use it as 
his own. 

5. Animals are either domestic, tamed, or wild. The 
property in domestic animals such as dogs, sheep, kine, pigs, 
always remain with the owner, however much they may stray, 
as long as they are not so utterly lost that there is no hope 



244 PRECEPTS OF THE DECALOGUE 

of finding the owner. Such animals always belong to their 
original owner as long as he can assert his ownership over 
them, in the same way as his household furniture belongs to him. 
Wild animals which enjoy their natural liberty and go where 
they please belong as a general rule to him who first captures 
or kills them. Such a one makes them his own by occupation, 
for before he took them they belonged to no one. English 
law has modified this general rule to some extent, for if a 
trespasser capture or kill a wild animal on another person's 
land, it belongs to the owner of the soil on which it has been 
started and killed ; if a trespasser start an animal on one person's 
property and kill it on another's, it belongs to the owner of 
the former. These rules of positive law give the owner of 
the property at least the right to vindicate his claim, which 
cannot then be lawfully resisted by the trespasser. 

Animals which have been tamed, such as pigeons, bees, 
young pheasants that have been hatched under hens, belong 
to their owner as long as they retain the habit of returning to 
his premises, but if they lose that habit and recover their 
natural liberty, they belong to the first who takes them, like 
wild animals. Animals which are enclosed like deer in a park, 
rabbits in a warren, or fish in a pond, belong to the owner of 
the enclosure, as long as he can exert his control over them. 
If they recover their natural liberty, they are primi occupantis. 

A poacher may be guilty of sin by damaging the property 
of another by trespassing on it, and from the fact that he 
exposes himself to grave personal risk or to the danger of 
violently resisting lawful authority if he is caught. By the 
mere fact of capturing wild animals he does not commit a sin 
against justice, unless he kills so many in a particular property 
that the right of killing game therein is seriously lessened in 
value, and the owner in consequence suffers considerable loss, 
because, for example, he cannot let it at so high a price. 

SECTION II 
On Accession 

i. Accession is the increase of property either by natural 
production or by the union of one thing with another. When 
this takes place, legal and moral questions arise as to the owner 
of the increase. There are two leading maxims which settle 
such questions, Res fructificat domino and Accessorium sequitur 
principale. The maxim Res fructificat domino seems to follow 
necessarily from the nature of property and ownership, for he 



ON TITLE TO PROPERTY 245 

who has the absolute ownership of something has a right to 
reap the benefit of all that it is, of all its activities, and of all 
that it produces. And so if the field is mine, I have a right 
to the grass, wood, or other commodity which it produces. 
If the tree is mine, I have a right to the fruit ; if the mare is mine, 
I have a right to the foal; in the latter case the maxim Partus 
sequitur ventrem is also applied. 

Jurists and theologians divide fruits into natural, industrial, 
mixed, and civil. Natural are such as grass, which grows 
without human labour and care ; industrial are the product of 
industry, as a book or a new invention; mixed are partly 
natural, partly industrial, as a crop of wheat or potatoes ; civil 
are such artificial fruits as rent from houses and land, interest 
from money lent. In all these cases the maxim may be applied, 
Res fructificat domino. In the case of mixed fruits, if the 
material belongs to the labourer the whole produce will belong 
to him; if the material, the field for example, belongs to some- 
one else, then the owner of the field and the labourer whose 
labour aided in the production of the crop have each their 
right to a portion of the produce. Whether the crop be 
divided, or a money equivalent be paid to one or the other, is 
immaterial. 

With regard to improvements made on land or in houses, 
the general rule is that, Quidquid solo inaedificatur, plantatur, 
seritur, solo cedit. However, first of all by custom, and in 
modern times by statute, an outgoing tenant has a right to 
compensation for the improvements he has made on his hold- 
ing, provided that certain conditions have been fulfilled. 

2. When one thing is added to another, the general rule 
is that what is accessory becomes the property of the owner 
of what is principal. And so the owner of land has the property 
in gradual increments made to it by alluvion ; an island formed 
in a river belongs to the owner of the bed. If a river suddenly 
changes its course, or the sea suddenly retires, the rule does 
not hold; the ownership remaining as before. If wood 
belonging to another has been used in a building, the property 
is transferred to the owner of the building, with the obligation 
of making compensation for the wood. Similarly a painting 
on another's canvas belongs to the painter, but he must pay 
for the canvas. When a new form has been introduced into 
the material, as by baking bread, making wine or oil, the 
product belongs to the workman, but compensation must be 
made for the material. The ownership is then said to be 
acquired by specification. When liquids or solids belong- 



246 PRECEPTS OF THE DECALOGUE 

ing to different owners have been mixed, they should be 
separated if possible, and each owner will retain his separate 
property. If this is impossible, the former owners still retain 
their right to a proportionate part of the whole or to its value. 

SECTION III 
On Prescription 

1. As the term is used here in moral theology, prescription 
is a title by which the ownership of property is gained or lost 
through adverse possession during the time and in the manner 
laid down by law. 

In English law the term prescription is only used with 
reference to incorporeal hereditaments i.e., rights and profits 
annexed to or issuing out of land. Of these the chief are 
advowsons, tithes, commons, ways, watercourses, lights, 
offices, dignities, franchises, pensions, annuities, and rents. 
Land and movables cannot be claimed by prescription. How- 
ever, the Statute of Limitation, 3 & 4 William IV, c. 27, and 
the Real Property Limitation Act, 1874, have the same practical 
effect as Prescription Acts, with regard to real property, and 
it will be convenient to consider them here as such. 

The mere possession of property belonging to another even 
for a lifetime would not of itself transfer the ownership to the 
possessor. But as it is so much easier to prove possession 
than ownership, and because those who have been in peaceful 
possession of property for a long time should, not be liable 
to be unwarrantably disturbed, and, moreover, in order that 
owners of property may look after their rights, the legislature 
has authority to confer a right to property, in consideration of 
long and peaceable possession. This is what both ecclesiastical 
and civil laws of prescription do, and these laws avail not only 
in the external forum, but also in the forum of conscience. 

2. In order that ownership of property may be transferred 
by prescription, certain conditions are requisite either from 
the nature of the case or by positive law. Theologians usually 
reckon five such conditions viz.: (a) the property must be 
such as the law allows to be prescribed ; (b) there must be good 
faith in him who prescribes; (c) consequently there must be 
some sort of title; (d) there must be possession (e) for the 
time required by law. 

(a) As prescription depends for its validity on positive law, 
there can be no prescription which the law does not recognize. 
English law does not recognize any title to movables by pre- 



ON TITLE TO PROPERTY 24? 

scription, as we have already seen. Ecclesiastical law acknow- 
ledges a right of prescription to both movables and immovables. 
Inasmuch as laymen cannot hold benefices, they cannot gain 
a title to them by prescription, though clerics may do so. 

(b) Good faith is the second condition required for prescrip- 
tion. English law does not expressly require good faith, but 
it is certainly required in conscience. He who prescribes 
must not know that the property which is in his possession 
belongs to someone else ; if he knows this, he can never become 
its owner by prescription. This was defined by the Fourth 
Council of Lateran, c. 41, and the reason is plain. 1 For as 
soon as anyone is conscious that he has something which 
belongs to another, he is bound to restore it to the owner, 
and the longer he keeps it against the owner's will the more 
grievous sin of theft does he commit. Positive law could not 
by prescription transfer another's property to one who was 
in bad faith, for such a law would not be for the common 
good, but would foster crime. The user, then, by which 
property is acquired by prescription must be without the 
consciousness of wrongdoing; in one who frees his property 
from a servitude by prescription, there will be good faith if 
he put no obstacle in the way of the other's enjoying his right; 
he is not required to warn him that prescription is running 
against him. If during the time required for prescription a 
doubt about the right to the property occurs to the possessor, 
he must make all needful inquiries, and satisfy his conscience 
that at least no one else has a certain title to the property in 
question. 

The time during which a predecessor in title held possession 
of the property may be reckoned together with the period 
during which the present possessor has held it in order to 
complete the time required for prescription, if possession was 
always held in good faith. Even if a predecessor in title was 
in bad faith, this will not prevent a successor from gaining 
a title by prescription, provided that the latter possesses the 
property in good faith for the full time required by law. 

(c) Inasmuch as good faith is required, as we have seen, 
and this cannot exist without some colourable, supposed, or 
at least presumed title, the third condition requisite for pre- 
scription is some sort of title. The quality ot the title affects 
the period of time required for prescription by ecclesiastical 
law, as we shall see; no special title is expressly required by 
English law. 

1 Can. 1512. 



248 PRECEPTS OF THE DECALOGUE 

(d) No prescription can be had without uninterrupted, open, 
and peaceable possession. The prescription must be nee vi, 
nee clam, nee precario. It is precisely the possession for the 
period required that furnishes the ground for the transference 
of ownership by prescription. When the term is up the 
property is vested in the possessor, who acquires also a right 
to all the fruits, if any, which he has meantime reaped from 
the property ; for what is accessory follows the principal. 

(e) Different systems of law require different periods of 
time for prescription, and the time varies with different kinds 
of property. 

A great change in the ecclesiastical law of prescription was 
made by the new Code, as is clear from Canon 1508, which is 
as follows: " The Church accepts for ecclesiastical property 
prescription as a mode of acquisition and of freeing one's self 
from burdens as it exists in the civil legislation of each nation 
respectively, with the exceptions laid down in the following 
canons." Canon 1509 exempts certain classes of property 
from prescription, Canon 1510 lays down that sacred things 
in the possession of private persons can be prescribed by 
private persons, but that sacred things which are not in the 
ownership of private persons can only be prescribed by a 
moral ecclesiastical person against another moral ecclesiastical 
person. In general one hundred years are required to pre- 
scribe against the Apostolic See, and thirty years are required 
to prescribe against other ecclesiastical moral persons, according 
to Canon 1511. 

The term required by English law for the acquisition of 
rights by prescription varies according to circumstances. At 
common law, time immemorial was required to establish a 
prescriptive right, but the Prescription Act, 1832, provided 
that with respect to rights of common, and all other profits or 
benefits to be taken and enjoyed from or upon any land, where 
there shall have been an enjoyment of them by any person 
claiming right thereto without interruption for thirty years 
next before the commencement of any action upon the subject 
the prescriptive claim shall no longer be defeated by showing 
only that the enjoyment commenced at a period subsequent 
to the era of legal memory. It is also provided that the time 
during which the adverse party shall have been an infant, 
idiot, non compos mentis, or tenant for life, or during which 
any action as to the claim shall have been pending and dili- 
gently prosecuted, shall be excluded in the computation of 
the period of thirty years. But where there has been an 



ON TITLE TO PROPERTY 249 

enjoyment for sixty years the claim is to be absolute and 
indefeasible. 

Rights of way and other easements, or any watercourse, or 
the use of any water, to be enjoyed upon, over, or from any 
land or water, and also as to the access or use of light to and 
for any dwelling-house, workshop, or other building, are 
prescribed after twenty or at least forty years, instead of thirty 
and sixty respectively. An uninterrupted enjoyment of lights 
for twenty years constitutes an absolute and indefeasible right 
to them. 

3. Prescriptive rights may be extinguished by abandonment, 
express or implied; and after a period of twenty years' non- 
use, or sometimes even after a shorter period, abandonment 
will regularly be presumed. They are also extinguished by 
operation of law when the dominant and servient tenements 
come info the possession of the same owner in fee. 

As we have seen, the right to real property is by the Real 
Property Limitation Act, 1874, extinguished after twelve 
years' adverse possession. The Limitation Acts which affect 
the ownership of real property differ from other Limitation 
Acts which concern personal property or a right of action in 
that the latter only bar the remedy after the lapse of the time 
fixed by law; they do not take away the right; the former, on 
the contrary, extinguish the right. 

The conditions for prescription in the United States are 
in general the same as in England, except that as a rule a 
period of twenty years is necessary and sufficient to acquire 
both land and incorporeal hereditaments, and also to extinguish 
those rights. In some States squatters who have cultivated 
plots of land in good faith may become owners of them by 
prescription in a shorter space of time than twenty years. 

The subject of prescription is a thorny one in English law, 
and it would be imprudent for a confessor not otherwise 
specially skilled to venture to determine questions of right 
by prescription. What has been said will, it is hoped, enable 
him to judge how far conscience may follow the law, and when 
a penitent should be recommended to consult a lawyer. 



DIVISION II 
The Violation of Justice 

CHAPTER I 

ON INJURIES IN GENERAL 

i. THE wide term injustice may be used to designate any 
violation of justice, whether it be legal, distributive, or com- 
mutative. Sins against legal justice are committed by doing 
anything against the common good of the society to which 
one belongs, or by neglecting to do what the common good 
requires to be performed. Such sins may be committed by 
rulers and by subjects, more frequently, however, by the 
former, inasmuch as the common good is specially entrusted 
to their care and guardianship. As the separate members of 
a society constitute that society, it is obvious that there is not 
a perfect and adequate distinction between a society and its 
members. In legal justice, therefore, which regulates the 
relations which ought to subsist between men and the society 
to which they belong, there is something wanting to the 
complete distinction of persons required in order that the 
obligations of strict justice may subsist between them. A 
violation, then, of legal justice is not a sin against justice in 
the strict and full sense. 

Distributive justice prescribes that the ruler divide common 
burdens and emoluments among his subjects according to 
their capacity and merits. Before they are assigned to each 
one, no one has a strict right to any determinate share of them, 
and so a distribution of burdens and favours which is not 
according to merit is not against strict justice. A ruler who 
in his distribution of offices and burdens shows undue favour 
to some to the detriment of others' sins indeed against strict 
justice if he thereby cause damage to the community, for 
strict justice and the implicit agreement which he made on 
assuming his office forbid him to do that. If, however, no 
special injury accrues to the community through his showing 
undue preference for some of his subjects, he commits a sin 
which is called acceptation of persons, but he does not sin 
against strict justice. On the other hand, one who violates 

35 



ON INJURIES IN GENERAL 251 

particular or commutative justice deprives another of his strict 
right. Such a sin is called an injury, which may be defined 
to be the violation of the strict right of another against his 
reasonable will. 

Such an injury is formal if it is committed knowingly and 
wilfully, otherwise it is material. 

A personal injury is committed against rights which are 
intrinsic to the person, such as the right to life, liberty, good 
name, and honour. A real injury is committed against the 
property of another. 

2. Personal injuries are treated of elsewhere under the 
Fifth and Eighth Commandments; here we consider more 
especially real injuries done to the property of another. 

There are three different species of real injuries robbery, 
theft, and simple damnification. Robbery, besides injury to 
property, includes also a personal injury, which consists in 
violence offered to another by forcibly depriving him of what 
is his. Simple damnification is the causing of damage to the 
property of another without taking away any of that property. 
Theft is the secret taking away of the property of another 
against his reasonable will. 

3. No action is an injury unless it is against the reasonable 
will of the injured person, scienti et volenti non fit injuria, 
according to the twenty- seventh rule of law in the Sixth Book 
of the Decretals. The reason is obvious; because a person 
may as a rule renounce his rights, and then an action contrary 
to them ceases to be a violation of justice. It is no longer a 
depriving another of what is his ; it has ceased to belong to him. 
There are, however, some rights which are inalienable, and 
actions against these will be contrary to justice even if the 
party wronged give his consent. No one can validly renounce 
his right to life, and so the private killing of another, even with 
his consent, except in lawful self-defence, is always murder. 
Similarly, marital rights of married people are inalienable, 
and, even if the husband consent, a wife's adultery is always 
adultery. The maxim, then, must be understood of rights 
which the owner can validly forego, and it asserts that no 
injury is done by acting against rights which the possessor 
with full knowledge and with perfect freedom does forego. 



CHAPTER II 
ON THEFT 

i . THEFT, as we have seen, is the secret taking away of what 
belongs to another against his reasonable wish. 

Not only the taking away, but also the keeping of what 
belongs to another against his reasonable wish is theft, as 
when a borrower fails to return what has been lent him on the 
day appointed, to the disappointment of the lender. More- 
over, the use of, or any unlawful dealing with, the property 
of another against his wish is theft, as when a tramp makes 
himself at home for the night on another's premises, or when 
a passenger travels on the railway or tram without paying 
his fare. 

In order that a sin of theft may be committed, the owner 
of the property must be unwilling that it should be thus dealt 
with by the thief; there is no theft committed by using another's 
property if the user knows that the owner would not object. 
Moreover, he must be reasonably unwilling, and so a man 
who is in danger of dying from starvation, or who is in extreme 
necessity of any other kind, may take or use what is necessary 
to save life, even if the owner be unwilling that he should do 
so. The reason of this is that, by the primary intention of 
our Creator and Lord, material things were created for the 
preservation of human life, and no rights of ownership can 
prevail against the higher claim of one who is in extreme 
necessity. 

2. The sin of theft is of itself grievous, as is clear from the 
fact that it is against justice and charity ; and St Paul classes 
it among the sins which shut the kingdom of heaven to the 
sinner. 1 However, like other sins of injustice, it is sometimes 
venial on account of light matter, and a practical question here 
arises as to when theft is a mortal sin, and when it is only 
venial. The same question is put in other words when we 
ask, What amount must be taken to constitute a mortal sin 
of theft ? 

3 . Theologians are agreed that we must distinguish between 
the absolute sum, the taking of which is as a general rule 

1 i Cor. vi 10. 
253 



ON THEFT 253 

necessary and sufficient in all cases to constitute grave matter, 
and the relative sum, which will be sufficient for grave matter, 
regard being had to the loss of the owner. The general 
principle on which the quantity required for grave sins depends 
is the damage caused by the theft. For it is a grave sin to 
cause grave damage without a just reason ; but in the case of 
very rich persons or companies we must consider not only 
the personal and particular damage done to them by theft of 
what belongs to them, but also the harm done to society. It 
may well be that a rich millionaire would not be appreciably 
worse off for the loss of a hundred pounds or of ten times 
that sum. The damage done to him by a thief taking a 
hundred pounds would be relatively less than if sixpence 
were taken from a day labourer. However, we must also 
consider the harm done by theft to the community and to the 
security of property. The malice of sin is not measured 
merely by the harm done to the individual ; the harm done to 
society and other considerations also enter into the estimate. 
We must, then, besides considering the damage done to the 
owner of stolen money, weigh also the harm which theft does 
to society. And if grave harm is caused to society by stealing 
a certain sum of money, if the security of property would be 
seriously imperilled unless the theft of a certain sum were 
forbidden under pain of mortal sin, that sum will be the abso- 
lute quantity required for a mortal sin of theft. What the 
precise sum is must be left to the judgement of experts, who 
will consider all the circumstances of time and place, for, as 
values are perpetually changing, the sum required for a mortal 
sin of theft will also change. Under present circumstances, 
in civilized countries where similar conditions of commerce 
prevail, the common opinion of theologians fixes one pound 
sterling as the absolute sum required for a grave sin of theft. 
This will serve, therefore, as a measure of the gravity of theft 
from very rich people, or from companies with large resources. 

However, a mortal sin of theft may be committed by stealing 
a much less sum than one pound if the theft cause great harm 
to the owner of what is stolen. The loss of a day's wage or 
of a sum which is sufficient for the support of a labourer and 
his family for a day, is a serious loss for a workman, and so, 
as the common opinion holds, the theft of such a sum from 
a labouring man is a grave sin. Something between this and 
the absolute sum will be grave matter if stolen from persons 
whose wealth is between the two extremes. 

Matter which in itself is grave may become light on account 



254 PRECEPTS OF THE DECALOGUE 

of special circumstances. Thus although grave necessity does 
not excuse theft, yet it may lessen the sin and cause to be 
venial what would otherwise be mortal. In the same way, 
less unwillingness on the part of the owner may lessen the 
sin. A father is less unwilling as a rule that a little of his 
money should be taken by a member of his family, especially 
if it is for a good purpose, than by a common thief. On this 
ground some divines say that in thefts from parents a double 
quantity is required for grave matter. Also when a number 
of small thefts are committed, which in the aggregate amount 
to grave matter, a larger sum is required for a mortal sin than 
when it is all taken at once. For the loss is not felt so keenly, 
and so the owner is not so unwilling. 

4. That small thefts may coalesce and constitute grave 
matter is certain, for by a number of small thefts grave harm 
may be done, and the opposite opinion is implicitly condemned 
by the 38th proposition condemned by Innocent XI. Small 
thefts coalesce if the intention of the thief is to take a con- 
siderable sum, but for some special reason he takes it in small 
quantities at different times. Similarly, if a number conspire 
together to steal from another, they will all commit grave sin 
if grave damage be inflicted, even though each one only, obtains 
a small sum. Also, when the proceeds of pilferings are 
hoarded, grave sin will be committed when grave matter is 
reached, or even if the proceeds be spent and do not coalesce 
by accession as in the preceding case, the different pilferings 
will coalesce and constitute one moral act of injustice if the 
interval be not notable not over two months as some 
theologians say. -On the other hand, small thefts committed 
at wide intervals of time, and which do not coalesce on account 
of any of the reasons given above, do not constitute one moral 
act, and remain so many venial sins of theft. 

The theft of something of small money value, but whose 
loss is very keenly felt for reasons of affection or association, 
will be a venial sin against justice, but a mortal sin against 
charity, if it was foreseen that its loss would cause very serious 
pain to the owner. 



DIVISION III 
On Restitution 

CHAPTER I 

ON RESTITUTION IN GENERAL 

WHEN other sins have been committed they are blotted out 
and reparation as far as possible is made for them by sincere 
sorrow and repentance. But when commutative justice has 
been violated it is not sufficient to be sorry for the injustice 
done; reparation must be made for it by putting, as far as 
possible, the person injured in the same condition as he would 
have been if the injury had never been inflicted. This repara- 
tion for an injury that has been done to another is called 
restitution. There is a strict obligation in justice to make 
restitution as far as is possible to another whom one has injured ; 
for justice requires that each one should have his own; but 
one who has been injured is deprived of his own so long as 
restitution has not been made ; and so, in order that each one 
may have his own, in order that that equality may be preserved 
which justice prescribes, restitution is of strict obligation 
whenever commutative justice has been violated. It is an 
obligation of justice, and so it is a grave one, unless the matter 
be light. 

As justice may be violated either by taking away from 
another what belongs to him, or by damaging or destroying 
his property, so we may consider restitution as being due 
either because one has what belongs to another, or because 
he has inflicted on him unjust damage and loss. These are 
called by theologians the roots of restitution. We will treat 
of them successively, and finally of the obligation of making 
restitution on account of co-operation in injustice. 



255 



CHAPTER II 
THE FIRST ROOT OF RESTITUTION 

THE first root of restitution is the possession of another person's 
property without any just title. This possession may hitherto 
have been in good faith without any suspicion that the property 
belonged to somebody else, or it may have been in bad faith 
with the knowledge that someone else was the rightful owner, 
or in doubtful faith with doubts about the ownership. The 
obligations of the possessor of another's property will be 
different in these three cases. We will treat of them in the 
three following sections : 

SECTION I 
Possession of Another's Property in Good Faith 

1. When one discovers that he is in possession without any 
just title of what belongs to someone else, justice requires 
that he should restore it to the rightful owner, or at least 
give the owner warning so that he may remove it at his own 
expense. For justice requires that all should have their own, 
res clamat domino, and if one knowingly detains what belongs 
to another against the owner's reasonable wish he commits 
the sin of theft. 

If the possessor of another's property consumed it while 
he was in good faith, and now when he finds out the truth, 
he neither has the property itself nor its equivalent, he is 
bound to nothing, res perit domino. The property no longer 
exists, and cannot be restored to its true owner ; there was no 
fault committed by consuming what was supposed to belong 
to the consumer, so there is no obligation to make compensa- 
tion to the owner for his loss. This is all the more true if 
the property was destroyed, or perished by accident, or in the 
ordinary course of nature. 

2. If any natural or civil fruits, derived from the property 
of another, still remain after the possessor has found out that 
the property belonged to someone else, he must restore them 
to the owner of the property to whom they belong, for res 
fructificat domino. 

256 



THE FIRST ROOT OF RESTITUTION 257 

Fruits of his own industry acquired on occasion of his 
possession of the property of another, he may keep, for the 
labourer has a right to the fruit of his toil. 

Mixed fruits, which are partly due to industry, partly to 
the natural or artificial fertility of the property, belong partly 
to the labourer, partly to the owner of the property, according 
to what the law may prescribe, or according to the estimate 
of a prudent man. 

3. The foregoing rules tell us what has to be done when one 
discovers that he has possession of the property of another, 
or when such property has perished while in his possession. 
But suppose that while he was in good faith the possessor of 
another's property, he sold it to someone else, and afterwards 
he finds out that it was not his to sell, what are his obligations 
in that case ? 

No general answer can be given ,to this question; it will 
be necessary to distinguish according to several possible 
hypotheses. 

The sale may have taken place in market overt, and then 
though the seller could not give a valid title to the property, 
yet the law does so. The Sale of Goods Act, 1893, sec> 22 
makes the following provision: "Where goods are sold in 
market overt, according to the usage of the market, the 
buyer acquires a good title to the goods, provided he buys 
them in good faith and without notice of any defect or want 
of title on the part of the [seller." 

According to Indermaur, " By sale in market overt is meant 
selling goods in open market as opposed to selling them 
privately. In the country the market-place or piece of ground 
set apart by custom for the sale of goods is in general the only 
open market there ; but in London, and in other towns where 
so warranted by custom, a sale in an open shop of proper 
goods is equivalent to, and in fact amounts to, sale in market 
overt." 1 

In spite, however, of sale in market overt, " Where goods 
have been stolen and the offender is prosecuted to conviction, 
the property in the goods so stolen revests in the person who 
was the owner of the goods, or his personal representative, 
notwithstanding any intermediate dealing with them, whether 
by sale in market overt or otherwise." 2 

In this case " on conviction of an offence which involves 
larceny, the court, if the accused has sold the property to an 

1 Principles of the Common Law, p. 323, 6th ed. 

2 Sale of Goods Act, i8g3j sec. 24. 

i. I7 



258 PRECEPTS OF THE DECALOGUE 

innocent purchaser, on restitution of the property to the owner, 
may order the price paid by the purchaser to be repaid to him 
out of any money found on the convict when arrested. This 
provision is in addition to that allowing compensation to a 
person injured by a felony." 1 

If the sale did not take place in market overt, and the stolen 
property has not been restored to the true owner, the seller 
is bound to nothing in justice, according to a very probable 
opinion. For the property is no longer in his possession or 
under his control, so he cannot restore it to the owner ; if he 
received money for it, he received it in good faith for value, 
and when he has mixed it with his other moneys it would seem 
that he makes it his own. 2 It would seem that this is in 
accordance with English law: " A mesne possessor acquiring 
the goods innocently from the thief, and reselling before con- 
viction, is under no obligation in trover to the original owner." 3 

It was said above that the seller is bound to nothing in 
justice, but if without relatively serious inconvenience to him- 
self he can, by giving the requisite information, procure the 
restoration of the property to its rightful owner, he will be 
bound to do this out of charity. 

If the property was not sold in market overt, and if it has 
been restored to the rightful owner, the purchaser can demand 
back the purchase money from the seller, rescinding the 
contract for failure of warranty which is implied in every such 
sale: " In a contract of sale, unless the circumstances of the 
contract are such as to show a different intention, there is: 
(i) An implied condition on the part of the seller that in the 
case of a sale he has a right to sell the goods, and that in the 
case of an agreement to sell he will have a right to sell the 
goods at the time when the property is to pass ; (2) an implied 
warranty that the buyer shall have and enjoy quiet possession 
of the goods." 4 

These solutions would seem to be tenable whether the 
mesne possessor obtained the property in good faith by pur- 
chase or by gift, and whether he gained anything or not by 
selling it. For although one who possesses another's property 
either in itself or in its equivalent is bound to make restitution 
to the owner, a mesne possessor who has sold it in good faith 
to another no longer possesses it even in its equivalent, for the 

1 Encyclopedia of Laws of England, s.v. Stolen Goods. 

2 Stephen, 2, p. 60. 

3 Encyclopedia of Laws of England, s.v. Stolen Goods. 

4 Sale of Goods Act, 1893, sec. 12. 



THE FIRST ROOT OF RESTITUTION 259 

price after being mixed with his own moneys is not its equiva- 
lent ; and although he is the richer by the transaction, yet it 
cannot be said that he is the richer unjustly, and so he is not 
bound to restitution. 1 

It is a disputed point among theologians whether a pur- 
chaser in good faith from a thief of stolen goods, on finding 
out that the goods were stolen, may return them to the seller 
if he cannot otherwise get back his money. It would seem 
that in conscience he may do so, for in so doing he does not 
wrong the rightful owner; he replaces the goods where he 
found them, so to say, and they are in no worse a position 
through having been for a time in his possession. He is 
justified in leaving them there if he cannot otherwise save 
himself from loss. 2 Such an action, however, might bring him 
into collision with the law of the country. In England it might 
amount to misprision of felony or be considered compounding 
a felony. 

SECTION II 
Possession of Another's Property in Bad Faith 

1. When one has wrongfully had possession of another's 
property, well knowing that he had no right to keep it, on 
coming to a better frame of mind he is bound in the first place 
to restore the property itself to its rightful owner. Moreover, 
if the owner has suffered any special loss through being deprived 
of what belongs to him, the thief must make this good, inas- 
much as he was the unjust cause of it. Furthermore, all 
natural or civil fruits of the property he must restore to the 
owner, for res fructificat domino ; and if they have been con- 
sumed, their value must be given to him or else he will not 
have his own. Any fruits which are due to the industry of 
the thief, and all necessary and useful expenses which he 
incurred in respect of the property, he may in conscience 
deduct from what must be restored to the owner, for justice 
only prescribes that each one should have his own, not more 
than his own. 

2. If another's property is saved from fire, or from certain 
destruction in any other way, it still belongs to the former 
owner, for res clamat domino. At most, he who saved it has 
a claim to reasonable compensation for his trouble. If stolen 
goods perish in the hands of the thief, he must make restitution 
for them to the owner, unless they would have perished in the 

1 Bucceroni, i, n. 1341. a St Alphonsus, 3, n. 569. 



260 PRECEPTS OF THE DECALOGUE 

owner's hands at the same time and in the same way. For 
if they would have perished at the same time and in the same 
way, the thief is not the cause of their destruction : otherwise 
he is, and he must bear the consequences. 

If stolen property had different values after the theft, the 
owner's losses must always be made good ; and so if he intended 
to sell it when at its highest value, that value must be restored 
to him. Usually, however, if the property itself cannot be 
restored, it will be sufficient to restore the value which it had 
at the time of the theft. This is the teaching of many theo- 
logians and it seems to be in agreement with the provisions 
of English law: " The measure of damages in an action for 
conversion is the actual loss sustained by the wrongful act. 
In general, this would be the market value of the goods at the 
time of conversion. . . . And the jury on the trial of an 
action for conversion may also give damages in the nature of 
interest over and above the value of the goods converted." 1 

SECTION III 
Possession of Property in Doubtful Faith 

1 . There is only question here of one who has well-grounded 
reasons for thinking that something in his possession belongs 
to another. We do not contemplate the case of one who 
merely suspects without solid reason that what he has belongs 
to someone else, much less the case of one who is ignorant 
of what title he has to his property. The doubtful faith of 
such a one as we are contemplating may date from a period 
subsequent to his obtaining possession of the property, or it 
may date from the time of his gaining possession of it; the 
possessor's obligations will be different as one or the other 
of these suppositions is verified. 

2. When the possessor was at first in good faith but after- 
wards a doubt arose as to whether the property really belonged 
to him, inquiry must first of all be made to try and find out 
the true owner. Unless the possessor in doubtful faith does 
this, he exposes himself to the danger of keeping what does 
not belong to him, and thereby sins against justice. If he 
discovers the rightful owner, the doubt is solved; if after 
inquiry the question of ownership still remains doubtful, 
the possessor may keep the property and use it as his own, 
for in dubio melior est conditio possidentis. 

1 Encyclopedia of Laws of England, s.v. Conversion, Action of. 



THE FIRST ROOT OF RESTITUTION 261 

3. If the possession began in doubtful faith, and the pro- 
perty was taken from another's possession, injustice was 
committed, and the whole must be restored to the original 
possessor, for possession was in his favour. 

If the property came into the hands of the doubtful possessor 
by sale or gift, or in some other lawful way, presumptions 
may sometimes be used to solve the doubt. Thus, even 
though we get a more than usually cheap bargain, we need not 
conclude that the seller is a thief, for nemo mains praesumitur 
nisi probetur. 

If the doubt cannot thus be settled, nor the question of 
ownership cleared up by diligent inquiry, theologians commonly 
teach that the property must be divided according to the 
probabilities of the case. For one who began to possess in 
doubtful faith cannot claim the benefits of possession and 
keep the whole. He may, however, keep a portion correspond- 
ing to the degree of probability of his right of ownership. A 
few recent theologians, however, doubt whether this solution 
rests on solid grounds, for even the possessor in doubtful 
faith has at least the fact of possession in his favour, and, 
ex hypothesi^ it is not certain that he is not the rightful owner ; 
in fact, he has some claim to be considered the rightful owner. 
These theologians, therefore, would permit the possessor in 
doubtful faith to retain the property, provided that he be 
ready to surrender it to the rightful owner if and when he 
should appear. 1 

1 Bucceroni, i, n. 1354. 



CHAPTER III 
THE SECOND ROOT OF RESTITUTION 

SECTION I 
On Damnification in General 

i. WHOEVER wilfully causes unjust damage to another, even 
though he himself obtained nothing by his unjust action, is 
bound to make restitution to him as far as he can. For he 
is the unjust cause why another has not what belongs to him, 
and in order that justice may be done he must cause the person 
damaged to be put as far as possible in the same condition 
as he was in before the damage was done. He must then 
make restitution not only for all the damage which he inten- 
tionally caused, but for all consequent losses as far as they 
were in general foreseen. 

2. In order that such an obligation may be imposed, certain 
conditions must be fulfilled which it will be well to state more 
explicitly. 

(a) The damage must be inflicted voluntarily, with know- 
ledge and the will to do the wrong. For a man is only respon- 
sible in the forum of conscience for his free and voluntary 
actions. There must be theological fault, as theologians 
express it, otherwise there will be no obligation in conscience 
to make good any damage, at any rate before lawful sentence 
of a judge competent to impose such an obligation. For the 
law sometimes imposes the obligation of making good damage 
which has been done, even though it was not foreseen or 
intended. This is especially the case when there has been 
legal negligence or the omission of that diligence which the 
law requires in the circumstances. There are three degrees 
in this negligence: " Ordinary neglect has been defined to be 
the omission of that care which every man of common prudence, 
and capable of governing a family, takes of his own concerns ; 
gross neglect is defined to be the want of that care which every 
man of common sense, however inattentive soever, takes of 
his own property ; and slight neglect to be the omission of that 
diligence which very circumspect and thoughtful persons use 

262 



THE SECOND ROOT OF RESTITUTION 263 

in securing their own goods and chattels." 1 In some cases 
the law punishes even slight neglect, in others ordinary, in 
others only gross neglect. The omission of that care which 
the law requires in the case is called juridical fault, and after 
sentence there will be an obligation in conscience to make 
good damage caused through juridical fault, for the laws 
prescribing this are just, inasmuch as they make men more 
careful and conduce to the public good. 

If something has been done without foreseeing that it 
would cause damage to another, but this danger was noticed 
before the damage actually took place, there will be an obliga- 
tion in justice for him who performed the action to prevent 
the damage as far as he can; if he does not do this, he will 
be bound to restitution. For as long as he can prevent the 
evil consequences of his action, this is under his control, and 
may, from the point of view of morals, be considered as con- 
tinuing, and thus, unless he prevents the evil when he can 
do so, the agent is the voluntary cause of it. If, however, he 
cannot prevent the damage without relatively serious incon- 
venience to himself, there is just cause for excusing him. And 
so, if I inadvertently throw a lighted match on the ground, 
and then notice that it may probably cause a conflagration 
with loss to others, I am bound in justice to extinguish the 
light, otherwise I must repair the damage done. 

If slight negligence caused slight damage to another, there 
will be an obligation of repairing it under pain of venial sin. 
If slight negligence caused serious loss to another, there is 
a difficulty as to whether before any judicial sentence there 
be an obligation to make restitution. Many theologians deny 
that there is, for no grave obligation can arise from a slight 
fault, and a light obligation has no proportion to serious 
matter; there cannot be a light obligation to avoid homicide, 
for example. 2 

(b) In order that there may be an obligation to make resti- 
tution for causing damage to another, the damage must be 
really and objectively unjust. If damage to another follows 
from the lawful exercise of my rights, I am not bound to make 
it good. If I dig a well in my property and thereby deprive 
my neighbour of his supply of water, I am not bound to 
make restitution for the damage. Similarly, I may sell a new 
machine or invention, though it may indirectly cause loss to 
many who had on sale machines of older pattern for which 

1 Chitty, The Law of Contracts, p. 412. 

2 St Alphonsus, 3, n. 552. 



264 PRECEPTS OF THE DECALOGUE 

now there will be no market. I may lawfully use persuasion 
to induce a rich relative to leave his money to me, though 
others who would have had it thereby suffer loss. If, how- 
ever, I make use of unjust means such as threats, violence, or 
calumny, and so prevent another from getting what he other- 
wise would have got, I commit a sin against justice and am 
bound to make restitution to the injured party. This is true 
even though he had no strict right to what he would have got, 
for at least he had a right not to be balked of his expectations 
by unjust means. And so in a competitive examination or 
concursus where something of value is the prize at stake, one 
who secures the prize by unjust means must make restitution 
to him who would otherwise have secured it. If there were 
no certainty of his securing it, restitution as far as possible must 
be made according to the degree of probability of his success. 
(c) The unjust action must be the cause, not merely the 
occasion, of damage being done to another, in order that there 
may be an obligation of making restitution. For we are only 
responsible in justice for damage which we have caused. And 
so if I commit theft and others are induced to do the same 
by my bad example, I am indeed bound to make restitution 
for what I have stolen, and I commit a sin against charity 
by giving bad example to others ; but probably at least, accord- 
ing to many theologians, I am not bound to make restitution 
for what others stole through my bad example. Similarly, I 
am not bound to make restitution for damage which was 
caused accidentally by my action, when there was antecedently 
no probable connection between my action and the damage 
caused. As, for example, if I lit a fire in my property, and 
there was no probable danger of its causing damage to my 
neighbour, I am not in conscience before judicial sentence 
bound to make good damage which it caused him on account 
of an unforeseen change in the direction of the wind. Some 
theologians would bind the man who lit the fire to restitution 
in this case if he hoped for the change of wind and intended 
the damage. They say that the wrongful intention supplies 
the want of physical causation and puts him under the obliga- 
tion of making restitution. This opinion is probable, but the 
opposite also is probable, for although the evil intention makes 
the man guilty of affective injustice, he is not guilty of effective 
injustice, for his evil intention makes no difference in the 
physical sequence of cause and effect, and if he was not the 
cause of the damage prescinding from his evil intention, that 
evil intention could not make him the cause. 



THE SECOND ROOT OF RESTITUTION 265 

In the same way, if the theft of one servant is wrongly im- 
puted to another, and this one is dismissed in consequence, 
the thief is not bound to make restitution to the injured man 
unless in some way he caused the false imputation. 

One who is not sure whether any harm was caused by his 
action is not bound to make restitution, for a certain obligation 
cannot arise from an uncertain source. Whether there is any 
obligation of making restitution for damage which was certainly 
caused, but it is uncertain whether the author was A or B, is 
a disputed point among theologians. Many teach that there 
is an obligation on all the probable authors in common to 
make good the damage, and each will be bound to make good 
the whole in default of the rest. This is certainly true in case 
of conspiracy; but if each acted independently, and it is not 
certain which one caused the damage, it is hard if the burden 
of restitution is imposed on someone who perhaps did not 
cause the harm. 1 

If an incendiary intended to set fire to the house of A, and 
by mistake he destroyed the house of B, it would seem that he 
is bound to make restitution, for all the requisite conditions 
are present. His action was voluntary, really, and effectively 
unjust. Some theologians, however, deny that the obligation 
of making restitution can be imposed in such cases. For the 
injury should be formal, and they deny that it is formal in 
this case. He did not intend to injure B; it was purely by 
mistake that his house was burnt down. Some weight must 
be allowed to this opinion on account of the authority of those 
who maintain it, but it would seem to be over-subtle and 
against the common sense of mankind. The injury was 
formal, inasmuch as it was voluntary and knowingly unjust. 
This is sufficient to induce the obligation of making restitution ; 
it is not necessary that the wrongdoer should intend to injure a 
definite person. 

SECTION II 
Particular Cases of Damnification 

i. He who by fraud, violence, or other unjust means leads 
another to commit sin, or deprives him of any supernatural 
or natural good belonging to the soul and mind, is guilty of 
injustice, and is bound to make reparation to the injured party. 
If the same effect is produced by persuasion or other not unjust 
means, a sin of scandal is committed ; but justice is not violated, 

1 Bucceroni, i, n. 1369. 



366 PRECEPTS OF THE DECALOGUE 

nor is there any obligation to make restitution. These prin- 
ciples are not only applicable to sin, but to vocation to the 
religious state and to sound doctrine, especially of the practical 
order. 

Priests or masters, who by their office are bound to instruct 
others and teach them the truth, are in a special manner 
obliged to correct any false instruction which they may have 
given. Better leave people in ignorance than imbue their 
minds with falsehood. 

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

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



THE SECOND ROOT OF RESTITUTION 267 

detraction has been forgotten, or if the injured party has lost 
his reputation in some other way, or if the injured party prefers 
that the matter should not be reopened, or if it is physically 
or morally impossible now to do anything towards restoring 
his good name. 

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

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

5. Scienti et volenti nonfit injuria ; and so if a woman suffers 
loss of reputation, position, or money, in consequence of 
fornication freely committed, no restitution will be of strict 
obligation. Even for criminal assault or rape no restitution 

1 Lugo, disp. ii. n. 77. 



268 PRECEPTS OF THE DECALOGUE 

in money is of obligation to compensate precisely for the loss 
of virginity. But the man who has been guilty of this crime 
must make restitution for other losses, and either by marrying 
the woman wronged or by providing her with a dowry, he 
must, as far as possible, put her in the position in which she 
would have been if he had not wronged her. 

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



CHAPTER IV 
ON CO-OPERATION IN INJUSTICE 

THE question of restitution is complicated and beset with 
special difficulties when there are more agents of injustice 
working together than one. There will, indeed, be the same 
roots of restitution which we treated of above, but difficulties 
arise as to who among the co-operators is bound to make 
restitution, and who is primarily bound. One may help 
another, or co-operate with another, in inflicting an injury in 
various ways. Nine ways are commonly enumerated: by 
counsel, by command, by consent, by provocation, by praise 
or flattery, by being partner in the sin, by silence, by conceal- 
ment, by defending the ill done. In the first six of these ways 
the co-operation is positive, in the last three it is negative. 
Something must be said about each (cf. Can. 2209). 

i. One co-operates with another in injustice by counsel 
when, by giving advice or by urging motives, or by showing 
how it may be done, he causes that other to commit an act of 
injustice. Such a one is obviously the moral cause of the 
injury, and all the conditions required for imposing an obliga- 
tion of making restitution are present. If the principal agent 
was already determined to commit the injury, this will in that 
case not be due to the counsellor, and he will not be bound 
to repair it. Nor will the counsellor be bound to make repara- 
tion to the principal agent for any loss which the latter suffered 
in consequence of inflicting the injury, unless he induced him 
to act by fraud or other unjust means. Moreover, if before 
the injustice was committed the counsellor efficaciously with- 
drew his advice, and proposed equally strong motives for 
desisting from the act, it would seem that he cannot be obliged 
to make restitution. If, however, he had showed the other 
how to commit the crime and thus made it possible, he must 
take means to prevent it being committed, otherwise he will 
be responsible. Confessors, lawyers, doctors, and others 
whose expert advice is asked are under a special obligation 
not to give advice which is injurious to their clients or to third 
parties. If they do this, they will be bound to make com- 
pensation to the injured party not only when they acted 

269 



270 PRECEPTS OF THE DECALOGUE 

maliciously, but also when they gave injurious advice through 
gravely culpable ignorance or precipitancy. Others who do 
not specially hold themselves out as experts will not be bound 
to compensate those who ask their advice and suffer loss 
through following it. No injury was done by giving them 
what they asked for, no fraud was committed by the assump- 
tion of skill or knowledge which was not possessed; if they 
chose to follow the advice, they took the risk on themselves, 
and scienti et volenti nonfit injuria. 

He who follows unjust advice acts in his own behalf and in 
his own name, and so is the principal cause of the injury done. 
He is bound in the first place to make restitution, and if he 
fail to do so, the counsellor is bound. 

2. We co-operate in injustice by command when by what- 
ever means we induce another to do an injury in our name 
and on our behalf. It does not matter whether one of the 
parties is in a position of superiority with respect to the other 
or not, nor by what means he induces the other to perform 
the injurious action, whether by threats, or promises, or com- 

. mands, or requests ; it is sufficient if by any means he induces 
the other to do his unjust will. Henry II made himself guilty 
of the blood of St Thomas a Becket by complaining that none 
who ate his bread would avenge the insults offered him. Mere 
approval, however, of injustice which has already been done 
does not render him who approves liable to make restitution. 

One who by command induces another to commit an injury 
is bound in the first place to make reparation for the injury 
and for all the damage which was the necessary consequence. 
In his default the instrument of his injustice is bound to make 
restitution. The one who gave the command is not bound 
to compensate his agent for loss or damage which he suffers 
in executing the will of his principal, unless compulsion or 
other unjust means were used to procure his co-operation. 
Nor is he bound to make restitution for damage which his 
agent did in excess of the instructions given. Furthermore, 
if before the command is executed he recalls it and the recall 
is notified to the agent, he will not be responsible for what the 
agent may do on his own authority; he will be responsible, 
however, if by any chance the intimation that the command is 
recalled does not reach the agent. 

3. One who co-operates in injustice by giving his consent 
or vote that the unjust action should be done is bound to 
make reparation if his consent was the moral cause of the 
injustice. And so members of legislative bodies who agree 



ON CO-OPERATION IN INJUSTICE 271 

together to pass an unjust law are jointly and severally bound 
to make reparation for all the harm that the law does. Jury- 
men, too, whose vote is necessary for an unjust verdict are all 
responsible for the injustice if they give the verdict. Some- 
times, however, when injury is inflicted by the unjust votes 
of many, the obligation of making restitution will depend on 
the manner of voting. If all acted conjointly, giving their 
votes in a body, each and all will be responsible for the harm 
done; if, however, the voting took place successively, those 
who voted first and whose votes were necessary and sufficient 
for passing the unjust measure will indeed be bound to make 
restitution ; but those who voted subsequently, and whose votes 
were not required to make the measure law, may be excused 
from the obligation of making reparation except in the case 
of conspiracy, though they, too, sin against justice. Those 
who give an unjust vote when it is the only means of preventing 
a greater evil do not do wrong, and are not bound to make 
restitution. When one of two evils is necessary, we may 
lawfully choose the less. 

4. Whoever by provocation or ridicule, or by praise or 
flattery, causes another to commit an injury, or is the cause 
why reparation is not made for injustice committed, is himself 
bound to make restitution in the same way as one who is the 
cause of injustice by counsel. 

5. One may be a partner in the infliction of injuries in 
various ways. He who helps another to perform an unjust 
action is a partner in injustice in the strict sense. One, how- 
ever, who receives stolen goods or affords protection to a 
wrongdoer, and so encourages him in committing injustice, 
is also a partner in his sin. A receiver of stolen goods is 
obviously bound to restore them to their owner, and if by 
holding himself out as ready to receive them, or by affording 
protection to the thief, he is the cause of injustice being com- 
mitted, he will be responsible for that too. To what extent 
the partner in injustice is bound to make restitution will depend 
on circumstances. He will be responsible for the whole 
damage inflicted if it could not have been inflicted without his 
help, or if the partners conspired together to commit injustice. 
Otherwise it will be sufficient to make reparation for such part 
of the damage as each respectively caused, in the estimation 
of a prudent person. 

When treating of charity we saw that it was never lawful 
to co-operate formally in another's sin, but that according to the 
principle of a double effect it is sometimes allowed to co-operate 



272 PRECEPTS OF THE DECALOGUE 

materially in the sin of another. This doctrine may be applied 
to the matter before us, and so though it is never lawful to 
help another to do what is always and intrinsically wrong, as 
to kill an innocent person, yet in other cases it is not sinful 
to co-operate materially with the unjust action of another. 
A servant who is threatened with instant death unless she 
gives up a key to a robber, or shows where her master's money 
is kept, would act heroically if she died rather than betray her 
trust ; she would not commit sin if she preferred her own life 
to her master's property. 

6. On account of one's office, or in virtue of a special con- 
tract, there is sometimes a special obligation to prevent injury 
being done to others, and if the obligation be not fulfilled, 
there is negative co-operation in the injury inflicted. Apart 
from such special office or contract we are bound in charity 
to prevent injury to others as far as we can, but not in justice. 
This negative co-operation may be committed by concealment 
of injustice which has been done, as when a servant conceals 
thefts committed against his master's property which has been 
entrusted to his care. It may be committed by silence, as 
when a policeman accepts hush money to say nothing about 
a robbery. It may also be committed if one whose duty it 
is to protect another's rights or property neglects that duty 
and allows them to be injured. On account of defence of an 
unjust act which has already been done there will not arise an 
obligation to make restitution, unless such defence was the 
cause why restitution was not made for the crime defended. 
All approbation and defence of wrongdoing is nevertheless 
sinful. One who culpably neglects to prevent his animals 
from doing harm to his neighbour is bound to make restitution. 

Sometimes these negative co-operators are excused from 
performing their strict duty on account of the very serious 
inconvenience to which it would subject them, and which they 
are not presumed to have obliged themselves to undergo. 
In such cases they will be excused from making restitution 
for injuries which they did not prevent. 



CHAPTER V 
THE CIRCUMSTANCES OF RESTITUTION 

IN this chapter we will treat of certain questions concerning 
the circumstances of restitution, as, to whom restitution is to 
be made, how much, in what order, in what manner, at what 
time and place. 

SECTION I 
To whom Restitution is to be Made 

1. Restitution is compensation for an injury inflicted, and 
so in general it must be made to him who suffered the injury. 
This will in general be the lawful possessor of the property 
taken or damaged, to whom, therefore, restitution must be made 
if he is known for certain. If the property was taken from 
a child, or from a servant who merely held it for his master, 
it may be restored to the father of the child or to the master. 
If it belonged to a corporation, it should be restored to those 
who administer its affairs. 

2. In case of doubt as to whom the property belongs, diligent 
inquiry should be made, and if the doubt cannot be resolved, 
the property should be divided among those who are the 
probable owners if they are few in number. If they are many 
and uncertain, restitution may be made to the poor or to 
religious purposes of the place where the injury was com- 
mitted, for the true owners may in the circumstances be 
presumed to wish that this should be done. If the property 
cannot well be devoted to local charitable or religious purposes, 
it may be spent elsewhere on such causes. When shopkeepers 
and others are bound to restitution for defrauding their 
customers, the persons injured are not altogether unknown, 
and restitution can best be made by restoring to future cus- 
tomers what has been unjustly taken away. 

3. If the true owner is altogether unknown and cannot be 
discovered, property which has been obtained without injustice 
may be retained and treated as property found, in which the 
finder has a qualified ownership. 

T < 273 *S 



274 PRECEPTS OF THE DECALOGUE 

If the property was obtained through wrongdoing, it must 
be surrendered, the common good requiring that nobody 
should benefit by his own theft or fraud. Theologians are 
practically agreed on this, and that restitution must be made 
to the poor or to religious purposes; but when they inquire 
further into the reason for the doctrine they are divided in 
opinion. Some maintain that it is grounded on the positive 
law of the Church which expressly provided that what has 
been unjustly obtained by usury or simony must be given 
to the poor or to pious causes, and the same decision has been 
extended to similar cases. On this ground they explain the 
action of the Church, which sometimes grants compositions 
for just cause to debtors whose creditors are uncertain. Other 
theologians with greater probability teach that the doctrine 
rests on natural law, which the Popes interpreted and applied 
to gains made by usury and simony. For natural law requires 
that nobody should benefit by his own wrongdoing, so that 
restitution must always he made of ill-gotten goods. If resti- 
tution cannot be made to the individual owners, partly by 
interpreting their personal wish, partly because if the property 
is usefully expended on the poor in their behalf they will 
benefit spiritually by it, partly because inasmuch as the com- 
munity is wronged by theft, restitution must be made to the 
community, and this is done by choosing the poor or religious 
objects ; the obligation is satisfied by restoring to these. 



SECTION II 
How Much is to be Restored 

1. We have already seen what must be restored in the case 
of one who is in possession of another's property, or in case 
of unjust damnification to another. In general, the damage 
inflicted is the measure of the restitution to be made, for 
justice requires that the owner should have back his own. 
When there were several who co-operated in injustice a 
special difficulty arises as to whether each and all are jointly 
or severally bound to make restitution. If two thieves assist 
each other to break into and rob a house, what are the 
obligations of each of them with respect to the restitution to 
be made ? 

2. In such cases as this each must, of course, make restitution 
for the harm which he personally and immediately caused. 
If each one takes his share and makes reparation for that 



THE CIRCUMSTANCES OF RESTITUTION 275 

portion of the injustice which he committed, the whole damage 
will be repaired. But sometimes some of the partners of 
injustice are unable or unwilling to make restitution for 
their share in the unjust act ; the question then arises 
whether the rest are bound to make good the whole damage 
inflicted. 

Each and all will jointly and severally be bound to make 
reparation for the whole damage, or in solidum, as divines say, 
when each and all were jointly and severally the efficacious 
moral or physical cause of the whole damage; for we are 
bound to make reparation for the damage which we have 
caused, and for that alone. This will be the case under the 
following circumstances : 

(a) When the action of each and all is the necessary and 
sufficient cause of the whole damage. This condition is 
fulfilled when one commands or counsels an unjust act and 
another in consequence performs it. 

(b) When the action of each is sufficient to cause the damage, 
and it has an actual effect in producing it, though the effect 
would have been produced without it. Thus if two men 
inflict fatal wounds on another, each is responsible for his 
death and all losses necessarily connected with it. In 
the same way, when several conspire together to commit 
an injury, and mutually encourage and assist each other 
to inflict it, all are bound jointly and severally to make 
restitution. 

(c) When the action of each is necessary for the production 
of the effect, so that it could not be produced without it, 
though the action of each would not be sufficient by itself, 
all are bound jointly and severally to repair the injury. Thus 
if two thieves carry off a safe which they could not carry 
alone, each in the other's default must make good the whole 
damage. 

When several acting together, but without mutual con- 
spiracy in the strict sense, inflict injury on another, divines are 
not agreed as to whether each and all are bound to make 
reparation for the whole damage. Each is certainly bound 
to repair the damage due to his personal action, but probably 
be may be excused from restoring more than is equivalent to 
the damage which he actually caused. Thus, though those 
responsible for an unjust war are bound to make compensa- 
tion for all the unjust damage which it causes, yet the private 
soldiers are only bound to make restitution for the damage 
which they personally cause. In the same way, if a crowd 



276 PRECEPTS OF THE DECALOGUE 

damage the property of an obnoxious political opponent, 
individuals who formed the crowd will only be obliged to make 
good the damage which they severally caused. Similarly, if 
injustice be done by picketing in a strike, the leaders will be 
bound to make reparation for all the injuries inflicted ; the men 
who take part in it may be excused if they contribute their quota. 



SECTION III 
Order of Making Restitution 

1. When several have co-operated in some act of injustice 
for which they are bound to make restitution there may be 
question as to who is primarily bound, and whether the others 
are excused if he repairs the damage. The answer to such 
questions will be clear from what follows. 

When those who co-operated in injustice are only bound 
to restore ratably, no order need be observed among them. 
Each must fulfil his obligation independently of the others 
and restore his share. Even if they are bound jointly and 
severally to make restitution, but all co-operated in the unjust 
act in the same way as, e.g., by conspiracy and mutual help 
the question of order will not arise. Each and all are bound 
to restore their quota, and in default of any, the rest are equally 
bound to indemnify the injured person. If this has been done, 
those who indemnified the injured party will have a claim 
against the defaulters. 

2. If, however, those who are guilty of an injustice in com- 
mon co-operated in it in different ways and degrees, so that, 
for example, one gave the command, others executed it, and 
others who were bound to prevent it neglected to do so, then 
it is plain that all are not equally primary causes of the in- 
justice, nor are all equally bound to make restitution. In such 
cases the co-operators are bound to make restitution in the 
following order : (a) If anyone has the property of the injured 
person he must restore it, for res clamat domino, (b) One 
who co-operates by command is the principal cause of the 
injury ; the rest merely act in his name and for his advantage, 
so that he is primarily bound to make good the damage done. 
(c) Thirdly, those who inflicted the damage will be bound to 
make it good, (d) Then others who co-operated positively 
by advice, consent, or flattery, will be bound, (e) Finally, 
those who co-operated negatively. 



THE CIRCUMSTANCES OF RESTITUTION 277 

If the primary causes of the injustice make restitution, 
the rest will be free, whereas if the secondary causes who 
merely acted for others restore to the injured party, the 
primary causes will thereafter be bound to make restitution 
to them. 

3. The question of order of payment among creditors also 
arises when a debtor is insolvent and cannot pay all in full, 
for if he can pay all in full, order of payment is not of con- 
sequence. If a man cannot pay his debts as they become 
due, he will be adjudicated a bankrupt, and his property will 
in general be divided ratably among his creditors. Some 
debts, however, have priority according to English law, and 
must be paid in full if the assets are sufficient for the purpose ; 
otherwise they will abate equally among themselves. " These 
are (i) Rates and taxes. ... (2) ;The wages or salary of any 
clerk or servant, not exceeding ,50, in respect of services 
rendered during four months prior to the receiving order. 
(3) Wages of any labourer or workman, not exceeding 25, 
for services, whether time or piece work, rendered during two 
months prior to the date of the receiving order." 1 

" A secured creditor has four courses open to him: (i) He 
may rest on his security and not prove. (2) He may realize 
his security and prove for the deficiency. (3) He may value 
his security and prove for the deficiency, after deduction of 
the assessed value. (4) He may surrender his security and 
prove for the whole debt." 2 

The debts of a person lately deceased must be paid by the 
executor or administrator in the following order: " First, the 
funeral expenses ; next, the expenses of probate or taking out 
administration, including the costs of an administration action 
and other executorship expenses ; and then the debts of the 
deceased are payable out of legal assets in the following order : 
(a) Crown debts due by matter of record, a surety to the 
Crown having the like priority; (b) debts having priority by 
statute e.g., under the Friendly Societies Act, 1896, sec. 35; 
(c) debts of record consisting of judgements in courts of 
record and recognizances; (d) debts by specialty and simple 
contract." 3 

If, however, the deceased died insolvent, on the petition of 
one or more of his creditors, whose debt would have been 
sufficient to support a bankruptcy petition against him if he 

1 Encyclopedia of Laws y s.v. Bankruptcy. 

2 Ibid. 

3 Ibid., s.v. Executors and Administrators. 



278 PRECEPTS OF THE DECALOGUE 

had been alive, his property will be administered as in bank- 
ruptcy according to English law. 

If a debtor makes a payment of money or a delivery of 
property to a creditor not in the ordinary way of business and 
without any pressure or demand on the part of the creditor, 
knowing that his circumstances are such that bankruptcy will 
be the probable result, he is guilty of a fraudulent preference 
in English law. Such fraudulent preference is void against 
the trustee in bankruptcy, if made within three months before 
the bankruptcy petition is presented. There is a similar 
provision in American bankruptcy law, but the period is four 
months instead of three. 

Those who are on the verge of bankruptcy should not, of 
course, give such preferences to any of their creditors merely 
with the intention of favouring them at the expense of other 
creditors. If they cannot pay their debts in full, the claims 
of justice are the same for all, and all creditors should share 
alike. If such a preference has been given, the property 
must, of course, be surrendered to the official receiver or trustee 
on his demand. But supposing that he does not come to the 
knowledge of it, and makes no demand for it, is the preferred 
creditor bound to surrender the property of his own accord ? 
There would seem to be no obligation in conscience to do so. 
He has only received payment of what was due to him, as we 
suppose; he might have demanded payment, and then the 
insolvent debtor might lawfully have paid it. No valid reason 
can be urged to show that in accepting full payment of his 
debt before the debtor's bankruptcy the preferred creditor 
commits an act of injustice against the other creditors. If he 
does not commit an act of injustice against them, he is not 
bound to make restitution to them. At least, this opinion 
would seem not to be destitute of all probability in its favour. 



SECTION IV 
The Manner of Making Restitution 

i. In the internal forum of conscience it is sufficient to 
indemnify the injured person for the injury which he has 
suffered, and in whatever way this is done conscience will be 
satisfied. Restitution, then, may be made by one's self or 
through another, with or without the knowledge of the injured 
party, under the guise of a gift, or by extra work in the case 



THE CIRCUMSTANCES OF RESTITUTION 279 

of a servant, or greater diligence than is otherwise of strict 
obligation. If the form of a gift or present is chosen, and the 
donee makes a present in return, this may not be accepted if 
the principal motive for making it was to make a return for 
the present received, otherwise it may be retained when the 
receiving of the present was rather the occasion than the cause 
of the return being made. 

2. In English law payment through the post is not a valid 
discharge of a debt unless the creditor expressly or by implica- 
tion designated that method of payment. However, in con- 
science, it would seem that a possessor in good faith of another's 
property is released from all further obligation if he choose 
means for making restitution which are ordinarily safe and 
secure. He is only bound to use ordinary care and diligence 
in restoring the property, nor is he b.ound to do this at his own 
expense. 

According to the common opinion of theologians, one who 
possesses another's property in bad faith must see that the 
property is again put into the possession of its true owner, so 
that if he send it by post and it is lost, he is still bound to make 
restitution, unless the means chosen were expressly designated 
by the owner. However, there is a good opinion which 
excuses even the possessor in bad faith from further obligation 
if he took ordinarily secure means to restore the property to 
its rightful owner. The creditor may be presumed to consent 
that such means as the post or the confessor should be chosen 
for making restitution, and if the property is lost, peril domino. 

The possessor of another man's property in bad faith must 
restore it to the owner at his own expense. If the individual 
property cannot be restored without very great expense, 
restitution may be made in money with the presumed consent 
of the owner. 



SECTION V 
The Time and Place of Making Restitution 

When an obligation of making restitution arises from con- 
tract, the terms of the contract must be observed with regard 
to time and place. Otherwise, in general, restitution must be 
made as soon as possible, and the unjust possessor of another's 
property will be responsible for all loss arising from even 
inculpable delay, as far as such loss could be foreseen. He 
became responsible for such loss when he took unjust posses- 



a8o PRECEPTS OF THE DECALOGUE 

sion of his neighbour's property. He must, moreover, at his 
own expense, as we have seen, take means to put the owner 
in possession of his property again. The possessor of another's 
property in good faith must not delay restitution unreasonably, 
but he is not responsible for unavoidable delay, nor is he bound 
to bear the expenses of making restitution. 



CHAPTER VI 
CAUSES WHICH EXCUSE FROM RESTITUTION 

i. ONE who is per se bound to make restitution may sometimes 
be excused from doing so for special reasons, either entirely 
or at any rate for a time. It is plain that if the owner does 
not expect or wish restitution to be made, although he was 
unwilling to be injured, the obligation will cease. A rich 
father may be unwilling that his son should take from him 
a sum of money without his permission, but after it has been 
done he may not care to exact restitution. Similarly, a wealthy 
man would be very angry if a neighbour took one of his horses 
out of the stable and used it for a day's work ; he might demand 
an apology, but he probably would not take any money com- 
pensation ;>he does not keep livery stables. 

2. Physical or moral incapacity to make restitution will be 
a valid excuse as long as it lasts. If a man has no means, or 
if he cannot make restitution without reducing himself to 
beggary, it will be sufficient if he have the wish and intention 
to restore when he is able to do so. Sometimes it may be 
possible for one who has stolen a large sum which he cannot 
at once repay to lay by a little at a time and thus by degrees 
save the amount required. If this can reasonably be done, 
it will be of obligation. It would be unreasonable to expect 
a man to make restitution when it could not be done without 
costing a great deal more than the object restored was worth, 
or when restitution of a sum of money would lead to loss of 
reputation, position, and future prospects. If in such cases 
means exist for making secret restitution, they should of course 
be adopted. 

When a man becomes bankrupt all his property, with the 
exception of the tools of his trade and the necessary wearing 
apparel and bedding for himself, wife, and children, to the 
value of 20, will vest in the official receiver and trustee. 
These officials will also be able to claim for the benefit of the 
creditors future acquisitions of property until the bankrupt 
has obtained his discharge. The question arises whether after 
a bankrupt has obtained an absolute discharge he is still liable 
in conscience to pay any residue that remains of his debts, 

281 



PRECEPTS OF THE DECALOGUE 

or whether he is free in conscience as he is in law. There 
can scarcely be a doubt that the civil authority can release 
a bankrupt from all future liability if it choose to do so. 
Especially in trading communities it may be for v the public 
good that an honest but unfortunate trader should be able to 
begin again, without being weighted with a heavy load of past 
debts. If the law releases a bankrupt debtor from all future 
liability, the rate of interest will soon accommodate itself to the 
circumstance. So that it is merely a question of fact as to 
what is the effect of any particular bankruptcy law. In most 
countries, as in America, it seems that the law only grants the 
bankrupt legal exemption from future molestation on the part 
of his creditors ; it does not free him from the moral obligation 
to pay his debts in full if ever he becomes able to do so. 

In England, on the other hand, by an absolute discharge 
" the debt is extinguished," " the bankrupt becomes a clear 
man again," in the words of lawyers who discuss the effect of 
English bankruptcy law. A composition or scheme of arrange- 
ment with one's creditors has the same effect as an absolute 
discharge when it has been approved by the Court. 



CHAPTER VII 
ON OCCULT COMPENSATION 

i. WHAT another owes me in justice I have a right to have, 
and if he refuses to give it to me, I may compel him by having 
recourse to law. Sometimes, however, this means of en- 
forcing my rights is uncertain, costly, and accompanied by 
great inconvenience. Under certain conditions I shall be safe 
in conscience if I covertly take what belongs to me. If I do 
this, I only take my own ; I only defend myself from a continual 
injustice which was being inflicted on me by one who detained 
my property against my reasonable will. 

2. Such an act of occult compensation, as theologians call it, 
may be allowed in conscience on four conditions : 

(a) The debt must be morally certain. If I have only a 
probable right, I may have recourse to the law to have the 
question decided, but with only a probability on my side I 
must not deprive another of what he possesses with a probable 
right on his side. In such a case, melior est conditio possi- 
dentis. 

(b) There must be a difficulty in vindicating my right by 
ordinary legal process. For if there be no difficulty, I must 
not take the law into my own hands ; public order and peace 
require that. Even though from occult compensation there 
be no fear of a breach of the peace, yet no man is a safe judge 
in his own case. 

(c) I must not secretly take what belongs to me when there 
is likelihood of being paid after all. By so doing I should 
wrong my debtor and be paid twice. 

(d) I must take compensation in the same kind of property 
as far as possible; the debtor must not be forced to sell or 
barter his property against his will. Of these conditions the 
first is the most important, but all should be loyally and con- 
scientiously observed in those special cases when we may 
have recourse to occult compensation. 



383 



PART VIII 
THE EIGHTH COMMANDMENT 

THE Eighth Commandment of the Decalogue is, " Thou shalt 
not bear false witness against thy neighbour." 1 Primarily it 
forbids the giving of false evidence, especially in a court of 
justice, against one's neighbour, by which his reputation is 
unjustly injured. But because the same effect is produced 
by rash judgements, calumny, tale-bearing, backbiting, con- 
tumely, lying, and the betrayal of secrets, all these sins are also 
forbidden by this commandment. Inasmuch as it is virtually 
positive, it prescribes the telling of the truth. 

CHAPTER I 
ON RASH JUDGEMENTS 

i. A JUDGEMENT is a firm assent of the mind to a proposition 
without fear of mistake, and if such an assent is given without 
sufficient grounds it is a rash judgement. The term, however, 
is used here only of judgements without sufficient reasons 
against the character of others, as that such a one is wicked, 
untrustworthy, a drunkard, and so on. 

2. Such rash judgements, when they are formed deliberately 
with the consciousness that there is not sufficient ground for 
them, are sinful, and if the matter be serious they are gravely 
sinful. The reason is because all have a right to our good 
esteem unless they have forfeited it by their bad conduct ; in 
judging others rashly we arrogate to ourselves an authority 
which we do not possess, and we use it unjustly against the 
character of our neighbour. 2 We thus violate justice, which 
in serious matters binds under grave sin. 

3. Rash judgements, however, to which depraved human 
nature is so prone, are not usually grave sins in those who 
are striving to lead good lives. . Rash and evil doubts, or 
suspicions, or opinions about others are frequent, but these, 
although wrong, are not as a rule gravely sinful, for they do 
not inflict serious harm on our neighbour's reputation. 

1 Exod. xx. 16. z Jas. iv 13. 

284 



ON RASH JUDGEMENTS 285 

4. It is no sin to think that another is wicked or has com- 
mitted a sin if we know it to be a fact. Nor are we obliged 
to think that all men are good until we know something to the 
contrary. We may suspend our judgement about such as we 
do not know sufficiently well to be able to say whether they 
are good or bad. We know, moreover, that there are many 
bad people in the world, and prudence suggests that we should 
be on our guard against all whom we do not know well, though 
justice and charity incline us to think no evil of anyone. 

Rash judgements frequently arise from the malice of our 
own hearts, or from hatred and envy. 1 If we purify our own 
hearts from vice and wickedness, we shall think kindlier 
thoughts of others. 

1 Rom. ii i. 



CHAPTER II 
ON DETRACTION 

i. DETRACTION, slander, or backbiting is committed by un- 
justly depriving another of his good name in his absence. If 
this is done by falsely imputing to him something which injures 
his reputation it is called calumny. Tale- bearing is a similar 
sin, and consists in making mischief between friends by telling 
tales to the disadvantage of one of them. All these are sins 
against justice and charity, for they tend to deprive our neigh- 
bour of his good name, " which is better than great riches," 
and to which he has a strict right until he forfeits it by his 
public conduct. Even if what is said to the disadvantage of 
our neighbour be true, we have no right to make it known to 
his discredit, as long as it is not public, for he still retains his 
reputation, he still has a right to it, and he must not be deprived 
of it without just cause. Even the dead retain their right to 
their good name, for death does not make them non-existent, 
and men are prepared to do and suffer much for the sake of 
leaving a reputation behind them. Besides, speaking ill of the 
dead frequently besmirches the living. Not only individuals 
but corporate bodies have each their reputation, and detrac- 
tion may be committed against a Religious Order, for example, 
or a diocese, as well as against individuals. 

2. Inasmuch as detraction is contrary to justice and charity, 
which, as we have seen, bind under a grave obligation, it will 
of itself be a serious sin, though frequently only venial on 
account of levity of matter. The measure of the gravity of 
the sin will be the harm which it causes to the person whose 
reputation suffers. The making known of the grave but 
secret sin of another with malicious intent or to his serious 
injury will certainly be a mortal sin. The disclosure of a 
venial sin of another, or even of some hidden defect for which 
he is not responsible, as, for example, illegitimacy, may cause 
him serious damage and constitute a grievous sin. However, 
the making known of even a grievous sin of another is not 
always mortally sinful, for sometimes no serious harm follows 
from it. A notorious drunkard will not be injured appreciably 
if a secret sin of drunkenness is made public, nor a woman 

286 



ON DETRACTION 287 

of doubtful reputation if some specific fall is mentioned. On 
the other hand, although a man has lost his reputation in one 
particular matter, he may still have one to lose in other matters, 
and if his secret sins in these matters be made known, a more 
or less grievous sin of detraction will be committed. A man 
may be of notoriously loose morals but with a character still 
to lose for honesty and uprightness. 

3. When a man has been tried and condemned in an open 
court of justice, there is no wrong done him by publishing 
the fact in the newspapers, or telling it to those who would 
not otherwise have heard of it. The judicial sentence penalizes 
him and deprives him of the right to his reputation in the 
matter touched by the sentence. This holds true of distant 
places and countries, and even of distant times. No injustice, 
then, is committed against one who has been legally convicted 
of crime by making this known in a place to which he has 
come in the hope of its not being known. Uncharitable harm 
might be done against such a one if he was trying to lead a 
good life in his new surroundings. 

Similarly, the sin of detraction is not committed when a sin 
which is matter of common report in one place is made known 
in another, if the knowledge of it would be sure to penetrate 
there before long. It is a disputed point among theologians 
whether or not sin is committed in such a case if otherwise 
the knowledge would not penetrate to the place where it is 
made known. At any rate, it is advisable to keep silence about 
such cases unless there be some good reason for making known 
the truth. If someone is thinking of employing an unknown 
servant whom we know to have committed theft from her 
former mistress in another part of the country, we are justified 
in making the fact known to the person concerned. It does 
not follow that we are justified in publishing elsewhere the sin 
of another which was well known indeed to a particular circle 
or community, but which was not really public. In such a 
case the right to one's reputation with the outside world has 
not been lost. 

4. The right to one's reputation is not absolute. We are, 
of course, never justified in calumniating another by imputing 
false charges to him. But for just and sufficient reasons we 
may make known the secret sin of another. There are cases 
when this is necessary for the public good or for the protection 
of the rights of the innocent, and in a conflict of rights the 
stronger should prevail. Thus, when lawfully summoned to 
give evidence in a court of justice we may witness to secret 



288 PRECEPTS OF THE DECALOGUE 

crime, and generally, whenever the defence of ourselves, or 
of the innocent, or the good of the delinquent himself, or of 
our hearers, require the truth to be made known. 

5. If by listening to a detractor we encourage him to slander 
another, we are formal co-operators in his sin and are as guilty 
as the detractor himself. If our listening is not indeed the 
efficacious cause of the detraction, we do not sin against justice, 
but we sin against charity if we could prevent the detraction 
and do not do so. For charity obliges us, as we saw above, 
to correct an erring brother and to prevent harm being done 
to our neighbour as far as possible. It is true that private 
individuals will seldom be bound by a grave obligation in this 
matter; frequently they could not intervene without doing 
more harm than good; but those in authority are more fre- 
quently and more strictly bound to correct their subjects and 
to defend their reputation against slander. 

6. Inasmuch as detraction, calumny, and other sins of the 
like nature are contrary to justice, they will always leave the 
obligation of making restitution as far as possible for the unjust 
damage which they cause, as we saw above when treating of 
restitution. 



CHAPTER III 
ON CONTUMELY 

i. OUR neighbour has a right not only to his good name but 
also to the honour or the external marks of our esteem, befitting 
his qualities and position. The Apostle exhorts us to " love 
one another with the charity of brotherhood, with honour 
preventing one another," 1 and in another place he bids us 
render honour to whom honour is due. 2 The sin of con- 
tumely is committed by any act or word which is contrary to 
the honour which we are bound to show our neighbour. It 
may be committed by neglecting to show him the honour 
which is his due, or by saying or doing something in his 
presence which expresses our contempt of him. 

2. Contumely of itself is a grave sin against justice and 
charity, for it injures a man in what he values more than 
wealth, and as a rule an insult wounds the reputation, as well 
as the feelings of him who is insulted. Our Lord's words 
show how grievous a sin is committed by treating another with 
contumely: " Whosoever shall say to his brother, Raca, shall 
be in danger of the council. And whosoever shall say, Thou 
fool, shall be in danger of hell fire." 3 Like most sins against 
justice and charity, contumely may be only a venial sin, for 
levity of matter, and chaff or banter, which is not intended 
to wound or irritate another, is of course harmless provided 
that it keeps within due bounds. 

3. Inasmuch as contumely violates justice, proper satis- 
faction must be made for insults. The kind and manner of 
making satisfaction will depend much on the relative condition 
of the parties. Sometimes the person injured may be reason- 
ably presumed not to wish the memory of the insult to be 
revived by formal apologies, and the danger of again arousing 
bitter and angry feelings may also excuse one from open acts 
of satisfaction. 

1 Rom. xii 10. a Rom. xiii 7. 3 Matt, v 22. 



i. 



289 19 



CHAPTER IV 
ON LYING 

i. A LIE is defined by St Thomas to be a speech contrary to 
one's mind. 1 It is, then, of the essence of a lie that there 
should be an intention of saying what is false, that there 
should be a contradiction between the mind and the external 
expression of it. One may tell a lie, then, by saying what is 
true if it is believed by the speaker not to be true, and a lie 
is told by denying what is false if it is believed to be true. 
Although a liar usually has the intention of deceiving others, 
yet such an intention is not of the essence of a lie. A man 
may be well aware that he has no chance of being able to 
deceive another, but may say what he knows to be untrue in 
order to excuse himself or not to stand self- convicted. Men 
who are known to lie habitually do not expect others to be 
deceived by what they say, but still they lie when they say 
what is not true. One may lie to God, though he knows that 
he cannot deceive him. 

In saying that a lie is a speech contrary to one's mind we 
understand not only words but gestures, or any signs by which 
our thought is manifested to others. As St Augustine says : 
" He tells a lie who has one thing in his mind and says some- 
thing else by word or by any signs whatever." 2 For we may 
and do constantly speak not only by word of mouth, but by 
our tone, looks, gesture, actions, and by the very circumstances 
in which our words are uttered. The words " I am not 
guilty " in the mouth of a murderer have quite a different 
meaning when they are uttered in the dock and at the feet of 
his confessor. The words, the tone, the look may be the 
same ; the circumstances make it a true speech in the first case 
and a sacrilegious lie in the second. 

A lie in action is called hypocrisy or simulation, but the 
malice is the same as in lying words. 

Lies are divided by theologians into jocose, officious, and 
hurtful lies. 

A jocose lie is told to amuse others ; it is something said in 
joke which the speaker knows to be false, and uttered with 

- 1 Summa, 2-2, q. 110, a. i. 2 DeMendacio, c. 3* 

390 



ON LYING 291 

the intention of saying what he knows to be false. If what is 
not true is said in joke without any intention of lying, and 
in such a way that ordinary hearers would understand, there 
is no lie. To speak ironically is not to lie. 

An officious lie is a lie of excuse, or a falsehood which, while 
procuring some advantage, does nobody any harm. 

A hurtful lie does an injury to someone. 

2. According to the common Catholic teaching, lying of 
every kind is intrinsically wrong ; so that, inasmuch as we may 
not do evil that good may come of it, we are never justified 
in telling a lie, not even if the life of another or the safety of 
the world depended on it. St Augustine, St Thomas, and 
other Catholic Doctors and theologians gather this doctrine 
from the teaching of Holy Scripture which in many places 
seems to forbid all lying as absolutely as it forbids theft or 
homicide. 1 Pope Innocent III gives expression to this teaching 
when he says in the Decretals, " Since Holy Scripture prohibits 
lying even to save the life of another." 2 Reason teaches us 
the same doctrine. For a lie is something inordinate in itself. 
It is a perversion of the moral order which the law of nature 
prescribes should be observed between the mind and the 
expression of it in our intercourse with others. We are 
endowed with the faculty of making known our thoughts and 
feelings to others; right order requires that the external ex- 
pression should agree with the internal thought, that the 
machinery should be correctly regulated, that there should 
be no contradiction between the parts of the same agent, as 
there is when a lie is told. The moral turpitude which there 
is in such a contradiction between the mind and its external 
expression is well seen in the vice of hypocrisy. When a man 
pretends to be other than he is, there is the same perversion 
of right order that there is in lying. It is like a monstrosity 
in nature; the parts of one whole do not fit harmoniously 
together ; they are out of gear and offensive to the view. 
There is, then, a special virtue of veracity which prescribes 
that when we have to make known our thoughts and feelings 
we should do it truthfully, or, in other words, we should make 
the outward expression agree with the thought. This virtue 
of veracity exists and is of obligation apart from any right to 
the truth that there may be in others. Veracity is something 
which we owe to ourselves as well as to our neighbour. It is 
true indeed that society is very much interested in sincerity 
and veracity. Social intercourse is very much hindered by 
1 Col. iii 9; Eph. iv 35. z C. Super eo, De usuris. 



zgz PRECEPTS OF THE DECALOGUE 

lying and the mistrust which lying generates. But although 
this is true, yet lying must be avoided primarily because it is 
unworthy of the dignity of man; it is a perversion of right 
order ; it is intrinsically, in itself, wrong. 

Some of the Greek Fathers held a different view from the 
above, and thought that lying was not wrong under all circum- 
stances, but that it was occasionally allowable, like medicine, 
on account of inevitable necessity. English moralists have 
very commonly held a similar opinion, that a lie is only told 
when what is false is said to one who has a right to the truth. 
Some modern Catholic theologians have also adopted this 
opinion, which places the malice of lying in the denial of the 
truth to one who has a right to it. They do not, however, 
sufficiently explain the nature of that right, whether it is a 
strict right of justice, or a right in a vague sense demanded by 
the good of society, and so due out of legal justice, or charity, 
or piety, or obedience. Moreover, it is as difficult to determine 
when that right exists as it is to determine what is a lie accord- 
ing to the common opinion, and the door seems to be opened 
to promiscuous lying provided that no injury be done to our 
neighbour. The only lie which the theory acknowledges seems 
to be the hurtful He. Nor does it sufficiently answer the argu- 
ments on which the common opinion is based. 

3. If it is never lawful to tell a lie, if the lie of necessity 
cannot be allowed, what means have we of safeguarding a 
secret ? 

Catholic theologians answer this question by propounding 
their doctrine of mental reservation. Mental reservations are 
either strictly or widely so called. The former is the restric- 
tion of one's meaning in making an assertion to the proposition 
as modified by some addition made to it within the mind of 
the speaker. As if on being asked " Are you going to town ?" 
one were to answer " Yes," meaning " in imagination." In 
wide mental reservations the words used are capable of being 
understood in different senses, either because they are am- 
biguous in themselves, or because they have a special sense 
derived from the circumstances of time, place, of person in 
which they are spoken. Thus, when a servant says that her 
master is not in, the words may mean either that he is absent, 
or that he does not wish to see the visitor. The servant's real 
meaning is restricted to one of these senses. In the same 
way a defendant on his trial in an English court of justice 
pleads not guilty i.e., until the charge be proved. A lawyer 
or a doctor questioned about professional secrets replies, " I 



ON LYING 393 

don't know " i.e., I have no knowledge which I can com- 
municate. 

Although strict mental reservations are lies, and therefore 
sinful, yet wide mental reservations are in common use; they 
are necessary, and they are not lies. They are necessary 
because justice and charity require that secrets should be kept, 
and frequently there is no other way of keeping them. They 
are not lies because, as we saw above, words take their meaning 
not only from their grammatical signification, but from the 
circumstances in which they are used. When a priest is 
asked about a sin which a penitent has confessed to him, and 
he answers, " I never heard of it," he speaks as a man, not 
as a confessor who holds the place of God in the tribunal of 
Penance. All are aware that he is a priest, and to all his words 
mean, " I never heard of it outside of the confessional." He 
never speaks of what he has heard inside the confessional, and 
nothing can, or should, be gathered about what he has heard 
there from the words which he uses. Although these wide 
mental reservations are not lies, yet they must not be employed 
without just cause, for the good of society requires that we 
should speak our mind with frankness and sincerity in the 
sense in which we are understood by our hearers, unless there 
be a good reason for permitting their self-deception when they 
take our words in a sense that we do not mean. 

Truth requires not only that we should say nothing that 
we know to be false, but also that we should weigh our state- 
ments and not make rash and unconsidered assertions. There 
are some people whose talk runs babbling along like a stream 
in a fresh, and with as little meaning. A man with a love for 
truth will be more sparing of his words, and will weigh them 
before giving them currency. 



CHAPTER V 
ON SECRETS 

i. A SECRET is some hidden matter concerning another which 
cannot be made known without causing him injury or dis- 
pleasure. Besides the secret of the seal of confession, which 
is treated of elsewhere, divines distinguish three kinds of 
secret : the natural secret, the promised secret, and the secret 
which is communicated under an express or implied contract 
of secrecy. 

When we come to the knowledge of something concerning 
another which cannot be made known without causing him 
injury or displeasure we are under the obligation of a natural 
secret not to make it known. This obligation arises from 
charity and justice, inasmuch as these virtues forbid us to do 
anything to the hurt or annoyance of our neighbour. 

If we come to know something concerning our neighbour 
and then give a promise not to reveal it to others, we are 
bound by a promised secret. If the matter was of its nature 
secret, there would be the obligation of a natural secret inde- 
pendently of the promise. When the promise is given, a 
special obligation arising therefrom binds the party to secrecy. 
In case the matter was not of itself secret, the only obligation 
would be that arising from the promise. It depends to some 
extent on the intention of the promisor as to what obligation 
he takes upon himself by his promise. He may intend to 
bind himself to keep his word by the virtue of fidelity, because 
it is the duty of an honest man to keep his promise. In this 
case, as fidelity only binds under pain of venial sin, there will 
only be this obligation to observe the promised secret. How- 
ever, if the other party to whom secrecy was promised would 
suffer serious loss from the violation of the secret, or if the 
parties were bound by mutual promises, then justice would 
require the secret to be kept, and the violation of the obligation 
would of itself be gravely sinful. Apart even from these 
circumstances, the promisor may intend to give the other a 
right to secrecy in justice, and then he will be bound to observe 
it under pain of mortal sin. 

A secret which is confided to another under the condition 

394 



ON SECRETS 

that secrecy is to be observed constitutes the matter of an 
onerous contract and binds more strictly than either a natural 
or a promised secret. Such are secrets of office which officials 
of all sorts become aware of in the execution of the duties 
entrusted to them; professional secrets of doctors, lawyers, 
priests, and others, who are consulted as experts by people 
in doubt or difficulty ; as well as all others which are entrusted 
to any person under the express or implied condition of 
secrecy. 

2. The obligation to observe a natural secret will cease after 
the secret has become public property. The party whose 
secret it is may sometimes be reasonably presumed not to be 
unwilling that the matter should be communicated to another, 
as, for example, to somebody who can and who will be of 
assistance to him. If the public good requires that the secret 
should be made known in order to prevent public wrong, 
the obligation of secrecy will cease, for the public welfare is 
of greater importance than that of an individual. If serious 
harm threatens one's self or some other innocent person, or 
the party whose secret is in question, and the harm can only 
be averted by making known the secret, this will be allowed 
in the case of natural or promised secrets. The right of 
defence from impending evil prevails over that of natural and 
promised secrets. 

Even the obligation of the third class of secrets will cease 
when they cannot be observed without serious harm to the 
public weal. The natural law, however, which requires that 
people should be able to consult others in their difficulties in 
all security, demands that this class of secret should be observed 
in the case when even serious harm threatens some innocent 
person, unless he whose secret is in question is the cause of 
the impending evil. Thus, if I know as a professional secret 
who is the real culprit in the case of a crime wrongly imputed 
to an innocent person, I may disclose the real culprit if by 
some special means he caused the false accusation of the 
innocent person, otherwise I must keep the secret. It is a 
disputed point among theologians whether I am bound to 
observe a secret at the peril of my life when it was entrusted 
to me under that express condition, some maintaining that 
no one can pledge his life in that way, others more probably 
holding the contrary. Whether or not I am bound at my own 
serious loss to keep a secret entrusted to me under the con- 
dition of secrecy depends to some extent on circumstances. 
Sometimes I cannot be supposed under the circumstances to 



292 PRECEPTS OF THE DECALOGUE 

lying and the mistrust which lying generates. But although 
this is true, yet lying must be avoided primarily because it is 
unworthy of the dignity of man; it is a perversion of right 
order ; it is intrinsically, in itself, wrong. 

Some of the Greek Fathers held a different view from the 
above, and thought that lying was not wrong under all circum- 
stances, but that it was occasionally allowable, like medicine, 
on account of inevitable necessity. English moralists have 
very commonly held a similar opinion, that a lie is only told 
when what is false is said to one who has a right to the truth. 
Some modern Catholic theologians have also adopted this 
opinion, which places the malice of lying in the denial of the 
truth to one who has a right to it. They do not, however, 
sufficiently explain the nature of that right, whether it is a 
strict right of justice, or a right in a vague sense demanded by 
the good of society, and so due out of legal justice, or charity, 
or piety, or obedience. Moreover, it is as difficult to determine 
when that right exists as it is to determine what is a lie accord- 
ing to the common opinion, and the door seems to be opened 
to promiscuous lying provided that no injury be done to our 
neighbour. The only lie which the theory acknowledges seems 
to be the hurtful lie. Nor does it sufficiently answer the argu- 
ments on which the common opinion is based. 

3. If it is never lawful to tell a lie, if the lie of necessity 
cannot be allowed, what means have we of safeguarding a 
secret ? 

Catholic theologians answer this question by propounding 
their doctrine of mental reservation. Mental reservations are 
either strictly or widely so called. The former is the restric- 
tion of one's meaning in making an assertion to the proposition 
as modified by some addition made to it within the mind of 
the speaker. As if on being asked " Are you going to town ?" 
one were to answer " Yes," meaning " in imagination." In 
wide mental reservations the words used are capable of being 
understood in different senses, either because they are am- 
biguous in themselves, or because they have a special sense 
derived from the circumstances of time, place, or person in 
which they are spoken. Thus, when a servant says that her 
master is not in, the words may mean either that he is absent, 
or that he does not wish to see the visitor. The servant's real 
meaning is restricted to one of these senses. In the same 
way a defendant on his trial in an English court of justice 
pleads not guilty i.e., until the charge be proved. A lawyer 
or a doctor questioned about professional secrets replies, " I 



ON LYING 293 

don't know " i.e., I have no knowledge which I can com- 
municate. 

Although strict mental reservations are lies, and therefore 
sinful, yet wide mental reservations are in common use ; they 
are necessary, and they are not lies. They are necessary 
because justice and charity require that secrets should be kept, 
and frequently there is no other way of keeping them. They 
are not lies because, as we saw above, words take their meaning 
not only from their grammatical signification, but from the 
circumstances in which they are used. When a priest is 
asked about a sin which a penitent has confessed to him, and 
he answers, " I never heard of it," he speaks as a man, not 
as a confessor who holds the place of God in the tribunal of 
Penance. All are aware that he is a priest, and to all his words 
mean, " I never heard of it outside of the confessional." He 
never speaks of what he has heard inside the confessional, and 
nothing can, or should, be gathered about what he has heard 
there from the words which he uses. Although these wide 
mental reservations are not lies, yet they must not be employed 
without just cause, for the good of society requires that we 
should speak our mind with frankness and sincerity in the 
sense in which we are understood by our hearers, unless there 
be a good reason for permitting their self-deception when they 
take our words in a sense that we do not mean. 

Truth requires not only that we should say nothing that 
we know to be false, but also that we should weigh our state- 
ments and not make rash and unconsidered assertions. There 
are some people whose talk runs babbling along like a stream 
in a fresh, and with as little meaning. A man with a love for 
truth will be more sparing of his words, and will weigh them 
before giving them currency. 



CHAPTER V 
ON SECRETS 

i. A SECRET is some hidden matter concerning another which 
cannot be made known without causing him injury or dis- 
pleasure. Besides the secret of the seal of confession, which 
is treated of elsewhere, divines distinguish three kinds of 
secret : the natural secret, the promised secret, and the secret 
which is communicated under an express or implied contract 
of secrecy. 

When we come to the knowledge of something concerning 
another which cannot be made known without causing him 
injury or displeasure we are under the obligation of a natural 
secret not to make it known. This obligation arises from 
charity and justice, inasmuch as these virtues forbid us to do 
anything to the hurt or annoyance of our neighbour. 

If we come to know something concerning our neighbour 
and then give a promise not to reveal it to others, we are 
bound by a promised secret. If the matter was of its nature 
secret, there would be the obligation of a natural secret inde- 
pendently of the promise. When the promise is given, a 
special obligation arising therefrom binds the party to secrecy. 
In case the matter was not of itself secret, the only obligation 
would be that arising from the promise. It depends to some 
extent on the intention of the promisor as to what obligation 
he takes upon himself by his promise. He may intend to 
bind himself to keep his word by the virtue of fidelity, because 
it is the duty of an honest man to keep his promise. In this 
case, as fidelity only binds under pain of venial sin, there will 
only be this obligation to observe the promised secret. How- 
ever, if the other party to whom secrecy was promised would 
suffer serious loss from the violation of the secret, or if the 
parties were bound by mutual promises, then justice would 
require the secret to be kept, and the violation of the obligation 
would of itself be gravely sinful. Apart even from these 
circumstances, the promisor may intend to give the other a 
right to secrecy in justice, and then he will be bound to observe 
it under pain of mortal sin. 

A secret which is confided to another under the condition 

394 



ON SECRETS 

that secrecy is to be observed constitutes the matter of an 
onerous contract and binds more strictly than either a natural 
or a promised secret. Such are secrets of office which officials 
of all sorts become aware of in the execution of the duties 
entrusted to them; professional secrets of doctors, lawyers, 
priests, and others, who are consulted as experts by people 
in doubt or difficulty ; as well as all others which are entrusted 
to any person under the express or implied condition of 
secrecy. 

2. The obligation to observe a natural secret will cease after 
the secret has become public property. The party whose 
secret it is may sometimes be reasonably presumed not to be 
unwilling that the matter should be communicated to another, 
as, for example, to somebody who can and who will be of 
assistance to him. If the public good requires that the secret 
should be made known in order to prevent public wrong, 
the obligation of secrecy will cease, for the public welfare is 
of greater importance than that of an individual. If serious 
harm threatens one's self or some other innocent person, or 
the party whose secret is in question, and the harm can only 
be averted by making known the secret, this will be allowed 
in the case of natural or promised secrets. The right of 
defence from impending evil prevails over that of natural and 
promised secrets. 

Even the obligation of the third class of secrets will cease 
when they cannot be observed without serious harm to the 
public weal. The natural law, however, which requires that 
people should be able to consult others in their difficulties in 
all security, demands that this class of secret should be observed 
in the case when even serious harm threatens some innocent 
person, unless he whose secret is in question is the cause of 
the impending evil. Thus, if I know as a professional secret 
who is the real culprit in the case of a crime wrongly imputed 
to an innocent person, I may disclose the real culprit if by 
some special means he caused the false accusation of the 
innocent person, otherwise I must keep the secret. It is a 
disputed point among theologians whether I am bound to 
observe a secret at the peril of my life when it was entrusted 
to me under that express condition, some maintaining that 
no one can pledge his life in that way, others more probably 
holding the contrary. Whether or not I am bound at my own 
serious loss to keep a secret entrusted to me under the con- 
dition of secrecy depends to some extent on circumstances. 
Sometimes I cannot be supposed under the circumstances to 



296 PRECEPTS OF THE DECALOGUE 

have bound myself by so strict an obligation; but as a rule 
professional secrets will continue to be binding even when 
the observance of them entails serious loss. 

3. We are bound to make known natural and promised 
secrets at the command of lawful superiors. The obligation 
of obedience to lawful authority prevails over that of secrecy 
due to individuals in those cases. And so a witness in a court 
of justice when lawfully questioned about what he knows 
under the obligation of natural or promised secrecy must give 
the evidence required. Similarly, secret impediments to 
marriage must be declared according to the precept contained 
in the proclamation of banns. Professional secrets, however, 
and, in general, secrets which belong to the third class, are 
privileged, and must not be declared, unless they have ceased 
to be binding for some such reason as those mentioned above. 
Secrecy in this case is demanded by the natural law, which 
gives the fullest possible security to those who consult others 
in their difficulties, and even the precept of one's superior 
cannot avail against the natural law, as St Thomas teaches. 1 

English law acknowledges the privilege of state secrets and 
of the professional secrets of lawyers, but in the case of doctors 
and clergymen it does not as yet go the full length of the 
doctrine laid down above. 

4. The doctrine with regard to secrets is applicable to the 
opening and reading of letters, unless it is known that they 
contain no secrets and the writer is not aggrieved. It is, how- 
ever, a general rule of Religious Orders that letters written by 
and to religious may be opened by the superior, except such 
as contain matters of conscience, and communications between 
higher superiors and their subjects. 

1 Summa, 2-2, q. 70, a. i, ad 2. 



BOOK VII 
ON CONTRACTS 

PART I 
ON CONTRACTS IN GENERAL 

CHAPTER I 
THE NATURE OF CONTRACT 

i . RIGHTS may be acquired by one person from another when 
the latter voluntarily surrenders them in favour of him by 
whom they are freely accepted. This is done by contract, 
which may be defined as an agreement by which one or more 
persons bind themselves to do, give, or forbear something in 
favour of one or more other persons. 

Contracts are express or implied. Express contracts are 
entered into by word of mouth or by writing. Implied con- 
tracts are formed by the virtual or implied consent of the 
parties. Thus, whenever a person undertakes an office he 
virtually agrees to perform all the duties annexed to it by law 
or custom, or which the nature of it demands. These latter 
are also called quasi- contracts. 

By a unilateral contract one only of the parties becomes 
subject to an obligation, as by a simple promise to do some- 
thing in favour of another. A bilateral contract, such as that 
of sale, imposes an obligation on both parties. 

A gratuitous contract confers advantage on one of the 
parties only, though both may incur an obligation by it. An 
onerous contract confers advantage on both parties. Thus, 
if I lend my horse to a neighbour for the day, he alone derives 
advantage from the contract, though I am bound not to demand 
the horse back until the appointed time arrives. If the contract 
is one of hiring, both parties derive advantage from it, and 
both are laid under obligations by it. 

A consensual contract is formed by the mere consent of the 
parties, a real contract by the delivery of the object of the 
agreement. 

A solemn or formal contract is entered into with the formali- 

297 



298 ON CONTRACTS 

ties required by law. A simple contract has no such formalities. 
In English law some simple contracts give no right of action 
unless they are in writing, or unless they have some other 
adjunct which serves as evidence of the contract. Thus by 
the Sale of Goods Act, 1893, sec. 4, " a contract for the sale of 
any goods of the value of ten pounds or upwards shall not be 
enforceable by action unless the buyer shall accept part of the 
goods so sold, and actually receive the same, or give something 
in earnest to bind the contract, or in part payment, or unless 
some note or memorandum in writing of the contract be made 
and signed by the party to be charged or his agent in that 
behalf." In these cases the law does not annul the contract 
if it is destitute of the legal requirements, or make it voidable ; 
it only renders it unenforceable in the courts of law. The 
only formal or specialty contract in English law is the deed. 
A deed is a document in writing or printed on paper or parch- 
ment. It is executed or made conclusive between the parties 
by being signed, sealed, and delivered. The seal is often 
affixed to the deed beforehand, and this is executed and made 
operative by the party whose deed it is placing his finger on 
the seal and saying, " I deliver this as my act and deed." 1 

2. In moral theology we have chiefly in view the natural 
obligation in conscience. which arises from every true contract 
to act in accordance with the agreement entered into. That 
obligation is one of justice, for a contract gives a strict right 
in justice to the fulfilment of the agreement. We cannot, 
however, afford to neglect positive law, ecclesiastical and civil, 
especially in the matter of contracts. It is a received axiom 
that contracts are governed by the law of the country. So 
that a question for consideration arises here, whether positive 
laws, which require certain contracts to have a special form 
for their validity, bind the conscience, so that if they are 
informal they are null and void in conscience as they are 
in law. 

No difficulty exists with regard to contracts which are 
governed by ecclesiastical law. The effect of the Tridentine 
law, which makes marriage null and void if not contracted in 
presence of the parish priest and of two witnesses, is clear 
from its terms. The same is true of other ecclesiastical laws 
which annul contracts. A difficulty arises only with regard 
to civil law, which does not usually explain whether defect of 
form in specialty contracts merely affects the legal obligation, 
or whether it affects also the natural obligation, making the 

1 Anson, Law of Contract, p. 51. 



THE NATURE OF CONTRACT 299 

contract null and void in conscience, so that no rights or 
obligations of any kind arise under it. 

The civil authority can certainly make laws which would 
have that effect in its own department, as all admit. It is a 
question of fact as to what is the effect of such voiding laws in 
any particular system of jurisprudence. It is a well-established 
opinion among English moralists that English laws which 
make acts void for want of legal form do not absolutely and 
at once annul the act, but only make it voidable. 1 So that 
defect of form in deeds and testaments will not prevent them 
from taking effect according to the intention of him who made 
them. If, however, it be the interest of someone to have the 
informal act set aside, he may use the benefit which the law 
gives and set it aside, provided that there is no fraud. Modern 
theologians commonly hold this opinion concerning the effect 
of voiding laws in other modern systems of legislation. 

3. From the definition of contract it is clear that its essential 
elements are: (i) The consent of the parties; (2) parties who 
are capable of giving a valid consent; (3) the subject-matter 
of the agreement. These will form the subject of the three 
following chapters. 

The law of the country concerning contracts is canonized 
by Canon 1529, which is as follows : " Let the same be observed 
in canon law in ecclesiastical matters with the same effects 
which the civil law in the country lays down concerning con- 
tracts both in general and in particular, whether nominate or 
innominate, and about payments, unless it is contrary to divine 
law, or it is otherwise determined by canon law." 

1 Jeremy Taylor, Ductor dubit., bk. 2, c. i, r. 5, n. 22. 



CHAPTER II 
ON CONSENT 

i . THE consent of the parties is the efficient and formal cause 
of a contract. When the two wills meet together and agree on 
the matter of the contract, the contract is formed. In order 
to produce its effect this consent must have certain qualities; 
it must be deliberate and free, mutual, internal as well as 
external. 

It must be deliberate, for a contract imposes a perfect and 
serious obligation on the parties, an obligation which they 
voluntarily take upon themselves, and which is not imposed 
from without. Now such an obligation cannot arise from a 
semi- deliberate act; full and perfect deliberation is required 
to give rise to a full and perfect obligation which is voluntarily 
undertaken. 

It must be free, not unjustly forced ; for an obligation which 
binds in justice cannot arise from injustice. 

It must be mutual, for a contract is the agreement of two 
wills. It is not necessary that consent be given at the same 
time by both parties. Provided that one of them has con- 
sented previously and his consent still endures, the contract 
will be formed when the other party gives his consent, for 
then there will be the agreement of the two wills. 

It must be internal, for a contract is an agreement of wills ; 
one renounces a right in favour of the other who accepts it, 
and this requires an internal act of the will. If the internal 
act be wanting, we may have a seeming contract, a contract 
in appearance, a fictitious but not a real contract. Inasmuch 
as a fictitious contract is no contract at all, it cannot as a 
contract bind the conscience, and so one who enters into a 
contract without intending to bind himself is not bound by 
it. He is, however, guilty of deception and fraud, and on 
this ground he is bound to indemnify the other party for any 
damage that he has caused him by his sinful and unjust action ; 
and if the only means of doing this is for him to fulfil the 
terms of the contract, he will be bound in justice to do that. 
When a contract is entered into without the intention of ful- 
filling its obligations, there is no contradiction here as in the 

300 



ON CONSENT 301 

former case; the contract exists, and its obligations must be 
faithfully executed. 

Internal consent is not sufficient of itself to form a contract ; 
it must also be outwardly manifested to the other party in order 
that he may know that his offer has been accepted and that 
there is mutual agreement. In other words, the consent must 
be external as well as internal. This internal and external 
agreement of the parties to a contract is brought about by an 
offer being made by one of them and accepted by the other. 
As soon as acceptance is externally manifested, all the requisites 
for a contract are present, and it forthwith springs into exist- 
ence, even though the offerer does not yet know of the accept- 
ance of the offeree. English law accepts this doctrine so far 
as to decide that " if acceptance through the post is expressly 
or by implication prescribed or permitted by the offerer, 
acceptance is made, and the contract is concluded, at the 
moment when an acceptance is duly posted for transmission 
to the offerer, even though the acceptance is delayed or lost 
in the post." 1 Ordinarily, however, acceptance is not complete 
until it is communicated to the offerer. 2 

2. Mistake concerning what was principally intended in the 
contract is said to be substantial, and it renders the contract 
null and void, for there is then no agreement of wills in the 
same matter. Thus, if one of the parties thinks that the 
contract is one of hiring, while the other thinks it is a sale, 
the mistake is substantial, and there is no contract. Similarly, 
mistake about the matter of the contract is substantial, and 
vitiates it, as if one thinks he is buying gold, while the other 
knows that it is brass. Mere ignorance as to what the object 
was would not make the contract invalid. Again, if one of 
the parties makes his consent conditional on some definite 
point, there will be no consent and no contract if the condition 
is not verified. Mistake concerning the other party to the 
contract is as a rule not substantial, and does not vitiate the 
contract. In marriage, however, and in gratuitous contracts 
in favour of a certain person for purely personal reasons, 
mistake about the person of the other party is substantial. 
Even in onerous contracts mistake about the person with 
whom the contract is made may be substantial in special 
circumstances, when for particular reasons the consent is given 
only to a definite person. 

3. Mistake about what is accessory and accidental in a 
contract does not invalidate it, for there is agreement about 

1 Digest of English Civil Law, n. 198. 2 ibid., n. 196. 



3oa ON CONTRACTS 

what is substantial and essential. Even if the party would not 
have entered into the contract if he had not been under a 
mistake about some matter which is accidental to it and not 
substantial, still the contract is valid, for, in fact, he gave his 
consent ; unless, of course, he only gave consent conditionally, 
on some supposition which was not verified. 

4. If, however, one of the parties was induced to give his 
consent by the fraud or misrepresentation of the other, and 
he would not otherwise have entered into the contract, the 
contract is voidable at the option of him who was deceived. 
The law of nature seems to indicate this as a suitable means 
of repairing the injury done by the fraud, and it is confirmed 
by English civil law. 

Even if there be no fraud or misrepresentation but only 
non- disclosure of facts which it was of importance for the 
other party to know, this will suffice to enable the party who 
had a right to full knowledge to avoid contracts of marine, fire, 
and life insurance, for the sale of land, for family settlements, 
and for the allotment of shares in companies. Such contracts 
are in English law said to be uberrimae fidei. 

5. A contract is also voidable at the option of one of the 
parties who has entered into it under duress i.e., actual or 
threatened violence affecting the contracting party, or his wife, 
parent, or child, and inflicted by the other party to the con- 
tract, or by someone acting with his knowledge and for his 
advantage. Fear caused in other ways does not invalidate 
the contract or make it voidable, unless it was so great as to 
deprive the contracting party of the use of reason. When 
one of the parties stands to the other in the relation of parent, 
guardian, trustee, medical attendant, legal adviser, spiritual 
director, or the like, any contract between them by which the 
one in authority obtains benefit or advantage may, according 
to English law, be set aside by the other on the ground of 
undue influence, unless it can be shown that the transaction 
was fair. The burden of proving this rests on the superior, 
who will seldom be successful unless he can show that the 
other had access at least to independent advice. 



CHAPTER III 
CAPACITY OF PARTIES 

i . BY the law of nature, all persons who have the full use of 
reason are capable of entering into contracts. On the other 
hand, children who have not yet attained the full use of reason, 
persons of unsound mind, and those who are drunk, cannot 
make valid contracts. We must, however, take into account 
the provisions of positive law which affect contractual capacity. 

2. Religious who are professed to solemn vows, and are 
consequently incapable of holding property personally, cannot 
personally acquire property rights or liabilities under contract. 
Religious who are under simple vows are capable of holding 
property, and they can make valid contracts with reference 
to it; but they do not act lawfully without the permission of 
their superiors. In other matters, also, religious are dependent 
on the will of their superiors, and cannot lawfully undertake 
contractual obligations without their permission. If they do 
so, the contracts may be avoided by the superior, except as 
regards the acquired rights of third parties (Can. 536). 

3. A married woman is now, by the Married Women's 
Property Acts, 1882 and 1893, in the same position as a single 
woman as regards the acquisition and disposal of property, 
and the acquisition of rights and liabilities in contracts. Still, 
she is not personally liable in respect of contract nor for fraud 
committed in connection with contract. Her liability can only 
be enforced against her property. She cannot be made a 
bankrupt unless she is carrying on a trade apart from her 
husband. 1 

4. A minor can enter into a binding contract which is for 
his advantage, as, for example, an apprenticeship ; he can also 
make a valid contract to pay a reasonable price for necessaries, 
or for goods and services which are suitable to his position 
and which are actually required for his reasonable comfort. 
Other contracts entered into by minors are void in law and 
voidable in conscience, and no ratification of them after full 
age has been attained is enforceable, whether there be a new 
consideration for them or not. Of course, a minor cannot 

1 Digest of English Civil Law, n. 71. 
33 



304 ON CONTRACTS 

abuse the privilege which the law gives him in order to cheat 
and defraud others ; if he has obtained a benefit even by con- 
tracts which are void by English law, he must pay a just price 
for it, and even English law will not enable him to recover 
money paid by him under such contracts if he has received 
benefit under them. 1 

5. Convicts under sentence of death, or undergoing penal 
servitude for crime committed, have no legal capacity, and 
cannot enter into a contract which English law will recognize. 
Any property belonging to such a convict is administered in 
accordance with the provisions of the Forfeiture Act, 1870, 
by an administrator appointed by the court. 

6. The unilateral acts of a person of unsound mind are by 
English law void, unless they were done during a lucid interval. 

His contracts other than marriage are valid, unless it can be 
shown that the other party to the transaction was aware of the 
unsoundness of mind. In that case they are voidable at the 
option of the person of unsound mind or his representatives. 
The same rules hold good of the contracts of drunkards in 
English law. 

7. Corporations or artificial persons are per se capable of 
entering into contracts through their agents in much the same 
way as natural persons. Those, however, that are created 
under the authority of English law by statute, or are formed 
under general statutes such as the Companies Acts, for definite 
purposes, are held incapable of binding themselves for objects 
clearly beyond those purposes as declared in the company's 



constitution. 2 



1 Digest of English Civil Law, n. 54. 

2 Encyclopedia of Laws, s.v. Contract. 



CHAPTER IV 
THE MATTER OF CONTRACT 

i. THE subject-matter of a contract must be something that 
is possible, for there can be no obligation to do what is im- 
possible. Mere inability, however, to perform what one 
promised must not be confounded with impossibility. If the 
performance of a contract is contrary to the course of nature, 
it is void. No one can bind himself by contract to visit and 
report on the other side of the moon. ; 

If at the time of concluding the contract the performance 
of it was impossible in fact, it is not void unless the parties 
contracted conditionally upon performance being possible in 
fact. The contract also remains valid if it was possible at the 
time of concluding it, but subsequently it becomes impossible 
without fault of either party, unless the parties intended that 
the contract should cease to be binding if performance became 
impossible. This intention is presumed when the possibility 
of performance was known by the parties to depend upon the 
continued existence of some thing, condition, or state of things, 
which has ceased to exist, and when the performance becomes 
impossible by reason of the death or illness of one of the parties, 
in the case of an agreement relating to personal services to be 
rendered by that party. 1 

When the performance of a contract is or becomes in part 
possible and in part impossible, it is a question of intention, 
depending in each case on usage and construction, whether 
the partial impossibility avoids or discharges the contract. 

2. The matter of a contract must either exist or there must 
at least be some probability of its future existence when the 
contract is entered into, otherwise there is nothing of value 
and no right to transfer, and a necessary condition for a contract 
to come into existence is wanting. 

3. The matter must be determinate or capable at least of 
being determined, otherwise the terms of the contract will be 
too vague, and no agreement of wills on the same matter is 
possible. 

4. The matter must be something of which the contracting 

1 Digest, n. 294 ff 
! 305 ao 



306 ON CONTRACTS 

party has the disposal, or of which he will have the disposal 
when the contract has to be executed, for he cannot transfer 
to another what he cannot dispose of. When an object is 
already due to another in justice, its transfer to him cannot 
form the matter of a new contract, and so if a judge sells justice 
to a litigant he is bound to restore the bribe, to which he has 
no title. One may, however, enter into a contract with a third 
person to do what is already owing in justice to someone else, 
provided that both obtain their full rights. A doctor, for 
example, may charge next-door neighbours the full fee for 
a visit to each, though he has only the trouble and expense of 
one journey. Similarly, what is already due, not in justice 
but out of charity or some other virtue, may form the matter 
of contract. 

5. There can be no obligation to do what is wrong, and so 
the matter of a contract must be something which is lawful 
and honest. It is obvious that a contract to do what is for- 
bidden by the moral law is invalid. If, however, such a 
contract has been executed and the crime committed by one 
of the parties, the question arises whether he has a right to the 
money or other compensation which was promised,. and which, 
as we suppose, may be received without sin. There are two 
opinions about this question. Some theologians hold that 
no such right can exist, for the contract was invalid from the 
beginning and remains so; mere lapse of time cannot make 
it valid. On the other hand, many great authorities maintain 
that the actual doing of the sinful action in favour of one party 
to whom it is agreeable, and to whom it affords advantage of 
some sort, is the concluding of an innominate contract, and 
gives the party who did it a claim in justice to the compensa- 
tion promised. Both views are probable, and so after the sin 
has been committed, and consideration for it has been paid, 
there will be no obligation to make restitution. 

Sometimes the Church forbids a contract under pain of 
sin only, and then such contract will be unlawful but valid, 
as is a mixed marriage without the requisite dispensation; 
sometimes she forbids a contract and also invalidates it, as 
she does clandestine marriages. 

There are some contracts which are illegal in English law, 
and yet they are valid in common estimation. This is the 
case with betting, and so if the contract is valid according to 
the law of nature, it will be obligatory in conscience, though 
unenforceable by English law. Other illegal contracts which 
are forbidden by the^ civil ilaw of England are not thereby 



THE MATTER OF CONTRACT 30? 

made invalid in conscience if they are valid by the law of 
nature. The law merely affects the external legality of the 
contract which it refuses to enforce. If, however, one who 
has entered into such a contract wishes for good reason to 
avoid it, and acts without fraud or injustice to the other party, 
he may take advantage of the law and rescind his contract. 
This doctrine is in keeping with what has already been said in 
similar questions concerning the effect of civil law and with 
the views of modern theologians on the subject. 



CHAPTER V 
CONSIDERATION, AND THE EFFECTS OF CONTRACT 

i. BY English law no simple contract is binding upon a party 
unless he receives consideration for his promise. The promisor 
is said to receive consideration for his promise when the 
promisee does, forbears, or suffers, or promises to do, forbear, 
or suffer, something in exchange for, and at the time of, the 
promise made to him. 

Inasmuch as the intrinsic reason and motive for entering 
into a contract is an essential element of it, and a condition 
sine qua non of its existence, to this extent we may say that 
consideration is necessary for the validity of a contract by the 
law of nature. Thus, if I give an alms to a beggar merely 
because he represents himself to be destitute, he will have no 
right to the alms if he is not destitute but well off. Again, 
if I buy a horse for running in a carriage and the animal which 
I obtain is quite useless for my purpose, the contract is null 
and void. However the English doctrine of consideration is 
different from this. In English law consideration must be 
something of value, not necessarily of equal or adequate value, 
but there must be a quid pro quo; a merely good consideration, 
as pity, gratitude, or relationship, will not be sufficient. If a 
simple contract has no such valuable consideration, it has no 
binding force. However, want of valuable consideration will 
not make a contract null and void in conscience; it will be 
valid in conscience if it has all the elements required by the 
law of nature, and in consequence it will be obligatory in the 
forum of conscience. It will merely be unenforceable in 
English courts of law. 

2. The primary effect of a contract is to impose an obliga- 
tion on the parties which binds them in justice to fulfil the 
contract. If one party fails to do so, the other will have a 
right to be compensated for the loss that he has suffered. 

The extent and quality of the obligation imposed by a 
contract will depend on the intention of the parties, which 
may be gathered not only from the express terms used by 
them, but also from the law, from custom, usage, and the 
character of the parties. 

308 



CONSIDERATION, AND EFFECTS OF CONTRACT 309 

Only the parties who entered into the contract are bound 
by it. They may agree together to confer a benefit on some 
third person; the latter will then receive advantage from the 
contract, but his rights and liabilities will not be affected by it. 

3. It used to be a common practice to confirm an agree- 
ment by oath, and the older theologians have much to say on 
the questions which arise from such a practice. It is now 
seldom done, and the matter may be treated briefly. 

If an oath is added to a valid contract, besides the obligation 
of justice, a fresh obligation is added which binds the party 
out of reverence for his oath to fulfil his engagement. Inas- 
much as the oath is accessory, and what is accessory follows 
the nature of the principal, the obligation arising from the oath 
will receive its interpretation from, and will cease with, the 
obligation of the contract. By Roman law, whose provisions 
were adopted by the canon law, the contracts of minors and 
certain other contracts which were of themselves rescindable, 
became irrescindable when they were confirmed by oath. 
This, however, was an effect of positive law, which has no 
counterpart in English jurisprudence. 

4. The obligation of a contract may, according to the inten- 
tion of the parties, depend on whether a certain event has 
happened or will happen in the future. The contract is then 
conditional, not absolute. If the event is past or present, but 
it is not known by the parties whether it has happened or 
not, the contract at once is valid or not, according as the con- 
dition is fulfilled or not, but the parties will not know whether 
they are bound by the contract until they know whether the 
condition be fulfilled or not. 

When the event is future, and its happening will, according 
to the intention of the parties, discharge the parties from 
obligation under the contract, the condition is subsequent. 
The parties are bound by the contract and will continue to 
be so bound, unless and until the subsequent condition is 
verified. 

When the parties agree that the contract shall depend upon 
the happening of a future event, there is a condition precedent. 
An obligation at once arises from such an agreement of awaiting 
the event ; when it has taken place the contract becomes abso- 
lute and begins to bind without any fresh act of the contracting 
parties; if the event does not take place, the obligation is 
discharged. 

5. Sometimes on entering into a contract something is given 
as earnest, which serves as evidence that the contract has been 



3 io ON CONTRACTS 

concluded, or as security that it shall be performed. Unless 
there is a contrary agreement between the parties, the earnest 
will be treated as part payment or will be returned upon per- 
formance; it will be forfeited if the party who gave it fails 
to perform; it will be returned if the party who received it 
fails to perform. 

If it is agreed that a certain sum is to be paid in the event 
of breach of contract by the party who was in default, the 
whole sum will be due if it represents liquidated damages. 
If, on the contrary, it is a penalty, the injured party, according 
to English law, cannot recover more than the amount of the 
loss actually suffered by him. 1 

1 Digest, n. 313. 



CHAPTER VI 
DISCHARGE OF CONTRACT 

THE obligation arising from a contract may cease to exist in 
several ways : 

1. By mutual agreement, by which each party renounces 
his rights under the contract. Cessation of contract by merger 
of one in another, or by substitution of one for another, may 
be classed under this head. 

2. A contract ceases by performance when each party has 
wholly performed his duty under it. 

3. When a contract consists of reciprocal promises, and one 
party fails to perform, or clearly expresses an intention not 
to perform, or disables himself from performing his promise, 
the other party may, at his option, treat the contract as at an 
end, and it is thereby discharged. Failing this, the injured 
party continues liable to perform his part, but he may claim 
damages for breach of contract by the other. 

4. A contract which has for its object the rendering of a 
personal service is discharged by the death or incapacitating 
illness of the promisor. 

5. There is no prescription against the obligation of a 
contract in English law, but a trustee in bankruptcy may 
repudiate the contracts of the bankrupt if they appear to be 
unprofitable. 



CHAPTER V 
CONSIDERATION, AND THE EFFECTS OF CONTRACT 

i . BY English law no simple contract is binding upon a party 
unless he receives consideration for his promise. The promisor 
is said to receive consideration for his promise when the 
promisee does, forbears, or suffers, or promises to do, forbear, 
or suffer, something in exchange for, and at the time of, the 
promise made to him. 

Inasmuch as the intrinsic reason and motive for entering 
into a contract is an essential element of it, and a condition 
sine qua non of its existence, to this extent we may say that 
consideration is necessary for the validity of a contract by the 
law of nature. Thus, if I give an alms to a beggar merely 
because he represents himself to be destitute, he will have no 
right to the alms if he is not destitute but well off. Again, 
if I buy a horse for running in a carriage and the animal which 
I obtain is quite useless for my purpose, the contract is null 
and void. However the English doctrine of consideration is 
different from this. In English law consideration must be 
something of value, not necessarily of equal or adequate value, 
but there must be a quid pro quo; a merely good consideration, 
as pity, gratitude, or relationship, will not be sufficient. If a 
simple contract has no such valuable consideration, it has no 
binding force. However, want of valuable consideration will 
not make a contract null and void in conscience; it will be 
valid in conscience if it has all the elements required by the 
law of nature, and in consequence it will be obligatory in the 
forum of conscience. It will merely be unenforceable in 
English courts of law. 

2. The primary effect of a contract is to impose an obliga- 
tion on the parties which binds them in justice to fulfil the 
contract. If one party fails to do so, the other will have a 
right to be compensated for the loss that he has suffered. 

The extent and quality of the obligation imposed by a 
contract will depend on the intention of the parties, which 
may be gathered not only from the express terms used by 
them, but also from the law, from custom, usage, and the 
character of the parties. 

308 



CONSIDERATION, AND EFFECTS OF CONTRACT 309 

Only the parties who entered into the contract are bound 
by it. They may agree together to confer a benefit on some 
third person; the latter will then receive advantage from the 
contract, but his rights and liabilities will not be affected by it. 

3. It used to be a common practice to confirm an agree- 
ment by oath, and the older theologians have much to say on 
the questions which arise from such a practice. It is now 
seldom done, and the matter may be treated briefly. 

If an oath is added to a valid contract, besides the obligation 
of justice, a fresh obligation is added which binds the party 
out of reverence for his oath to fulfil his engagement. Inas- 
much as the oath is accessory, and what is accessory follows 
the nature of the principal, the obligation arising from the oath 
will receive its interpretation from, and will cease with, the 
obligation of the contract. By Roman law, whose provisions 
were adopted by the canon law, the contracts of minors and 
certain other contracts which were of themselves rescindable, 
became irrescindable when they were confirmed by oath. 
This, however, was an effect of positive law, which has no 
counterpart in English jurisprudence. 

4. The obligation of a contract may, according to the inten- 
tion of the parties, depend on whether a certain event has 
happened or will happen in the future. The contract is then 
conditional, not absolute. If the event is past or present, but 
it is not known by the parties whether it has happened or 
not, the contract at once is valid or not, according as the con- 
dition is fulfilled or not, but the parties will not know whether 
they are bound by the contract until they know whether the 
condition be fulfilled or not. 

When the event is future, and its happening will, according 
to the intention of the parties, discharge the parties from 
obligation under the contract, the condition is subsequent. 
The parties are bound by the contract and will continue to 
be so bound, unless and until the subsequent condition is 
verified. 

When the parties agree that the contract shall depend upon 
the happening of a future event, there is a condition precedent. 
An obligation at once arises from such an agreement of awaiting 
the event ; when it has taken place the contract becomes abso- 
lute and begins to bind without any fresh act of the contracting 

parties; if the event does not take place, the obligation is 
i*ii * * 

discharged. 

5. Sometimes on entering into a contract something is given 
as earnest, which serves as evidence that the contract has been 



3 to ON CONTRACTS 

concluded, or as security that it shall be performed. Unless 
there is a contrary agreement between the parties, the earnest 
will be treated as part payment or will be returned upon per- 
formance; it will be forfeited if the party who gave it fails 
to perform; it will be returned if the party who received it 
fails to perform. 

If it is agreed that a certain sum is to be paid in the event 
of breach of contract by the party who was in default, the 
whole sum will be due if it represents liquidated damages. 
If, on the contrary, it is a penalty, the injured party, according 
to English law, cannot recover more than the amount of the 
loss actually suffered by him. 1 

1 Digest, n. 313. 



CHAPTER VI 
DISCHARGE OF CONTRACT 

THE obligation arising from a contract may cease to exist in 
several ways : 

1. By mutual agreement, by which each party renounces 
his rights under the contract. Cessation of contract by merger 
of one in another, or by substitution of one for another, may 
be classed under this head. 

2. A contract ceases by performance when each party has 
wholly performed his duty under it. 

3. When a contract consists of reciprocal promises, and one 
party fails to perform, or clearly expresses an intention not 
to perform, or disables himself from performing his promise, 
the other party may, at his option, treat the contract as at an 
end, and it is thereby discharged. Failing this, the injured 
party continues liable to perform his part, but he may claim 
damages for breach of contract by the other. 

4. A contract which has for its object the rendering of a 
personal service is discharged by the death or incapacitating 
illness of the promisor. 

5. There is no prescription against the obligation of a 
contract in English law, but a trustee in bankruptcy may 
repudiate the contracts of the bankrupt if they appear to be 
unprofitable. 



PART II 
ON SPECIAL CONTRACTS 

CHAPTER I 
ON PROMISES 

i. A SIMPLE promise is a unilateral and gratuitous contract 
by which the promisor binds himself to do something for 
another. 

English law will not enforce a simple promise for which 
no valuable consideration was given and which was not entered 
into by deed. In truth, a simple promise is hardly considered 
to be a contract, inasmuch as this term is confined to such 
agreements as the law will enforce. However, in the forum 
of conscience a simple promise begets an obligation to fulfil it, 
for an honest man is faithful to his promises. 

The mere expression of an intention or of a purpose to do 
something must be distinguished from a true promise. No 
new obligation is created by the former, whereas a promise 
imposes on the promisor a new obligation. This obligation 
arises from his intention to bind himself by his promise which 
must be made known to, and accepted by, the promisee. Until 
acceptance there is merely an offer, which may be revoked at 
will by the offerer; when the offer is accepted the promise 
becomes a binding contract. 

2. There is a dispute among theologians concerning the 
kind and quality of the obligation imposed by a simple promise. 
An onerous promise for which consideration is given by the 
other party and mutual promises bind in justice, and con- 
sequently under pain of grievous sin in serious matter. Simi- 
larly, where the promisee has been led to rely on a promise, 
and would suffer serious loss unless the promise were fulfilled, 
the promisor will be under a grave obligation to fulfil it. Apart 
from these circumstances the obligation of a simple promise 
will depend on the intention of the promisor. If he intended 
to give the promisee a strict right to what was promised, he 
will be bound in justice ; otherwise he will only be bound by 
the virtue of fidelity, which is a self-regarding virtue, and 

313 



ON PROMISES 313 

imposes an obligation to make the fact agree with one's word. 
The virtue of fidelity of itself only binds under pain of venial 
sin. 

3. A promise will cease to bind if some event takes place 
or becomes known subsequently which would have prevented 
the promisor from making the promise if it had happened or 
been known beforehand. For a simple promise is essentially 
conditional; the promisor binds himself to do something 
under certain suppositions and in certain circumstances; if 
those suppositions are not verified, or if the circumstances 
become changed, the obligation of the promise ceases. All 
the more will a promise cease to bind if what was promised 
becomes unlawful and wrong, or useless, or impossible. It 
is obvious that release by the promisee, and other causes, 
which are sufficient to discharge contracts according to what 
was said above, will also suffice to do away with the obligation 
of a promise. 



CHAPTER II 



ON GIFTS 

i. A GIFT is a unilateral contract by which property is 
gratuitously transferred to another. It differs from a promise 
in that it takes effect at once, while a promise regards the 
future, and from such contracts as sale and exchange in that 
it is gratuitous. A gift inter vivos is distinguished from a gift 
mortis causa in that the latter is made in contemplation of 
death and becomes irrevocable only if death follows. If 
death does not ensue, a gift mortis causa is thereupon revoked. 
A gift inter vivos was revocable by Roman law on account of 
ingratitude and for certain other reasons ; by English law such 
a gift is irrevocable (cf. Can. 1536). 

2. By the law of nature any property may be transferred to 
another by gift provided that the donor is capable of making 
a valid gift, and it is accepted by the donee. Positive law 
requires other conditions to be fulfilled in order that a gift 
may be recognized and enforced in the civil courts. Thus 
English law requires a gift of chattels to be completed by 
actual delivery unless it is made by deed. Certain kinds of 
property can only be given by deed. These and similar 
provisions do not invalidate a gift which is made without the 
formalities required by law, but if a gift is disputed, and the 
authority of the law is invoked, both parties must stand by 
the decision of the Court. A gift to pious causes is governed 
by ecclesiastical law, which requires for its validity nothing 
more than what is necessary by the law of nature (Can. 1513, 

2348). 

The Church prescribes that in gifts made to the Church 

or pious causes, the formalities required by civil law should 
be observed as far as possible. 



CHAPTER III 
ON WILLS 

i . A WILL is a legal declaration of a person's intentions which 
is to take effect after his death. In English law a will is not 
necessarily a disposition of property; the appointment of a 
guardian for one's children, or of an executor who will dis- 
tribute the estate according to law, is a will if accompanied 
by the proper legal formalities. Ordinarily, indeed, a will is 
a |disposition of property, but it frequently contains other 
provisions as well, as to the place of one's burial and other 
matters. 

A will is not, strictly speaking, a contract, for the consent 
of the beneficiaries under it is not required for its validity, 
but it partakes of the nature of a unilateral contract, and is 
usually treated as such by theologians. 

Lawyers and theologians are by no means agreed as to the 
source whence a will derives its effect. Some hold that the 
power of testamentary disposition is derived from the law of 
nature, inasmuch as there is nothing to prevent a man from 
doing some act and at the same time suspending its effect 
until after his death. Others maintain that the will of a person 
cannot produce its effect when that person is already dead; 
no disposition of property can be made by a human will that 
has ceased to act as far as outward manifestation is concerned. 
Nor does a will produce its effect until the testator be dead. 
They conclude, then, that the power of testamentary disposi- 
tion is derived from positive law. We may, perhaps, hold as 
certain that the law of nature gives owners of property the right 
to dispose of it in some way in view of death, but that it does 
not determine of itself the method of disposition by will. This 
precise method is a result of the determination of the natural 
by positive law. 

2. To be valid in English law a will must be made accord- 
ing to the provisions of the Wills Act (i Viet. c. 26, sec. 9), 
which enacted " that no will shall be valid unless it shall be 
in writing and . . . signed at the foot or end thereof by the 
testator or by some other person in his presence, and by his 
direction, and such signature shall be made, or acknowledged, 

315 



316 ON CONTRACTS 

by the testator in the presence of two or more witnesses, 
present at the same time, and such witnesses shall attest and 
shall subscribe the will in the presence of the testator, but no 
form of attestation shall be necessary." 

By section 1 1 of the same Act an exception to the rule that 
a will must be in writing is allowed in the case of any soldier, 
being in actual military service, or any mariner or seaman, 
being at sea. These may make a valid nuncupative will of 
their personal estate by word of mouth, even if they be minors. 

We saw above that it is a disputed point among theologians 
whether an informal will is valid in the internal forum of con- 
science, though it be invalid in law. Probably it is valid if it 
express the intentions of the testator, until a party interested 
moves to have it set aside. All parties must stand by the 
decision of the court. 

A codicil, according to the terminology of modern English 
law, is a testamentary instrument altering or modifying a will. 
It requires for its validity the same formalities as does a will, 
and it may take effect without a will, if no will be forthcoming. 
A codicil to a particular will, or which refers to the provisions 
of the will, republishes the will and makes it speak as of the 
date of the codicil. But a testamentary instrument which is 
not described as a codicil to a will, and does not refer to a 
will, has not the effect of republishing the will. 

A legacy is a gift in the form of a direction by testamentary 
instrument that the legal personal representative of the testator 
shall pay, transfer, or provide some money or thing to the 
recipient or legatee. The legatee derives his legacy from the 
executor, not immediately from the testator. 

Anyone may be a legatee. A legacy bequeathed to a creditor 
of the testator is presumed to be in payment of the testator's 
debt, but the courts look with disfavour on this doctrine, and 
are quick to discover reasons for setting it aside. A legacy 
to an infant may be paid to him if the testator so direct ; other- 
wise the legacy must be retained until the infant attains the 
age of twenty- one, or paid to his testamentary guardian, or 
paid into court. 

A legacy may be given on condition, either precedent or 
subsequent. Conditions against change of religion are valid 
in English law. 

A legacy may fail from invalidity of the instrument con- 
ferring it, from uncertainty or vagueness of the terms of the 
bequest, or uncertainty of the person designated; from in- 
solvency of the testator's estate; from the testator having 



ON WILLS 3i7 

disposed of the object in his lifetime if the legacy be specific; 
or from his having paid the legacy in his lifetime; and from 
the non-fulfilment of a, condition on which the legacy was 
given. The legacy also lapses on the death of the legatee in 
the testator's lifetime. 

If a legatee has been paid, and the estate subsequently 
proves to be insufficient either from the discovery of further 
debts or the loss of assets, he may be compelled to refund his 
legacy in favour of creditors, and similarly a residuary legatee 
may be compelled to refund in favour of general legatees. 

Legacies ordinarily become due on the death of the testator, 
but they are not payable for a year, that period being allowed 
executors in order to collect the assets and to pay the debts. 

To secure the safety of trusts and bequests to Catholic 
objects, attention must be paid to various provisions of English 
law. The rule against perpetuities is designed to prevent 
property from being tied up permanently, and to obtain this 
end it requires that every use or trust must be so limited as 
necessarily to vest within a life or lives in being and a further 
period of twenty-one years. A tolerably large class of objects 
technically called " charitable " has, however, been exempted 
from this rule. Among these objects are the promotion of 
any form of lawful religion, the relief of the aged and poor, 
the maintenance of the sick, the establishment of free schools, 
and others of a similar kind. Such trusts and bequests as 
English law considers to be " charitable " are therefore upheld, 
though they may infringe the rule against perpetuities. On 
the other hand, bequests for prayers and Masses for the dead 
were void as being bequests for " superstitious uses," but this 
doctrine is now abandoned. Trusts and bequests for the 
benefit of religious communities of men " bound by monastic 
or religious vows " are also void, as such communities are 
illegal in England. The Irish courts hold bequests for Masses 
to be for " pious uses " and not void, but subject to the rule 
against perpetuities as not being " charitable " in the technical 
sense. Trusts and bequests of land or of money to be laid 
out on the purchase of land are also subject to the Mortmain 
Acts. 

These legal provisions do not bind the conscience with 
regard to legacies left to Catholic pious causes, nor is a Catholic 
justified in invoking them to make a pious legacy void for his 
own gain, but they should be known so that property left for 
Catholic purposes may be expended in accordance with the 
will and intention of the testator or donor (Can. 2348). 



318 ON CONTRACTS 

Wills and bequests for pious purposes among Catholics are 
governed by canon law, which requires nothing more than 
certain proof of the intention of the testator in order to make 
a testamentary disposition of property valid. It follows from 
this that bequests to pious causes contained in an informal 
will are valid, if there is morally certain evidence that it was 
the intention of the testator to make them. This doctrine 
has been frequently confirmed by answers of the Roman 
Congregations to questions proposed to them (Can. 1560, 
sec. 4; 1513, sec. 2). 

3. Those who have not yet attained the use of reason and 
persons of unsound mind are incapable of making a will by 
the law of nature. Religious who are solemnly professed are 
incapable of making a valid will by the law of the Church. 
Minors under the age of twenty- one cannot make a valid will, 
according to English law. 

A will that has been made under duress and undue influence 
will be set aside if appeal be made to English courts. Women 
married after December 31, 1882, can by will or otherwise 
dispose of their separate property whether real or personal, 
and women married before that date can by the Married 
Women's Property Act, 1882, dispose in the same manner of 
all property which accrues to them after that date. 

4. A person who is capable of making a will may bequeath 
his property, both real and personal, to whomsoever he wishes ; 
the legitim or reasonable part is not recognized by modern 
English law. This, of course, does not do away with the 
moral obligation of providing for those who have claims on the 
testator by reason of kindred or other ties. Still, for just cause, 
the testator may take advantage of the law, and leave nothing 
to one who otherwise would have been benefited under his will. 

If a person dies intestate, his property will be distributed 
among his next of kin according to the statutes of distribution. 

A person may be under a moral obligation of making a will 
from the command of a lawful superior, or because quarrels 
and dissensions about his property will be the consequence of 
his dying intestate. 

5. A will is revoked by the subsequent marriage of the 
testator, by the due execution of a subsequent will which is 
inconsistent with the former, or by some writing declaring an 
intention to revoke the same and executed in the manner in 
which a will is required to be executed; or by the burning, 
tearing, or otherwise destroying the same by the testator or 
by some person in his presence and by his t direction, with the 



ON WILLS 319 

intention of revoking the same. Such are the provisions of 
section 20 of the Wills Act, 1837, and section 21 should also 
be noted. It is as follows: " No obliteration, interlineation, 
or other alteration made in any will after the execution thereof 
shall be valid or have any effect (except so far as the words 
or effect of the will before such alteration shall not be apparent) 
unless such alteration shall be executed in like manner as 
hereinbefore is required for the execution of the will ; but the 
will, with such alteration as part thereof, shall be deemed to 
be duly executed if the signature of the testator and the sub- 
scription of the witnesses be made in the margin, or on some 
other part of the will opposite or near to such alteration, or 
at the foot or end of, or opposite to, a memorandum referring 
to such alteration, and written at the end or some other part 
of the will." 

6. The execution of a will is usually confided by the testator 
to a person or persons named by him and who are called the 
executors. Anyone who is capable of making a will may be 
made an executor, as may even a minor, though he cannot 
act until he attains full age. One or several may be appointed, 
but no one is bound to accept the office. If a person dies 
intestate, or if no executor was appointed in the will, or if he 
who was appointed refuse to act, an administrator will be 
appointed by the court to administer the estate. The widow 
or widower or the next-of-kin of the deceased person is as 
a rule the person to be selected. The will must be proved 
in the Probate, Divorce, and Admiralty division of the High 
Court. Probate in common or non- contentious form may be 
granted in the district registry within whose district the 
deceased had a fixed place of abode. Where the assets are 
small the county court has jurisdiction in contentious cases, 
otherwise these must be settled in the High Court. 

An executor is the legal representative of the testator, and 
his duties are : 

(a) To bury the deceased in a manner suitable to his estate. 
There is no property in a dead body, and a direction by will 
as to the disposition of the testator's body cannot be enforced 
by English law. Thus the executor would not be bound to 
have the body of the testator cremated, though directions to 
that effect were contained in the will. 

Ecclesiastical law forbids cremation under severe penalties, 
and declares directions for cremation inserted in wills of no 
effect (Can. 1203; 1240, sec. i, 5; 2339). 

To obtain probate within the prescribed time. 



320 ON CONTRACTS 

(c) To collect the effects of the deceased with reasonable 
diligence. 

(d) To pay the debts of the deceased in the order and 
manner prescribed by law, and in general in the following 
order: funeral expenses, expenses of probate, Crown debts, 
debts having priority by statute, debts of record, debts by 
specialty and simple contract. The executor may voluntarily 
pay an inferior debt before a superior one of which he had 
no notice, and he is not at liberty to pay a debt which by law 
cannot be enforced against the estate, with the exception of 
a debt barred by time according to the statute of limitations. 

(e) To distribute the estate according to the terms of the 
will. 

Where there is no executor these duties devolve on the 
administrator appointed by the court, who, after payment of 
debts, distributes the estate in accordance with the will, if 
there is one, and if there is no will, then in accordance with 
the statutes of distribution. To enable the executor or 
administrator to fulfil these various duties he is allowed a 
year by law before he can be compelled to pay legacies or to 
distribute the estate. 



CHAPTER IV 
ON MUTUUM AND USURY 

i. ECONOMIC goods may be divided into those which are 
meant for immediate consumption and those which are meant 
to subserve our wants by repeated use. In the first category 
are articles of food and drink, in the second are commodities 
which are capable of rendering continued services, such as a 
saw, a sewing-machine, a house. It is with the first class of 
goods that we have principally to do in this chapter. They 
are sometimes called fungibles because any amount is inter- 
changeable with the same quantity and quality of the same 
commodity (mutua vice funguntur). Thus, if I lend a bushel 
of wheat, I shall be satisfied if I get back a bushel of the same 
quality; I do not expect to receive back the same identical 
grain. The matter of the contract of mutuum is something 
fungible, which is consumed in the very first use of it. 

It is obvious that such commodities may be the matter 
of many different contracts. They may be the matter of the 
contract of sale, or gift, or exchange, or loan. The contract 
which was called mutuum in Roman and canon law was a 
gratuitous loan of a fungible commodity on condition that 
after a certain period of time the borrower should restore to 
the lender an equal quantity of the commodity and of the 
same quality. Unfortunately, we have no term in English 
which is the precise equivalent for mutuum. We use the 
term loan of lending a horse, which we expect to be restored 
to us in specie, and of lending a bottle of wine, which we do 
not expect back but another instead of the same size containing 
the same quality of wine. As an equivalent for mutuum we 
may make use of the expression loan for consumption as dis- 
tinguished from loan for use. 

In all contracts justice requires that values which are given 
in exchange should be equal. A sin against justice is com- 
mitted by charging an unreasonable price for a horse. What 
the reasonable price is depends on the demand, on the avail- 
able supply, and on a great variety of factors, but it is proxi- 
mately determined by the common estimation of intelligent 
men at a fixed time in a certain place. The fair price of a 

si 



322 ON CONTRACTS 

fungible commodity which is consumed in the first use of it 
is the money equivalent of the value which that use has. The 
commodity is for consumption, and the only value that it has 
is the value of that consumption. There is no other use in the 
commodity which can give it any additional value. The fair 
price of a bottle of wine is the money equivalent of the value 
which the wine has for drinking. In other words, the value 
of the first consumption of the commodity is the value of the 
commodity. 

On the other hand, commodities which are not consumed 
in the first use of them, but which continue to render repeated 
services, have a value over and above that of the first use. 
The value of a house is greater than the value of the lease of 
it for a year, because the house will continue to render services 
and be valuable after the year's lease of it expires. The fair 
price, then, of a commodity which is not consumed in the first 
use of it will be greater than the value of that first use. 

All this seems evident, yet with a view to the deductions 
which we shall presently make, it is well to strengthen what 
has been said by the words of a modern professor of political 
economy. Dr. G. Cassel writes : " All economic goods may 
be divided into two categories : those which satisfy our wants 
in being consumed at once, and those which afford a series of 
useful services before they are worn out. Food is an instance 
of the former category, houses of the second. This line of 
subdivision is one of the most fundamental in economic 
science. The price paid for an article of immediate consump- 
tion is, of course, the same as the price paid for the use of 
this article. This is not so in the case of an article belonging 
to the second category. The price paid for the single useful 
service it affords is one thing; the price paid for the article 
itself is quite another." 1 

2. Money considered as a medium of exchange is a fungible ; 
it is a commodity whose use is exhausted for the owner of it 
when he has paid it in exchange for value received. It is 
not, under this respect, a commodity which is susceptible of 
repeated use by the same owner. Money, then, may be the 
matter of a contract of loan for consumption, and, if a sum of 
money be thus lent, justice requires that an equal sum be 
returned at the end of the term, and justice will not allow a 
greater sum to be exacted in return. For the whole value of 
the sum of money is the value it has for making exchanges, 
the value which it has in the first expenditure of it; and if, 

1 The Nature and Necessity of Interest, p. 86 (1903). 



ON MUTUUM AND USURY 323 

over and above the sum lent, a further sum were demanded 
for the use of the money, the same thing would be charged for 
twice over. An equal sum is due in return for the use of the 
money; a further sum would be a second payment for the 
same use. Thus when money is regarded merely as a medium 
of exchange a sin against justice is committed if an additional 
sum besides the principal is exacted for a loan ; it is called the 
sin of usury, money unduly exacted for the use of money. 

This is the reasoning of Aquinas, 1 and it seems as cogent 
to-day as it was in the thirteenth century. By this argument 
he defended the doctrine concerning usury which the Fathers 
and Doctors drew from Holy Scripture and tradition. Bene- 
dict XIV sums up the constant teaching of the Church on 
usury in his celebrated encyclical, Vix pervenit. There the 
Pope says: " The sin which is called usury consists in this, 
that from the loan for consumption (which of its own nature 
requires that only so much as was received should be returned) 
the lender desires more to be returned to him than the bor- 
rower received, and therefore contends that some gain, over 
and above the principal, is due to him merely on account of 
the loan. For whoever, when once a sum equal to the debt 
has been repaid, is not ashamed to exact something more 
from the borrower on account of the mere loan, which has 
been repaid by the equal sum, such a one stands convicted 
of acting against the obligation imposed by a loan for con- 
sumption, which requires equality between the sum lent and 
the satisfaction for it " (cf. Can. 1543). 

This argument is valid when money is regarded as a means 
of exchange for articles of consumption and a measure of their 
value. Until modern times this was the chief function of 
money, but now we find that the above argument does not 
impress us with convincing force because in modern society 
money is not only a means of exchange for articles of con- 
sumption and a common measure of value, but also the most 
convenient form of storing capital. Within the last hundred 
or hundred and fifty years modern society has become capital- 
istic, and money is the chief form of capital. No wealth- 
producing object of importance can be undertaken without 
a supply of money, and money is now readily exchangeable 
for land, machinery, means of distribution, and other instru- 
ments for the production of wealth. Capital is one of the 
factors necessary for the production of wealth, and it is the 
chief instrument of its production. Money, then, looked 

1 Summa, 3-2, q. 78, a. i. 



324 ON CONTRACTS 

upon as capital, is not a mere fungible ; it is not a commodity 
which is consumed in the first use of it ; it is the main instru- 
ment necessary for the production of wealth, and it thereby 
acquires a new function; it becomes virtually productive and 
puts on the nature of land and machinery, with which it is 
so readily exchangeable. Indeed, nowadays land can hardly 
put forth its natural productivity without the aid of capital, 
and machinery cannot be worked for the production of wealth 
without it. It follows, then, that nowadays money is not 
merely a means of exchange ; it is also an instrument of pro- 
duction, and just as money may be charged for the use of 
land, or of a house, so money may be charged for the use of 
money. Money now has its fair and reasonable price like 
any other commodity, and the sin of usury is committed not 
by taking a fair and reasonable interest for a loan, but by 
exacting excessive interest. What is a fair and reasonable 
interest is a question whose solution depends upon circum- 
stances, and, proximately, on the common estimation of 
intelligent men, like the fair and reasonable price of other 
commodities. 

The foregoing seems to be the true solution of the old and 
much- disputed question of usury. It rests on historical facts 
and economic truths which are commonly admitted by modern 
theologians and economists, and it furnishes a satisfactory 
explanation of the changed attitude towards the taking of 
interest for money loans which the Church has adopted in 
modern times. Canon 1543 rests the title for taking moderate 
interest for money on positive law. 

Although the use of money as capital was known in par- 
ticular places and especially in centres of commerce in former 
ages, yet this use was exceptional and could not characterize 
money in general. The capitalistic function of money was 
of very gradual growth, and we have to wait till the latter 
part of the eighteenth, or the first part of the nineteenth, 
century before the capitalistic era was fully developed even 
in the most advanced nations of Europe. It may be well to 
quote one or two passages from economists of standing in 
proof of this. Dr. Cunningham writes: " In dealing with the 
Christendom of earlier ages we have found it unnecessary to 
take account of capital, for, as we understand the term in 
modern times, it hardly existed at all. In the fourteenth and 
fifteenth centuries we may notice it emerging from obscurity, 
and beginning to occupy one point of vantage after another, 
until it came to be a great political power in the State. . . . 



ON MUTUUM AND USURY 325 

It would be still more hopeless to try to treat the intervention 
of capital as an event which happened at a particular epoch, 
or a stride which was taken within a given period. It is a 
tendency which has been spreading with more or less rapidity 
for centuries, first in one trade and then in another, in pro- 
gressive countries. We cannot date such a transformation 
even in one land; for though we find traces of capitalism so 
soon as natural economy was ceasing to be dominant in any 
department of English life, its influence in reorganizing the 
staple industry of this country was still being strenuously 
opposed at the beginning of the present century [the nine- 
teenth]." 1 

The following is from Professor Cassel's book, The Nature 
and Necessity of Interest : " Interest paid for the use of capital, 
not for the use of money. . . . . The question For what is 
interest paid ? was taken up again, a few years afterwards, and 
treated in the most successful way by the eminent French 
economist, Turgot. He rejects the old idea of a ' price of 
money,' and defines interest as the price given for the use of 
a certain quantity of value during a certain time a formula 
never afterwards surpassed in clearness and definiteness. He 
shows how this price is fixed by demand and supply, and he 
gives special attention to the causes which govern the demand 
for capital. What he has to say on this subject is even in our 
days of the highest value, and should not be neglected by any 
serious student of the theory of interest. He puts capital 
i.e., the use of a certain quantity of value during a certain time 
as a factor of production on the same line with the other 
factors." 2 

Thus historical fact and scientific explanation of the rise 
of the capitalistic age and the theory of interest on money as 
capital synchronize with the beginnings of the change in the 
Church's teaching on the lawfulness of interest on loans. In 
the year 1830 the Holy Office gave answer to a question of the 
Bishop of Rennes that confessors were not to be disturbed 
who absolved penitents in spite of their taking interest on 
money lent to merchants. Similar answers followed in quick 
succession, so that now there is no practical difficulty as to 
the lawfulness of taking moderate interest for money loans, 
though the Church has not yet formally settled the general 
question. 

In England the usury laws, dating from Edward the Con- 
fessor, were repealed in 1854, owing to the prevalence of the 

1 Western Civilization, n. 114. 2 Page 20. 



326 ON CONTRACTS 

opinion that such laws were economically unsound and practi- 
cally ineffectual. Experience, however, has shown that the 
rapacity of usurious moneylenders requires curbing, and the 
Moneylenders Act, 1900, empowered courts of justice to 
grant relief from any usurious bargain which, in the opinion 
of the court, was harsh and unconscionable. 

Canon 1543 is as follows: " If a fungible be so given to 
another that it becomes his and afterwards as much is restored 
in the same kind, no gain can be received on account of the 
contract itself; but in the lending of a fungible it is not per se 
unlawful to make an agreement about the lawful interest, unless 
it is certain that it is immoderate, or even about a greater 
interest, if there be a just and proportionate title." 



CHAPTER V 
ON SALE 

SALE is a contract by which the seller transfers the ownership 
of a certain commodity to the buyer in consideration of a 
fixed price. The English law on the sale of goods is different 
from that on the sale of real property, and so we will divide 
this chapter into two articles ; in the first we will treat of the 
sale of goods, and in the second of the sale of realty. 

As regards the alienation of; ecclesiastical property see 
Can. 1530 ff. 

ARTICLE I 
On the Sale of Goods 

1 . The term goods includes all personal chattels other than 
things in action and money. It also includes emblements, 
industrial growing crops, and things attached to or forming 
part of the land which are agreed to be severed before sale 
or under the contract of sale. 1 

A contract of sale of goods may be made in writing, or by 
word of mouth, or partly in writing and partly by word of 
mouth, or it may be implied from the conduct of the parties. 
If the value of the goods sold be ten pounds or upwards, the 
contract cannot be enforced by action unless the buyer accept 
part of the goods so sold, and actually receive the same, or give 
something in earnest to bind the contract or in part payment, 
or unless some note or memorandum in writing of the contract 
be made and signed by the party to be chafed or his agent 
in that behalf. This is a rule of the external forum and does 
not affect the conscience. 

2. The subject-matter of a contract of sale may be either 
existing goods, owned or possessed by the seller, or goods to 
be manufactured or acquired by the seller after the making 
of the contract of sale. The contract may be absolute or 
conditional. Whether a stipulation in a contract of sale is a 
condition, the breach of which may give rise to a right to treat 
the contract as repudiated, or a warranty the breach of which 
may give rise to a claim for damages but not to a right to reject 

1 Sale of Goods Act, 1893. 
327 



328 ON CONTRACTS 

the goods and treat the contract as repudiated, depends in 
each case on the construction of the contract, and in the forum 
of conscience on the intention of the parties. In a contract 
of sale, unless the circumstances of the contract are such as to 
show a different intention, there is: (i) An implied condition 
on the part of the seller that in the case of a sale he has a right 
to sell the goods, and that in the case of an agreement to sell 
he will have a right to sell the goods at the time when the 
property is to pass; (2) an implied warranty that the buyer 
shall have and enjoy qiu'et possession of the goods; (3) an 
implied warranty that the goods shall be free from any charge or 
encumbrance in favour of any third party not declared or known 
to the buyer before or at the time when the contract is made. 
According to English law there is no implied warranty or 
condition as to the quality or fitness for any particular purpose 
of goods supplied under a contract of sale, except as follows : 

1. Where the buyer expressly or by implication makes 
known to the seller the particular purpose for which the goods 
are required, so as to show that the buyer relies on the seller's 
skill or judgement, and the goods are of a description which 
it is in the course of the seller's business to supply (whether 
he be the manufacturer or not), there is an implied condition 
that the goods shall be reasonably fit for such purpose, provided 
that in the case of a contract for the sale of a specified article 
under its patent or other trade name, there is no implied 
condition as to its fitness for any particular purpose. 

2. Where goods are bought by description from a seller 
who deals in goods of that description (whether he be the 
manufacturer or not), there is an implied condition that the 
goods shall be of merchantable quality; provided that if the 
buyer has examined the goods there shall be no implied condi- 
tion as regards defects which such examination ought to have 
revealed. 

But whatever may be the rules of law for the external forum, 
in the forum of conscience the contract will be invalid when- 
ever on account of hidden defects the thing sold is substantially 
different from what the buyer thinks that it is, for then there 
is no consent in the same matter and the contract is void by 
natural law. If hidden defects only lessen the value of the 
thing, but do not make it substantially different from what 
it appears to be, the price should be accommodated to the value, 
but the seller is not bound to point out the defects to the buyer. 
If asked about them, the seller should make known even acci- 
dental defects, or say that he does not guarantee their absence. 



ON SALE 329 

3. By law the price may be fixed by contract, or may be 
left to be fixed in manner thereby agreed on, or it may be 
determined by the course of dealing between the parties. If 
no price is thus determined, the buyer must pay a reason- 
able price, and what is a reasonable price is a question of 
fact dependent on the circumstances of each particular 



case. 1 



In conscience, however, the price of things sold does not 
depend merely on the agreement of the parties. In contracts 
the equality which justice demands must be observed, and so 
in sale the price must be equivalent to the value of the thing 
sold. We do not mean the individual value in use to the 
buyer or to the seller, but the social or exchange value which 
the thing possesses. This value will be represented by what 
the law calls a reasonable price, and sometimes it is fixed by 
law, so that certain commodities and services have a legal 
price. In the Middle Ages there was a legal price for most of 
the articles of commerce, and theologians taught that there is 
an obligation in conscience to adhere to the legal price .as long 
as the law is in force. In cases where the law has not deter- 
mined the price, theologians teach that there is an obligation 
in conscience to adhere to the natural or common price of the 
commodity. This is not something purely subjective, much 
less is it purely individualistic; it depends upon supply and 
demand, upon the costs of production, the manner of sale, 
and on other factors. It is proximately determined by the 
common judgement or the common estimation of those who 
are best acquainted with all the factors which determine social 
value in the particular case. This is the famous theological 
doctrine of the just price of commodities, and it only needs 
to be properly understood to be appreciated as eminently 
practical and equitable. The just price of a commodity is not 
something which can be mathematically determined ; it admits 
of a certain latitude, like everything that depends on a general 
moral estimate. Theologians distinguish the highest, the 
lowest, and the mean just price. The highest is that above 
which the commodity in question is not commonly sold, the 
lowest is that below which it is not commonly sold, and the 
mean is between the two. Justice will be observed if the price 
at which a thing is sold is not above the highest nor below the 
lowest at which the thing sells at the time and in the place 
in question. As a rule, market prices are just, because they 
are settled according to the common estimate of buyers and 

1 Sale of Goods Act, 1893, sec. 8. 



330 ON CONTRACTS 

sellers as to what are fair and reasonable prices under the 
circumstances. 

Here theologians usually discuss a number of questions 
concerning the price of commodities in particular cases where 
there is special difficulty. In the case of rare or single objects, 
such as a first folio of Shakespeare, or a painting by a great 
master, or a winner of the Derby, where there is no market 
price, many theologians teach that no injustice is committed 
whatever be the price received from a buyer who acts with full 
freedom and knowledge. Fancy prices may be foolish, but 
they are not unjust. No difficulty is made by theologians in 
allowing one to sell at the current rate who has certain informa- 
tion of an imminent fall in price. A merchant may also buy 
things of value from uncivilized owners for trinkets. In the 
place and among the people concerned there is equality of 
value between merchandise and price. A seller is justified in 
asking a higher price a price of affection the theologians call 
it for what he cannot part with without more than ordinary 
pangs. The seller may not, however, charge for some special 
value in use which the thing sold has for the buyer. That 
belongs to the buyer, not to the seller, who cannot therefore 
sell it. 

4. The following rules as to the transfer of property in the 
goods sold are given in the Sale of Goods Act, 1893 : 

Where there is a contract for the sale of unascertained goods 
no property in the goods is transferred to the buyer unless and 
until the goods are ascertained. Where there is a contract 
for the sale of specific or ascertained goods the property in 
them is transferred to the buyer at such time as the parties to 
the contract intend it to be transferred. 

For the purpose of ascertaining the intention of the parties 
regard shall be had to the terms of the contract, the conduct 
of the parties, and the circumstances of the case. 

Unless a different intention appears, the following are rules 
for ascertaining the intention of the parties as to the time at 
which the property in the goods is to pass to the buyer : 

RULE I. Where there is an unconditional contract for the 
sale of specific goods, in a deliverable state, the property in 
the goods passes to the buyer when the contract is made and 
it is immaterial whether the time of payment or the time of 
delivery, or both, be postponed. 

RULE II. Where there is a contract for the sale of specific 
goods and the seller is bound to do something to the goods, 
for the purpose of putting them into a deliverable state, the 



ON SALE 331 

property does not pass until such thing is done and the buyer 
has notice thereof. 

RULE III. Where there is a contract for the sale of specific 
goods in a deliverable state, but the seller is bound to weigh, 
measure, test, or do some other act or thing with reference to 
the goods for the purpose of ascertaining the price, the property 
does not pass until such act or thing be done and the buyer 
has notice thereof. 

RULE IV. When goods are delivered to the buyer on approval 
or " on sale or return," or other similar terms, the property 
therein passes to the buyer : (a) When he signifies his approval 
or acceptance to the seller or does any other act adopting the 
transaction ; (6) if he does not signify his approval or acceptance 
to the seller but retains the goods without giving notice of 
rejection, then, if a time has been fixed for the return of 
the goods, on the expiration of such time, and, if no time has 
been fixed, on the expiration of a reasonable time. What is 
a reasonable time is a question of fact. 

RULE V. Where there is a contract for the sale of unascer- 
tained or future goods by description, and goods of that 
description and in a deliverable state are unconditionally 
appropriated to the contract, either by the seller with the assent 
of the buyer, or by the buyer with the assent of the seller, the 
property in the goods thereupon passes to the buyer. Such 
assent may be express or implied, and may be given either 
before or after the appropriation is made. 1 

Unless otherwise agreed, the goods remain at the seller's 
risk until the property therein is transferred to the buyer ; but 
when the property therein is transferred to the buyer, the goods 
are at the buyer's risk, whether delivery has been made or not. 

Provided that where delivery has been delayed through the 
fault of either buyer or seller, the goods are at the risk of the 
party in fault as regards any loss which might not have occurred 
but for such fault. 

5. As a general rule, the buyer acquires no better title to 
goods than the seller had, but where goods are sold in market 
overt, according to the usage of the market, the buyer acquires 
a good title to the goods, provided he buys them in good faith 
and without notice of any defect or want of title on the part 
of the seller. 2 

Market overt in the country is only held on the special 
market-days provided for particular towns by charter or 
prescription; but in London every day, except Sunday, is 

Sale of Goods Act, 1893, sees. 16-18. 2 ibid., sec. 23. 



332 ON CONTRACTS 

market-day. The market-place or spot of ground set apart 
for the sale of particular goods is also in the country the only 
market overt ; but in the city of London every shop in which 
goods are exposed publicly to sale is market overt, for such 
things only as the owner professes to trade in. It is of the 
essence of the custom that the sale should be an open and 
public sale, so a sale in a salesroom and apart from the shop, 
or at a wharf, is not within it. Nor is sale by sample, the 
bulk sold not being exposed in the shop. Nor does the sale 
of horses come within the rule of market overt. 

When the seller of goods has a voidable title thereto, but 
his title has not been avoided at the time of the sale, the buyer 
acquires a good title to the goods, provided he buys them in 
good faith and without notice of the seller's defect of title. 

Where goods have been stolen and the offender is prosecuted 
to conviction, the property in the goods so stolen revests in 
the person who was the owner of the goods or his personal 
representative, notwithstanding any intermediate dealing with 
them, whether by sale in market overt or otherwise. 

Notwithstanding any enactment to the contrary, where goods 
have been obtained by fraud or other wrongful means not 
amounting to larceny, the property in such goods shall not 
revest in the person who was the owner of the goods, or his 
personal representative, by reason only of the conviction of 
the offender. 

Where a person having sold goods continues or is in posses- 
sion of the goods, or of the documents of title to the goods, 
the delivery or transfer by that person, or by a mercantile 
agent acting for him, of the goods or documents of title under 
any sale, pledge, or other disposition thereof to any person 
receiving the same in good faith, and without notice of the 
previous sale, shall have the same effect as if the person making 
the delivery or transfer were expressly authorised by the owner 
of the goods to make the same. 1 

6. In execution of the contract it is the duty of the seller 
to deliver the goods, and of the buyer to accept and pay for 
them, in accordance with the terms of the contract of sale. 

Unless otherwise agreed, delivery of the goods and payment 
of the price are concurrent conditions ; that is to say, the seller 
must be ready and willing to give possession of the goods to 
the buyer in exchange for the price, and the buyer must be 
ready and willing to pay the price in exchange for possession 
of the goods. 

1 Sale of Goods Act, sees. 23-25. 



ON SALE 333 

Whether it is for the buyer to take possession of the goods, 
or for the seller to send them to the buyer, is a question de- 
pending in each case on the contract, express or implied, 
between the parties. Apart from any such contract, express 
or implied, the place of delivery is the seller's place of business, 
if he have one, and if not, his residence, provided that if the 
contract be for the sale of specific goods, which to the know- 
ledge of the parties when the contract is made are in some 
other place, then that place is the place of delivery. 

Where, under the contract of sale, the seller is bound to 
send the goods to the buyer, but no time for sending them is 
fixed, the seller is bound to send them within a reasonable 
time. 

Unless otherwise agreed, the expenses of and incidental to 
putting the goods into a deliverable state must be borne by 
the seller. 

Where the seller delivers to the buyer a quantity of goods 
less than he contracted to sell, the buyer may reject them; 
but if the buyer accepts the goods so delivered, he must pay 
for them at the contract rate. 

Where the seller delivers to the buyer a quantity of goods 
larger than he contracted to sell, the buyer may accept the 
goods included in the contract and reject the rest, or he may 
reject the whole. If the buyer accepts the whole of the goods 
so delivered, he must pay for them at the contract rate. 

Where the seller delivers to the buyer the goods he con- 
tracted to sell, mixed with goods of a different description not 
included in the contract, the buyer may accept the goods 
which are in accordance with the contract and reject the rest, 
or he may reject the whole. 

The provisions of this section are subject to any usage of 
trade, special agreement, or course of dealing between the 
parties. 1 

Unless otherwise agreed, where goods are delivered to the 
buyer and he refuses to accept them, having the right so to 
do, he is not bound to return them to the seller, but it is suffi- 
cient if he intimates to the seller that he refuses to accept 
them. 2 

Notwithstanding that the property in the goods may have 
passed to the buyer, the unpaid seller of goods, as such, has 
by implication of law (a) a lien on the goods or right to retain 
them for the price while he is in possession of them; (b) in 
case of the insolvency of the buyer, a right of stopping the 
1 Sale of Goods Act, sees. 27-30. 2 ibid., sec. 36. 



334 ON CONTRACTS 

goods in transitu after he has parted with the possession of 
them ; (c) a right of resale as limited by the Sale of Goods Act. 
Where the property in goods has not passed to the buyer, 
the unpaid seller has, in addition to his other remedies, a right 
of withholding delivery similar to and coextensive with his rights 
of lien and stoppage in transitu where the property has passed 
to the buyer. 1 

ARTICLE II 
Sale of Real Property 

1 . In this article we will give certain general notions on the 
sale and purchase of real property, which is a very technical 
subject in English law. Our brief summary is derived from 
the Encyclopedia of the Laws of England, s.v. Vendor and 
Purchaser. 

In general, any owner of any kind of estate and interest in 
land has power to sell it, and any person or corporate body 
legally capable of owning land has power to purchase it. This 
rule, however, is subject to the exceptions laid down above 
concerning the capacity to enter into a contract and to many 
others. Thus, by the Mortmain Act, 1888, a corporation has 
no power to purchase land otherwise than under the authority 
of a statute or of a licence from the Crown. 

2. Besides the general conditions which are requisite for 
the formation of any contract, a sale of real property must be 
in writing signed by the party to be charged therewith; it is 
to some extent uberrimae fidei, and it is subject to certain 
special rules which are implied by law for the regulation of the 
contract and the duties of the respective parties under it. 

3. When a valid contract for the sale of land has been 
entered into, its general effect on the legal position of the 
parties may be summed up as follows: The moment there is 
a valid contract for sale, the vendor becomes in equity a trustee 
for the purchaser of the estate sold, and the beneficial owner- 
ship passes to the purchaser, the vendor having a right to the 
purchase money, a charge or lien on the estate for the security 
of that purchase money, and a right to retain possession of the 
estate until the purchase money is paid, in the absence of 
express contract as to the time of delivering possession. As 
from the date of the contract the property sold is at the risk of 
the purchaser, who must bear all subsequent losses, and is 
entitled to all subsequent gains. 

1 Sale of Goods Act, sec. 39. 



ON SALE 335 

4. Under an open contract and in the absence of special 
stipulations to the contrary, the duties of the parties as regards 
completion may be summarized as follows: 

(a) Duties of the Vendor. (i) He is bound to both show 
and make a good title in accordance with the contract. 
(2) Upon being paid the purchase money and any interest 
upon it that may have become payable, the vendor is bound 
to execute, and procure the execution by all other necessary 
parties (if any) of, a proper deed of conveyance vesting the 
legal and equitable estate in the purchaser. (3) He must, in 
or concurrently with the conveyance, enter into proper 
covenants for title and sometimes into certain other covenants. 
(4) Upon completion he must hand over to the purchaser all 
title-deeds in his possession or power. (5) Upon completion 
possession of the property, if not already obtained, must be 
given by the vendor to the purchaser. (6) He must do all 
things necessary for completion within the time agreed upon, 
if time is essential, or otherwise within a reasonable time. 

(b) Duties of the Purchaser. (i) Correlatively with the first 
duty of the vendor above mentioned, the purchaser is bound 
to peruse the abstract when received, inspect the title-deeds 
produced, and make all objections and requisitions in due 
course. (2) He must prepare the conveyance and tender it 
to the vendor for execution. (3) Upon completion he must 
pay the persons properly entitled to receive it the purchase 
money and any interest upon it which may have become 
payable; and where equities or encumbrances exist of which 
he has notice, he is, unless the necessary parties capable of 
giving receipts concur, bound to see to the proper application 
of the purchase money. (4) He must pay to the vendor all 
proper costs and expenses incurred by the vendor, the liability 
for which is by law imposed upon the purchaser. (5) He 
must, upon completion, take possession of the property so 
as to relieve the vendor from all future liabilities incident to 
the ownership. (6) He must, like the vendor, do all things 
necessary for completion within the time agreed upon, or, 
if none, within a reasonable time. 

Special rules for the alienation of Church property are 
laid down in the Code, Canons 534, 1530-1534, 2347. 



CHAPTER VI 
ON SALE BY AUCTION 

* 

i. AUCTION is a sale of property, whether real or personal, 
by which a person binds himself to transfer the ownership of 
the same to the highest bidder according to the conditions of 
sale. There are various methods in which the sale is con- 
ducted, and descriptions of the property to be sold and the 
conditions of sale are usually notified to the public by printed 
particulars of sale or by catalogues, and by the auctioneer 
himself. The bidding proceeds orderly, each bid being in the 
nature of an offer, which may be revoked until the auctioneer 
signifies his acceptance, usually by a stroke of his hammer. 
By this a contract is concluded with the last bidder, and the 
property becomes his. Ordinarily, however, the contract 
cannot be enforced by English law unless there is some 
memorandum of it in writing signed by the party to be charged 
therewith, or by his agent in that behalf. 

2. Such a method of sale is, of course, honest and lawful if 
the conditions required either by the nature of the contract, 
or by law, or by special arrangement, be duly observed. The 
nature of the contract requires that, at any rate without notice, 
the owner himself should not bid, nor any other person on his 
behalf, and that the property should be knocked down to the 
highest bidder even if the price obtained be less than its value. 
The Sale of Goods Act, 1893, expressly provides that where 
a sale by auction is not notified to be subject to a right to bid 
on behalf of the seller, it shall not be lawful for the seller to 
bid himself or to employ any person to bid at such sale, or 
for the auctioneer knowingly to take any bid from the seller 
or any such person. Any sale contravening this rule may be 
treated as fraudulent by the buyer. 1 

However, in the next subsection the same Act also provides 
that a sale by auction may be notified to be subject to a reserved 
or upset price, and a right to bid may also be reserved expressly 
by or on behalf of the seller, and where a right to bid is ex- 
pressly reserved, but not otherwise, the seller, or any one 
person on his behalf, may bid at the auction. 

1 Sale of Goods Act, 1893, sec. 58, subsec. (3), 

336 



ON SALE BY AUCTION 337 

Similarly, if all those who are present at an auction conspire 
together not to bid against each other, or if means are used 
to hinder people from bidding, injustice is committed. An 
agreement, however, between two persons not to bid against 
each other, when there are other bidders present, is not unjust 
or illegal, and knockouts, as they are called, are common, by 
which persons agree that only one of them shall bid for any 
particular article, and after the sale put up privately among 
themselves the goods that each one has bought. 



i, 

23 



CHAPTER VII 
ON MONOPOLIES 

i. A MONOPOLY in general is the exclusive right belonging to 
one or to a certain number to sell some commodity. A legal 
monopoly has its origin in the law, which sometimes reserves 
to the Government the right to sell some commodity or service, 
or grants the exclusive privilege of doing so to someone or to 
a certain number. Thus, in some countries the Government 
has a monopoly of salt or tobacco, as it has in England of the 
postal telegraph service. Copyright and patent right are 
private monopolies granted by law to an author or to the 
inventor of a patent. A natural monopoly arises from one or 
a few who band together and who are the owners of the sole 
source of supply of some commodity. When one or more 
capitalists obtain joint control over the sale of some com- 
modity we have a capitalistic monopoly. The moral principles 
which govern the exclusive right to sell are applicable also 
to the exclusive right to buy, and we shall apply them to both 
in this chapter. 

2. A legal monopoly is lawful provided that it does not 
militate against the common good. In England the Tudor 
sovereigns abused their privilege of granting monopolies, and 
the Parliament under James I made such grants illegal and 
void. Copyright, however, patent right, and certain other 
privileges of a monopolistic character, are recognized and 
protected by English law. 

A natural monopoly, too, is of course lawful, but if the 
commodity or service which is thus monopolized is necessary 
or very useful for the common good, natural equity prescribes 
that the price demanded should be fair and reasonable, even 
if it be not regulated by positive law. If the subject-matter 
of the monopoly belongs to the class of non-necessaries and 
luxuries, as, for example, a mine of diamonds or rubies of 
special quality, it cannot be said that the price is fixed and 
determined by natural conditions, and the owner will be 
justified in taking any price that he can get without fraud or 
misrepresentation. 

Even capitalistic monopolies of commodities or services 

338 



ON MONOPOLIES 339 

which are necessary or very useful to the community are not 
morally wrong if the prices charged are fair and reasonable, 
and if there is nothing reprehensible in the method of con- 
ducting business. The public may derive considerable 
advantages from these monopolies. They are capable of 
effecting great savings in the costs of production, advertising, 
distribution, and general management, and they may secure 
a large return on their capital and at the same time sell 
cheaply to consumers. They obviate, too, the wastes and the 
recurring depressions in trade which follow from unlimited 
competition. 

3. Monopolies, however, are morally wrong when the prices 
demanded for necessary or useful articles of consumption are 
excessive, or when the methods of business are unjust, un- 
charitable, or generally unlawful. The prices will be excessive 
when much more than a fair return for the capital employed 
is obtained, after all the costs of production and distribution 
have been defrayed, and when as a natural consequence they 
are higher than would rule if there were no monopoly. When 
means are used to crush rivals in order to secure a monopoly, 
when bribery of public officials is practised to obtain from 
Government specially favourable laws or treatment, when 
discriminating rates are obtained from railways and other 
companies, when workmen are tyrannically and unjustly 
treated, when prices of raw material are unduly depressed and 
producers are robbed of a fair compensation for their toil and 
trouble, and in general, when fraud or force is used to accom- 
plish the end in view, the methods of business are immoral, 
and monopolies which employ such methods are to be con- 
demned. 

If prices demanded by a monopoly are, in the estimation of 
prudent men, higher than are fair and reasonable, injustice 
is committed, and there is consequently an obligation to make 
restitution to the buyers who have been robbed. If the prices 
charged are not altogether unfair and unreasonable, but high, 
and above what in the circumstances would be considered 
moderate, there will be a sin committed against charity, in 
that private advantage has been unduly pursued to the detri- 
ment of the people, who have been compelled to pay higher 
prices for the enrichment of the monopolists. 
^ From^what has been said, it is clear that what are called 

rings " and " corners " in wheat, cotton, and other such 
commodities, are morally wrong, in that they cause the financial 
rum of many people, and produce wide distress and instability 



34 o ON CONTRACTS 

of trade. Trusts, too, and combinations in trade are full of 
danger for the community. They wield immense power, and 
the temptations to abuse it, especially as a company has no 
conscience, as the saying is, are too great for the common run 
of business men. It is well that the Government should have 
the right of examining and inspecting the affairs of such 
bodies, and of applying the necessary remedies in case of 
abuse. 



CHAPTER VIII 
ON BAILMENT 

i . BAILMENT is a contract by which the possession of chattels 
is delivered by one person (the bailor) to another person (the 
bailee) either to be delivered by the bailee to a third person 
or to be redelivered to the bailor when the purpose of the 
bailment is at an end. 

According to the common enumeration there are six kinds 
of bailment depositum, commodatum, locatio et conductio, 
vadium, locatio operis faciendi, and mandatum. Of these 
depositum and mandatum are for the benefit of the bailor alone, 
and the bailee is liable only for gross negligence in the per- 
formance of his duty. Commodatum is for the sole benefit 
of the bailee, who is therefore liable for even slight negligence. 
The other kinds are for the benefit of both bailor and bailee, 
and the bailee will be liable for ordinary neglect. The fore- 
going degrees of negligence are required by law to make the 
bailee liable, but by express agreement he may bind himself 
to more or less care, and then he will be held liable accordingly. 
Moreover, when a bailee possesses any special skill, the omis- 
sion to use that skill in the execution of the trust committed 
to him will be imputed as gross negligence even if he derived 
no benefit from the bailment. 

2. A deposit is a bare naked bailment of goods delivered 
by one man to another to keep for the use of the bailor without 
reward. The depositary in general is not allowed to use the 
deposit, for it is given to him to keep for nothing ; he is bound 
to exercise the same care of the deposit as he does of his own 
goods, but he will only be answerable for gross neglect. 

3. A mandate is the delivery of goods or chattels to some- 
body who is to carry them or do something about them gratis. 
The mandatary, like the depositary, is liable only for gross 
neglect, but if his situation or profession is such as to imply 
skill, the failure to use that skill will be imputable as gross 
neglect. 

4. A loan is the lending of goods or chattels to another to 
be used by him gratis. As the borrower obtains the use of 
the thing lent for nothing he will be answerable for even slight 



342 ON CONTRACTS 

negligence, and he is not justified in using it for a longer time 
or for other purposes than was agreed upon. He is not 
responsible for reasonable wear and tear. The lender on his 
side is responsible for defects in the chattel with reference to 
the use for which he knows the loan is accepted, of which he 
is aware, and owing to which directly the borrower is injured. 

5. In the contract of hiring where goods are lent to a person 
in consideration of payment, the hirer is bound to use ordinary 
care of them such as a prudent man would take of his own 
goods, and he will be responsible for ordinary negligence. 

6. Pawn or pledge is a contract by which goods or chattels 
are delivered to another to be security to him for money 
borrowed of him by the bailor. The pawnee must use ordinary 
diligence in the custody of the pledge which he is not permitted 
to make use of except when its keep entails expense, as in the 
case of a horse, and then the pawnee may make reasonable use 
of it so as to indemnify himself for its keep. 

The pawnee may recover his debt by giving notice to the 
pawner that he will sell the subject of the pledge, or he may 
sue for his debt, or if he pleases he may adopt both remedies. 
A pledge differs from a lien in that this only gives the right 
to retain property, and from a mortgage of personal estate 
which passes the actual property in the goods to the mortgagee. 

Pawnbrokers form a special kind of pawnees, but although 
transactions dealing with loans above ten pounds are governed 
by the common law, loans of ten pounds and less are subject 
to the Pawnbrokers Act, 1872. By this Act every pledge 
must be redeemed within twelve months from the day of 
pawning, with seven additional days of grace. If a pledge 
is not redeemed within that time, and the amount for which 
it was pledged does not exceed ten shillings, it becomes the 
absolute property of the pawnbroker; if it was pledged for 
above ten shillings, it may be redeemed until actual sale, and 
such sale must be by public auction, and the surplus after 
the costs of the sale and the amount of the pledge and interest 
must be accounted for. 

The pawnbroker is made liable for loss in case of fire, 
against which he may protect himself by insurance, and he 
may treat the person who produces the pawn-ticket as entitled 
to redeem the pledge. 

7. The last species of bailment is a contract by which goods 
or chattels are delivered to be carried, or something is to be 
done about them for a reward to be paid by the bailor to the 
bailee. With regard to the liability of such bailees a distinc- 



ON BAILMENT 343 

tion is made between persons exercising a public employment, 
such as public carriers, and private persons. The former are 
responsible for all losses except such as happen through the 
act of God and the King's enemies. The latter are only 
bound to exercise the reasonable care which is to be expected 
from a skilled storekeeper acquainted with the risks to be 
apprehended ; and this care must be shown not only in obviating 
the risks, but in taking all proper measures for the safety of 
the goods or of a portion of them when the risks have occurred. 
There are special laws which govern the liability of railway 
companies and innkeepers. 



CHAPTER IX 
ON PRINCIPAL AND AGENT 

i. A CONTRACT of agency arises where one person, called the 
principal, authorizes another, called the agent, who accepts 
the charge, to represent him, or act on his behalf, and under- 
takes to be answerable for what that other does within the 
scope of his authority. 

This contract, like others, requires the mutual consent of 
the parties to it, and that consent may be express or implied 
in their actions and course of dealing. Thus not only is a 
wife the agent of her husband for the purpose of supplying 
herself with necessaries, but a woman with whom a man 
cohabits occupies the same position as long as the cohabitation 
continues. Indeed, agency may be constituted by ratification 
of acts done on behalf of another even without previous 
authorization. No special formality is required in appointing 
an agent except in the case of a corporation, or where the 
agent is authorized to execute a deed on behalf of the principal, 
in which case the appointment must be by deed. 

Whatever a person may do by himself he may appoint an 
agent to do for him, quifacitper aliumfacit per se; and anyone 
of sound mind may be appointed an agent, even one who, like 
a minor, cannot enter into legally binding contracts for himself. 
An agent cannot delegate his authority to another, for delegatus 
non potest subdelegare. 

Agency is of different kinds, universal, general, or special. 
A universal agent is empowered to do any acts on behalf of his 
principal ; a general agent is empowered to do all acts in some 
particular trade, business, or employment; a special agent is 
authorized to do some particular act for the principal; a del 
credere agent engages to be responsible to his principal for the 
purchase money of goods sold by him. 

2. The rights and duties of principal and agent between 
themselves are settled by their intention as manifested or 
implied in the contract which they have concluded. In 
default of express or implied agreements to the contrary the 
duties of the agent implied by law are : to perform the contract 
of agency; to observe the limits of his authority and the 

344 



ON PRINCIPAL AND AGENT 345 

instructions given him by the principal) as also the customs 
and usages of the business in which he is employed; in all 
things left to his discretion to act with the most perfect good 
faith in the interest and for the benefit of his principal; to 
exercise due skill, care, and diligence, according to the nature 
of the business entrusted to him and the terms of the agency ; 
to keep the money and property of his principal separate from 
his own; to pay over to the principal all moneys received to 
his use, and to account to him for all secret profits and com- 
missions. No agent is allowed to enter into any transactions 
in which he has a personal interest at variance with his duty 
to his principal or from which he obtains any personal benefit 
or profit, except with the consent of the principal; and any 
secret commissions or profits which he acquires are considered 
as received for the principal's use. This rule of law is just, 
and it should be adhered to when the agent obtains a fair and 
equitable remuneration for his services from the principal. 
It is obvious that the agent may keep secret commissions 
which he receives from others with the express or implied 
consent of his principal, and he may be excused in conscience 
if he retains for his own use the fruits of special and extra- 
ordinary diligence which he was not bound by his contract to 
employ, together with gifts and presents made to him person- 
ally to secure or retain his custom, provided that the interests 
of his principal in nowise suffer in consequence. 

The principal on his part is bound to pay a fair remunera- 
tion to the agent for his services, to accept the obligations 
lawfully entered into by the agent in his behalf, and to in- 
demnify him for all expenses and losses that he has incurred 
in the course of his agency. 

3. Even if a universal or general agent exceeds his authority 
in a particular instance, yet the principal will be liable if the 
act came within the agent's ordinary authority. This is not 
the case with a special agent, for in this case it is the duty of 
those who contract with him to satisfy themselves as to the 
extent of his powers. 

As a general rule, the agent incurs no personal liability, for 
he acts on behalf of his principal, who alone is bound. Con- 
trary to the general rule, the agent will be liable when he 
conceals his principal, or when he acts without authority, or 
when he exceeds that authority and fraudulently misrepresents 
its extent, or when he specially binds himself, though acting 
as an agent. When the fact of agency is not known, or when 
the agency is known but the principal is not disclosed, the 



342 ON CONTRACTS 

negligence, and he is not justified in using it for a longer time 
or for other purposes than was agreed upon. He is not 
responsible for reasonable wear and tear. The lender on his 
side is responsible for defects in the chattel with reference to 
the use for which he knows the loan is accepted, of which he 
is aware, and owing to which directly the borrower is injured. 

5. In the contract of hiring where goods are lent to a person 
in consideration of payment, the hirer is bound to use ordinary 
care of them such as a prudent man would take of his own 
goods, and he will be responsible for ordinary negligence. 

6. Pawn or pledge is a contract by which goods or chattels 
are delivered to another to be security to him for money 
borrowed of him by the bailor. The pawnee must use ordinary 
diligence in the custody of the pledge which he is not permitted 
to make use of except when its keep entails expense, as in the 
case of a horse, and then the pawnee may make reasonable use 
of it so as to indemnify himself for its keep. 

The pawnee may recover his debt by giving notice to the 
pawner that he will sell the subject of the pledge, or he may 
sue for his debt, or if he pleases he may adopt both remedies. 
A pledge differs from a lien in that this only gives the right 
to retain property, and from a mortgage of personal estate 
which passes the actual property in the goods to the mortgagee. 

Pawnbrokers form a special kind of pawnees, but although 
transactions dealing with loans above ten pounds are governed 
by the common law, loans of ten pounds and less are subject 
to the Pawnbrokers Act, 1872. By this Act every pledge 
must be redeemed within twelve months from the day of 
pawning, with seven additional days of grace. If a pledge 
is not redeemed within that time, and the amount for which 
it was pledged does not exceed ten shillings, it becomes the 
absolute property of the pawnbroker; if it was pledged for 
above ten shillings, it may be redeemed until actual sale, and 
such sale must be by public auction, and the surplus after 
the costs of the sale and the amount of the pledge and interest 
must be accounted for. 

The pawnbroker is made liable for loss in case of fire, 
against which he may protect himself by insurance, and he 
may treat the person who produces the pawn-ticket as entitled 
to redeem the pledge. 

7. The last species of bailment is a contract by which goods 
or chattels are delivered to be carried, or something is to be 
done about them for a reward to be paid by the bailor to the 
bailee. With regard to the liability of such bailees a distinc- 



ON BAILMENT 343 

tion is made between persons exercising a public employment, 
such as public carriers, and private persons. The former are 
responsible for all losses except such as happen through the 
act of God and the King's enemies. The latter are only 
bound to exercise the reasonable care which is to be expected 
from a skilled storekeeper acquainted with the risks to be 
apprehended ; and this care must be shown not only in obviating 
the risks, but in taking all proper measures for the safety of 
the goods or of a portion of them when the risks have occurred. 
There are special laws which govern the liability of railway 
companies and innkeepers. 



CHAPTER IX 
ON PRINCIPAL AND AGENT 

i. A CONTRACT of agency arises where one person, called the 
principal, authorizes another, called the agent, who accepts 
the charge, to represent him, or act on his behalf, and under- 
takes to be answerable for what that other does within the 
scope of his authority. 

This contract, like others, requires the mutual consent of 
the parties to it, and that consent may be express or implied 
in their actions and course of dealing. Thus not only is a 
wife the agent of her husband for the purpose of supplying 
herself with necessaries, but a woman with whom a man 
cohabits occupies the same position as long as the cohabitation 
continues. Indeed, agency may be constituted by ratification 
of acts done on behalf of another even without previous 
authorization. No special formality is required in appointing 
an agent except in the case of a corporation, or where the 
agent is authorized to execute a deed on behalf of the principal, 
in which case the appointment must be by deed. 

Whatever a person may do by himself he may appoint an 
agent to do for him, quifacitper aliumfacit per se; and anyone 
of sound mind may be appointed an agent, even one who, like 
a minor, cannot enter into legally binding contracts for himself. 
An agent cannot delegate his authority to another, for delegatus 
non potest subdelegare. 

Agency is of different kinds, universal, general, or special. 
A universal agent is empowered to do any acts on behalf of his 
principal ; a general agent is empowered to do all acts in some 
particular trade, business, or employment; a special agent is 
authorized to do some particular act for the principal; a del 
credere agent engages to be responsible to his principal for the 
purchase money of goods sold by him. 

2. The rights and duties of principal and agent between 
themselves are settled by their intention as manifested or 
implied in the contract which they have concluded. In 
default of express or implied agreements to the contrary the 
duties of the agent implied by law are : to perform the contract 
of agency; to observe the limits of his authority and the 

344 



ON PRINCIPAL AND AGENT 345 

instructions given him by the principal) as also the customs 
and usages of the business in which he is employed; in all 
things left to his discretion to act with the most perfect good 
faith in the interest and for the benefit of his principal; to 
exercise due skill, care, and diligence, according to the nature 
of the business entrusted to him and the terms of the agency ; 
to keep the money and property of his principal separate from 
his own; to pay over to the principal all moneys received to 
his use, and to account to him for all secret profits and com- 
missions. No agent is allowed to enter into any transactions 
in which he has a personal interest at variance with his duty 
to his principal or from which he obtains any personal benefit 
or profit, except with the consent of the principal; and any 
secret commissions or profits which he acquires are considered 
as received for the principal's use. This rule of law is just, 
and it should be adhered to when the agent obtains a fair and 
equitable remuneration for his services from the principal. 
It is obvious that the agent may keep secret commissions 
which he receives from others with the express or implied 
consent of his principal, and he may be excused in conscience 
if he retains for his own use the fruits of special and extra- 
ordinary diligence which he was not bound by his contract to 
employ, together with gifts and presents made to him person- 
ally to secure or retain his custom, provided that the interests 
of his principal in nowise suffer in consequence. 

The principal on his part is bound to pay a fair remunera- 
tion to the agent for his services, to accept the obligations 
lawfully entered into by the agent in his behalf, and to in- 
demnify him for all expenses and losses that he has incurred 
in the course of his agency. 

3. Even if a universal or general agent exceeds his authority 
in a particular instance, yet the principal will be liable if the 
act came within the agent's ordinary authority. This is not 
the case with a special agent, for in this case it is the duty of 
those who contract with him to satisfy themselves as to the 
extent of his powers. 

As a general rule, the agent incurs no personal liability, for 
he acts on behalf of his principal, who alone is bound. Con- 
trary to the general rule, the agent will be liable when he 
conceals his principal, or when he acts without authority, or 
when he exceeds that authority and fraudulently misrepresents 
its extent, or when he specially binds himself, though acting 
as an agent. When the fact of agency is not known, or when 
the agency is known but the principal is not disclosed, the 



346 ON CONTRACTS 

principal, on being discovered, is held liable as well as the 
agent. In law, but not in conscience, the principal is liable 
for the fraud and wrong committed by the agent within the 
limits of his authority even without the sanction of the 
principal. 

4. A contract of agency is determined by the death of the 
principal, by the revocation by the principal of the agent's 
authority, by the agent's renunciation of office with the prin- 
cipal's consent, by the principal's bankruptcy, by the effluxion 
of time, and by the fulfilment of the object for which the 
agency was created. 



CHAPTER X 
ON PARTNERSHIP 

i. PARTNERSHIP is defined to be the relation which subsists 
between persons carrying on a business in common with a 
view to profit. Business here includes every trade, occupa- 
tion, or profession. The partners collectively are called a 
firm, and they carry on business under the firm name. 

In general, all persons are capable of entering into partner- 
ship, and no special formality is required for the purpose; it 
may be done by word of mouth, or inferred from the conduct 
of the parties. By English law not more than ten persons 
may form a partnership for carrying on a banking business, 
and not more than twenty for other purposes. 

2. Every member of a firm is an agent of the firm and of 
the other members for doing any act which is necessary for 
the carrying on of the business of the firm in the usual way. 
The partners may indeed agree among themselves to restrict 
this power with reference to one or more of their members, 
and this agreement will be upheld and will excuse the firm 
from liability for the acts of those members against the claims 
of all who had notice of the agreement. Unless otherwise 
provided by the partnership articles, any member as agent of 
the firm has implied authority to receive and give receipts for 
debts due to the firm, to draw cheques on the firm 's bankers in 
the firm name, to purchase on the credit of the firm goods 
required for carrying on its business in the usual way, to sell 
the goods of the firm, to engage servants for the business of 
the firm, and to borrow money on its credit. In order that 
the firm may be liable for these and other acts of a member, 
it is necessary that they should have been done by him in the 
firm's name as agent, not as principal and in his own name. 

As a principal is liable for the fraud and wrongdoing of 
his agent in the course of his agency, so is the firm liable for 
the fraud and wrongs done by a member in the ordinary course 
of the business of the firm. The members of the firm are 
jointly liable for the debts and obligations incurred by it, and 
the property of a deceased member is liable also severally, but 
not until the separate debts of the deceased have been paid. 

347 



348 ON CONTRACTS 

3. The relations of the partners between themselves may 
be determined by special agreement, but in the absence of 
such special agreement every partner is entitled to share 
equally in the profits of the business, and he must contribute 
equally to its losses. This remains true in the absence of 
agreement to the contrary even if the partners contributed 
unequal shares to the capital of the firm. Every member has 
a right to take part in the business of the firm, to express his 
views about the conduct of its business, and no change may 
be made without all being consulted. In case of disagreement, 
the majority decides. Partners are bound to observe the 
utmost good faith in their dealings with one another, to work 
for the benefit of the firm, and in the conduct of the partner- 
ship business they may not obtain private advantage at the 
firm's expense. 

4. A partnership may be dissolved by effluxion of time, by 
mutual consent, by the death of a partner, by the bankruptcy 
of a partner, by a judgement of the Chancery division of the 
High Court of Justice which may be obtained on several 
grounds. After dissolution, the authority of each partner to 
bind the firm ceases, except in so far as is necessary to wind up 
the affairs of the firm. 



CHAPTER XI 
ON LEASES 

i. A LEASE is a contract transferring a right to the possession 
and enjoyment of real property usually made in consideration 
of the payment of a periodical compensation called rent. 

A lease may be for life, or for a fixed period, or from year 
to year, or at will or sufferance. It is provided by the statute 
of frauds that "all leases, estates, interests of freehold, or 
terms of years, or any uncertain interest of, in, to or out of, 
any messuages, manors, lands, tenements, or hereditaments 
made or created by livery and seisin only, or by parole, and 
not put in writing, and signed by the parties so making or 
creating the same, or their agents thereunto lawfully authorized 
by writing, shall have the force and effect of leases or estates 
at will only, and shall not, either in law or equity, be deemed 
or taken to have any other or greater force or effect, any con- 
sideration for making any such parole leases or estates, or any 
former law or usage to the contrary notwithstanding. Except, 
nevertheless, all leases not exceeding the term of three years 
from the making thereof, whereupon the rent reserved to the 
landlord during such term shall amount unto two third parts 
at least of the full improved value of the thing demised." 
So that a lease by parole can only be made when the period 
does not exceed three years and the rent is at least two-thirds 
of the value. Furthermore, by the 8 & 9 Victoria, c. 106, 
every lease required by law to be in writing, and assignments 
of leases, are void at law unless made by deed. It is also 
provided by the Statute of Frauds that any agreement for a 
lease for however short a period must be in writing. 

Although a lease, which by law should be in writing and 
is not, has by the statute the effect of only an estate at will, 
yet if a tenant enters and pays rent under such a lease, it may 
serve as a tenancy from year to year. If a tenant holds over 
after the expiration of his lease and continues to pay a yearly 
rent, he will hold under the terms of the lease as far as they 
are applicable to the new tenancy from year to year. 

A yearly tenant must give and is entitled to a reasonable 
notice to quit, which has been held to be six months, ending 

349 



350 ON CONTRACTS 

at the period at which his tenancy commenced. A year's 
notice is required when the tenancy is held under the Agri- 
cultural Holdings Act, 1883. To determine a monthly or a 
weekly tenancy a notice of a month or a week respectively 
should be given. 

2. The tenant is always bound to use the premises leased 
to him in a tenantlike or husbandlike manner. In leases for 
a longer period it is usual to covenant as to whether repairs 
shall be done by landlord or by tenant. In tenancies from 
year to year the tenant is under no obligation to make sub- 
stantial repairs in the absence of express agreement to that 
effect, nor is he bound to make good accidental damage by fire 
or other cause, nor ordinary wear and tear ; but he must repair 
losses caused by his own negligence, and he must keep the 
premises wind and water tight. The general rule is that all 
rates and taxes are to be paid by the tenant; property tax, 
land tax, and tithes are exceptions, and are paid by the land- 
lord. Fixtures, or things affixed to the freehold by the tenant, 
at common law became the property of the landlord, according 
to the maxim, quidquid plantatur solo, solo cedit. The common 
law rule, however, has been much mitigated, and now, in 
general, fixtures erected for the purposes of trade, ornament, 
or domestic use, and also agricultural fixtures, may be removed 
by a tenant. In certain cases, before doing this, due notice 
must be given to the landlord. 

The landlord has a right to enter and seize goods belonging 
to the tenant in payment of rent which is due to him but which 
has not been paid. 



CHAPTER XII 
ON INSURANCE 

i. THERE are three different types of this contract marine, 
fire, and life insurance. Marine and fire insurance are con- 
tracts of indemnity by which the insurer undertakes to make 
good any loss suffered by the insured through the happening 
of some accident, in consideration of the payment of a fixed 
sum at once or at periodical intervals. On the other hand, 
in a contract of life insurance the insurer undertakes to pay a 
given sum to another upon the happening of a particular 
event contingent upon the duration of human life in considera- 
tion of the immediate payment of a smaller sum or certain 
equivalent periodical payments. The particulars of the con- 
tract are set forth in a formal document called the policy, but 
the contract is made so as to bind the parties on the payment 
by the insured of the premium i.e., the money charged or an 
instalment thereof. 

Usually insurance business is conducted by companies 
which frequently effect reinsurance with other companies, so 
that losses are spread over greater numbers and are more 
easily borne. In marine insurance individuals called under- 
writers frequently contract to indemnify the insured by sub- 
scribing the policy and putting opposite to their name the 
amount to which they will be personally liable in case of loss. 

A man may effect an insurance with many companies, but 
as marine and fire insurance are contracts of indemnity, the 
insurer cannot get more than is sufficient to cover the loss, 
and if one company has paid the whole of this, it will be able 
to recover proportionate sums from the other companies with 
which the party was insured. Any person may insure his 
own life to any amount he thinks fit by paying proportionate 
premiums, but no one can insure the life of another unless he 
have a pecuniary interest in that life, and only to the extent 
of that interest. A wife has such an interest in her husband's 
life, and may effect an insurance on it for her own benefit. 

Marine and life insurance policies may be assigned to others, 
but notice of assignment must be given to the party bound by 
the policy. 

3Si 



353 ON CONTRACTS 

2. Contracts of insurance are uberrimae fidei, and therefore 
require that all circumstances that are material to the contract 
should be made known to the insurer in order to enable him 
to come to a sound judgement as to the risks and the merits 
of the case. Questions are proposed to one who desires to 
effect an insurance, to which truthful answers must be given. 
Warranties and conditions, express and implied, are also part 
of the agreement. If the questions in the proposal are answered 
falsely, or if the warranties or conditions are not fulfilled, or 
if any material circumstance is not disclosed when it should 
be to the insurer, the latter may void the contract. It is diffi- 
cult to say when, according to law, the contract is null and 
void so as to confer no rights in the foregoing circumstances 
even before the insurer has used his right to avoid the contract. 
In conscience it would seem that we may adopt the distinction 
here between what theologians call substantial and accidental 
mistake. That will be substantial to the contract which would 
have prevented the insurance being effected at all if it had 
been known; if it would not have prevented the insurance 
being effected but only varied its terms, it will be accidental. 
A substantial defect in the contract will make it null and void 
so as to transfer no rights at all; accidental defects will leave 
the contract valid, but there may be an obligation to supply 
the defect, as, e.g., by paying a larger premium corresponding 
to the greater risk or more advanced age. A usual condition 
is that the policy of life insurance is avoided if the insured 
should die by his own hand. The purpose of this condition 
is to prevent a man gaining advantage by his own felonious act. 
So that if no advantage would accrue to the party, the policy 
may be saved in the absence of express condition to the con- 
trary, as also if the insured committed suicide while of un- 
sound mind. 

If the premiums are not regularly paid at the proper time, 
the policy lapses, and the paid-up premiums are forfeited to 
the insurer. In such cases the policy may sometimes be 
revived on comparatively easy terms. 



CHAPTER XIII 
ON GAMING AND WAGERING CONTRACTS 

i. IN this chapter we will treat of certain contracts which 
depend for their effect of profit or loss upon some uncertain 
event. 

A lottery is a distribution of prizes by lot or chance. Those 
who take part in a lottery ordinarily pay down a smaller sum 
of money in consideration for the chance of obtaining a larger 
sum or something of greater value, but it may happen that 
they lose by the transaction. The event is settled by the 
casting or drawing of lots in some form or other. English 
municipal law now prohibits lotteries where the distribution 
of prizes depends on mere chance, not on art or skill. The 
prohibition does not affect art unions carrying on business 
under a royal charter or under a constitution and rules 
approved by the Privy Council ; but it does affect distributions 
of prizes on art union principles by persons other than art 
unions. However, inasmuch as a lottery is nothing more than 
the purchase of an uncertain chance, it is not necessarily 
unjust or in any way contrary to the natural law. If there is 
no fraud connected with the drawing of lots or the distribution 
of the prizes, and if the sum paid by those who take part in 
the lottery is to some extent proportionate to the chance of 
winning a prize and to its value, a lottery will be lawful as far 
as conscience is concerned, for the municipal law in these 
matters is penal. 

2. Gaming is playing at any game, sport, or pastime for 
money or anything of value which is staked on the result of 
the game, so that it is lost or won according to the success or 
failure of the person who staked it. 

Clerics are forbidden, as we shall see, to play at games of 
pure chance with scandal to others and loss of their own time. 
English law also makes all gaming contracts null and void so 
that they cannot be enforced in English courts of justice. 

But here we consider the question not as affected by positive 
law, ecclesiastical or civil, but as it is in itself. Is gaming in 
itself morally wrong ? 

Apart from abuse, to play games of skill or even of pure 
* 353 23 



354 ON CONTRACTS 

chance for a stake is not immoral. I may spend my money 
in moderation on recreation, or I may make a present of it 
to others if I choose. There is nothing immoral in agreeing 
to hand over a sum of money if I am beaten in a game either 
of skill or of chance. This perfectly lawful action will, how- 
ever, become unlawful if one of the parties is compelled to 
play against his will, or if cheating and fraud are practised 
in the game, or if there is no chance of success on the part of 
one of the players (unless he knows this and freely consents 
to play in spite of it), or if the parties have not the money 
which they stake or at any rate not the free disposal of it on 
account of its being required to pay their debts or to support 
themselves and their families. 

Moreover, although gaming in itself and under the con- 
ditions which have just been laid down is not immoral, yet it 
is a dangerous pastime for many, and easily leads to abuse, 
sin, and ruin. Especially is this the case when gambling is 
carried on in houses kept for the purpose, where all kinds of 
bad characters congregate. The keeping of such dens of 
iniquity is rightly punished by the law. 

3. Wagering or betting is the making of a contract on an 
unascertained event, past or future, by which the parties are 
to gain or lose, according as the uncertainty is determined 
one way or the other. 

Wagering contracts in general are not enforceable in English 
courts of law, although there are some exceptions to the rule, 
but here we consider the matter from the point of view of 
conscience. 

To make a bet is not sinful provided that the subject-matter 
of the wager is not sinful nor an incentive to sin, provided 
that the event is really uncertain for both parties, and provided 
that both understand the bet in the same way and are prepared 
to stand by the event and pay in case of loss. Even if one 
of the parties is certain as to the truth of the matter in question 
and he makes this known to the other, if the latter chooses 
to persist in his contention and stakes his money, the other 
will be justified in taking it. 

What was said above about gambling is applicable also to 
betting. Although it is not sinful to stake a moderate sum 
of money of which one has the free disposal on some unascer- 
tained event under the conditions laid down above, yet a 
strong and dangerous habit may easily be formed by indulgence 
in the practice, and then sin, misery, and ruin to self and others 
are not far off. 



ON GAMING AND WAGERING CONTRACTS 355 

There are certain modes of gambling which are practised 
now on money and produce exchanges. Dealings in " futures " 
and " options " and " time bargains " are for the most part 
merely speculative transactions, and do not differ essentially 
from betting as to what will be the price of stock or of some 
commodity at a future date. " Rigging the market " and 
similar devices are means employed by operators to influence 
the market in their own favour. These means are, of course, 
unjust, and besides inflicting loss on competitors, they do 
great harm to outsiders by disturbing the natural prices of 
commodities, and not infrequently produce irreparable and 
far-reaching ruin. 



BOOK VIII 

ON THE COMMANDMENTS OF THE 

CHURCH 

WE saw in the book on Laws that the Church has received 
power from God to make laws which bind all her children, 
and that she alone has authority to regulate all matters per- 
taining to the worship of God and the salvation of souls. The 
Catholic Church has exercised the power entrusted to her 
and imposed certain laws and precepts on the faithful. Ac- 
cording to the Catechism the chief of these are six in 
number : 

1. To keep the Sundays and holy days of obligation holy, 
by hearing Mass and resting from servile work. 

2. To keep the days of fasting and abstinence appointed by 
the Church. 

3. To go to confession at least once a year. 

4. To receive the Blessed Sacrament at least once a year, 
and that at Easter or thereabouts. 

5. To contribute to the support of our pastors. 

6. Not to marry within certain degrees of kindred, nor to 
solemnize marriage at the forbidden times. 

The last of these will be best explained when we come 
to treat of marriage; the other five will form the subject of 
the following chapters. 

CHAPTER I 
ON KEEPING CERTAIN DAYS HOLY 

i. WHAT pertains to the obligation of hearing Mass and 
abstaining from servile work on Sundays and holy days of 
obligation has been already explained under the Third Com- 
mandment of the Decalogue. It only remains to add a few 
observations to what was there laid down. 

357 



358 ON THE COMMANDMENTS OF THE CHURCH 

Before Urban VIII issued his Bull Universa, September 13, 
1642, various feasts were kept as of obligation in different 
countries. For the purpose of introducing greater uniformity, 
Urban VIII drew up a list of feasts which were everywhere 
to be observed and besides which no others might be observed 
without the sanction of the Pope. Besides all the Sundays of 
the year, the list contained the following feasts: Christmas 
Day, the Circumcision, Epiphany, Resurrection and two 
following days, the Ascension, Whit Sunday and two following 
days, the Holy Trinity, Corpus Christi, Finding of the Cross, 
the Purification, Annunciation, Assumption, and Nativity of 
the Blessed Virgin ; the Dedication of St Michael, the Nativity 
of St John the Baptist, SS Peter and Paul, St Andrew, St 
James, St John, St Thomas, SS Philip and James, St Bar- 
tholomew, St Matthew, SS Simon and Jude, St Matthias; 
St Stephen, St Sylvester, St Joseph, St Anne, the feast of All 
Saints, and one of the principal patrons in each kingdom or 
province, and another principal patron in each city, town, or 
village, where such are venerated. 

In most countries the number of these feasts has been 
greatly reduced, and in England they have been reduced to 
eight by decrees of the Sacred Congregation of Propaganda 
dated March 9, 1777, and May 17, 1830. Those eight are: 
Christmas Day, the Circumcision or New Year's Day, the 
Epiphany, the Ascension of our Lord, Corpus Christi, SS 
Peter and Paul, the Assumption of our Lady, and All 
Saints. The suppressed feasts are still observed as days of 
devotion. 

As in England we had no patrons such as those whose feast 
was to be observed according to the Bull of Urban VIII, by 
a decree dated May 24, 1863, Pius IX granted permission for 
the name of St George to be inserted in the prayer A Cunctis 
at Mass, and for a commemoration of St George to be made 
in place of that of the patron among the suffrages of the saints 
in the Office. By a decree S.R.C. (December 2, 1891 [n. 3758]), 
regulars may add the name of their saintly founder as 
well. In Ireland the feast of St Patrick is celebrated as the 
feast of the patron and as a day of obligation in addition to 
those observed in England. In the United States the following 
are the holy days of obligation: Christmas Day, the Circum- 
cision, the Ascension, the Assumption, the Immaculate Con- 
ception of our Lady, and All Saints. 

Canon 1247 is as follows: " The festival days of obligation 
in the Church universal are these only : Each and all Sundays, 



ON KEEPING CERTAIN DAYS HOLY 359 

the feasts of the Nativity, Circumcision, Epiphany, Ascension, 
and Corpus Christi, of the Immaculate Conception and 
Assumption of Blessed Mary Mother of God, of St Joseph 
her Spouse, of the Blessed Apostles Peter and Paul, and finally 
of All Saints." 

The feasts of the Immaculate Conception and of St Joseph 
have not so far been introduced in England. 



CHAPTER II 
ON FASTING AND ABSTINENCE 

r. THERE are various reasons why the Church bids Catholics 
to fast and abstain from flesh meat on certain days. By these 
means we more easily keep our lustful appetites in due sub- 
jection and we do penance for our sins. There are certain 
devils, which, as our Lord taught us, are only cast out by 
prayer and fasting. Moreover, by denying and curbing our 
appetites we exercise ourselves in the virtue of temperance, 
and, like soldiers on parade, we accustom our lower nature 
to obey the command of reason, so that it may not betray us 
when we are in presence of the enemy in time of temptation. 

2. Considerable changes were introduced into the law of 
fasting and abstinence by the new code. According to Canon 
1250: 

" The law of abstinence forbids the eating of flesh meat 
and of soup made from flesh meat, but not eggs, milk, cheese 
(lacticinia), nor any condiments even from the fat of animals." 

The flesh of animals that are born on land and that breathe 
is forbidden, as also soups made from this flesh and extract of 
meat. Fish, oysters, turtle, crab are not forbidden, and in 
some places certain aquatic birds are allowed by custom. 
Suet is classed as flesh meat, but the rendered fat of animals, 
butter, milk, cheese, and eggs are allowed. 

3 . This precept binds under pain of grave sin, but a violation 
of it would not be a mortal sin unless an appreciable quantity 
of unlawful food were taken. Theologians are not agreed on 
what quantity is necessary to constitute grave matter, but, in the 
opinion of some, two ounces would be necessary and sufficient. 

4. All Catholics who have come to the use of reason are as 
a general rule subject to the precept of abstinence as to other 
positive laws of the Church. However, inasmuch as positive 
laws do not bind when they could not be observed without 
relatively serious inconvenience, those who are sick, or are 
recovering from illness, or those who are in weak health and 
cannot take abstinence fare, are excused from observing this 
precept, and may eat meat on days of abstinence. Children, 
too, of negligent Catholic parents who do not observe the 

360 



ON FASTING AND ABSTINENCE 361 

law, Catholic servants in b goted Protestant families who can- 
not get such food as the C mrch allows on days of abstinence, 
and must fast unless they eat meat which is put before them, 
may lawfully do so. Dispensations also from the obligation 
of abstaining may for good reason be obtained from the Bishop 
or from the priest. 

The superiors of Religious Orders have the same powers 
as Bishops with regard to their own religious subjects. 
Ordinarily these can only dispense in particular cases or 
families, but on account of some great concourse of people or 
of public health, Ordinaries can now dispense in the law both 
of fasting and abstinence (Can. 1245, sec. 2, 3). 

5. According to Canon 1251 : " The law of fasting prescribes 
that only one full meal be taken in the day; but it does not 
forbid the taking of some food in the morning and in the 
evening, nevertheless the approved custom of the place must 
be kept with regard to the quantity and quality of food. Nor 
is it forbidden to mix flesh meat and fish in the same meal, 
nor to change the evening collation with dinner." 

The law of fasting, then, prescribes that only one full meal 
may be taken in the day, and that after twelve o'clock midday. 
Solid food, not drink, is limited by the law of fasting, but 
very nutritious liquids, such as milk, soup, thick chocolate, 
are classed as food. Custom sanctions the taking of about 
two ounces of dry bread with tea, coffee, or thin chocolate 
at breakfast, and about eight ounces of lighter sorts of food 
in the evening at collation. If it is preferred the collation 
may be taken after midday and the full meal in the evening. 

According to Canon 1252 : " The law of abstinence alone is 
to be observed on every Friday. 

The law of abstinence and fasting also is to be observed on 
Ash Wednesday, on the Fridays and Saturdays of Lent, and on 
the Wednesdays, Fridays, and Saturdays of Ember Week, 
on the vigils of Whit Sunday, the Assumption, All Saints, and 
Christmas Day. 

The law of fasting alone is to be observed on the other days 
of Lent. On Sundays or on feasts of obligation the law of 
abstinence, or of abstinence and fasting, or of fasting only, 
ceases, except on the feast during Lent, and the vigils are not 
anticipated; it also ceases on Holy Saturday after midday." 

The Holy See has dispensed English and Scotch Catholics 
from abstinence except during Lent, on the Saturdays of Ember 
Week, and on those vigils which immediately precede or 
follow Friday or another day of abstinence. 



358 ON THE COMMANDMENTS OF THE CHURCH 

Before Urban VIII issued his Bull Universa, September 13, 
1642, various feasts were kept as of obligation in different 
countries. For the purpose of introducing greater uniformity, 
Urban VIII drew up a list of feasts which were everywhere 
to be observed and besides which no others might be observed 
without the sanction of the Pope. Besides all the Sundays of 
the year, the list contained the following feasts: Christmas 
Day, the Circumcision, Epiphany, Resurrection and two 
following days, the Ascension, Whit Sunday and two following 
days, the Holy Trinity, Corpus Christi, Finding of the Cross, 
the Purification, Annunciation, Assumption, and Nativity of 
the Blessed Virgin ; the Dedication of St Michael, the Nativity 
of St John the Baptist, SS Peter and Paul, St Andrew, St 
James, St John, St Thomas, SS Philip and James, St Bar- 
tholomew, St Matthew, SS Simon and Jude, St Matthias; 
St Stephen, St Sylvester, St Joseph, St Anne, the feast of All 
Saints, and one of the principal patrons in each kingdom or 
province, and another principal patron in each city, town, or 
village, where such are venerated. 

In most countries the number of these feasts has been 
greatly reduced, and in England they have been reduced to 
eight by decrees of the Sacred Congregation of Propaganda 
dated March 9, 1777, and May 17, 1830. Those eight are: 
Christmas Day, the Circumcision or New Year's Day, the 
Epiphany, the Ascension of our Lord, Corpus Christi, SS 
Peter and Paul, the Assumption of our Lady, and All 
Saints. The suppressed feasts are still observed as days of 
devotion. 

As in England we had no patrons such as those whose feast 
was to be observed according to the Bull of Urban VIII, by 
a decree dated May 24, 1863, Pius IX granted permission for 
the name of St George to be inserted in the prayer A Cunctis 
at Mass, and for a commemoration of St George to be made 
in place of that of the patron among the suffrages of the saints 
in the Office. By a decree S.R.C. (December 2, 1891 [n. 3758]), 
regulars may add the name of their saintly founder as 
well. In Ireland the feast of St Patrick is celebrated as the 
feast of the patron and as a day of obligation in addition to 
those observed in England. In the United States the following 
are the holy days of obligation: Christmas Day, the Circum- 
cision, the Ascension, the Assumption, the Immaculate Con- 
ception of our Lady, and All Saints. 

Canon 1247 * s as follows: " The festival days of obligation 
in the Church universal are these only : Each and all Sundays, 



ON KEEPING CERTAIN DAYS HOLY 359 

the feasts of the Nativity, Circumcision, Epiphany, Ascension, 
and Corpus Christi, of the Immaculate Conception and 
Assumption of Blessed Mary Mother of God, of St Joseph 
her Spouse, of the Blessed Apostles Peter and Paul, and finally 
of All Saints." 

The feasts of the Immaculate Conception and of St Joseph 
have not so far been introduced in England. 



CHAPTER II 
ON FASTING AND ABSTINENCE 

i. THERE are various reasons why the Church bids Catholics 
to fast and abstain from flesh meat on certain days. By these 
means we more easily keep our lustful appetites in due sub- 
jection and we do penance for our sins. There are certain 
devils, which, as our Lord taught us, are only cast out by 
prayer and fasting. Moreover, by denying and curbing our 
appetites we exercise ourselves in the virtue of temperance, 
and, like soldiers on parade, we accustom our lower nature 
to obey the command of reason, so that it may not betray us 
when we are in presence of the enemy in time of temptation. 

2. Considerable changes were introduced into the law of 
fasting and abstinence by the new code. According to Canon 
1250: 

" The law of abstinence forbids the eating of flesh meat 
and of soup made from flesh meat, but not eggs, milk, cheese 
(lacticmia), nor any condiments even from the fat of animals." 

The flesh of animals that are born on land and that breathe 
is forbidden, as also soups made from this flesh and extract of 
meat. Fish, oysters, turtle, crab are not forbidden, and in 
some places certain aquatic birds are allowed by custom. 
Suet is classed as flesh meat, but the rendered fat of animals, 
butter, milk, cheese, and eggs are allowed. 

3. This precept binds under pain of grave sin, but a violation 
of it would not be a mortal sin unless an appreciable quantity 
of unlawful food were taken. Theologians are not agreed on 
what quantity is necessary to constitute grave matter, but, in the 
opinion of some, two ounces would be necessary and sufficient. 

4. All Catholics who have come to the use of reason are as 
a general rule subject to the precept of abstinence as to other 
positive laws of the Church. However, inasmuch as positive 
laws do not bind when they could not be observed without 
relatively serious inconvenience, those who are sick, or are 
recovering from illness, or those who are in weak health and 
cannot take abstinence fare, are excused from observing this 
precept, and may eat meat on days of abstinence. Children, 
too, of negligent Catholic parents who do not observe the 

360 



ON FASTING AND ABSTINENCE 361 

law, Catholic servants in b goted Protestant families who can- 
not get such food as the C mrch allows on days of abstinence, 
and must fast unless they eat meat which is put before them, 
may lawfully do so. Dispensations also from the obligation 
of abstaining may for good reason be obtained from the Bishop 
or from the priest. 

The superiors of Religious Orders have the same powers 
as Bishops with regard to their own religious subjects. 
Ordinarily these can only dispense in particular cases or 
families, but on account of some great concourse of people or 
of public health, Ordinaries can now dispense in the law both 
of fasting and abstinence (Can. 1245, sec. 2, 3). 

5. According to Canon 1251 : " The law of fasting prescribes 
that only one full meal be taken in the day; but it does not 
forbid the taking of some food in the morning and in the 
evening, nevertheless the approved custom of the place must 
be kept with regard to the quantity and quality of food. Nor 
is it forbidden to mix flesh meat and fish in the same meal, 
nor to change the evening collation with dinner." 

The law of fasting, then, prescribes that only one full meal 
may be taken in the day, and that after twelve o'clock midday. 
Solid food, not drink, is limited by the law of fasting, but 
very nutritious liquids, such as milk, soup, thick chocolate, 
are classed as food. Custom sanctions the taking of about 
two ounces of dry bread with tea, coffee, or thin chocolate 
at breakfast, and about eight ounces of lighter sorts of food 
in the evening at collation. If it is preferred the collation 
may be taken after midday and the full meal in the evening. 

According to Canon 1252: " The law of abstinence alone is 
to be observed on every Friday. 

The law of abstinence and fasting also is to be observed on 
Ash Wednesday, on the Fridays and Saturdays of Lent, and on 
the Wednesdays, Fridays, and Saturdays of Ember Week, 
on the vigils of Whit Sunday, the Assumption, All Saints, and 
Christmas Day. 

The law of fasting alone is to be observed on the other days 
of Lent. On Sundays or on feasts of obligation the law of 
abstinence, or of abstinence and fasting, or of fasting only, 
ceases, except on the feast during Lent, and the vigils are not 
anticipated; it also ceases on Holy Saturday after midday." 

The Holy See has dispensed English and Scotch Catholics 
rrom abstinence except during Lent, on the Saturdays of Ember 
Week, and on those vigils which immediately precede or 
follow Friday or another day of abstinence. 



362 ON THE COMMANDMENTS OF THE CHURCH 

6. It is special to the law of fasting that it only binds the 
faithful after they have attained the age of twenty- one until 
they enter upon their sixtieth year. It binds under pain of 
grievous sin, which may be committed not only by taking 
more than one full meal in the day according to what has 
just been said, but also by taking food at frequent intervals in 
small quantities, for thus the total amount would be consider- 
able. When one who is bound to fast has already taken two 
full meals, he has broken his fast, and the law no longer binds 
him. Whereas the law of abstinence is broken, and sin is 
committed, as often as the prohibited act is done. 

7. Though all who have reached the age of twenty- one are 
per se bound to fast, yet as a matter of fact many are excused 
on the ground of impossibility, work of importance which 
cannot be omitted without serious inconvenience and which 
cannot be done if fasting is observed, and dispensation. 

Not only hard bodily labour in the fields, mines, workshops, 
or mills, but severe mental work such as teaching, continual 
preaching, or hearing confessions, excuses from the precept 
of fasting. The sick, convalescents, and those in delicate 
health are also excused. Even though the difficulty of fasting 
and at the same time of doing one's work is sometimes not 
sufficient of itself to excuse one from fasting, it will be sufficient 
for obtaining a dispensation, which may be given not only by 
the Pope, but by the Bishop, one's religious superior, or by 
the parish priest. 



CHAPTER III 
ON ANNUAL CONFESSION 

As the Council of Trent teaches, there is a divine law which 
prescribes that all who fall into grievous sin after receiving 
Baptism should confess such sin to a priest and receive absolu- 
tion for it from him. This divine; precept is contained in the 
institution of the sacrament of Penance, and will best be 
explained when we come to treat of that sacrament. Here 
we have to do with a positive ecclesiastical law which sup- 
poses the divine law, but further determines it according to 
time and the person to whom the confession is to be made. 
The divine law does not determine any precise time for 
making the confession nor does it limit the choice of 
confessor. This was done by the Fourth Lateran Council, 
c. 21 : " Let all the faithful of both sexes after they have 
come to years of discretion faithfully confess all their sins 
in private at least once a year to their own priest, and do 
their best to perform the penance which he shall enjoin 
them." 

It is the common opinion of theologians that this law 
only affects those who have fallen into mortal sin, so that 
although venial sin may be confessed and affords sufficient 
matter for sacramental absolution, yet there is no law, 
human or divine, which imposes any obligation on the 
faithful in general to confess venial sins. The divine law 
does not do this, as the Council of Trent explains (sess. 14, 
c. 5), and the Lateran law only determines the divine 
law. 

One's own priest, according to the modern discipline of 
the Church, is any priest who has faculties for hearing con- 
fessions in the place where they are made. To satisfy the 
precept it is not sufficient merely to make one's confession; 
it must be made fruitfully, so as to merit absolution and 
reconciliation with God. 1 

No special time within the year is mentioned by the council, 
and various methods of reckoning the year would satisfy its 

1 Prop. 14, condemned by Alexander VII. 

363 



364 ON THE COMMANDMENTS OF THE CHURCH 

requirements; but as Easter time is assigned for the annual 
Communion which is also prescribed, in practice the two 
precepts are fulfilled together within the time appointed 
for the Easter duties. If one has neglected to go to the 
sacraments within the prescribed time, he is not free for a 
further term, but he should go as soon as he can (Can. 906, 
907). 



CHAPTER IV 
THE EASTER COMMUNION 

i . THERE is also a divine precept to receive Holy Communion : 
" Except you eat the flesh of the Son of man and drink his 
blood you shall not have life in you." l But no special time was 
assigned by our Lord for the fulfilment of this precept ; he left 
all such matters to be determined by the Church. The Fourth 
Council of the Lateran, therefore, made the universal law that all 
the faithful, after coming to years of discretion, should reverently 
receive the holy Eucharist at least at Easter, unless it be deemed 
advisable to abstain for a time for some reasonable cause. 2 

2. Canon 859 of the new code repeats the words of the 
Lateran Council and interprets the words " years of dis- 
cretion " as " coming to the use of reason," so that children 
become subject to this law after completing their seventh 
year. This obligation, as far as it affects those under the age of 
puberty, falls chiefly on those who have care of them that 
is, on their parents, guardians, confessor, teachers, and parish 
priest (Can. 860). 

The Easter Communion should be made during the fort- 
night from Palm Sunday to Low Sunday, but local Ordinaries 
can anticipate the time from the fourth Sunday of Lent or 
prolong it to Trinity Sunday. 

The faithful are to be exhorted to fulfil this precept in their 
own parish church, and if they fulfil it in another parish they 
should inform their parish priest. 

In England the time for fulfilling the Easter duties is still 
from Ash Wednesday to Low Sunday. 

In the United States the time for fulfilling the Easter precept 
is from the first Sunday in Lent till Trinity Sunday; in Ireland 
it extends from Ash Wednesday to the octave day of the feast 
of SS Peter and Paul. 

This precept is not fulfilled by a sacrilegious Communion, 
and if it has not been complied with at the proper time the 
obligation still remains, and should be discharged as soon as 
the occasion offers. 

Other matters concerning Holy Communion will be treated 
when we come to the Sacraments. 

1 John vi 54. 2 Can- 2I 

365 



CHAPTER V 
ON SUPPORTING ONE'S PASTORS 

i. " KNOW you not," says St Paul, " that they who work in 
the holy place eat the things that are of the holy place; and 
they that serve the altar partake with the altar ? So also the 
Lord ordained that they who preach the gospel should live 
by the gospel." 1 As, then, there was special provision made 
by God for the support of the priests and the maintenance of 
religion under the Old Law, so under the New Law our Lord 
commanded that his ministers should be supported by those 
to whom they ministered. The faithful, then, are bound by 
divine precept to contribute according to their means to the 
support of their pastors. 

The method of fulfilling this duty has varied at different 
times; nowadays, at least in English-speaking countries, the 
offerings of the faithful are almost the only source of church 
revenue, as they were in the first ages of Christianity. The 
Church urges this divine precept and further determines it 
either by universal law or by provincial and diocesan regu- 
lations. 2 

2. Ministers of religion have a right in justice to decent 
support, for from the fact that they are put by lawful authority 
in spiritual charge of a parish or mission, the people under 
their care are bound by an implicit contract to support them, 
just as citizens are bound to support temporal rulers, magis- 
trates, and officials. 3 

The obligation, then, to support one's pastors is grave, but 
it is difficult to determine when mortal sin is committed in 
particular cases by failing to comply with this duty. Much 
depends on the degree of necessity in which a pastor is placed, 
and on the means of the parishioner. The sacraments and 
ministrations of the Church should never be refused to the 

1 i Cor. ix 13, 14. 

2 Cf. i West., d. 23, nn. 4, 5 ; 2 West., d. 8; 3 Plen. Baltim., tit. 9; 
can. 1496. 

3 St Thomas, Summa, 2-2, q. 87, a. i. 

366 



ON SUPPORTING ONE'S PASTORS 367 

poor who cannot pay the usual fee, nor more especially is the 
priest justified in refusing the consolations of religion to 
dying people on the ground that they neglected the duty of 
supporting their pastors during life. The priest is bound 
by other ties to his flock than by the hope of earthly 
reward. 



END OF VOL. I. 



iffl 




CTfoe University of Chicago 
^libraries 




A MANUAL OF MORAL THEOLOGY 



A ; MiNUAL- OF 






J 

FOR ENGLISH-SPEAKING COUNTRIES 



REV. THOMAS SLATER, SJ. 

N * 

VOL II. 

FIFTH AND REVISED EDITION 



NEW YORK, CINCINNATI, CHICAGO 

BENZIGER BROTHERS 

PRINTERS TO THE HOLY APOSTOLIC SEE 
1925 





NIHIL OBSTAT: 
H. DAVIS, SJ. 

IMPRIMI POTEST: 
GULIELMUS BODKIN, S.J. 



NIHIL OBSTAT: 

J. R. McKEE, C.O., 

Censor deputatus. 

IMPRIMATUR : 

EDM. CAN. SURMONT, 

Vicarius generate. 



WESTMON ASTBHI i , 
Die 50 fanuarii, 1935. 



Madt and Printed in Great Britain 



765 



752 



CONTENTS 



BOOK I 

DUTIES ATTACHED TO PARTICULAR STATES AND 

OFFICES 

j 

PART I. DUTIES OF CERTAIN LAYMEN 

PAGE 

Chapter I. Duties of Judges . . . * 

Chapter II. Duties of Advocates ..... 5 

Chapter III. Prosecutors, Defendants, and Witnesses . . 7 

Chapter IV. Medical Men 9 



PART II. SPECIAL DUTIES OF CLERICS 

Chapter I. Holiness of Life . . . . . .11 

Chapter II. Celibacy of the Clergy . . . . .13 

Chapter III. Clerical Dress . . . . . 15 

Chapter IV. Divine Office i? 

Chapter V. Things Forbidden to Clerics .... 22 

Chapter VI. Benefices 25 

Chapter VII. Special Duties of Bishops .... 27 

Chapter VIII. Duties of Canons 29 

Chapter IX. Duties of Parish Priests ..... 30 

Chapter X. Priests without Special Charge . . -34 



PART III. SPECIAL DUTIES OF RELIGIOUS 

Chapter I. Nature of the Religious State . . . -37 

Chapter II. Entrance into Religion ..... 40 

Chapter III. Religious Profession ..... 43 

Chapter IV. Religious Poverty 44 

Chapter V. Vow of Chastity 49 

Chapter VI. Vow of Obedience . . . . . 51 



VI 



CONTENTS 



Chapter I. 
Chapter II. 
Chapter III. 

Section I. 

Section II. 

Section III. 

Section IV. 

Chapter IV. 



BOOK II 

THE SACRAMENTS IN GENERAL 

The Nature of a Sacrament .... 

The Matter and Form of the Sacraments . 
The Minister of the Sacraments 
The Attention and Intention of the Minister . 
The Faith and Holiness of the Minister 
The Duty of Administering the Sacraments 
The Duty of Refusing the Sacraments to the 
Unworthy ....... 

The Recipient of the Sacraments 



PAGE 

53 
57 
61 
61 
64 
66 

67 



BOOK III 
BAPTISM 

Chapter I. The Nature of Baptism . 
Chapter II. The Matter and Form of Baptism 
Chapter III. The Minister of Baptism . 
Chapter IV. The Sponsors .... 
Chapter V. Who May be Baptized 



75 

77 
78 
81 

83 



BOOK IV 
CONFIRMATION 

Chapter I. The Matter of Confirmation 
Chapter II. The Minister of Confirmation 
Chapter III. The Subject of Confirmation 



87 

89 
90 



BOOK V 
THE HOLY EUCHARIST 

PART I. THE SACRAMENT OF THE EUCHARIST 



Chapter I. 

Chapter II. 

Chapter III. 

Chapter IV. 

Chapter V. 

Article I. 

Article II. 

Section I. 
Section II. 



The Nature and Effects of the Eucharist . . 91 
The Matter and Form of the Eucharist . . 93 
The Minister of the Eucharist ... 96 
The Reservation of the Eucharist ... 98 
The Subject of the Eucharist .... 100 

The Necessity of the Eucharist . . .100 
The Dispositions Requisite for the Reception of 

the Eucharist . . . . . . 102 

The Dispositions of the Soul . . . .103 

The Dispositions of the Body . . . .103 



CONTENTS 



VII 



PART II. THE EUCHARIST AS A SACRIFICE 

Chapter I. The Nature of the Sacrifice of the Mass 

Chapter II. The Application of Mass 

Chapter III, The Obligation of Applying Mass . 

Chapter IV. The Time for Saying Mass 

Chapter V. Where Mass may be Said 

Chapter VI. Requisites for Saying Mass 

Chapter VII. The Rubrics of the Missal 



PAGE 
I O6 

HO 
112 
117 
119 
131 
122 



Chapter I. 
Chapter II. 
Chapter III. 

Section I. 

Section II. 
Chapter IV. 
Chapter V. 
Chapter VI. 
Chapter VII. 
Chapter VIII. 
Chapter IX. 
Chapter X. 
Chapter XI. 
Chapter XII. 

Section I. 

Section II. 

Section III. 

Section IV. 
Chapter XIII. 
Chapter XIV. 



BOOK VI 
THE SACRAMENT OF PENANCE 

The Nature of Penance . . . . .125 

The Matter of Penance 128 

On Contrition . . . . . . 132 

The Nature of Contrition .... 132 

The Purpose of Amendment . . . .136 

Confession . . . . . . .138 

Satisfaction . . . . . . 144 

The Form of Penance . . . . . 147 

The Minister of Penance . . . 149 

Jurisdiction of the Minister of Penance . .150 

The Confessors of Religious . . . 153 

Reserved Cases . . . . . .156 

De Abusu Sacramenti Poenitentiae . . .161 

The Duties of Confessors in the Confessional . 165 

The Confessor as Spiritual Father . . .165 

The Confessor as Physician of Souls . .166 

The Confessor as Counsellor . . . .168 

The Confessor as Judge . . . . .170 

Mistakes made in Hearing Confessions . . 172 

The Seal of Confession . . . . . 174 



BOOK VII 
EXTREME UNCTION 

Chapter I. The Nature of Extreme Unction 
Chapter II. The Minister of Extreme Unction 
Chapter III. The Recipient of Extreme Unction 



179 
181 
182 



VM1 



CONTENTS 



BOOK VIII 
THE SACRAMENT OF ORDERS 



Chapter I. The Nature of Orders 
Chapter II. The Minister of Orders 
Chapter III. The Subject of Orders 



PAKE 



1 86 



Chapter I. 

Chapter II. 

Chapter III. 

Chapter IV. 

Chapter V. 

Chapter VI. 

Chapter VII. 

Chapter VIII. 

Chapter IX. 

Chapter X. 

Article I. 

Article II. 

Article III. 

Article IV. 

Article V. 

Article VI. 

Article VII. 

Article VIII. 

Article IX. 

Article X. 
Section I. 
Section II. 

Article XL 
Section I. 
Section II. 
Section III. 

Article XII. 

Article XIII. 

Article XIV. 

Article XV. 

Chapter XI. 

Chapter XII. 

Chapter XIII. 

Chapter XIV. 



BOOK IX 

MARRIAGE 

Betrothal 189 

The Effects of Betrothal . . . .193 
Dissolution of Betrothal . . . 194 

Banns of Marriage . . . . 197 

The Marriage Contract .... 200 
Minister, Matter, and Form of Matrimony . 204 
The Properties of Marriage . . . 206 

The Impediments of Marriage in General . 210 
The Prohibitory Impediments . . .212 
The Diriment Impediments . . .215 

Impotence . . . . . . 215 

Age 216 

Previous Marriage . . . . .216 

Consanguinity . . . , . .218 
Affinity . . . . . . . . 220 

Spiritual Relationship ..... 221 

Adoption ....... 221 

Public Propriety . . . . . . . 222 

Solemn Vows and Sacred Orders . . . 222 
Difference of Religion . . . . . . 223 

Mixed Marriages . . . . . 224 

Difference of Religion .... 225 

Crime . . . . . . . 226 

Adultery with Promise of Marriage . . 226 
Murder of a Consort ..... 227 

Adultery and Murder . . . . . 228 

Error, Slavery, Imbecility .... 228 

Violence and Fear . . . . . 229 

Abduction . . . . . .231 

Clandestinity . . . . . .232 

Doubtful Impediments . . . . . 236 

Dispensations from Diriment Impediments . 238 
Revalidation of Marriage ... 246 
De Debito Conjugali ..... 248 



CONTENTS ix 

BOOK X 
CENSURES 

PART I. CENSURES IN GENERAL 

PAGE 

Chapter I. The Nature of an Ecclesiastical Censure . . 253 
Chapter II. Absolution of Censures ..... 257 

PART II. DIFFERENT KINDS OF CENSURES 

Chapter I. Excommunication 259 

Chapter II. Suspension ....... 262 

Chapter III. Interdict 264 

Chapter IV. Ecclesiastical Penalties 266 

PART III. SPECIAL CENSURES 

Chapter I. Special Excommunications .... 268 

Chapter II. Special Suspensions 283 

Chapter HI. Special Interdicts 285 

BOOK XI 
IRREGULARITIES 

Chapter I. Irregularity in General 287 

Chapter II. Irregularities from Defect ..... 289 

Chapter HI Irregularities arising from Crime . . . 291 

Chapter IV. Removal of Irregularities 292 

BOOK XII 
INDULGENCES 

Chapter I. The Nature of an Indulgence . . . .293 
Chapter II. Conditions Required for Gaining Indulgences . 296 
Chapter III. The Jubilee 301 

APPENDIX 

A Short History of Moral Theology 305 

Bibliography 339 

INDEX 

, Alphabetical Index to Volumes I and II . . . . 343 



BOOK I 

ON THE DUTIES ATTACHED TO PARTICULAR 
STATES AND OFFICES 

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. 

PART I 
ON THE DUTIES OF CERTAIN LAYMEN 

CHAPTER I 
ON THE DUTIES OF JUDGES 

i. 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 excep- 
tion 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. 

- XX* . f 



2 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

2. 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 con- 
science 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. 

3. 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 condemn- 
ing the innocent man, and nevertheless the jury have found 
him guilty, and by law it only remains for the judge to pass 



ON THE DUTIES OF JUDGES 3 

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, especi- 
ally 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. 

4. 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 ? 

The judge may sometimes obtain permission to pass sen- 
tence 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. 1 

1 Gasparri, De Matrim. 2, n. 1165. 



4 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

5. 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. 



CHAPTER II 
ON THE DUTIES OF ADVOCATES 

i. 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. How- 
ever, 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 pro- 
nounced 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 varia- 
tion in the marriage settlement, or to prevent the necessity 
of having to maintain a bastard child, a Catholic lawyer may 

5 



6 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

2. 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 expecta- 
tions 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. 



CHAPTER III 
ON PROSECUTORS, DEFENDANTS, AND WITNESSES 

i. 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 pro- 
secution 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. 

2. 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 ex- 
amined, 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 com- 
mitted 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 

7 



8 DUTIES ATTACHED TO STATES AND OFFICES 

or other means if he can do so ; he should submit to the execu- 
tion of the sentence passed upon him, and may do so meri- 
toriously. 

3. Charity or obedience may impose an obligation to give 
evidence in a court of justice. If serious harm can be pre- 
vented 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). 



CHAPTER IV 
ON THE DUTIES OF MEDICAL MEN 

i. 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. 

2. 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 reason- 
able, and he should be ready to call in other doctors for con- 
sultation 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. 

3. 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 

9 



io DUTIES ATTACHED TO STATES AND OFFICES 

dangerous remedies, are questions which have been treated 
elsewhere. 

4. 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 prepara- 
tions for death if it should come about. 

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



PART II 
ON THE SPECIAL DUTIES OF CLERICS 

CHAPTER I 
ON HOLINESS OF LIFE 

i . 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, and breathes the 
religious spirit. 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. 8 

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). 

2. Great personal sanctity becomes the cleric, and is required 
if he is to perform his duties worthily. It is a disputed ques- 
tion among theologians whether the inferior clergy are as 
such in a state of perfection. It is allowed by all that bishops 

1 Lev. xxi 8. 2 Sess. 22, c. i, de Ref. Cf. Can. 124. 

3 i West., d. 34; 4 West., d. 12. 

n 



12 DUTIES ATTACHED TO STATES AND OFFICES 

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 perfec- 
tion, 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, DeRel. 3, lib. i, c. 17. 



CHAPTER II 
THE CELIBACY OF THE CLERGY 

i. 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 euchar- 
istic 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 direc- 
tion. Already in the fourth century the law of celibacy existed 
which was formulated by Leo the Great in his letter to Anas- 
tasius 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. 1 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 recep- 
tion 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 

1 Can. 132, 1072. 
13 



14 DUTIES ATTACHED TO STATES AND OFFICES 

they may keep their wives, except bishops. Even in the East 
clerics in sacred orders cannot contract a valid marriage. 

2. 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 imme- 
diately 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 essen- 
tial 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. 



CHAPTER III 
THE CLERICAL DRESS 

i . 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. n, 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. 

2. 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 (loc. cit.). 
On this point Canon 136 prescribes: 

" Let them wear the tonsure or clerical crown, unless this 

15 



1 6 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

3. 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. Theo- 
logians 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. 



CHAPTER IV 
THE DIVINE OFFICE 

i. 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. i), 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. 

2. 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 con- 
siderable 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. 

3. 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 

ii. 17 2 



1 8 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

4. 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 mani- 
festly 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. 

5. 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 



THE DIVINE OFFICE 19 

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 indepen- 
dent of any other. 

6. 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 1 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. 

7. 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, reckon- 
ing 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. 



20 DUTIES ATTACHED TO STATES AND OFFICES 

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. 

8. 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 obliga- 
tion, 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 ex- 
ternal 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 



THE DIVINE OFFICE 21 

fulfilling his obligation, and with decorum and a devout de- 
meanour, 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 im- 
possible 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. 



CHAPTER V 
ON THINGS FORBIDDEN TO CLERICS 

i. 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. 

2. 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. 

3. 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). 

4. 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 

22 



ON THINGS FORBIDDEN TO CLERICS 23 

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 54 West, d. n, n. 3). 

5. 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. n, n. 9 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. 

6. 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. 143). 

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 chang- 
ing 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 un- 



24 DUTIES ATTACHED TO STATES AND OFFICES 

lawful 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. 



CHAPTER VI 
ON BENEFICES 

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. 

H73)- 
If a cleric violates this precept and disposes of what remains 

over in other ways, he sins against obedience but probably not 
against justice, so that there is no obligation to restore what 
has been disposed of against ecclesiastical law. 

The beneficiary is bound faithfully to fulfil the special duties 
annexed to his benefice, and, moreover, daily to recite the 
canonical Hours (Can. 1475, sec. i). 

If, without any legitimate excuse, he has failed to satisfy 
his obligation of reciting the canonical Hours, in proportion 
to his omission he does not make the fruits of the benefice his 

25 



26 DUTIES ATTACHED TO STATES AND OFFICES 

own, and must hand them over to the church fabric or to 
the diocesan seminary, or must give them to the poor (Can. 
1475, sec. 2). 

The beneficiary, as the guardian of his benefice, ought to 
administer the property belonging to his benefice according 
to law (Can. 1476, sec. i). 

If he is negligent or in any other way in fault, he ought to make 
good the damage done to the benefice, and he should be com- 
pelled to make compensation for it by the local Ordinary, and 
if he be a parish priest he can be removed from his parish in 
accordance with Canon 2147 ff. 

The Code of Canon Law and the canonists should be referred 
to for fuller treatment of this matter. 



CHAPTER VII 
ON THE SPECIAL DUTIES OF BISHOPS 

i. THE duties of bishops of the Catholic Church are treated 
of at length in canon law; here we will touch upon the chief 
of them in so far as they affect conscience. 

In order to be able to fulfil his various duties a bishop must 
habitually reside within the limits of his diocese. It is a 
disputed point among theologians whether this obligation is 
derived immediately from the divine ' law or from the positive 
law of the Church. We may say that at least remotely and in 
substance it belongs to the divine law, for in detail it is deter- 
mined by the positive law of the Church. The bishop need 
not always live in the episcopal city, but he should be there 
to pontificate in the cathedral on the more solemn festivals of the 
year. Notwithstanding the obligation of residence the Code of 
Canon Law allows a bishop to absent himself from his diocese 
for good cause for a period of two or three months every year 
provided that he can do so without injury to his flock. 1 His 
own conscience must decide what cause is sufficient to justify 
his absence. Besides these two or three months a bishop 
may further absent himself if Christian charity, urgent necessity, 
due obedience, or the evident advantage of Church or State 
require it. But besides these reasons, in countries subject to 
the Sacred Congregation of Propaganda, the leave of the Sacred 
Congregation is also required for longer absence than the two 
or three months mentioned above. 

2. At stated times bishops are bound to visit their dioceses 
in order to promote sound religious teaching and to correct 
errors in doctrine, to protect the good and punish the wicked, 
and to exhort the people to lead religious, peaceful, and good 
lives. 2 They are specially bound to watch over the morals 
and discipline of the clergy, and that there may be a constant 
supply of zealous priests for the needs of the diocese they 
should have a seminary for the education of those whom God 
calls to the clerical state. By the authority of the Holy See 
several dioceses may have a seminary in common if they are 
too small and poor to support a separate one for themselves. 3 

1 Can. 338. 2 Can. 343. 3 Can. 1354. 

27 



28 DUTIES ATTACHED TO STATES AND OFFICES 

The care of sound Christian doctrine is specially entrusted to 
bishops, and in the exercise of this charge they may visit public 
and private institutions, except such as are exempted from 
their jurisdiction, and they may condemn bad books not only 
by their ordinary authority, but as delegates of the Holy See 
in this important matter. They are bound at times to preach 
the word of God; every Sunday and day of obligation, even 
on the feast days that have been suppressed, they are bound 
to offer up Mass for the people committed to their charge; 
they should hold a diocesan synod every ten years, and make 
their visit ad limina at the fixed times, in order to render an 
account of the state of their dioceses to the Holy See. 



CHAPTER VIII 
ON THE DUTIES OF CANONS 

. THE canons attached to a cathedral church form the council 
or senate by whose advice and help the bishop is assisted in 
the government of the diocese. Collegiate churches were also 
served by a body of canons. By the common law, besides 
helping the bishop in the government of the diocese, canons 
were bound to residence near the church which they served; 
they were bound to sing the divine office every day in choir, 
and in turn to celebrate the conventual Mass. When a bishopric 
becomes vacant the government of the diocese devolves on the 
chapter of canons, who must elect within eight days after the 
vacancy occurs a vicar capitular to administer the affairs of the 
diocese until the appointment of a new bishop. 

2. As there are either no prebends for the support of the 
canons in this country, or their income is too small for the 
purpose, our canons have been dispensed by the Holy See 
from the obligation of residence near the cathedral and from 
the daily celebration therein of Mass and divine office. They 
are, however, still bound to assemble at the cathedral on some 
one day in every month to be designated by the bishop, and 
on that day to sing office, say a conventual Mass, and hold a 
chapter. Similar provisions have been made in other countries. 
In the United States the place of canons is to some extent 
taken by the diocesan consulters. 

In diocesan matters of importance the bishop is bound to 
ask the advice of his canons, and sometimes it is specially 
provided that he must obtain their consent to what he proposes 
to do. 

Canons in England do not indeed elect a new bishop, but 
the Holy See has granted them the right of commendation, 
which is exercised by electing three clerics whose names they 
send in alphabetical order to the archbishop or to the senior 
bishop if the vacancy occurs in the archbishopric. The 
bishops then hold a meeting and after deliberation send the 
names with their remarks and opinions concerning the merits 
of each to the Holy See. The Holy See selects one of the 
three or someone else as it is judged more expedient. 

29 



CHAPTER IX 
ON THE DUTIES OF PARISH PRIESTS 

i. THE parochial system is not an institution of the primitive 
Church, much less of divine origin. For some centuries it 
was usual for the bishop to reside in some city with his body 
of clergy around him, some of whom were despatched as 
occasion required to minister to the faithful in outlying districts. 
In the fifth and sixth centuries parishes began to make their 
appearance in some places in the country districts, and in the 
eleventh, parish churches began to be instituted in the cities. 
Even at the period of the Council of Trent the parochial system 
had by no means become universal, but this council com- 
manded that where churches had no fixed limits nor the pastors 
their own flock, and the sacraments were administered pro- 
miscuously to any who asked for them, the bishops should 
divide the people into fixed and proper parishes and assign 
to each its perpetual and separate parish priest, who might 
know them, and from whom alone they might lawfully receive 
the sacraments. 1 It added, indeed, that they might provide in 
some better way as circumstances of place demanded. 

The Code of Canon Law prescribes that the territory of 
each diocese be divided into distinct parts called parishes, and 
that to each parish be assigned its own parish church with 
separate parishioners, and over it is to be placed its own parish 
priest for the necessary cure of souls (Can. 216). 

The bishop should also divide his diocese into separate 
districts consisting of several parishes and called vicariates 
forane, or deaneries. 

In the same way, where it can be done conveniently, vicariates 
apostolic and prefectures apostolic are to be divided. 

The parts into which vicariates and prefectures apostolic 
are divided are called quasi-parishes, and the priests placed 
over them are called quasi-parish priests. 

A parish priest is a priest or moral person or corporation 
who is collated to a parish in title with the cure of souls to be 
exercised under the authority of the local Ordinary (Can. 451). 

A monastery or a cathedral chapter may have the habitual 

1 Sess. 24, de Ref., c. 13. 
30 



ON THE DUTIES OF PARISH PRIESTS 31 

cure of souls as parish priest, but in accordance with Canon 471 
such corporation must constitute a vicar to exercise the actual 
cure of souls, and allow him his decent support according to 
the judgement of the bishop. 

When the parish priest has obtained possession of his parish, 
it is his lawful title for the exercise of all the duties and rights 
belonging to the office, and for the receiving of all the emolu- 
ments connected with it. 

Quasi-parish priests and vicars of parish priests have in 
general all the rights and duties of parish priests (Can. 451, 
sec. 2). 

2. In order that a parish priest may be able to fulfil his 
duties and be ready to help his parishioners in their spiritual 
needs, he should reside in the presbytery near the church. 

The parish priest is allowed to be absent for two or three 
months, either continuous or interrupted, in the year, unless 
a grave reason in the judgement of the Ordinary himself 
requires a longer absence or permits only a shorter. 

The days during which a parish priest is engaged in spiritual 
exercises, in accordance with Canon 126, once a year, are not 
reckoned in the two months of vacation. 

Whether the time of vacation be continuous or interrupted, 
when the absence is to last beyond a week, the parish priest, 
besides a legitimate cause, ought to have the leave of the 
Ordinary in writing, and leave a vicar as substitute in his place 
to be approved by the same Ordinary; and if the parish priest 
is a religious he requires, in addition, the consent of his superior, 
and his substitute ought to be approved both by the Ordinary 
and by his superior. 

If a parish priest is compelled by some sudden and grave 
reason to depart and to be absent beyond a week, let him 
inform the Ordinary by letter as soon as possible, telling him 
the reason of his departure and the priest who supplies for 
him, and let him abide by his commands. Even for a period 
of shorter absence a parish priest ought to provide for the 
needs of the faithful, especially if special circumstances demand 
it (Can. 465). 

The Westminster Synods require that curates give notice 
to the parish priest if they wish to absent themselves even 
for a day. 

3. On Sundays and on the other days of obligation through- 
out the year it is the peculiar duty of the parish priest to preach 
the word of God to the people in the usual homily, especially 
in the Mass, which is more frequented by the people. 



32 DUTIES ATTACHED TO STATES AND OFFICES 

The parish priest cannot habitually satisfy this obligation 
by employing another to do it, except for a good reason approved 
by the Ordinary. 

The Ordinary may allow the sermon to be omitted on certain 
more solemn festivals, or even on some Sundays for a good 
reason (Can. 1344). 

The kind and manner of instruction should be accommodated 
to the people, teaching them what is necessary for salvation, 
inveighing against vice and inculcating virtue, so that the 
people may be able to avoid hell and gain heaven, as the Council 
of Trent teaches. 

The parish priest should prepare the children of his parish 
for the reception of the sacraments of Penance and Confirma- 
tion, and more specially for their first Communion. Moreover, 
after their first Communion he should take the opportunity to 
give them fuller instruction. On Sundays and days of obliga- 
tion at some suitable time he should give catechetical instruction 
to the grown-up people of his parish (Can. 1330-1332). 

4. To be able to fulfil his duties towards the members of 
his flock, a parish priest must know them, and he should not 
wait till they come to him ; he should visit them and seek out 
those who have wandered from the fold. He is bound to 
correct the erring and to strive to recover them. He should 
also be able to devote some time to inquiring souls outside 
the fold. He should keep a book in which to enter particulars 
concerning the status animarum. He must be ready to ad- 
minister the sacraments at the reasonable request of his 
parishioners, and he must say Mass in order that they may 
be able to fulfil their obligation of hearing it on the appointed 
days. Indeed, the provincial synods express a desire that 
there should be Mass daily in the parish church, and it will be 
the duty of the priest to provide this wherever the faithful have 
been led to expect it and frequent the church for the purpose. 

On all Sundays and holidays of obligation, even on those 
that have been suppressed, parish priests are bound to apply 
Mass for their people (Can. 466). 

Quasi-parish priests are bound to apply Mass for their people 
at least on the more solemn feasts mentioned in Canon 306. 

The parish priest should say the Mass to be applied for the 
people in the parish church unless circumstances require or 
suggest otherwise. If he is lawfully absent he can apply the 
Mass for the people either himself in the place where he is 
staying, or through the priest who supplies for him in the 
parish (Can. 466, sees. 4, 5). 



ON THE DUTIES OF PARISH PRIESTS 33 

The Code mentions five kinds of parochial vicars: Vicarius 
curatus, Vicarius oeconomus, Vicarius substitutus, Vicarius 
adjutor, and Vicarius co-operator. 

It will be sufficient for our purpose to say something on 
the duties of Vicarii co-operatores, or curates, as they are fre- 
quently called in this country. 

If, on account of the number of people or for some other 
good reason, the Ordinary judges that one priest cannot look 
after a parish, he should appoint one or more curates and 
assign them a decent support. 

The rights and duties of a curate are to be learnt from the 
diocesan statutes, from the letters and faculties of the Ordinary, 
and from the commission of the parish priest, but unless his 
sphere of activity is expressly limited, he should, from the 
nature of his office, take the place of the parish priest and help 
him in the whole care of the parish, except that he is not bound 
to apply Mass for the people. He is subject to the authority 
of the parish priest, who ought in a fatherly manner to instruct 
and guide him in the cure of souls, watch over him, and at 
least once a year send a report concerning him to the Bishop 
(Can. 476). 



n. 



CHAPTER X 
ON PRIESTS WITHOUT SPECIAL CHARGE 

i. THE Council of Trent declared 1 that no one should receive 
ordination who was not, in the judgement of his bishop, 
necessary or useful to the diocese, and it decreed that nobody 
should in future be ordained without being incardinated in 
the diocese for whose necessity or advantage he was taken, 
so that all priests may have occupation and may not wander 
about without fixed abode. 

The new Code of Canon Law prescribes that all clerics 
must belong either to some diocese or to some religious order, 
so that unattached clerics are nowise tolerated. A cleric is 
incardinated in the diocese for whose service he was promoted 
by the reception of the clerical tonsure (Can. in). 

All clerics, but more especially priests, are bound by a 
special obligation to show reverence and obedience to their 
respective Ordinaries. As often and for so long as the necessity 
of the Church requires it, in the judgement of the Ordinary, 
and unless excused by some lawful impediment, clerics must 
accept and fulfil the duties of the office which is assigned them 
by the bishop (Can. 127, 128). 

Although they have not a benefice or a residential office, 
clerics may not depart for any considerable time from their 
diocese without at least the presumed leave of their own 
Ordinary. One who with the leave of his own Ordinary has 
gone to another diocese while remaining incardinated in his 
own, can be recalled if there is a good reason and natural 
equity is observed, and the Ordinary of the other diocese also 
can for a good reason refuse him leave to stay any longer in 
his diocese, unless he has conferred a benefice on him (Can. 



2. Before ordaining a cleric the bishop should satisfy him- 
self that the candidate is worthy and fit for the work of the 
sacred ministry. He must have the requisite holiness of life, 
without which the receiving of orders will only add to his 
greater condemnation. He must possess the knowledge 
necessary for the exercise of his duties, and he must be called 

1 Sess. 23, c. 15, de Ref. 
34 



ON PRIESTS WITHOUT SPECIAL CHARGE 35 

by God. There is some apparent difference of opinion as to 
what precisely is implied by the necessity which all admit of 
a vocation from God to the clerical state. It is certain that 
no one may lawfully intrude himself into the ministry of his 
own accord. He must be duly approved and chosen for the 
work by the bishop. According to the catechism of the Council 
of Trent the words of the epistle to the Hebrews are to be 
understood of this external vocation through the lawful ministers 
of the Church. " Neither," we there read, " doth any man 
take the honour to himself, but he that is called by God as 
Aaron was." 1 

It is commonly admitted that besides this external vocation 
by the lawful prelates of the Church in the name of God, an 
internal call is also necessary. To be consecrated to the service 
of God a man must have the requisite gifts of body, mind, 
and soul, and, moreover, he must be satisfied that it is the will 
of God that he should devote himself to the sacred ministry, 
and that he will be able to perform its duties worthily, and 
thereby save his soul. The will of God in such matters is 
made known in various ways. Sometimes it is as plain and 
evident as was the call of St Paul on the road to Damascus. 
As a rule it becomes known by internal inspirations by which 
one is brought to think highly of the ministry, and by motions 
of the will by which one is drawn to desire it for the glory of 
God, the good of one's fellow-men, and the salvation of one's 
own soul. To embrace the priesthood without the conscious- 
ness of any such divine call would be hazardous and rash, and 
it would be grievously sinful if there were no wish or no prospect 
of being able to fulfil the duties of the clerical state. On the 
other hand, if the motive for embracing the clerical life were 
not seriously wrong, and if there' were the firm resolve to fulfil 
the duties of the priesthood faithfully, and a reasonable prospect 
of being able to do so, many approved divines consider that 
a person choosing the priesthood without a divine vocation 
would not sin grievously. 

Divines discuss the question as to whether a cleric who 
has contracted a bad habit of secret sin would sin grievously 
by receiving sacred orders before he had overcome his bad 
habit. Some defend the view that he would do so, because 
he would violate the law of the Church which requires holiness 
of life in one who is admitted to sacred orders. Even if we 
admit with others that it is difficult to sustain this view, that 
the Pontifical seems not to countenance it, yet in ordinary 

1 Heb. v 4 



36 DUTIES ATTACHED TO STATES AND OFFICES 

cases it expresses the correct opinion in practice, for commonly 
there will be little chance of a cleric living up to his profession 
who before ordination had contracted a vicious habit. Such 
a one undertakes more than he can fulfil and sins grievously 
against the natural, if not against the positive law. His con- 
fessor then would be justified in bidding him defer ordination 
till he has corrected himself, and enforcing his command with 
a threat of refusing absolution, except in some extraordinary 
case of sudden and complete conversion. 

Canon 1363 forbids the Ordinary to receive into his seminary 
any but legitimate boys whose disposition and will give hope 
that they will always devote themselves to the ministry of the 
Church with fruit. Before reception they must show certifi- 
cates of legitimate birth, of baptism and confirmation, and 
testimonies of being of good character. Special provisions are 
made with regard to those who have been dismissed from another 
seminary or from a religious order (Can. 1363). 

There used to be a controversy as to whether a priest as 
such was bound to say Mass. This question is settled by 
Canon 805 : " All priests are bound to say Mass several times 
a year; moreover, let the Bishop or the religious superior take 
care that they say Mass at least on all Sundays and holidays 
of obligation. " 



PART III 
ON THE SPECIAL DUTIES OF RELIGIOUS 

CHAPTER I 
ON THE NATURE OF THE RELIGIOUS STATE 

i. WE learn from the Gospels that, besides the ordinary way 
of the Commandments to be followed by all who wish to save 
their souls, our Lord proposed the way of perfection to the 
select few who wished to follow him more closely. 1 This way 
of perfection consists in renouncing the goods of this world 
and the cares of family life, and following our Lord's example 
of perfect obedience to the will of our heavenly Father. From 
the first ages of the Christian Church there were many who 
accepted our Lord's invitation and lived in voluntary poverty 
and chastity. Comparatively few historical documents of the 
earliest centuries of the Christian era have survived, but we 
find traces of a body of ascetics and virgins to whom a place 
of special honour was assigned in the Church. At first they 
seem to have lived in the bosom of their families, but soon they 
fled to the deserts of Egypt, Syria, and Palestine, and for 
guidance and encouragement put themselves under the rule of 
some experienced hermit. Nothing was then wanting to the 
essence of the religious state except vows and a rule. When 
the counsels of perfection began to be practised under vow 
cannot be determined exactly; the first formal religious rules 
are the work of St Basil and St Benedict. Thus in its essence 
the religious state has been instituted by Jesus Christ, and, as 
historically evolved under the guidance of his Church, it may 
be defined as a fixed and stable way of life approved by the 
Church for the faithful who, under a certain rule and a common 
way of living, wish to aim at perfection by the observance of 
the three vows of poverty, chastity, and obedience, with the 
entire surrender of one's self to God. Thus those who devote 
themselves to works of piety and charity without vows, or 
with only private vows, are not in the religious state, nor are 
they technically called religious. They want the necessary 

1 Matt. xix. 
37 



38 DUTIES ATTACHED TO STATES AND OFFICES 

stability. This stability is given by the profession of public 
vows of poverty, chastity, and obedience, the chief of the 
counsels of the Gospel, by which a person renounces the 
attractions of this world which draw so many away from God, 
in order to give himself wholly and entirely without let or 
hindrance to the love and service of God. The Church has 
always watched over and fostered the practice of religious life. 
In the thirteenth century there was danger of the great variety 
of religious orders causing confusion, and the Fourth Council 
of the Lateran forbade any new orders to be founded. The 
practical effect of this law was to prohibit new orders without 
the approbation of the Holy See. It is still in force as regards 
orders with solemn vows, which cannot be founded without 
the special approbation of the Pope. According to the new 
Code, bishops, but not Vicars Capitular or Vicars General, can 
found religious congregations with simple vows, but they are 
forbidden to found them or allow them to be founded without 
consulting the Holy See. If there is question of founding 
tertiaries living in common, the leave is also required of the 
General of the first order to which the tertiaries are to be 
affiliated (Can. 492). 

A religious congregation founded by a bishop may in 
process of time acquire houses in other dioceses, but it remains 
diocesan and is wholly subject to the local Ordinaries, according 
to law, until it obtains a decree of the Holy See in praise of its 
end and scope, or one of formal approbation. 

The end of religious life is perfect union with God, in which 
man's perfection consists, and this union the religious disposes 
himself for by the constant practice of works of sublime charity 
and of renunciation of all that could be an obstacle to charity. 
Thus the religious state is the state of perfection; not that 
religious are supposed to be already perfect, but because per- 
fection of Christian charity is the end aimed at, and suitable 
means are furnished therein for obtaining that end. 

2. The special obligations under which a religious lies follow 
from the nature of the religious state which we have described. 
Inasmuch as he devotes himself to the service of God in religion, 
he must do nothing that would endanger his perseverance or 
cause him to be dismissed from the order. He is especially 
bound to observe his vows of poverty, chastity, and obedience, 
which he has voluntarily made to God, and in which the essence 
of religious life and the chief means of practising perfection 
consist. He is bound to keep the rule which he takes for his 
guide in life by the very fact of entering into the order which 



ON THE NATURE OF THE RELIGIOUS STATE 39 

he has chosen as well as by ecclesiastical law (Can. 593). The 
obligation imposed by the rule is not the same in all religious 
orders. In some it binds under sin like the precepts of the 
superior. The rules of the Dominicans, Jesuits, and of most 
of the modern congregations, of themselves, speaking generally, 
do not bind under sin. Particular precepts are sometimes 
inserted in the rule, and these of course are to be observed 
under sin like any other precepts of obedience. Apart from 
these the rule is rather a guide of conduct in religious life, 
and an indication as to how the superior should govern his 
subjects, than a rigid code of law binding under pain of sin. 
However, divines point out that frequently violations of such 
a rule will be sinful, not precisely because they are infractions 
of the rule, but because there will frequently be something 
defective in them as moral acts. If the silence which the rule 
prescribes is broken without just cause, the act will be sinful 
on account of the motive which led to it, the scandal which 
it causes, and its tendency to loosen the bonds of religious 
discipline. Formal contempt of the rule, by which a religious 
refuses to be guided by it, and wishes to show his independence, 
is mortally sinful, because it is directly contrary to his religious 
profession. 



CHAPTER II 
ON ENTRANCE INTO RELIGION 

i . OUR Lord Jesus Christ proposed the counsels of perfection 
to all his followers in general: " He who can take, let him take 
it "; " If thou wilt be perfect." When, however, we consider 
particular cases, we see that many are debarred as a matter 
of fact from embracing the religious state. Many find them- 
selves in a fixed position in life with duties to be performed 
towards parents, relations, and others, which will not allow 
of their abandoning the world. Many more are unsuitable by 
character and temperament for the religious life. None of 
these can properly be said to have a divine call to the religious 
state, for when God gives a call he provides the necessary 
means for following it. There are others whom God calls in 
wonderful and different ways, making known his will to them 
sometimes in an extraordinary manner, more often by slowly 
developed inclinations and desires to forsake all and give them- 
selves to him. The question arises whether such a divine 
vocation is a necessary condition for lawfully entering into 
religion, and whether one who felt himself called would sin 
if he neglected to follow the call. 

Anyone who is free and who wishes to enter religion to be 
able to do more good, or to save his soul with greater security, 
is in fact called by God, for such desires are special graces 
given by God, and so they are signs of a divine vocation. So 
that all who have the aptitude, are free, and are led to religion 
by supernatural motives of seme sort, are divinely called by 
God. One who entered religion from merely natural motives 
would probably soon find that he had made a mistake, and would 
return to the world. However, if such a one chose to rectify 
his intention and remained in religion to do good and to save 
his soul, he would not commit sin. He embraces a more 
perfect state of life, and if he does what in him lies, God will 
give him abundant grace to live a good religious life. Of 
course, sin is committed by one who enters religion from merely 
natural motives, and does not intend to fulfil the obligations 
of the state into which he has intruded himself. One who is 
called to religion and prefers to remain in the world acts very 

40 



ON ENTRANCE INTO RELIGION 41 

foolishly, throws away a great grace, and may expose his salva- 
tion to great danger. If such a one is persuaded that he cannot 
save his soul in the world, he commits grave sin by not taking 
the necessary means to secure his eternal salvation. If, how- 
ever, he hopes with God's grace (which will not be wanting 
to him) to lead a good life in the world, he will not commit sin 
by not following the divine call; for this is a counsel, not a 
command, and counsels do not bind under sin. Some divines 
disagree with the foregoing doctrine, but it is supported by 
the authority of St Thomas and many approved authors (cf. 
Can. 538). 

2. As, therefore, the observance of the counsels is not only 
lawful but a more perfect state of life, anyone may enter into 
religion who is not prevented by some obstacle. Those who 
have not possession of their faculties, and children who have 
not arrived at the age of puberty, and are still subject to their 
parents, cannot enter into religion. In former times parents 
used occasionally to present their children to be brought up 
in monasteries with the intention of their becoming religious 
when they reached the proper age. This custom, however, has 
long been abandoned. 

Besides safeguarding what the constitutions of each institute 
prescribe on the point, the Code declares that the following 
cannot be validly admitted to the novitiate: 

Those who have formally belonged to a non- Catholic sect. 

Those who have not the age required for the novitiate. 

Those who enter religion induced thereto by violence, grave 
fear, or deceit, or whom the superior receives from the same 
motives. 

A spouse while the marriage lasts. 

Those who are bound or who have been bound by the bond 
of religious profession. 

Those over whom hangs a penalty on account of committing 
some grave crime of which they have been or can be accused. 

A Bishop, whether residential or titular, although only 
designated by the Roman Pontiff. 

Clerics who, by an arrangement of the Holy See, are bound 
by an oath to work for the benefit of their diocese or mission, 
for the time during which the obligation of the oath lasts. 

The following are admitted unlawfully but validly: 

Clerics in sacred orders without the local Ordinary being 
consulted, or against his will, because their departure would be 
to the great loss of souls, and this loss cannot otherwise be 
avoided. 



42 DUTIES ATTACHED TO STATES AND OFFICES 

Those in debt who are not solvent. 

Those who are liable to render accounts or who are implicated 
in other secular business from which religion may have to fear 
lawsuits and troubles. 

Children who ought to assist parents that is, father, mother, 
grandfather, or grandmother placed in grave necessity, and 
parents whose care is necessary for the support and education 
of children. 

Those destined for the priesthood in religion, but who are 
debarred from it by irregularity or other canonical impediment 
(Can. 542). 

3. Girls may not be admitted to the novitiate or be professed 
before they have completed their fifteenth year, and before 
doing so they must be examined by the bishop or by someone 
deputed by him as to whether they know the grave character 
of the step they are about to take, and whether they are acting 
of their own free and unfettered will (Can. 552). 

4. Boys cannot be lawfully admitted into any order or con- 
gregation before the superiors thereof have received from the 
Ordinaries of their place of birth and of any place where they 
have lived for more than a year after attaining their fifteenth 
year testimonial letters bearing witness to their having the 
qualifications necessary for entering religion. 1 By the common 
law a full uninterrupted year of probation must be spent by 
the candidate for religion in the house of the novitiate. Al- 
though the novice has not yet taken the vows of religion, 
he is subject to the authority of the superiors of the order and 
is bound to obey them. 

1 S.C. super Stat. Reg., January 25, 1848; can. 544. 



CHAPTER III 
ON RELIGIOUS PROFESSION 

i. PROFESSION is the promise lawfully made and accepted by 
which a religious binds himself to observe the vows of poverty, 
chastity, and obedience, according to the constitutions of his 
order. 

For the validity of any religious profession whatever it is 
required : 

(1) That he who makes it be of the legitimate age, so that 
he must have completed for the temporary profession, his 
sixteenth year, and for the perpetual profession whether 
solemn or simple, his twenty-first year. 

(2) That the legitimate superior according to the constitu- 
tions admit him to profession. 

(3) That it be preceded by a valid novitiate according to the 
terms of Ganon 555. 

(4) That the profession be free from violence, grave fear, 
or fraud. 

(5) That it be expressed in formal terms. 

(6) That it be received by the legitimate superior according 
to the constitutions, either personally or by delegate. 

(7) For the validity of the perpetual profession, whether 
solemn or simple, it is required besides that it be preceded by 
a temporary simple profession. Except in the case of a pro- 
fessed religious who joins another institute, in every order 
with solemn vows both of men and of women, and in every 
congregation with perpetual vows, the perpetual vows, whether 
solemn or simple, must be preceded by the profession of simple 
vows, which the novice on the completion of his novitiate shall 
make in the novitiate house itself, this profession is valid for 
three years, or for a longer period if the subject requires more 
than three years to attain the age prescribed for perpetual 
profession, unless the constitutions require annual profession 
(Can. 572-574). 

Simple profession, whether temporary or perpetual, renders 
acts contrary to the vows illicit, but not invalid, unless it be 
otherwise formally expressed; while solemn profession renders 
such acts also invalid if they can be nullified (Can. 579). 

43 



CHAPTER IV 
ON RELIGIOUS POVERTY 

i . POVERTY in general is the want of temporal goods that have 
a money value. It is not a virtue of itself, but rather a physical 
defect, for a suitable provision of temporal goods is very useful 
and necessary for men to lead a decent life. Poor human nature, 
however, is inclined to attach itself too much to wealth, and 
for the sake of wealth to forget why man was created by God 
and placed in this world. Jesus Christ taught that detachment 
from worldly possessions was a necessary condition for being 
his disciple: " Every one of you that doth not renounce all 
that he possesseth, cannot be my disciple." 1 And for such 
as were not content to follow him in the ordinary way of the 
observance of the Commandments, but aimed at perfection, 
he proposed not only detachment from wealth or spiritual 
poverty, but actual poverty, the actual renunciation of wealth 
for his sake in order to imitate him more closely: " If thou wilt 
be perfect, go, sell what thou hast, and give to the poor, and 
thou shalt have treasure in heaven; and come, follow me." 2 
Hence voluntary poverty ^ in imitation of Jesus Christ is the 
foundation of the religious state. Voluntary poverty, however, 
does not constitute the essence of religious perfection; all 
Christian perfection consists in charity, to which poverty is 
but a means. Hence there is not an absolute and uniform 
standard of religious poverty, but it varies with the different 
ends which religious orders propose to themselves. Indeed, 
religious poverty is personal; it is the voluntary renunciation 
of personal and individual wealth, so that the love of wealth 
may not be an obstacle to the perfect following of Christ. Its 
essence consists in the renunciation of personal and independent 
ownership and use of property, for this it is which constitutes 
a snare for men's affections and a hindrance to perfection. 
So that religious poverty does not of itself prevent property 
being owned in common by religious, and if the end for which 
an order was founded requires it, there is nothing to prevent 
it having large possessions in common, provided that the indi- 
vidual religious practises poverty and is imbued with its spirit. 

1 Luke xiv 33. a Matt, xix 21. 

44 



ON RELIGIOUS POVERTY 45 

The effects of the vow of poverty depend to a great extent 
on the rules and constitutions of the various religious orders 
and on the positive law of the Church. The chief distinction 
is that between solemn and simple vows of poverty, due to 
positive ecclesiastical law. The legal effects of a solemn vow 
of poverty are to render the religious incapable of individual 
and personal ownership of any property that has money value. 
So that after taking a solemn vow of poverty the religious cannot 
own any property in his own personal right. As a member of 
a religious community he may be a joint owner of vast posses- 
sions, but individually he is incapable of having anything as 
his own. 

Ownership may be absolute or qualified. Absolute owner- 
ship is the moral right to dispose of property and of all its uses 
for one's own advantage. Qualified ownership is the right to 
dispose of the property or of its uses for one's own advantage. 
Divines call the qualified ownership of the thing itself direct 
ownership, and the qualified ownership of its uses they call 
indirect ownership. A religious, even though solemnly pro- 
fessed, retains his personal rights to life, good name, and honour ; 
he can still dispose of his personal actions, such as the cele- 
bration of Mass, and such personal rights as that of presenting 
to a benefice ; he may own a relic and dispose of it by gift, for 
it has no money value. As a solemnly professed religious is 
incapable of owning property in his own right, so he cannot 
acquire it for himself; whatever he gains by his labour, or 
whatever comes to him by gift or inheritance, becomes the 
property of the community to which he belongs; " whatever 
a monk acquires he acquires not for himself, but for his monas- 
tery," as the old adage had it. By the special constitutions of 
their respective orders, Capuchins, Observantines, and professed 
Jesuits cannot take property, even in the name and for the 
benefit of the community to which they belong, if it come to 
them by any hereditary title or by operation of law. They 
may, however, take gifts and legacies, and these become the 
property of their communities (Can. 582). 

The simple vow of poverty does not deprive the religious 
of the direct, but of the indirect, ownership of property; so 
that he cannot lawfully use or dispose of anything that has 
a money value without the leave of his superior. Notwith- 
standing, then, the simple vow of poverty, religious retain the 
direct ownership of all the property that they had before pro- 
fession, and of all that comes to them afterwards by any legal 
title or gift. 



46 DUTIES ATTACHED TO STATES AND OFFICES 

Several Canons of the new Code affect the matter of religious 
poverty. By Canon 568, if during the novitiate a novice in 
any way whatever renounces his benefices or his property or 
encumbers them, such a renunciation or encumbrance is not 
only illicit but also null and void. 

Canon 569 prescribes: Sec. i. Before the profession of 
simple vows, whether temporary or perpetual, the novice must 
cede, for the whole period during which he will be bound by 
simple vows, the administration of his property to whomsoever 
he wishes, and dispose freely of its use and usufruct, unless 
the constitutions determine otherwise. 

Sec. ii. If the novice, because he possessed no property, 
omitted to make this cession, and if subsequently property 
come into his possession, or if, after making the provision, 
he becomes under whatever title the possessor of other pro- 
perty, he must make provision, according to the regulations of 
Sec. i, for the newly acquired property, even if he has already 
made simple profession. 

Sec. iii. In every religious congregation the novice, before 
making profession of temporary vows, shall freely make a will 
of all the property he actually possesses or may subsequently 
possess. 

While safeguarding this latter canon, Canon 580 prescribes 
that all those who have made profession of simple vows, whether 
perpetual or temporary, unless the constitutions declare other- 
wise, retain the ownership of their property and the capacity 
to acquire other property. But whatever the religious acquires 
by his own industry or in respect of his institute, belongs to the 
institute. 

As regards the cession or disposition of property treated of 
in Canon 569, sec. 2, the professed religious can modify the 
arrangement, not, however, of his own free choice unless the 
constitutions allow it, but with the permission of the Superior 
General, or, in the case of nuns, of the local Ordinary, as well 
as with that of the Regular Superior if the monastery be subject 
to regulars; the modification, however, must not be made, 
at least for any considerable part of the property, in favour of 
the institute ; in the case of withdrawal from the institute this 
cession and disposition ceases to have effect. 

Except within sixty days preceding the .solemn profession, 
the professed of simple vows cannot validly renounce his 
property, but within this time, he must, saving special indults 
from the Holy See, renounce in favour of whomsoever he 
wishes all the property which he actually possesses on condition 



ON RELIGIOUS POVERTY 47 

of his profession subsequently taking place. The profession 
having been made, the necessary measures must be immediately 
taken to insure that the renunciation be effective also according 
to the civil law (Can. 581). 

After profession of solemn vows, likewise without prejudice 
to special indults of the Apostolic See, all the property which 
comes in whatever manner to a regular 

(1) In an order capable of ownership, goes to the order, 
to the province, or to the house, according to the constitutions : 

(2) In an order incapable of ownership, such as the Capu- 
chins, it becomes the property of the Holy See (Can. 582). 

Those who have made profession of simple vows in any 
religious congregation: 

(1) May not abdicate gratuitously the dominion over their 
property per actum inter vivos. This phrase is technical, and 
signifies any way of disposing of property except by will. So 
that after profession of simple vows the professed cannot law- 
fully make a gift of his property to anyone. 

(2) May not alter the will made according to the terms of 
Canon 569, sec. 3, without the permission of the Holy See, or if 
the case be urgent and time does not admit of recourse to the 
Holy See, without the permission of the higher superior, or, 
if recourse cannot be had to him either, without the permission 
of the local superior (Can. 583). 

Within the limits indicated above, a religious, with the leave 
of his superior, may lawfully use and dispose of property. In 
order to justify such use and to excuse it from sin against the 
vow, the presumed leave of the superior is sufficient, which 
consists in a reasonably founded judgement that the act con- 
templated is not against the superior's wish. Much more will 
the actual, virtual, or tacit leave of the superior excuse an act 
of ownership on the part of a religious and prevent it from 
being a violation of the vow. 

2. Sins against poverty are grievous if the matter be con- 
siderable. The measure as to what matter is considerable is 
the same here as in theft, for just as the sin of theft consists 
in taking away the property of another against his reasonable 
wish, so a sin against religious poverty consists in the use, 
disposal, or acceptance of property contrary to one's promise to 
God and the wish of religious superiors. The absolute sum 
which is necessary and sufficient for a mortal sin against the 
vow in all cases will be one pound sterling, and less will be 
sufficient if the community whose property is used or disposed of 
without leave is poor. Divines, however, allow that a moder- 



48 DUTIES ATTACHED TO STATES AND OFFICES 

ately rich monastery may be considered in this matter as 
equivalent to an absolutely rich individual proprietor. 

3. In some orders it was customary for the religious to have 
money, books, eatables, for their own use, and such allowance 
was called the peculium of the religious. Such a practice is 
against the purity of religious poverty, and it was forbidden 
by the Council of Trent, as well as by several Roman Pontiffs. 
Indeed, if it was understood that subjects had the right to 
use and dispose of the peculium as they pleased, in perfect 
independence of the will of their superior, it would be against 
the very essence of religious poverty. In many orders the 
custom is still sanctioned of having a peculium in more or less 
dependence on the will of the superior. 

It is not against poverty to administer money in the name 
of another, for such administration is not an act of ownership. 
A religious may, then, act as the almoner of another, but he 
must not distribute alms in his own name as if the money were 
his own. To keep a deposit of money with the obligation in 
justice of accounting for it is against religious poverty. 



CHAPTER V 
THE VOW OF CHASTITY 

i. THE Catholic Church, following the teaching and example 
of our Lord and of St Paul, esteems very highly the beautiful 
virtue of chastity. According to her teaching, the state of 
marriage is indeed good, and Jesus Christ raised marriage to 
the dignity of a sacrament, but the state of virginity is better. 
For such as wish to follow Jesus Christ more closely and to 
dedicate themselves wholly to God, celibacy and absolute 
chastity are proposed as a counsel of perfection. There is no 
fear that the number who embrace this counsel will ever be 
so great as seriously to interfere with the proper increase of 
the population. There will always be a sufficient number left 
in the world to enter upon the married state. Nor is the heroic 
renunciation of the pleasures of married life made by religious 
lost upon the world. As long as there are numbers of men 
and women to be seen who for love of God and chastity lead 
solitary lives, it should be more easy for people in the world 
to curb their fleshly appetites so as to keep within the bounds 
of reason and virtue. 

By the vow of chastity the religious promises Almighty God 
that he will altogether abstain from all venereal pleasure, 
whether of thought or deed. In consequence he is bound 
to observe perfect chastity of body and mind, so that any act 
which he commits contrary thereto will be a double sin, against 
the virtue and against his vow. We saw, when treating of the 
Sixth Commandment, that sins by which venereal pleasure is 

J * 1 

directly sought or consented to are always grave, and so, when 
such sins are committed by religious, their grievous malice will 
be twofold. 

2. One who has taken a solemn vow of chastity is incapable 
of contracting a valid marriage by the law of the Church, and 
a fortiori he cannot enter on valid espousals. A marriage 
contracted and consummated before the taking of a solemn 
vow of chastity remains valid, but by ecclesiastical law a mar- 
riage which has not been consummated is dissolved by solemn 
vows taken in a religious order (Can. 1119). A simple vow 
of chastity never annuls a previous marriage, but it makes 
' "' 49 4 



So DUTIES ATTACHED TO STATES AND OFFICES 

the use of marital rights unlawful. It is a disputed point as 
to whether a simple vow annuls previous espousals. A simple 
vow of chastity certainly makes subsequent espousals invalid, 
as being an unlawful promise, and it renders subsequent 
marriage unlawful though not invalid, except the simple vow 
made in the Society of Jesus, which is a diriment impediment 
to marriage by a special privilege of the Holy See. 

3 . In order to safeguard the chastity of religious, and to enable 
them to lead more quiet and tranquil lives, the law of enclosure 
has been introduced. The enclosure in a religious house is 
all the space within which the religious may move freely, but 
which they may not leave without the required permission, 
and to which others are denied access. 

The law of enclosure is laid down in detail in the new Code 
of Canon Law, Can. 597 ff. 

Papal enclosure should be kept in the houses of regulars, 
whether of men or women, if they are canonically erected, 
even though less than six professed religious live there. 

Enclosure should also be kept in the houses of religious 
congregations whether of pontifical or diocesan law. The 
bishop has authority in this matter, and can enforce his regula- 
tions by censure. 

Even societies of men or women who live together under 
a superior like religious, but without vows, are subject to the 
law of enclosure according to Canon 679, sec. 2. 



CHAPTER VI 
THE VOW OF OBEDIENCE 

i. MEN of the world find it difficult to understand how one 
man can surrender his liberty and bind himself by vow to obey 
another. And yet this counsel of perfection, too, is contained 
in the life and teaching of the divine Founder of the Church. 
He did not intend that all the members of his Church should 
be equal; he placed some in authority over the others, and he 
gave them power to teach, instruct, correct, and guide those 
who were subject to them. He therefore laid a duty of obedi- 
ence to spiritual rulers on all the faithful. Those who were 
content to observe the Commandments were bound only to 
obey such positive precepts as the rulers of the Church judged 
it expedient to impose on all Christians ; but those who aimed 
at perfection became as a consequence subject to the teaching 
and authoritative guidance of their rulers in matters which 
pertain to perfection as well. Those who were content with 
observing the Commandments reserved some liberty for them- 
selves ; those who aimed at Christian perfection gave themselves 
wholly to obedience after the example of him who was obedient 
even unto death. The prelates of the Church are therefore 
the superiors of religious men and women, and even if some 
are exempt in some matters from the jurisdiction of the ordi- 
naries, all are subject to the Pope, not only as the Supreme 
Head of the Church on earth, but as their highest religious 
superior. 1 In approving of a religious order or congregation 
the Pope and the bishops delegate the necessary authority 
to the lawful superiors of the order, and give them power to 
command their subjects in all that pertains to the observance 
of the rule. 

A religious, therefore, who takes a vow of obedience binds 
himself thereby to obey all the precepts which his superiors 
lay upon him according to the rule of the order. 

In order, then, that the obligation of the vow may become 
operative, a precept must be given by the superior. And 
here we must distinguish between the vow and the virtue of 
obedience. The virtue of obedience inclines to the most per- 

1 St Thomas, 2-2, q. 186, a. 5 ; can. 499, sec. i. 

Si 



S3 DUTIES ATTACHED TO STATES AND OFFICES 

feet conformity of will and judgement of the subject with the 
will and judgement of the superior. A subject who has the 
virtue of obedience will strive to execute the known will of 
his superior without waiting for a strict command. The 
obligation of the vow is not so extensive as the virtue of 
obedience. The vow will be saved if precepts are externally 
executed, for, according to the more common opinion, the 
vow of obedience does not extend to merely internal acts. 

The superior's authority is limited and defined by the rule, 
and so the subject is only bound to obey such commands of the 
superior as are sanctioned by the rule directly or indirectly. 
It is not, however, necessary that the precept should be ex- 
pressly sanctioned by the rule in order to enable a superior to 
impose it with authority: it is sufficient if it be implicitly and 
indirectly sanctioned, as it will be if its imposition conduces 
to the better and more perfect observance of the rule. 

2. Violations of the vow of obedience are grave sins of 
themselves. However, in practice, sins of religious against 
obedience are seldom mortal, for want of sufficiently grave 
matter, or because the superior does not intend to impose a 
grave precept. Such sins will be mortal when in grave matter 
the superior commands anything to be done in virtue of 
obedience, or when serious harm follows from disobedience, 
or when a subject refuses to obey from formal contempt of 
authority, wishing to exercise and display his independence. 

When the vow of obedience is violated, there is a double 
malice in the sin. Such a violation is a sin against the vow, 
and thus it is a sacrilege ; and it is also a sin against the Fourth 
Commandment of the Decalogue, which prescribes obedience 
to be rendered to all lawful superiors. Such lawful superiors 
are armed with spiritual jurisdiction delegated to them by 
ecclesiastical authority, or at least they have the natural authority 
which belongs to all rulers of a community, great or small. 
Superioresses of nuns have this natural authority, and so they 
can impose even grave precepts of obedience on their subjects, 
although as women they cannot have ecclesiastical jurisdiction. 



BOOK II 
THE SACRAMENTS IN GENERAL 

CHAPTER I 

THE NATURE OF A SACRAMENT 

i. MERELY external religion, without devotion of mind and 
heart to the service of God, is hypocrisy, but though we should 
serve God in spirit and in truth, external rites and ceremonies 
are not excluded from religion. On ithe contrary, they form 
an essential part of it. Man is composed of body and soul; 
both come from God, and both should share in the worship due 
to their Creator. Besides, internal religion will be faint and 
likely to evaporate altogether, unless it sometimes finds ex- 
pression in outward acts. God has provided for- these wants 
of human nature by instituting the sacred rites, which we call 
sacraments, as essential parts of true religion. They serve 
also as signs by which the faithful are known to and united 
among themselves and distinguished from those outside the fold. 
They serve, too, as an external profession of faith, and as a 
means of practising the very salutary virtue of humility, inas- 
much as we are compelled to seek in external rites the spiritual 
help of which we stand in need, whereby intellectual pride is 
humbled. 

There were sacraments under the Old Law as there are 
under the New, although the latter are far more efficacious 
than the former. As expressing what is common to the sacra- 
ments of Judaism and Christianity, a sacrament may be defined 
to be an outward sign of inward grace. A sacrament, then, 
is some outward rite or ceremony instituted by God, to show 
forth and make known the grace which he thereby bestows 
on the soul of the recipient. Thus circumcision signified 
separation from the idolatrous world, incorporation among 
the people of God, and the infusion of grace into the soul for 
the remission of original sin. The sacraments of the Old Law 
produced their effects by exciting the faith of the ministers 
and recipients of them and by the profession of faith in the 
coming Redeemer which their use contained. 

The sacraments of the New Law were instituted by Christ 

53 



54 THE SACRAMENTS IN GENERAL 

our Lord, and they confer the grace which they signify, not on 
account of the meritorious dispositions with which they are 
ministered or received, but on account of their dignity and 
intrinsic excellence. They were instituted by Christ, they are 
administered in his name and by his authority, and thus they 
are in a true sense the actions of Christ our Lord executed by 
his ministers. Divines express this by saying that the sacra- 
ments of the Christian Church confer grace ex opere operate, 
while those of the Old Law produced it ex opere operantis. 
A sacrament, then, of the New Law may be defined to be an 
outward sign of invisible grace instituted by Christ to confer 
the grace which it signifies. 

There are certain rites and ceremonies in use in the Church 
which are called sacramentals. Of these we may mention the 
consecration of abbots, the first tonsure of clerics, the sacring 
of kings, the blessing of chalices and bells, holy water, Agnus 
Dei, scapulars, and many more. They are called sacramentals 
because they are sacred rites which, if properly used according 
to the mind of the Church, confer spiritual graces on the soul 
of him who uses them. They do this through the approbation 
and blessing of the Church, the Spouse of Christ, whose 
prayers and desires Christ always listens to, and through the 
good dispositions of those who use them. They thus differ 
from sacraments, as also in the grace which they produce. 
They confer actual graces, special helps to do good and avoid 
evil, given by God in answer to the prayers of the Church and 
the pious desires of those who use them properly (Can. 1144). 

2. The Council of Trent defined as of faith that there are 
seven sacraments instituted by Christ our Lord: Baptism, 
Confirmation, the Eucharist, Penance, Extreme Unction, Orders, 
and Matrimony ; that these sacraments contain the grace which 
they signify, and that they always confer grace on all those 
who receive them and put no obstacle to their effect. The 
sacraments, then, require certain dispositions on the part of 
the recipient in order that they may produce their effect. They 
will be validly received if nothing that is essential be wanting 
to them, but in order to produce their effect when they are 
received the recipient must have the required dispositions. 
I may apply a match to a faggot of wood, but this will not take 
fire if it is sodden with water. Similarly, if an adult asks for 
Baptism and is rightly baptized the sacrament will be validly 
received, but if the recipient has no faith or no sorrow for his 
sins the Baptism will indeed imprint a character, but it will 
not infuse sanctifying grace in the soul. In such a case as this 



THE NATURE OF A SACRAMENT 55 

the sacrament is validly but not licitly received ; it is said by 
divines to be unformed, not formed. 

3. The Council of Trent also defined it to be of faith that 
the three sacraments, Baptism, Confirmation, and Orders, 
whenever they are validly received, imprint on the soul a cer- 
tain spiritual mark which is called a character. This character 
serves to distinguish in the eyes of God and of his saints those 
who have received the sacrament in question; it is indelible, 
and prevents the sacrament from being received a second time. 
It is, however, compatible with the presence of mortal sin in the 
soul, so that, as was said above, a valid sacrament imprints its 
proper character even when on account of some obstacle in 
the recipient it is unformed and does not convey sanctifying 
grace to the soul. 

The question here occurs whether a valid but unformed 
sacrament will afterward produce grace in the soul, if and when 
the obstacle be removed. The common opinion of Doctors 
and divines is that it will do so in the case of the three sacra- 
ments which impress a character on the soul. This opinion is 
founded on the tradition of the Church and on what is to be 
expected from the goodness of God and the nature of the 
sacraments. A cause which is in existence, but which was 
hitherto prevented from producing its full effect on account 
of some obstacle in the way, will produce that effect when the 
obstacle is removed. Many divines hold the same doctrine 
of reviviscence concerning the sacraments of Matrimony and 
Extreme Unction, which may not be repeated at the will of 
the recipient. Whether it is also applicable to Penance is a 
much disputed point, while it is commonly denied that the 
sacrament of the holy Eucharist can afterward produce its effect 
if it was unformed when received. 

4. The sacramental grace which is conferred by the sacra- 
ments is habitual or sanctifying grace as directed toward the 
particular end for which the sacrament from which it flows 
has been instituted. Together, then, with the grace which 
justifies the sinner, or which increases the sanctifying grace 
of the soul in friendship with God, a sacrament gives a title 
to receive from God special help or actual graces when they 
are required by the recipient of the sacrament. Thus, the 
sacrament of Penance, if worthily received, infuses sanctifying 
grace into the soul by which the sins confessed are blotted out, 
and, moreover, it gives the sinner a title to receive actual 
graces in time of temptation, so as to enable him not to yield. 
In the same way the holy Eucharist increases sanctifying grace 



56 THE SACRAMENTS IN GENERAL 

within the soul, making it more holy and more pleasing in the 
sight of God, and fresh help is given to enable it to remain 
steadfast in the friendship of God. 

The sacraments of Baptism and Penance, which remit sin 
and give sanctifying grace to souls that were deprived of it, 
are called sacraments which give the first grace, or sacraments 
of the dead, inasmuch as they give spiritual life to those who 
were spiritually dead; while the sacraments which should only 
be received by such as are already in the state of grace are said 
to confer the second grace, and are called sacraments of the 
living. If the soul is already justified and in the state of grace, 
sacraments of the dead confer second grace; while Extreme 
Unction may, as we shall see, confer the first grace, although 
it is primarily a sacrament of the living; and it is a probable 
opinion that the other sacraments may per accidens confer the 
first grace when received in good faith by the sinner. Inas- 
much as a sacrament confers grace in virtue of the worth and 
dignity of the sacred rite itself, the quantity of grace given will 
per se be the same for all who receive it. However, per accidens, 
since a cause acts with greater or less efficacy in proportion to 
the dispositions of the subject on which it works, so a sacra- 
ment will give more grace to such as receive it in better dis- 
positions. It may, then, very well be that more grace will be 
obtained from Holy Communion received two or three times 
a week with better dispositions than from daily Communion 
made without fervour. 

5. The Council of Trent anathematizes anyone who shall 
say that the sacraments of the New Law are not necessary for 
salvation, though it also teaches that not all the sacraments 
are necessary for every individual. Under each sacrament it 
will be explained how far it is necessary and in what sense. 



CHAPTER II 
THE MATTER AND FORM OF THE SACRAMENTS 

i. THE decree of Eugenius IV, for the instruction of the 
Armenians, lays down that all the sacraments consist essentially 
of three things: the matter, the form, and the minister who 
makes the sacrament with the intention of doing what the 
Church does. And, it adds, if any one of these elements be 
wanting the sacrament is not made. The sacraments, then, 
are not simple, but composite signs, which consist of two 
distinct elements. One of these 1 in technical language is 
called the matter, because it is that portion of the sacramental 
sign which is the most indeterminate with respect to conveying 
the meaning which the sacrament signifies. This matter is 
called remote when considered by itself; it is called proximate 
when it is taken and applied by the minister to the making of 
the sacrament. The second element consists of words, and 
this part is called the form of the sacrament, because the words 
determine the matter to the more complete signification ex- 
pressed by the whole sacramental sign. Thus in Baptism the 
water, considered by itself, is the remote matter of the sacra- 
ment and does not necessarily signify washing; water may be 
used to slake the thirst, and for many other purposes. The 
application of the water to the person to be baptized is the 
proximate matter, and when this is done with the form of words, 
" I baptize thee in the name of the Father, and of the Son, and 
of the Holy Ghost," the whole composite rite assumes a religious 
aspect, and signifies, according to the intention of the minister, 
the washing away of sin from the soul. 

2. The minister of a sacrament must necessarily use the 
matter and form which were instituted by Christ, for he alone 
as God- Man has the power to cause grace to be conveyed to the 
soul by means of sacred rites. 

There must be no change made in the matter and form of 
the sacraments; not even the Church's authority suffices for 
that. If a substantial change be made either in the matter or 
in the form, the sacrament is destroyed. The matter will be 
substantially changed if in the estimation of ordinary men it 
is no longer the same, but something else. Thus, if the wine 

57 



58 THE SACRAMENTS IN GENERAL 

has become vinegar, it cannot be used as the matter of the 
Eucharist. The form will be substantially changed if the sense 
is no longer the same, but different. Thus, " I baptize thee in 
the name of the Father, and of the Son, and of the Holy Ghost " 
is the divinely instituted form for Baptism, and if the minister 
baptize with the words, " I baptize thee in the name of the 
Trinity " it is no sacrament, because of the substantial change. 
It is not lawful to make any change in the matter and form of 
the sacraments, but if an accidental and not a substantial change 
be made, so that the matter and the sense of the form remain 
the same, the sacrament will not be rendered invalid, as a 
general rule. However, a change which in itself is slight and 
accidental may be made substantial by the perverse intention 
of the minister. For the sense may then be quite different, 
and that different sense is expressed in the form. Thus Pope 
Zacharias wrote to St Boniface that Baptism administered with 
the form, Baptizo te in nomine Patria, et Filia, et Spiritus 
Sancta, is valid when the mistakes are made through ignorance 
of Latin, and not through heresy or a perverse intention. 1 If, 
then, such changes were introduced to give expression to heresy, 
the sense would be substantially changed and the form would be 
invalidated. Similarly, if Baptism were given with the form 
" I baptize thee in the name of the Father, and of the Son, and 
of the Holy Ghost, and of the Blessed Virgin Mary," the 
sacrament would be invalid if the minister intended to baptize 
in the name of the Blessed Virgin as of one of the Persons in 
the Godhead; if the addition was made through mistaken 
devotion to the Mother of God the sacrament would not be 
invalid. On the principles just stated Leo XIII decided that 
Anglican ordinations are invalid. 

3. Except in case of necessity it is not lawful in the adminis- 
tration of the sacraments to use only probable matter or a 
probably valid form. An opinion contrary to this doctrine 
was condemned by Innocent XI, March 2, 1679. Justice 
and charity, which demand that the minister confer a sacra- 
ment validly, and do nothing to imperil its validity, require 
that he should use only certain matter and the certainly valid 
form as far as possible. Reverence also for the sacrament 
and for Christ, who instituted it, makes it necessary to take 
all due care that when a sacrament is administered it should 
be properly and validly administered. If, however, in a 
particular case only doubtful matter is at hand, and unless 
the sacrament is at once administered, the subject may be 

1 C. 86, d. iv, de Consec. 



MATTER AND FORM OF THE SACRAMENTS 59 

altogether deprived of it, then such doubtful matter may be 
used, since the reasons to the contrary then cease to be valid, 
because the sacraments were made for the benefit of man, 
not man for the sacraments. 

4. As the matter and the form of a sacrament constitute 
together one composite sign of grace, there must not be such 
an interval between them as to destroy their unity. In the 
holy Eucharist the form requires that the matter should be 
physically present at the time when the words of consecration 
are uttered. In the other sacraments it is not necessary that 
the matter and form should be put at the same time in order 
that the sacrament may be valid; it is sufficient for the validity 
if there be a moral union between them so that according to 
a moral estimate they form one whole. Thus in Baptism, 
although the rubrics prescribe that the words should be said 
while the water is poured on the head, yet if a brief interval, 
say the space of a Pater or of an Ave, separate the matter and 
the form, the sacrament will still be valid. 

The matter and the form should be applied by one and the 
same minister. Baptism would not be valid if one poured the 
water while another pronounced the words. In the Eucharist, 
however, and in Extreme Unction there are more than one 
form, each with its separate matter, and the sacrament would 
be valid if one minister consecrated one species or anointed 
one sense and another finished the rite. This, however, is 
only lawful in case of necessity, nor is it lawful for many 
ministers to make one sacrament at the same time, except 
when newly ordained priests celebrate Mass with the Bishop 
who has ordained them. 

5. The sacraments should ordinarily be administered abso- 
lutely according to the manner in which they were instituted 
by Christ. If, however, in any particular case it is doubtful 
whether a sacrament was validly administered and there will 
be danger of grave spiritual loss to the subject unless it is 
repeated, it may and should be repeated conditionally. The 
condition should be expressed when the rubrics require it, 
as in the case of Baptism and Extreme Unction. Otherwise 
the condition may be implicit, and it will be sufficient if the 
minister intend to do his duty according to the institution of 
Christ and the laws of Holy Mother Church. 

The Ritual expressly warns the minister that the conditional 
form for administering Baptism is not to be used at random or 
lightly, but with prudence, when after diligent inquiry there 
is a probable doubt whether the sacrament was validly con- 



60 THE SACRAMENTS IN GENERAL 

ferred before. The same principle is to be applied to the 
conditional administration of the other sacraments. 1 

Except in the case of Matrimony, which is a contract and 
follows in this the rules affecting other contracts, a sacrament 
cannot be validly administered under a condition which regards 
a future and uncertain event. The reason is because such 
a condition would of its nature suspend the effect of the sacra- 
ment, and when the condition is verified the matter and form 
no longer exist and cannot now produce their effect. Thus 
Baptism conferred on a child under the condition, " If you 
attain the age of reason, " would be null and void. On the other 
hand, a sacrament conferred under a past or present condition 
will be valid if the condition be verified ; it will be invalid if the 
condition be not verified. We have already seen when it is 
lawful to administer a sacrament conditionally. There will be an 
obligation to do so whenever justice and charity due to our 
neighbour require it in order to prevent his spiritual loss, or 
when reverence for the sacraments and for Christ, who insti- 
tuted them, makes it necessary in order to avoid their invalid 
administration. 

1 Can. 733, sec. 2. 



CHAPTER III 
THE MINISTER OF THE SACRAMENTS 

THE sacraments were instituted by Christ as so many channels 
or conduits by which he might convey to the souls of men 
the fruits of his passion and death. They are administered 
in his name and by his authority, and so Christ himself is the 
principal minister of the sacraments. However, he deigns to 
make use of men as his instruments for administering them, 
and it is of these secondary ministers who make the sacraments 
in the name of Christ that we have here to treat. In Matrimony, 
as we shall see, the parties to the contract themselves are the 
ministers to each other of the sacrament, and anyone who has 
the use of reason may confer Baptism validly. The minister 
of the other sacraments, at least for their lawful administration, 
must have the twofold spiritual power of order and jurisdiction 
which was given by Christ to his Church. We shall see, when 
treating of the several sacraments, how far order and juris- 
diction are also required for their valid ministration. In the 
following sections we will lay down the conditions and dis- 
positions which a minister of the sacraments should have to 
perform his office worthily. 

SECTION I 
The Attention and Intention of the Minister 

i. While administering a sacrament the minister should 
attend to what he is doing and remember that he is engaged 
in a religious function. If he voluntarily allows his mind to 
wander on other and profane matters, he is guilty of irreverence 
toward God for whose worship the sacraments were instituted 
and should be administered. This irreverence, however, is 
not grave in itself, probably not even if a priest is voluntarily 
distracted during the consecration in Mass, so that voluntary 
distractions while administering the sacraments are only venial 
sins. Attention, then, or advertence of the mind to what is 
being done, is not necessary for the validity of a sacrament; 
only three things are necessary for its validity, as we saw above 

61 



6a THE SACRAMENTS IN GENERAL 

the matter, the form, and the intention of the minister to 
do what the Church does. 

2. Intention is an act of the will directing an action to a 
certain end. Divines distinguish between an actual, a virtual, 
an habitual, and an interpretative intention. When a minister 
wishes here and now to administer a sacrament, he has an 
actual intention to perform the rite. If he had such a wish 
and in consequence set about his task, but became distracted 
while administering the sacrament, he has a virtual intention. 
An habitual intention is a wish to do something, which wish 
has not been retracted but which does not issue in action. An 
interpretative intention is a wish which would be conceived 
if one thought of it, but for want of thinking of it is not 
elicited. 

An intention of some sort in the minister is necessary for 
the validity of a sacrament; the Council of Trent anathematized 
anyone who should say that there is not required in ministers 
while they make and confer the sacraments at least an intention 
to do what the Church does. 1 Now the Church by her ministers 
and through the sacraments baptizes, confirms, absolves from 
sin, and so forth ; so that the minister while making a sacrament 
must intend to baptize, confirm, absolve. However, it is not 
necessary to have an actual intention of doing this ; distractions 
cannot always be avoided, and always to have an actual inten- 
tion while engaged in conferring the sacraments would be an 
impossible requirement. Nor would an habitual intention 
suffice, for it does not exist while the action is put, nor has 
it any effect upon the action. Much less would an interpre- 
tative intention be sufficient. It remains, then, that a virtual 
intention is necessary and sufficient in the minister while he 
makes a sacrament. 

3. Ambrosius Catharinus, Salmeron, Contenson, and other 
theologians thought that an intention to perform the external 
rite of a sacrament, even if the minister internally expressly 
withheld his intention to do what the Church does, would 
be sufficient for the validity of a sacrament. Such an intention 
to perform the merely external rite while internally withholding 
the intention to baptize, absolve, and so forth, is called an 
external intention. The common opinion is that such a merely 
external intention is not sufficient, but that an internal intention 
or a positive wish to baptize, absolve, and so forth, is necessary 
for the validity of the sacrament. On December 7, 1690, 
Alexander VIII condemned the proposition that Baptism is 

1 Sess. vii, c. n. 



THE MINISTER OF THE SACRAMENTS 63 

valid when it is conferred by a minister who observes all the 
external rite and form of Baptism but inwardly in his heart 
makes this resolution, " I do not intend to do what the Church 
does." This decree would seem to settle the matter, for it 
seems to have been directed against Fr. Farvacques, O.S.A., 
who, in a little book published ten years earlier, had defended 
the opinion, of Catharinus and Salmeron. A few theologians 
even subsequently to the decree of Alexander VIII have 
defended the same view, on the ground that the decree was 
aimed at the Lutheran error which asserted the validity of the 
sacraments even when administered in joke. No Catholic, 
however, defended the Lutheran doctrine at the time, and it 
had already been condemned by the Council of Trent. We 
must, then, at least say with Benedict XIV that the condemna- 
tion of the above proposition inflicted a serious blow on the 
opinion of Catharinus, and no theologian of note now defends 
it. The Church does not merely apply the matter and form 
when ministering the sacraments, but by means of those ex- 
ternal rites she intends to do what Christ instituted the sacra- 
ments to effect that is, to baptize, to absolve, and so forth. 
An intention, then, to do this to baptize, to absolve, or an 
internal intention is necessary for the validity of a sacrament. 

4. It is not sufficient for the minister while making a sacra- 
ment to have a vague intention of conferring it on somebody 
or other, or of taking and applying some matter in general for 
the making of the sacrament. The intention must be definite 
in its scope and object, otherwise there is no reason why this 
matter should be taken rather than that, or why one person 
should be benefited rather than another. An intention, there- 
fore, to absolve anyone in a crowd who may need it, or to 
consecrate five hosts out of a larger number on the altar would 
not be effective. 

Neither ignorance nor mistake on the part of the minister 
about the nature or effect of a sacrament makes it invalid. 
Baptism conferred by one who knows nothing of its nature, 
or by one who denies baptismal regeneration, is valid, provided 
that the three essential elements of the sacrament are not 
wanting. 

Difficulties may arise from the fact that a minister while 
making a sacrament had mutually contradictory intentions. 
Thus an heretical priest while saying Mass may have the in- 
tention to do what Christ instituted but not to offer sacrifice, 
as he denies that Mass is a sacrifice. In this and in similar 
cases divines give the following rules for discovering whether 



64 THE SACRAMENTS IN GENERAL 

the sacrament is effected or not. When the contradictory 
intentions are present in the mind at the time of making the 
sacrament, that will prevail which is the stronger, and that 
is the stronger which would be chosen by the minister if he 
realized the contradiction. So that, in the example given, the 
heretical minister will actually say Mass if the intention to do 
what Christ instituted be the prevailing and stronger one; he 
will not say Mass if his intention not to offer sacrifice is the 
stronger. When the contradictory intentions follow one 
another, the last will ordinarily prevail, unless the former 
revoked all subsequent intentions. 

5. Except in case of necessity the minister of a sacrament 
may not use probable opinions with reference to what belongs 
to the validity of the sacrament. As we saw when treating of 
the matter and form, it would be against the reverence due 
to the sacraments, against justice, and against charity, if the 
minister exposed the sacraments to the danger of nullity through 
following a merely probable opinion. He is bound to follow 
the safer opinion when he can do so in what relates to the 
validity of the sacraments. In questions, however, which only 
touch the lawfulness or the integrity of the sacraments, and 
when the Church supplies what is wanting in order that the 
sacrament may be valid, which she sometimes does, as we 
shall see later, there is no reason why the minister should not 
use probable opinions. The same doctrine applies also to the 
recipient of the sacraments. 

SECTION II 
The Faith and Holiness of the Minister 

i. Neither faith nor the state of holiness and friendship 
with God is necessary in the minister for the validity of the 
sacraments which he confers. This is of faith, and it was 
defined by the Council of Trent. The sacraments do not 
depend for their effect on the good or bad dispositions of the 
minister, as they derive their efficacy from the institution and 
the merits of Christ. They produce their effect ex opere 
operate, not ex opere operantis. However, one who has been 
consecrated and deputed to be a dispenser of the mysteries 
of God is bound to fulfil his office in a worthy manner. Holy 
things must be treated holily. The minister acts in the name 
of Christ ; he becomes the instrument of Christ for the sanctifi- 
cation of the souls of others by means of the sacraments; he 
would be greatly wanting in reverence and decency if, while 



THE MINISTER OF THE SACRAMENTS 65 

engaged in so holy a task, his own conscience were stained 
with grievous sin. An enemy of God himself, he is guilty of 
great presumption in undertaking such holy functions. A 
consecrated minister who solemnly administers a sacrament 
while conscious of being in a state of mortal sin certainly sins 
grievously. The question whether a lay person who in case 
of necessity baptizes another or contracts marriage in the state 
of sin himself sins grievously, as being an unworthy minister 
of the sacrament, is much disputed among divines. Many 
weighty authorities excuse such a minister from grave sin 
because he is not under so strict an obligation to put himself 
in the state of grace before administering a sacrament as is 
one who has been set aside and consecrated to that office. All 
citizens are bound to defend their country when threatened, 
but there is a special obligation to do so incumbent on those 
who, like soldiers, have undertaken that duty. Similarly, all 
should indeed treat the sacraments with proper respect, but 
consecrated ministers are specially bound to do so while ful- 
filling their office. So that it is a probable opinion that a lay 
person who baptizes in sin in a case of necessity, or one who 
marries and so ministers the sacrament in sin to the other party, 
does not thereby sin grievously. For the same reasons it is 
also probable that even a consecrated minister who, while in 
sin administers Baptism privately in case of necessity does not 
sin mortally, for he then acts as a private person, not as a 
consecrated minister. 

2. A priest who says Mass in the state of mortal sin is thereby 
guilty of several grievous sins. He celebrates Mass unworthily, 
he receives Holy Communion unworthily, and he gives himself 
the sacrament though he knows that he is unworthy to receive 
it. Some add a fourth sin, which is committed precisely by 
handling and administering the Blessed Sacrament in a state 
of sin. It is probable, however, that this last act, though 
wanting in due reverence, does not amount to a grievous sin. 
All the more is it a safe opinion that deacons and subdeacons 
who exercise their functions in a state of sin do not sin grievously 
by so doing, nor do Bishops and priests who in sin consecrate 
or bless pious objects, or preach the word of God. 

Divines are not agreed whether a priest would commit one 
sin or as many sins as he administered sacraments unworthily 
who in a state of sin should hear many confessions or administer 
many Baptisms or other sacraments at the same time. If 
there were moral interruptions between the several sacraments, 
there would at least be as many sins as interruptions. But if 

" 5 



66 THE SACRAMENTS IN GENERAL 

there were no such moral interruption, it is a probable opinion 
that a priest who at one time administers a sacrament to many 
only commits one big mortal sin. The sin takes its unity from 
the fact that he exercises his office on one occasion unworthily, 
an office which he was consecrated to perform in a worthy 
manner. It is not, then, necessary for a priest who has sinned 
by hearing confessions in sin to say how many persons he has 
absolved ; it will be sufficient if he states how often he has heard 
confessions in mortal sin. 

It will be sufficient for a priest who is in sin to make an act 
of contrition before administering any of the other sacraments, 
but before saying Mass and receiving Holy Communion it is 
necessary for such a one to go to confession. The Council of 
Trent, commenting on the precept of St Paul, " Let a man 
prove himself, and so let him eat of that bread," says that the 
custom of the Church has always interpreted these words as 
implying that no one who is conscious of mortal sin ought to 
approach Holy Communion without sacramental confession, 
however contrite he may feel.' It is, of course, advisable that 
this should be done before a minister who is in sin administers 
any of the sacraments, though it is only of strict obligation 
before saying Mass and receiving Holy Communion. 

SECTION III 
The Duty of Administering the Sacraments 

i . All who have the cure of souls are bound in justice and 
in charity to administer the sacraments to the members of their 
flock when these need them or ask for them reasonably. The 
obligation is principally one of justice, and it arises from the 
implicit contract which those who have the cure of souls enter 
into on assumption of office. The obligation is a grave one if the 
subject is in extreme or grave necessity, and even when there 
is no grave necessity one who has the cure of souls would com- 
mit serious sin if he frequently refused the sacraments to those 
who ask for them reasonably. An occasional refusal in such 
cases would not be a grievous sin, as although the spiritual 
good of which they are unjustly deprived is considerable, yet 
the loss can without much inconvenience be made good at 
another time. 

The obligation of justice is so strict that those who have the 
cure of souls are bound even at the risk of life to administer 
the sacraments to their flock in extreme or in grave necessity. 
This obligation, however, only extends to those sacraments 



THE MINISTER OF THE SACRAMENTS 67 

which are necessary for salvation, such as Baptism and Penance; 
it does not extend to those which are not necessary, not even 
to the holy Eucharist, according to a very probable opinion. 
Mortal sin will be committed not only by frequent refusal of 
the sacraments to those who ask for them in a reasonable 
manner, but also by making one's self difficult to approach 
and by an ungracious manner of yielding to reasonable requests, 
inasmuch as such methods deter the faithful from exercising 
their just rights. 

2. Ministers of the sacraments who have not the cure of 
souls are bound in charity to administer the sacraments to such 
as are in extreme or grave spiritual necessity. This obligation 
is less strict than that which lies on those who have the cure 
of souls, so that those who have no such cure will only be 
bound at the risk of life to administer the sacraments which 
are necessary for salvation to those who are in extreme necessity. 
But in order that this grave obligation of charity may exist 
there must be moral certainty that the person in question is in 
extreme spiritual necessity, or in other words, that he is in 
proximate danger of damnation unless the sacraments be 
administered. There must also be a reasonable certainty that 
the attempt to administer the sacraments will be successful; 
it would be hard if a minister of the sacraments were bound to 
imperil his life for a mere probability of being able to help 
another in spiritual distress. Furthermore, before so grave 
an obligation can be imposed on anyone it must be morally 
certain that he who is in spiritual necessity is unable to help 
himself by making an act of contrition for his sins or of perfect 
love of God, and that there is no one else who is able and willing 
to succour him in his necessity. As all these conditions are 
seldom verified in any concrete case, it is apparent that those 
who have not the cure of souls will seldom be under a grave 
obligation of administering the sacraments to those who are 
in extreme necessity at the risk of life. 

SECTION IV 
The Duty of Refusing the Sacraments to the Unworthy 

i. " Let a man so account of us," says St Paul, "as of the 
ministers of Christ, and the dispensers of the mysteries of God. 
Here now it is required among the dispensers, that a man be 
found faithful." 1 As, then, the administration of the sacra- 

1 i Cor. iv i, a. 



68 THE SACRAMENTS IN GENERAL 

ments is entrusted to the ministers of the Church, they must 
be faithful to their charge and administer them according to 
the intention of Christ and the rules of the Church. These 
rules are chiefly contained in the Ritual and in other liturgical 
books. The prescribed rites are of grave obligation in serious 
matters, for the Council of Trent anathematized those who 
should assert, " That the received and approved rites of the 
Catholic Church, wont to be used in the solemn administration 
of the sacraments, may be contemned, or without sin be 
omitted at pleasure by the ministers, or be changed by every 
pastor of the churches into other new ones." 1 

Ministers are specially required to refuse the sacraments to 
such as are unworthy: " Give not that which is holy to dogs," 
said our blessed Lord. 2 The. minister should have positive 
reasons for judging that those who ask for the sacraments of 
Penance and Orders are worthy to receive them. For the 
dispositions of the subject enter into the substance and validity 
of Penance, and the duty of seeing that everything is present 
which is required for the validity of the sacraments belongs to 
the minister of them. Public officials of the Church are con- 
stituted by Orders, and the public good requires that only 
those who are worthy should be chosen. All lawful subjects 
who ask for the other sacraments are presumed to be worthy 
unless it is certain that they are unworthy. 

With special reference to the holy Eucharist the Ritual lays 
down that, " All the faithful are to be admitted to Holy Com- 
munion except those who are forbidden for just cause. Those 
who are notoriously unworthy are to be refused, such as the 
excommunicated, interdicted, and openly infamous, as are 
strumpets, those living in concubinage, usurers, wizards, 
sorcerers, blasphemers, and other public sinners of that kind, 
unless it is certain that they have repented and amended, and 
have made satisfaction for the public scandal which they have 
given " (Can. 855). However, in the judgement of theologians, 
it will be sufficient if such public sinners openly go to confession ; 
in this way, according to modern discipline, they will show 
their amendment and make satisfaction for the scandal which 
they have caused, unless more is required in special cases by 
the bishop or by other competent authority. 

The Ritual proceeds : " Let the minister also repel secret 
sinners when they ask in secret unless he knows that they have 
amended; but not when they ask publicly, and cannot be 
passed by without scandal." In the latter case public injury 

1 Sess. vii, c. 13. 2 Matt, vii 6. 



THE MINISTER OF THE SACRAMENTS 69 

would be done to the secret sinner, scandal would be given to 
others, and other inconveniences would follow, if the sacra- 
ments were refused; and these reasons justify the minister in 
co-operating materially with the sin of unworthily receiving 
the sacraments. Of course, if the minister only knows of the 
bad dispositions of the subject from sacramental confession, 
he can make no use of his knowledge out of confession. 

2. It is specially laid down in the new Code of Canon Law 
and in the synods 1 that the priest should strive to induce all 
who are going to marry to approach beforehand the sacraments 
of Penance and the holy Eucharist. If he does not succeed 
in this, he may nevertheless assist at the marriage even though 
he knows that one or both parties are not properly disposed to 
receive the sacrament, for he is not the minister of Matrimony, 
but only the witness authorized by the Church to assist at it 
and to. bless the parties; to refuse to assist would commonly 
do more harm than good. Even if one of the contracting 
parties knows that the other is not in a fit state to receive a 
sacrament of the living like Matrimony, still he will as a rule 
be excused from sin in ministering the sacrament to him, 
because he is not a consecrated minister of the sacrament, and 
the advantages connected with marriage are a sufficient justifi- 
cation for co-operating materially with the sin committed by 
the other party by receiving the sacrament in a state of sin. 

3. If one who is unworthy were to demand the administra- 
tion of a sacrament out of contempt for the Faith or to show 
his hatred for religion, the minister would be bound to refuse 
it even at the risk of his life. He must protect the sacraments 
which have been committed to his care from so great an in- 
dignity which indeed would redound on God himself even 
at the risk of life. Whether a minister at the risk of his life 
would be bound to refuse a sacrament to one who was unworthy 
and who demanded its administration with threats of death 
in case of refusal, not indeed out of contempt or hatred of the 
Faith, but for some other reason, is a disputed point among 
theologians. It is at any rate a probable opinion that the 
minister would not be bound to expose his life to danger, but 
that he might administer the sacrament to save himself, as 
we saw above that he might administer it to a secret sinner to 
avoid scandal. 

4. Innocent XI condemned the proposition that instant and 
grave fear is a just cause for simulating the administration of 
the sacraments. 2 From this it follows that not only formal 

1 i West., d. 22; can. 1033. 2 Prop. 29. 



70 THE SACRAMENTS IN GENERAL 

simulation with the intention of deceiving others is wrong, as 
being a lie in action, but even material simulation of administer- 
ing a sacrament, whereby the matter or the form of a sacrament 
is used without the making of the sacrament, is not justified 
by grave fear. The minister may not give an unconsecrated 
host to a sinner as Communion, nor fictitiously absolve a penitent 
even to avoid death. The reason is because by so doing he 
would abuse a holy rite, instituted by Christ, and thus be guilty 
of gross irreverence toward God. It is a less sin for a priest 
to celebrate unworthily than to pretend to say Mass and not 
consecrate. However, a priest who instead of absolving a 
penitent who is not worthy of absolution dismisses him with 
a blessing so as not to betray him to people who are looking on, 
does not simulate the administration of the sacrament in the 
technical sense, and he does nothing reprehensible. He does 
not make an irreverent use of the sacramental sign or of part 
of it without completing the sacrament, in which the essence 
of the simulation of the administration of a sacrament consists 
in so far as it is wrong and has been condemned by the Church. 
According to Canon 731, it is forbidden to administer the 
sacraments of the Church to heretics and schismatics, even 
though they be in good faith and ask for them, unless they 
have first been reconciled with the Church after abjuring their 
errors. 



CHAPTER IV 
THE RECIPIENT OF THE SACRAMENTS 

i . THE sacraments were instituted to sanctify the souls of men 
and thus to prepare them for heaven. Only living men, then, 
can validly receive the sacraments; dead men or other beings 
cannot receive them validly. Death takes place when the soul 
is separated from the body, but we do not know the precise 
moment when that separation takes place. Except putrefaction, 
there are no absolutely certain signs of death, and it is quite 
probable that the soul remains united to the body for some time 
after all apparent signs of life have disappeared. Under these 
circumstances recent medical men and divines hold that it is 
lawful to administer the last sacraments to one who has to all 
appearances been dead for an hour or two. This is especially 
the case when death is the result of some sudden accident. 
Men only, not women, are capable of receiving the sacrament 
of Orders, and only those who have committed actual sins 
after Baptism can validly receive the sacrament of Penance. 
As the sacraments were instituted for the Church of Christ, 
of which men become members by Baptism, this sacrament is 
a necessary condition for the valid reception of the others. 

2. No special disposition or intention is required on the 
part of infants, who have not come to the use of reason, and of 
imbeciles for the validity of the sacraments which they are 
capable of receiving. As they have not the use of reason they 
are incapable of disposing themselves for the reception of the 
sacraments, and yet the Church has been accustomed to give 
them the sacraments. The practice of the Church in such 
matters has the very greatest authority, as the Angelic Doctor 
says : " The custom of the Church has the greatest authority, 
and it should always be followed in all things, because even 
the teaching of Catholic Doctors receives its authority from 
the Church. So that we must rather stand by the authority 
of the Church than by the authority of Augustine or Jerome, 
or of any Doctor soever." 1 With reference to infant Baptism 
the Council of Trent passed the following decree: " If anyone 
saith that little children, for that they have not actual faith, 

1 Summa, 2-3, q. 10, a. is. 



72 THE SACRAMENTS IN GENERAL 

are not, after having received Baptism, to be reckoned amongst 
the faithful; and that for this cause they are to be rebaptized 
when they have attained to years of discretion; or that it is 
better that the Baptism of such be omitted than that while not 
believing by their own act they should be baptized in the faith 
alone of the Church; let him be anathema." 1 

3. On the other hand, God does not sanctify adults who have 
the use of reason without some co-operation 'on their side; 
justification, says the Council of Trent, 2 is the sanctification 
and renewal of the interior man by the voluntary reception of 
grace and the gifts of the Holy Spirit. Some wish, desire, or 
intention to receive a sacrament is, then, necessary on the part 
of adults for its validity. A positive refusal to receive a sacra- 
ment, or a neutral state of mind neither willing nor refusing it, 
would make the reception of a sacrament null and void. The 
kind of intention which is necessary and sufficient for the 
validity of a sacrament varies according to its nature. In 
Penance and Matrimony a virtual intention is required in the 
subject, as it is required in the minister. For in Penance the 
acts of the penitent enter into the substance of the sacrament, 
and so they must be directed by him to its confection. Matri- 
mony is constituted by the mutual consent of the parties, and 
for this at least a virtual intention is necessary. An habitual 
intention is required in order to be baptized validly; in other 
words, the person baptized must have at some time intended 
to receive the sacrament and not revoked his intention after- 
ward. It is a disputed point among divines whether an habitual 
and express intention is necessary or whether an implicit in- 
tention contained in a desire to do all that God has ordained, 
or in an act of perfect charity or contrition, is sufficient. The 
latter opinion is probable, and it may be used in case of neces- 
sity when one is in danger of death, and then only. For the 
sacraments, which confer benefits without imposing any great 
burden, a general or implicit intention, such as is contained 
in a desire to die like a Catholic with all the rites of the Church, 
is sufficient for their validity. For Orders at least an habitual 
intention is required. 

Those, therefore, who are asleep, or are unconscious, can 
receive the sacraments validly, for they may have all the dis- 
positions which are necessary. The only difficulty is about 
Penance, but, as we shall see, it is at least a probable opinion 
that absolution is valid when given to one who is unconscious, 
but otherwise disposed for the sacrament. However, it is 

1 Sess. vii, c. 13, de Bapt. 2 Sess. vi, c. 7. 



THE RECIPIENT OF THE SACRAMENTS 73 

not lawful to administer the sacraments to those who are asleep, 
unconscious, or out of their mind, except when in danger of 
death. For the subject should be in a fit state to dispose him- 
self for the reception of the sacraments so that he may receive 
them with due reverence and fruit. 

4. Except in Penance, neither faith nor good dispositions 
are required for the validity of the sacraments, as is clear from 
the practice of the Church, which is not accustomed to repeat 
sacraments received in heresy or in bad dispositions. How- 
ever, the state of grace is necessary for the lawful reception of 
the sacraments of the living, as we have seen ; and for those of 
the dead, faith, hope, and sorrow for sin are necessary, as the 
Council of Trent teaches that they are for the justification of 
the sinner. 1 Furthermore, for the lawful reception of the 
sacraments the subject must be free from all censures which 
deprive him of the right to receive them. 

It follows from this that heretics and schismatics even when 
baptized may not lawfully receive the sacraments at the hands 
of Catholic ministers, as a general rule. 2 The sacraments are 
intended for those who are visibly members of the Catholic 
Church, and they alone have the right to receive them. If 
anyone else wishes to receive them, let him enter the visible 
Church of God. However, it is a disputed point whether the 
sacraments may be lawfully administered to a schismatic or 
heretic who is in good faith, and who is in danger of death. 
Although St Alphonsus and others deny that it is lawful to 
absolve such a person, yet the opposite opinion has its sup- 
porters, and it is in keeping with several decrees of the Roman 
congregations as, for example, that of the Holy Office, 
July 20, i898. 3 

The faithful are not prohibited from asking for the sacra- 
ments from ministers who they know lead bad lives, if they 
have good reason for so doing. Sin, indeed, is committed by 
the minister if he administers a sacrament while in sin, but 
if he does so his malice must be imputed to himself, not to 
those who for good reason exercise their right to receive the 
sacraments. Moreover, the malice of the minister cannot affect 
the sacraments. 

Although in extreme necessity a Catholic may receive the 
sacraments from schismatical ministers, yet scandal to be avoided 
rarely permits of its being done, as Benedict XIV teaches. 4 

1 Sess. vi, c. 6. 2 Can. 731. 

3 Analecta Ecclesiastica, 1898, p. 387. 

4 De Syn. vi, c. 5, n. 2. 



74 THE SACRAMENTS IN GENERAL 

The faithful may confess to any Catholic priest of any rite 
who has faculties for confession (Can. 905); and the faithful 
may receive Holy Communion consecrated according to any 
rite. But they are to be counselled to receive their Easter 
Communion according to their own rite. Holy Viaticum 
should also be received according to the rite of each one, except 
in case of necessity when it may be received according to any 
rite (Can. 866). 



BOOK III 
BAPTISM 

CHAPTER I 
THE NATURE OF BAPTISM 

i. THE first of the sacraments, the door by which men enter 
into the Church of God, by which they are made her children 
and the sons of God, is Baptism. The Catechism of the 
Council of Trent defines Baptism as tl^e sacrament of regenera- 
tion by water in the word. This is but expressing in other 
words what our Lord said to Nicodemus, " Unless a man be 
born again of water and the Holy Ghost he cannot enter into 
the kingdom of God." 1 The new birth which takes place in 
Baptism is the new life of grace which is given to the soul by 
the sacrament, and by this vivifying grace the soul which was 
dead to God lives to him with a supernatural life. 

Baptism, then, is a total washing of the soul from the stains 
of sin, both original and actual, if any have been committed, 
and a complete cancelling of all the debt of punishment which 
may be due to sin. This is brought about by the infusion of 
sanctifying grace into the soul, together with the habits of the 
theological virtues of faith, hope, and charity. Moreover, by 
Baptism a character is imprinted on the soul by which it is 
known to God and his angels as that of a baptized Christian; 
and the person baptized becomes a member of the Church, a 
child of God, and heir to the kingdom of heaven. 

2. By the positive will of Jesus Christ Baptism is necessary 
for salvation, as may be gathered from the words quoted above. 
This truth was defined by the Council of Trent, 2 " If anyone 
saith that Baptism is optional, that is, not necessary unto 
salvation let him be anathema." Without Baptism, then, it 
is impossible to be saved, not merely because Christ com- 
manded all to receive this sacrament, but because it infuses 
sanctifying grace into the soul, that nuptial garment without 
which no one can be admitted to the beatific vision. If, how- 
ever, for one cause or another it is not possible to receive the 
Baptism of water, its place may be supplied by an act of perfect 

1 John iii 5. 2 Sess. vii, c. 5, de Bapt. 

75 



76 BAPTISM 

contrition or of the pure love of God, and by martyrdom. On 
this account Baptism is said by theologians to be threefold: 
the Baptism of water, the Baptism of desire, and the Baptism 
of blood. 

Perfect conversion to God by contrition for sin or by charity 
certainly infuses sanctifying grace into the soul and forgives 
sin, as Holy Scripture frequently declares, and as the Council 
of Trent teaches. 1 In this, therefore, its effect is similar to 
the primary effect of Baptism, and it is rightly called the Baptism 
of desire. Still, after the promulgation of the New Law the 
Baptism of desire only produces its effect because explicitly 
or implicitly it contains a desire and a purpose to receive the 
Baptism of water, should occasion offer. Although the Baptism 
of desire reconciles the sinner to God, yet it does not imprint 
any character on the soul, nor does it necessarily remit all the 
temporal punishment due to sin. The extent to which it does 
this will depend on the intensity of the act. 

Martyrdom, also, or death patiently endured for the sake 
of Christ or for some Christian virtue, has the same effect as 
the Baptism of desire. " Greater love than this," said our 
blessed Lord, " no man hath, that a man lay down his life 
for his friends." 2 Still martyrdom does not produce its effect 
simply as an act of love, but in a manner ex opere operate, by 
a special privilege, as being an imitation of the passion and 
death of Christ. Thus the Church honours as saints in heaven 
the Holy Innocents and other children who have been put to 
death for the sake of Christ. In the case of adults who have 
committed sin there must at least be attrition for sin in order 
that martyrdom may produce its effect as a kind of Baptism. 

1 Sess. xiv, c. 4. 2 John xv 13. 



CHAPTER II 
THE MATTER AND FORM OF BAPTISM 

i . THE remote and valid matter of Baptism is natural water 
in a suitable state for washing one's self. It is quite immaterial 
whether the water be spring water, rain water, sea water, or 
water from a river or pond ; but frozen water is doubtful matter 
until it is melted, because it is not suitable for washing one's 
self; while mud is invalid matter (Can. 737). 

For solemn Baptism the Church prescribes the use of water 
specially consecrated for the purpose, land the same may be 
used for private Baptism, as also may holy water and common 
water. For the private Baptism of adults who have been 
converted from heresy and require to be baptized conditionally, 
the First Synod of Westminster prescribes the use of holy 
water. 

The proximate matter of the sacrament is its use or applica- 
tion in the act of baptizing. This may validly be done either 
by infusion, or immersion, or sprinkling, provided that the 
water touches the head of the person to be baptized and flows 
so as to express the action of washing. In the Western Church, 
however, a triple pouring of water on the head of the person 
to be baptized, or a triple immersion, if such be the custom, 
is prescribed by the rubrics of the Ritual. Care should be 
taken that the water touch the skin, as the Baptism would be 
of doubtful validity if it merely touched the hair. Merely to 
lay the wet hand or finger on the skin would not be valid 
Baptism, and even if the wet finger were moved over the skin 
the validity would still be doubtful (Can. 758). 

2. The form of Baptism is: " I baptize thee in the name of 
the Father, and of the Son, and of the Holy Ghost." Any 
change in this form which altered the sense would also in- 
validate the Baptism, as if one should say, " I baptize thee in 
the name of Christ," or " of the Blessed Trinity." The form 
should be pronounced by the minister while he pours the 
water, and it is clear that if one pronounced the words while 
another poured the water, or if one baptized one's self, the 
Baptism would be invalid. 

77 



CHAPTER III 
THE MINISTER OF BAPTISM 

i. THE ordinary minister of solemn Baptism is a priest, but 
as it is a parochial sacrament, its lawful administration belongs 
exclusively to the parish priest or to the priest who has the 
cure of souls in the district in which the parents of the child 
have their domicile or quasi-domicile. Such priest may, of 
course, delegate authority to any other priest to baptize in his 
name ; if there is reasonable cause, as in case of illness or con- 
stant occupation in hearing confessions, he may commission 
a deacon to give solemn Baptism. The children of strangers 
may be baptized by the parish priest of the place, unless they 
can easily and without delay be baptized by their own parish 
priest (Can. 738, sec. 2). 

In case of necessity, when there is danger of someone dying 
without Baptism, anyone who has the use of reason may 
baptize without the ceremonies. In such cases of necessity 
the Ritual prescribes that a priest should be preferred to a 
deacon, a deacon to a subdeacon, a cleric to a lay person, a 
man to a woman, unless the latter be preferred for the sake 
of decency or because she is better acquainted with the method 
of valid Baptism. Those who have the cure of souls should 
take care that the faithful, especially midwives, are instructed 
in the right method of administering Baptism. The Ritual 
also prescribes that a father or mother should not baptize their 
own child except when it is in danger of death and no one else 
can do so (Can. 742). 

2. The ceremonies prescribed for solemn Baptism are of 
grave obligation, so that it would be a mortal sin to omit with- 
out necessity a notable part of them, as, for example, the 
anointings or the use of consecrated water. The child is 
anointed with the oil of catechumens before the actual baptizing, 
and afterward with the chrism. The holy oils should be kept 
carefully separated, and they should be renewed every year 
when the oils are consecrated by the Bishop on Maundy 
Thursday. The baptismal font, too, should be blessed on 
Holy Saturday with the oils consecrated on the previous 
Thursday. If they have not arrived in time the font should 

78 



THE MINISTER OF BAPTISM 79 

be blessed without them, and they should be added afterward, 
unless, in the meantime, someone has to be baptized, and then 
the old oils may be used in blessing the font. If the oils 
threaten to be exhausted, fresh, unblessed olive oil may be 
added, always in smaller quantity. The same rule may be 
followed with regard to the consecrated water in the font. 
The Ritual admonishes the parish priest to take care that as 
far as possible names of saints should be given in Baptism, so 
that, by their example, the baptized person may be moved to 
live holily, and that he may hope to enjoy their patronage. 
In solemn Baptism the Latin language should be used, 
but certain portions may also be rendered in the ver- 
nacular, according to the Ritual approved for use in the 
country. 

3. According to the Code of Canon Law, the proper place 
for solemn Baptism is the baptistery in a church or public 
oratory. Every parish church should have a baptismal font. 
If, on account of distance or for other reasons, a person to be 
baptized cannot be brought to the parish church, the parish 
priest may and ought to administer solemn Baptism in the 
nearest church or public oratory. Solemn Baptism should not 
be administered in private houses unless those to be baptized 
are the children or grandchildren of those who hold the chief 
authority in the country, or have the right to succeed to the 
throne, and they make the request, or if the local Ordinary 
for good reason in some extraordinary case thinks that it should 
be allowed. In these cases Baptism should be given with 
consecrated water, and in the chapel or in some suitable room 
of the house (Can. 773-776). 

Adults should be baptized according to the longer form in 
the Ritual unless the local Ordinary for a grave reason allow 
the form for the Baptism of infants to be used (Can. 755, 
sec. 2). 

Those who have attained the use of reason are their own 
masters in the things of God, and are considered adults with 
reference to Baptism (Can. 745, sec. 2, ii). 

Adults who have been converted from heresy and require 
conditional Baptism are to be baptized privately with holy 
water and without the ceremonies, according to the First 
Synod of Westminster (Can. 759, sec. 2). 

In questions concerning Baptism, infants are those who have 
not attained the use of reason, and those who never have 
had the use of reason are reckoned as infants (Can. 745, 
sec. 2). 



8o BAPTISM 

Canon 760 prescribes that when Baptism is reiterated con- 
ditionally, the ceremonies are to be employed if they were not 
used in the first Baptism ; if they were used in the first Baptism 
they may be used or omitted in the second at the option of the 
minister. This does not apply to conditional Baptism ad- 
ministered to adult converts. 



CHAPTER IV 
THE SPONSORS 

i. SPONSORS, according to ecclesiastical law, are used in 
solemn Baptism to answer for the child baptized, to hold him 
during Baptism, or to receive him immediately after Baptism 
from the hands of the minister, and to act as his instructors 
in the Faith which he received and professed in Baptism. 
With regard to those who have Catholic parents, the sponsors 
may ordinarily presume that the Catholic education of the 
child will be sufficiently provided for by them; but otherwise 
the sponsors will be bound, as far as possible, to provide for it. 
Sponsors should be employed in private Baptism if at least 
one can easily be had; if this was not done, they should be 
employed afterwards when the ceremonies are supplied in the 
Church (Can. 762, sec. 2). 

2. The Council of Trent ordained, " that in accordance 
with the appointments of the sacred canons, one person only, 
whether male or female, or at most one male and one female, 
shall receive in Baptism the individual baptized; between 
whom and the baptized, and the father and mother thereof, as 
also between the person baptizing and the baptized, and the 
father and mother of the baptized, and these only, shall spiritual 
relationship be contracted. The parish priest, before he 
proceeds to confer Baptism, shall carefully inquire of those 
whom it may concern what person or persons they have chosen 
to receive from the sacred font the individual baptized ; and he 
shall allow him or them only to receive the baptized; he shall 
register their names in the book, and teach them what relation- 
ship they have contracted, that they may have no excuse on 
the score of ignorance. And if any others besides those 
designated should touch the baptized, they shall not in any 
way contract a spiritual relationship, any constitutions that 
tend to the contrary notwithstanding." 1 

Spiritual relationship between the sponsors and the parents 
of the baptized person and between the minister of Baptism 
and the parents was abolished by Canon 768. 

1 Sess. xxiv, c. 2, de Ref. 
H. 81 6 



82 BAPTISM 

In order to be sponsor validly a person must be : 

(1) Baptized, have the use of reason, and have the intention 
of being sponsor. 

(2) He must not belong to any heretical or schismatical 
body, nor be excommunicated by a condemnatory or declaratory 
sentence, nor infamous with the infamy of law, nor excluded 
from acts of law, nor a deposed or degraded cleric. 

(3) He must not be the father, mother, or spouse of the 
person baptized. 

(4) He must be designated by the person to be baptized, 
or by his parents or guardians, or failing these by the minister 
of Baptism. 

(5) He must physically hold or touch the baptized person 
in the act of Baptism, by himself or by his proctor, or immedi- 
ately raise or receive him from the sacred font or from the 
hands of the person baptizing (Can. 765). 

3. To be admitted as sponsor lawfully a person 

(1) Must have reached the fourteenth year of his age, unless 
the minister judge otherwise for a good reason. 

(2) He must not be excommunicated for a notorious crime, 
or excluded from acts of law, or infamous with the infamy of 
law, but without sentence having been passed, or under inter- 
dict, or otherwise publicly criminal, or infamous by infamy 
of fact. 

(3) He must know the rudiments of the Faith. 

(4) He must not be a novice or professed in any religious 
institute, unless there is necessity and the express leave be 
had of at least the local superior. 

(5) He must not be in sacred orders unless he have the 
express leave of his own Ordinary (Can. 766). 

Others are sometimes prohibited by provincial law, as the' 
following in England: those who have not been confirmed or 
who have not made their Easter duties, and ecclesiastics. 

One may be sponsor by proxy, and then the principal, not 
the proxy, contracts spiritual relationship with the person 
baptized. 

Sponsors are not necessary when Baptism is reiterated 
conditionally, unless the same person can be had in the second 
Baptism as acted as sponsor in the first (Can. 763). 



CHAPTER V 
WHO MAY BE BAPTIZED ? 

i. ANY living human being who has not yet been baptized 
is capable of receiving this sacrament. If he has the use of 
reason, an habitual intention at least to receive Baptism is 
necessary for its validity, though, as we saw above, it is probably 
sufficient if it be implicitly contained in a wish to do all that 
God requires, or any similar act of the will. In children who 
have not attained the use of reason and in imbeciles no inten- 
tion is required for the reception of Baptism ; the intention of 
the Church supplies for it. 

For the lawful reception of this sacrament by adults who 
have the use of reason all those dispositions are necessary which, 
as the Council of Trent teaches, 1 are required for the justifica- 
tion of the sinner. They must, then, have faith, and believe 
all those truths which God has revealed and which the Church 
proposes to our belief. In particular they must know and 
believe explicitly the being of God, that he rewards and punishes 
men according to their deserts, the Blessed Trinity, the In- 
carnation, the Apostles' Creed, the Decalogue, and the Lord's 
Prayer. In other words, they should be properly instructed 
in the catechism. They should also approach the sacrament 
with hope, and at least with that kind of sorrow for sin which 
is called attrition. 

2. Cathojic parents are bound to see that their children 
are baptized, and that as soon as can conveniently be done. . 
According to approved theologians, it would be a serious sin 
if the Baptism of a child were put off for a month without 
good reason. As Catholic parents are subjects of the Church, 
and they are bound to obey her laws, no injustice would be 
done if a child of such parents were baptized without or against 
their wish. Non-baptized parents are not subject to the 
Church, and, as St Thomas teaches, it would be against natural 
justice if an infant of theirs who is in no danger of death were to 
be baptized without their consent. When a non-baptized child is 
in danger of death the necessity of providing for its eternal salva- 
tion overrides all other private considerations (Can. 750, sec. i). 

1 Sess. vi, c. 6. 
83 



84 BAPTISM 

When a child comes to the use of reason he becomes his 
own master in the things of God, and absolutely he may ask 
for and receive Baptism without the consent of his parents. 
Still in practice great caution is needed in such a matter. Of 
course, if the parents agree to allow the child to be brought 
up a Catholic, and it has Catholic sponsors, the difficulty will 
cease. But if it is baptized against their will, and remains 
subject to their control in other respects, the faith of the child 
will be in constant danger, especially as it can hardly be very 
firmly established before mature age. Ordinarily, then, 
children should not be baptized without their parents' consent 
until they reach an age when their convictions are firmly rooted 
and there is every prospect of their perseverance. 

3. It would be a grave sin knowingly to baptize again one 
who has already been validly baptized. So that when a child 
has been baptized by a nurse or mi.dwife by reason of apparent 
danger of death, inquiry should indeed be made as to the 
manner of the Baptism, but if the matter and form were rightly 
applied the Baptism must not be repeated ; only the ceremonies 
must be supplied in the Church. In case of doubt concerning 
the validity of the former Baptism, it should be repeated 
conditionally. 

When heretics are converted to the Faith, inquiry should 
be made in every case concerning their Baptism. If it is found 
either that they were never baptized, or that the Baptism was 
invalid, they must be baptized again absolutely. If, after 
inquiry, a prudent doubt remains as to whether they were 
ever baptized, or as to whether their Baptism was valid, they 
should be baptized again conditionally, and in secret so as 
to avoid scandal. 

If it is found that their Baptism was valid, they should only 
abjure their errors, and make a profession of the Catholic 
faith. 

4. An aborted foetus, if it is still living, should be baptized, 
rupturing the membranes if necessary, and pouring water 
over it while at the same time pronouncing the form of Baptism 
(Can. 746). 

The Ritual admonishes ministers of the sacrament to be 
cautious about baptizing monsters. If a monster has not a 
human shape, but is a mere mass of fleshy growth, it should 
not be baptized at all. If there are two heads and two bodies, 
there are two persons, and both should be baptized, separately 
if there is time, otherwise under a common form. If it is 
doubtful whether there are two persons or only one, Baptism 



WHO MAY BE BAPTIZED ? 85 

should be given absolutely to one, and again conditionally to 
the other, under the form, " If thou art not baptized, I baptize 
thee," and so forth. 

The Ritual also prescribes that if a woman dies in pregnancy 
the foetus should be extracted, and if still living should be 
baptized. This, of course, supposes that there is a skilled 
person present who judges that the foetus is still alive, and who 
is capable of performing the necessary operation. 

The question also occurs whether a mother, who is still 
living but who cannot bring forth her child alive, is bound to 
undergo a serious operation like Caesarian section in order to 
insure the eternal welfare of her child by Baptism. Of course 
she may not undergo the operation if it would be the immediate 
cause of her own death. The mother must not be killed even 
for the salvation of the child. Even if her health and condition 
are such that in all probability she could stand the operation, 
yet it is probable that she is under no obligation to submit to it. 
The child can with sufficient certainty be baptized in the womb, 
and even if the operation were performed, greater certainty 
that the child would still be alive and capable of Baptism can 
seldom be obtained. In such circumstances no strict obliga- 
tion to undergo a serious operation can be imposed on the 
mother. 



BOOK IV 
CONFIRMATION 

CHAPTER I 
THE MATTER OF CONFIRMATION 

i. CONFIRMATION is a sacrament by which a baptized person 
receives grace boldly to profess and defend the Faith which 
he received in Baptism. It is, then, complementary to Baptism ; 
as Baptism makes a man a follower qf Christ, Confirmation 
makes him a soldier of Christ. It is a sacrament of the living, 
and gives an increase of sanctifying grace to the soul together 
with the right to receive those actual graces which will be 
needed to resist temptation and to lead a good Christian life. 
It is also one of the three sacraments that imprint a character 
on the soul. 

2. Divines are not agreed as to what constitutes the matter 
of Confirmation. Some hold that the general imposition of 
hands by the bishop who confirms at the beginning of the rite 
is the essential matter; while the subsequent anointing of each 
person to be confirmed belongs to the matter accidentally. 
Others maintain that this general imposition of hands and the 
anointing form the essential matter of the sacrament. The 
common opinion is that the anointing with chrism, together 
with the simultaneous imposition of the hand of the Bishop 
on the forehead of the confirmed person while he makes on it 
the sign of the cross with the chrism, is the adequate and essential 
matter of the sacrament. 

Chrism, which is thus the remote matter of Confirmation, is 
made of olive oil and balsam. It is a disputed point whether 
the mixture of balsam is only of precept or whether it is neces- 
sary for the validity of the sacrament. However, balsam of 
any country will suffice. The chrism thus made must be 
blessed by a bishop, and this, according to the common opinion, 
is necessary for the validity of the sacrament. 

Three kinds of holy oils are blessed by the bishop on Maundy 
Thursday the oil of the sick, with which Extreme Unction 
is given ; the oil of catechumens, with which those about to be 
baptized are anointed in administering Baptism; and chrism. 

87 



88 CONFIRMATION 

It is probable that any one of these holy oils will serve for the 
others, so that Confirmation given with oil of the sick would 
be probably valid. Still it is not lawful to follow this opinion 
except in case of necessity. 

A fresh supply of holy oils should be procured every year 
after they have been blessed by the bishop on Maundy Thurs- 
day, and the old ones burned. However, if the new oils cannot 
be obtained at the proper time, especially in the missions where 
Vicars Apostolic without episcopal consecration have faculties 
to give Confirmation, the old oils may be used as long as the 
difficulty of obtaining new ones lasts. 

3. The form of Confirmation is, "I sign thee with the sign 
of the cross, and I confirm thee with the chrism of salvation, 
in the name of the Father, and of the Son, and of the Holy 
Ghost." There is some doubt as to whether the invocation 
of the Blessed Trinity is an essential part of the form, chiefly 
because it does not appear along with the other part in the form 
used in the Eastern Church. The question belongs to dogmatic 
theology, but briefly we may say that if it is an essential part 
of the form, the invocation is elsewhere in the Oriental rite. 



CHAPTER II 
THE MINISTER OF CONFIRMATION 

THE ordinary minister of Confirmation is a bishop, but the 
Pope may, and in the missions frequently does, delegate 
faculties to a priest to administer the sacrament with chrism 
blessed by a bishop. In other words, a bishop is the ordinary 
official in the hierarchy who has the power to admit Christians 
into the army of our Lord by confirming them, but the General 
of the army in special cases empowers a simple priest to do this. 
It is a disputed point whether the Pope could empower a simple 
priest to bless the chrism. 

By law Cardinals, Abbots and Prelates of no diocese, Prefects 
and Vicars Apostolic have the faculty of giving Confirmation 
within their territory during their tenure of office (Can. 782, 
sec. 3).^ 

A bishop may not give Confirmation outside his diocese 
without the leave of the bishop of the place; but within his 
diocese he may confirm all who come to him, whether they 
are his subjects or not, unless their own bishop has expressly 
forbidden it (Can. 783). A bishop is bound to give his subjects 
who have not been confirmed the opportunity of receiving the 
sacrament. 

He must also be prepared to administer Confirmation when 
a reasonable request is made for it by any of the faithful subject 
to his charge. 

In case the bishop himself is prevented from administering 
Confirmation he should provide that his subjects have the 
opportunity of receiving it at least every five years (Can. 785). 



89 



CHAPTER III 
THE SUBJECT OF CONFIRMATION 

i. ANYONE is capable of being confirmed who has not yet 
received this sacrament and who has been baptized. For the 
validity of the sacrament the use of reason is not necessary, 
but adults who have the use of reason must have at least an 
habitual intention of receiving the sacrament. No one may 
lawfully receive this sacrament who is not in the state of grace. 
Moreover, according to modern discipline, Confirmation is 
only given to those who have been well instructed in Christian 
doctrine and know well what is required of a good Catholic. 
Before Confirmation is administered, the opportunity should 
be taken to give special instructions in Catholic faith and 
practice to those who are about to receive the sacrament 
(Can. 1330). 

2. The First Synod of Westminster 1 prescribes that priests 
who have the cure of souls should do all in their power to have 
children confirmed, especially if they be of the humbler sort, 
so that they may be able to resist the temptations to which their 
faith will afterward be exposed. Canon 787 says that no one 
may neglect to receive Confirmation on occasion being offered, 
and that parish priests are to take care that the faithful receive 
it opportunely. 

3. For Confirmation there should be one sponsor who 
presents one or two to be confirmed. He himself should be 
confirmed, should have the use of reason, and should have the 
intention of fulfilling his office. He should not be a heretic 
or schismatic, or criminal, nor the father, mother or spouse 
of the person to be confirmed. He should be lawfully desig- 
nated, and should physically touch the person confirmed by 
personal contact or by proxy. 

That he may be lawfully admitted he should not be the 
same who acted as sponsor in Baptism, and he should be of the 
same sex as the person confirmed (Can. 794-796). 

Spiritual relationship arises between him and the person 
confirmed (Can. 797). But it is not a diriment impediment 
of marriage (Can. 1079). 

1 d. 17. 
90 



BOOK V 
THE HOLY EUCHARIST 

PART I 
THE SACRAMENT OF THE EUCHARIST 

CHAPTER I 
THE NATURE AND EFFECTS OF THE EUCHARIST 

i. THE Council of Trent teaches " that in the august sacra- 
ment of the holy Eucharist after the consecration of the bread 
and wine our Lord Jesus Christ, true God and man, is truly, 
really, and substantially contained under the species of those 
sensible things. For neither are these things mutually re- 
pugnant that our Saviour himself always sitteth at the right 
hand of the Father in heaven, according to the natural mode 
of existing, and that nevertheless he be in many other places 
sacramentally present to us, in his own substance, by a manner 
of existence which, though we can scarcely express it in words, 
yet can we by the understanding, illuminated by faith, con- 
ceive, and we ought most firmly to believe, to be possible unto 
God; for thus all our forefathers, as many as were in the true 
Church of Christ, who have treated of this most holy sacra- 
ment, have most openly professed that our Redeemer instituted 
this so admirable a sacrament at the Last Supper, when, after 
the blessing of the bread and wine, he testified in express and 
clear words that he gave them his own very body and his own 
blood. And this faith has ever been in the Church of God, 
that immediately after the consecration the veritable body of 
our Lord and his veritable blood together with his soul and 
divinity are under the species of bread and wine." 1 It does 
not belong to the province of moral theology to prove or to 
defend this dogma of our Faith. We accept the teaching of the 
Church that the holy Eucharist is a sacrament in which under 
the species of bread and wine we receive Jesus Christ, the 
spiritual food of our souls. It is not merely a sacrament while 
it is received by the communicant, or while it is consecrated 

1 Sess. xiii, c. 1,3. 



92 THE HOLY EUCHARIST 

by the priest in Mass. It is a permanent sacrament, under 
which our Lord remains present as long as the sacred species 
remain unchanged. It gives sacramental grace to the soul 
while it is being swallowed as food, and the divine presence 
remains in the communicant until the species of bread and wine 
are corrupted. 

Although in the consecration there is a twofold matter and 
form, yet these constitute only one sacrament, for the species 
of bread and wine together signify a complete spiritual repast, 
just as food and drink go to make one meal for the body. 

2. The effects which the holy Eucharist produces in the soul 
are set forth by the Council of Trent: " Our Saviour wished 
that this sacrament should be received as the spiritual food of 
souls, whereby may be fed and strengthened those who live 
with his life who said, ' He that eateth me, the same also shall 
live by me ' ; and as an antidote, whereby we may be freed 
from daily faults, and be preserved from mortal sins. He 
would, furthermore, have it be a pledge of our glory to come, 
and everlasting happiness, and thus be a symbol of that one 
body whereof he is the head, and to which he would fain have 
us as members be united by the closest bond of faith, hope, 
and charity, that we might all speak the same things, and there 
might be no schisms amongst us." 1 Besides being an antidote 
by which we are preserved from mortal sin, it is a very probable 
opinion that if the Eucharist is received by one in a state of 
mortal sin, of which he is not conscious and to which he is riot 
attached, that sin will be forgiven. For the sacraments give 
grace to all who put no obstacle in their way, and such a com- 
municant cannot be said to put an obstacle to the grace of the 
sacrament. But the entrance of grace expels all mortal sin 
from the soul. This is the teaching of St Thomas 2 and many 
other theologians. 

1 Sess. xiii, c. 2. 2 Summa, 3, q. 79, a. 3. 



CHAPTER II 
THE MATTER AND FORM OF THE EUCHARIST 

i. THE remote matter of the Eucharist is twofold wheaten 
bread and wine of the grape. Barley bread, or bread made 
from oats or rye, or any other kind of grain or vegetables or 
fruits, is invalid matter. The wheaten bread must be baked 
with water, not boiled, or mere dough. If baked with oil or 
milk or butter, it will be doubtful matter. The wine must 
be genuine juice of the grape, not made artificially; wine 
made from any other kind of fruit will be invalid matter. If 
the wine has become vinegar, it is changed substantially, and 
will not serve for Mass ; if it has only begun to get sour, it will 
be consecrated validly, but the priest who uses it sins grievously. 
There is some controversy as to whether frozen wine could be 
consecrated. The rubrics prescribe that if the precious blood 
is frozen after the consecration it should be liquefied again 
by putting warm cloths about the chalice and then consumed. 
It is clear, then, that freezing does not change the species sub- 
stantially so as to render our Lord no longer present under 
them; it follows from this that freezing does not prevent the 
wine being consecrated. 

Unfermented bread is used for the Eucharist in the Western 
Church, and fermented in the Oriental rites. Members of 
the two Churches are bound under grave precept to follow their 
respective rites, even if a Western priest were for a time in 
the East (Can. 816). 

Because water came forth from the opened side of our 
Redeemer with his blood, the Church has commanded that 
in saying Mass a little water, not more than a fifth or at most 
a third part of the wine, should be mixed with the wine in the 
chalice. If the wine of a country is of a poor quality and 
difficult to keep, a little alcohol may be added to it to preserve 
it, but not so as to make more than 12 or 18 per cent, of the 
whole. No other matter may be added either to the flour or 
to the wine which are used for the Blessed Eucharist, and the 
greatest care should be taken both by bishops and priests to 
insure the use of only genuine matter in the confection of this 
sacrament. 

93 



94 THE HOLY EUCHARIST 

2. The form of consecration for the bread is, " For this is 
my body," and for the chalice, " For this is the chalice of 
my blood of the New Testament, the mystery of faith, which 
shall be shed for you and for many unto the remission of sins." 
Any change in these forms which would make the sense different 
would also make them invalid. 

There is a controversy among theologians as to whether the 
whole of the above form for the consecration of the chalice 
is essential, or whether it would be sufficient for the validity 
of the consecration to say only, " This is the chalice of my 
blood." It is very probable that these words alone constitute 
the essential form for the consecration of the chalice, though, of 
course, the fuller form must always be used. For these words 
alone signify the real presence of our Lord ; the rest are merely 
a further declaration or explanation of them. Besides, " This 
is my body " constitutes the valid form for the consecration 
of the bread, and so, by analogy, " This is the chalice of my 
blood " should constitute the valid form for the consecration 
of the wine. 

3. For the valid consecration of the Eucharist the priest 
must not only use the proper matter according to the institution 
of Christ, but that matter must be physically present, not far 
distant from him, when he pronounces the form of consecration. 
This essential condition is required by the sense of the form, 
" This is my body," which indicates that the matter to be 
consecrated is near the priest, so that it can be indicated by the 
demonstrative pronoun. Hence a priest in one room could 
not consecrate bread and wine in another, or behind his back, 
or, as it would seem, locked up in the tabernacle. Moreover, 
the matter must be determined by the intention of the priest ; 
he would not consecrate a host which had been left on the altar 
for him to consecrate, but about which he knew nothing, and 
which he had no intention to consecrate. A difficulty sometimes 
arises when a priest has been asked to consecrate the ciborium 
which is placed on the altar by the sacristan, but which the priest 
afterward forgets to take and place on the corporal for consecra- 
tion. What is intended for consecration should be placed on the 
corporal and on the altar-stone of sacrifice. Inasmuch as this 
was not done, and it would be wrong to intend to consecrate 
a ciborium which had not been placed on the corporal, it would 
seem at first sight that such a ciborium is not consecrated. 
It is, however, better to make a distinction. If the priest had 
intended to consecrate the ciborium and during Mass had 
noticed its presence, though he did not advert to its being off 



MATTER AND FORM OF THE EUCHARIST 95 

the corporal, it would certainly be consecrated. If, on the 
contrary, after being notified in the sacristy about consecrating 
the ciborium, he forgot all about it, and never adverted to its 
presence on the altar, the consecration will be doubtful; and 
hosts thus doubtfully consecrated should on no account be 
given as Communion to the faithful, but should be consecrated 
conditionally in another Mass, or if they are few in number 
they might be consumed by the priest before taking the 
ablutions. 

Furthermore, for the lawful consecration of the matter, the 
hosts must be whole, clean, and of the usual size and shape; 
the chalice and ciborium must be uncovered, and the consecra- 
tion must be in Mass as it is prescribed to be said and under 
both kinds. If the ciborium or chalice are by mistake left 
covered, the consecration will be valid, for all the conditions 
required for validity are fulfilled. Hosts to be consecrated 
should be on the corporal at the offertory when the victim is 
set aside for the sacrifice, but if this has not been done, they 
may be received up to the canon, or for grave reason even 
up to the consecration, but the oblation should be mentally 
supplied. 



CHAPTER III 
THE MINISTER OF THE EUCHARIST 

i. ONLY a priest can say Mass and consecrate the Eucharist, 
and a priest is also the ordinary minister who distributes Holy 
Communion to others. If, however, the priest is occupied and 
is unable to give Holy Communion himself, he may delegate 
faculties to a deacon who is the extraordinary minister of the 
Eucharist. In case of necessity, especially when there is 
danger of dying without receiving the Viaticum, and there is 
no priest or deacon to give it, a simple cleric, or even a lay 
person, may administer Holy Communion to himself or to 
another. It was not very unusual in the primitive Church for 
laymen to do this, but nowadays the occasion would seldom arise. 

2. Any priest within Mass, and if he celebrates privately, 
also immediately before and immediately after Mass, can 
administer Holy Communion. This may be done wherever he 
says Mass, even in a private oratory, unless for some good reason 
the local Ordinary forbids it in particular cases (Can. 846, 869). 

It is the right and duty of the parish priest within his parish 
to carry Holy Communion publicly to the sick, even though 
they be not his parishioners. Other priests can only do this 
in case of necessity, or with at least the presumed leave of the 
parish priest or of the Ordinary (Can. 848). 

To carry Viaticum to the sick, whether publicly or privately, 
also belongs exclusively to the parish priest. Any priest can 
carry Holy Communion to the sick privately (Can. 849). 

3. All who have the cure of souls are bound to administer 
the Eucharist to their flock, not only when these are under 
an obligation to receive it, but whenever they reasonably ask 
for it. This obligation is grave, but it does not bind with 
proximate danger of death from catching disease or from some 
other cause, nor is a single refusal of the sacrament necessarily 
a grave sin, for the loss of it may easily be made up on another 
occasion. Priests who have not the cure of souls may some- 
times be bound to administer Holy Communion, not out of 
justice, but out of charity. 

4. For the lawful administration of Holy Communion the 
minister must be free from all censures which deprive him of 

96 



THE MINISTER OF THE EUCHARIST 97 

the right to administer it ; he must be in the state of grace, and 
he must follow the rubrics laid down by the Church in the 
Missal and Ritual. 

According to Canon 867, Holy Communion may be ad- 
ministered on any day, but on Good Friday only as Viaticum 
to the sick. 

On Holy Saturday Holy Communion may not be given to 
the faithful except in High Mass, or immediately after it and 
in continuation of it. 

Holy Communion can only be administered at the times 
when Mass may be said, unless there be some reasonable cause 
for doing otherwise. 

But Viaticum may be given at any time of the day or night. 

The Blessed Sacrament should not be taken from the church 
except when it is carried to the sick, , and then with all the 
marks of honour prescribed by the rubrics of the Ritual. How- 
ever, in English-speaking countries the Holy Eucharist cannot 
be taken to the sick publicly, so it is carried in a small pyx 
enclosed in a bag specially made for the purpose, and suspended 
by a cord or chain from the priest's neck. The priest should 
have on a stole underneath his coat. 

5. If a consecrated host falls on the ground or on the Com- 
munion cloth, the place should be marked and afterward 
washed, and the water poured into the piscina. If the Precious 
Blood is spilled, the priest should suck it up as far as possible, 
and afterward the place should be well washed, scraped, and 
the water and scrapings poured into the piscina. If a con- 
secrated host fall on the beard or clothes of a communicant, 
the place on which if fell need not be washed. If it falls on 
the breast or dress of a woman, she should take it reverently 
in her fingers and give it to the priest, who will then administer 
it to her as Communion. 

If, while he is still vested, a priest discovers what seem to 
be particles consecrated in his Mass, the rubrics direct that 
he should consume them, even though no longer fasting ; if he 
has put off the sacred vestments, or if the particles do not 
belong to his Mass, they should be reserved for another priest to 
consume after his own Communion, or placed in the tabernacle. 

If the Blessed Sacrament is vomited by a sick man, the 
sacred species should be carefully separated and placed in a 
vessel in the tabernacle until they corrupt, when they should 
be thrown into the piscina. Corruption will more quickly 
take place, and any disagreeable odour will be avoided, if a 

little water be put into the vessel, 
n. 7 



CHAPTER IV 
THE RESERVATION OF THE EUCHARIST 

i. THE Ritual prescribes that the parish priest, or one who 
has the cure of souls, should take care that some consecrated 
particles, in sufficient number for the use of the sick and for 
the Communion of the rest of the faithful, should be always 
reserved in a clean pyx of solid and decent material, well 
closed with its own lid, covered with a white veil, and as far 
as possible in an ornamented tabernacle kept locked with a 
key. This key should be in the keeping of the priest, not 
in that of the sacristan or other person. As a rule the pyx 
or ciborium is of silver, and gilded inside. There seems to 
be no strict law prescribing that it should be consecrated 
or even blessed, though there is a form for blessing it in 
the Ritual. 

The Blessed Sacrament, then, must be thus reserved for 
the use of the faithful in all cathedrals, parish churches, and 
chapels of ease attached to parochial churches. Religious 
orders of men and women who take solemn vows have the 
privilege of reserving the holy Eucharist in their churches. 
It can only be reserved in other churches or oratories by special 
indult from the bishop, or from the Holy See in the case of 
strictly private oratories (Can. 1265). 

2. The Ritual further prescribes that the tabernacle should 
be decently covered with a veil, that nothing else besides the 
Blessed Sacrament should be put in it, and that it should be 
placed on the high altar, or on another if this would conduce 
to greater reverence toward the holy Eucharist, so that it would 
be no obstacle to sacred functions or ecclesiastical offices. 
Several lamps, or at least one, should always be kept burning 
before it night and day. The lamps should be fed with olive 
oil, but if the church is very poor the bishop may allow vegetable 
or mineral oil to be used. Gas or electric lamps should not 
be tolerated. One lamp must be kept burning under pain of 
grievous sin. 

The veil of the tabernacle should be white or in keeping 
with the colour of the day, but never black (Can. 1269- 

1271). 

98 



THE RESERVATION OF THE EUCHARIST 99 

3. The particles taken for consecration should be fresh, 
not more than fifteen days or at most a month old, and 
they should be renewed every eight, or at most fifteen, 
days, though in this matter regard should be had to the 
dampness or dryness of the place and season (cf. Can. 
1273). 



CHAPTER V 
THE SUBJECT OF THE EUCHARIST 

ARTICLE I 
The Necessity of the Eucharist 

i. THE holy Eucharist can be received only materially by 
one who is not baptized and who consequently is incapable 
of receiving the other sacraments; it is received spiritually by 
one who ardently desires to receive it with the proper disposi- 
tions; it is received sacramentally when it is really received 
by one who has been baptized. The sacramental reception 
of the Eucharist is not a necessary means of salvation, for it 
is a sacrament of the living and supposes the grace of God in 
the soul, and a soul in the state of grace has everything which 
is necessary for salvation. Divines dispute whether the 
Eucharist is a necessary means for preserving the life of grace 
in the soul. It is, indeed, the ordinary food of the Christian 
soul, as bread is the ordinary food of the body, but as there 
is other spiritual food which may be taken, and notably prayer, 
and this may supply for the want of the ordinary food, the 
better opinion holds that the Eucharist is not strictly necessary 
even for the preservation of the life of grace in the soul. How- 
ever, it is certainly necessary by divine and ecclesiastical 
precept. The divine precept is manifest from the words of 
our Lord: " Unless you eat the flesh of the Son of man and 
drink his blood you shall not have life in you." 1 Not that 
these words imply that Communion under both kinds is of 
divine law, for he who receives the sacrament under one species 
receives the body and blood of Christ with his soul and divinity. 
Moreover, as the Council of Trent explains, 2 he who made use 
of those words also said, " He that eateth this bread shall live 
for ever." 3 The Church, therefore, for just and weighty 
reasons ha& forbidden Communion under both kinds, using the 
power given to her by Christ with reference to the dispensation 
of the sacraments, though she has no authority to change their 
substance. 4 

1 John vi 54. 2 Sess. xxi, c. i. 

3 John vi 59. 4 Trent, sess. xxi, c. 2. 

100 



THE SUBJECT OF THE EUCHARIST 101 

This divine precept must be fulfilled at least at the time of 
death, when it is of the greatest importance, and also some- 
times during life. How often it must be received to satisfy 
the divine precept is uncertain, but the Church has determined 
the divine law by ordering all the faithful who have come to 
years of discretion to receive Holy Communion at least once 
a year, at Easter. 1 Those, however, who desire to lead a good 
Catholic life, are by no means content with yearly Communion ; 
they receive it once a month or still more frequently. 

2. According to the general rule, children become subject 
to and bound to obey the positive laws of the Church when they 
reach the age of seven. However, before the new Code of 
Canon Law came into force it was usual to defer a child's first 
Communion until he had reached the age of nine or twelve. 
The Code (Can. 859) interprets the phrasie " years of discretion," 
used by the Lateran Council, to mean the same as to attain 
the use of reason, and so, now, children are bound to make 
their Easter Communion when they are seven years of age, 
unless, indeed, for some good reason it is judged advisable 
to abstain for a time. This obligation, as far as it affects those 
under the age of puberty, falls chiefly on those who have care 
of them that is, on parents, guardians, confessors, teachers, 
and parish priests (Can. 860). 

Canon 863 prescribes that the faithful are to be exhorted to 
receive Holy Communion frequently, and even daily, according 
to the rules laid down in the decrees of the Holy See, and that 
those who attend Mass should dispose themselves to receive 
Holy Communion not only spiritually, but sacramentally. 

Daily Communion may not be refused to anyone who is in 
the state of grace and who has a right intention. There should 
be suitable preparation and thanksgiving, and that daily Com- 
munion may be practised with more prudence and with greater 
fruit, the advice of the confessor should be asked. 

It is a disputed point whether one who is now in danger of 
death and who has within the last few days received Holy 
Communion is bound by divine precept to receive Viaticum. 
Although any good Catholic would certainly receive it again, 
yet the obligation to do so is not clear, because the previous 
Communion in all probability satisfies the divine law. If one 
becomes dangerously ill on the day on which he has received 
Holy Communion out of devotion, it was similarly a disputed 
point whether he might, or was bound to, receive it again as 
Viaticum. Ordinarily, indeed, no one should receive Holy 

1 4 Lat., c. 21 ; can. 859. 



i oa THE HOLY EUCHARIST 

Communion twice on the same day, but in this case he may 
do so, though he is not bound to do so, for the Code only says 
that it is very much to be desired (Can. 864, sec. 2). 

3. Holy Communion should not be given to those who have 
lost the use of reason, but if they have lucid intervals it may 
then be given if there be no danger of irreverence. To those 
who are in danger of death, and have lost the use of their senses, 
it may be given if they can swallow, and there is no danger 
of irreverence ; and it should be given as Viaticum to criminals 
condemned to death if they are in the proper dispositions. 
Reverence forbids it to be given to those who are suffering 
from constant coughing, and to those who cannot retain any 
food on the stomach, unless they have been free from vomiting 
for six hours or so. 



ARTICLE II 
The Dispositions Requisite for the Reception of the Eucharist 



SECTION I 
The Dispositions of the Soul 

i . Besides having sufficient knowledge of what the Eucharist 
is, he who receives it should be in the state of grace and free 
from mortal sin. The* presence in the soul of venial sin un- 
repented of is indeed a defect and an obstacle to the fullest 
outpouring of God's grace, but it is not a new sin to receive 
Holy Communion with only venial sins on the soul. But it 
is a grievous sacrilege to receive the Eucharist while conscious 
of being in mortal sin, " For he that eateth and drinketh un- 
worthily, eateth and drinketh judgement to himself, not dis- 
cerning the body of the Lord." It is not sufficient for one 
who is conscious of mortal sin to recover the state of grace by 
making an act of perfect contrition before Communion; he is 
bound to go to confession. This is taught us by the Council 
of Trent: 1 " Wherefore he who would communicate ought to 
recall to mind the precept of the Apostle, Let a man prove 
himself. Now ecclesiastical usage declares that necessary proof 
to be, that no one conscious to himself of mortal sin, how 
contrite soever he may seem to hijmself, ought to approach to 
the sacred Eucharist without previous sacramental confession. 
This, the Holy Synod hath decreed, is to be invariably observed 

1 Sess. xiii, c. 7. 



THE SUBJECT OF THE EUCHARIST 103 

by all Christians, even by those priests on whom it may be 
incumbent by their office to celebrate, provided the opportunity 
of a confessor do not fail them; but if in an urgent necessity 
a priest should celebrate without previous confession, let him 
confess as soon as possible." No one, then, who is conscious 
of mortal sin may go to Holy Communion without sacramental 
confession, unless he is under some necessity of receiving the 
Eucharist and there is no opportunity of going to confession. 
There will be such necessity as is here contemplated if a priest 
has to say Mass for his people on a day of obligation, or to 
consecrate the Viaticum for a dying person, or if Communion 
must be received to avoid scandal or to satisfy the Easter 
precept. There is no opportunity of going to confession if 
there is no priest present who can give absolution, and it would 
be a serious inconvenience to go to one at a distance. Even 
when in these circumstances a priest 'who is in sin has said 
Mass with contrition indeed, but without confession, he is 
commanded by the Council of Trent to go to confession as 
soon as possible afterward. This is a strict ecclesiastical law, 
but according to the mind of the Council it only binds priests, 
not laymen (Can. 807, 856). 

2. When one has been to confession with a view to going to 
Holy Communion, but forgot to mention some grievous sin 
which he afterward remembers, he is not obliged to repeat 
his confession before Communion; it will be sufficient if he 
mentions it in his next confession. The reason is because the 
forgotten sin was indirectly forgiven by the absolution which 
he received, and he has proved himself sufficiently according 
to the words of the Apostle. 

Even if there be not sufficient time to make a full confession 
before Communion, still confession is obligatory, as it is also 
when the penitent has reserved cases, for now in case of neces- 
sity any confessor may absolve directly from reserved cases. 

SECTION II 
The Dispositions of the Body 

i . Although God looks to the soul and its dispositions rather 
than to externals, yet, as the Ritual says, those who com- 
municate should approach the altar with humble deportment, 
and their dress and everything about them should show forth 
the reverence which they feel for the Blessed Sacrament. 
Reverence taught the first Christians that the holy Eucharist 
should be the first food taken in the day, so that fasting Com- 



io 4 THE HOLY EUCHARIST 

munion very soon came to be a universal practice in the Church. 
St Augustine says that it was the custom throughout the whole 
world in his time, and he traces it back to the times of the 
Apostles. 1 The Council of Constance says: " This present 
council declares, decrees, and defines, that although Christ 
instituted and gave this venerable sacrament to his disciples 
under both species of bread and wine after supper, yet not- 
withstanding, the laudable authority of the sacred canons and 
the approved custom of the Church has and keeps this observ- 
ance that this sacrament ought not to be consecrated after 
supper nor received by the faithful unless they be fasting, 
except in case of sickness or of some other necessity allowed 
and admitted by law and by the Church." 2 

The rubrics of the Missal 3 contain the following: " If anyone 
has not kept fast after midnight, though he has taken only 
water or other drink or food, even as medicine, and in however 
small a quantity, he cannot communicate or celebrate. If 
remnants of food remaining in the mouth are swallowed, they 
do not hinder Communion, since they are not taken as food, 
but with the saliva. The same holds good if in washing the 
mouth a drop of water is swallowed inadvertently " (cf. Can. 858). 

The law of the Church, then, with reference to fasting 
Communion is that the Eucharist may not be received by one 
who has not kept strict fast from all food and drink, even in 
the smallest quantity, since midnight. If Holy Communion 
is received shortly after midnight, there is no obligation to 
fast for some time before midnight, although reverence would 
dictate the advisability of such a course. The law of fasting 
has been made out of reverence for the Blessed Sacrament, so 
that violations of it are against the virtue of religion and 
sacrilegious. 

To constitute a violation of the fast, what is taken must be 
of the nature of food or drink. Pebbles, wood, paper, hairs 
are not food, and if swallowed do not hinder Communion. 
The same is probably to be said of bits of the nails of the 
fingers, which some people have a habit of biting. The food 
or drink must also be taken as food or drink, not per modum 
respirationis, as is said, and must be from without, not from 
within the mouth. Taking snuff, or smoking, or inhaling a 
flake of snow^ with the breath, do not, then, hinder Communion, 
nor the swallowing of blood from the gums or from inside 
the lips. 

1 Decretum Gratiani, c. 54, D. 2, de consec. 

2 Sess. xiii. 3 De def. ix. 



THE SUBJECT OF THE EUCHARIST 105 

Midnight may be reckoned according to the time publicly 
observed in the place, or by the true time according to the sun, 
or by the mean time. 

2. The law which prescribes fasting Communion is a positive 
ecclesiastical law and admits of exception and excuse. Thus, 
when in danger of death, from whatever cause, one may receive 
Holy Communion not fasting. This may also be done if it 
is not possible to abstain from Communion without grave 
scandal or serious loss of reputation; or when the Blessed 
Sacrament is in danger of being profaned ; or in order to com- 
plete the sacrifice of the Mass left unfinished by another priest 
from sudden illness; or probably in order to consecrate the 
Viaticum for a dying person who otherwise would be deprived 
of it. The common opinion is that Mass may not be said by 
a priest not fasting merely in order that his people may hear 
Mass on a Sunday; but this reason, taken together with some 
other, might justify the action. 

There used to be a controversy among divines as to whether 
one who is sick but not in danger of death, and yet cannot 
observe the fast before Communion, may be allowed sometimes 
to communicate not fasting. This controversy has been set 
at rest by the decree of Pius X, December 7, 1906, and by 
Canon 858, sec. 2. The law now allows those who have been 
sick in bed for a month, without a well-grounded hope of their 
speedy recovery, although they may have taken something by 
way of drink or medicine, to receive with the advice of their 
confessor Holy Communion once or twice in the week. 

After receiving Viaticum a sick person who continues to 
live for some time afterward may receive Holy Communion 
again, practically as often as his devotion urges him thereto 
and the priest's occupations will allow of its being brought 
to him. As long as he remains in danger of death, Holy Com- 
munion should be given as Viaticum, with the form, Accipe 
frater. No merely material uncleanness without moral fault, 
or mere bodily unsightliness, is a bar to Holy Communion. 
Married people are advised to abstain from marital intercourse 
before going to Holy Communion, but there is no strict obliga- 
tion to do so. 

Viaticum should be given to children in danger of death if 
they can distinguish it from ordinary food and pay it reverent 
adoration (Can. 854, sec. 2). 



PART II 
THE EUCHARIST AS A SACRIFICE 

CHAPTER I 
THE NATURE OF THE SACRIFICE OF THE MASS 

i. THE Council of Trent teaches that the Eucharist is not 
only a sacrament but is also a sacrifice, instituted by our Lord 
at the Last Supper to represent and perpetuate the memory 
of the sacrifice which he was about to offer on the Cross, and 
to apply its fruits to the souls of men. " He therefore, our 
God and Lord, though he was about to offer himself once on 
the altar of the Cross unto God the Father by means of his 
death, there to operate an eternal redemption; nevertheless, 
because that his priesthood was not to be extinguished by his 
death, in the last supper, on the night in which he was betrayed 
that he might leave to his own beloved Spouse the Church 
a visible sacrifice, such as the nature of man requires, whereby 
that bloody sacrifice, once to be accomplished on the Cross, 
might be represented, and the memory thereof remain even 
unto the end of the world, and its salutary virtue be applied 
to the remission of those sins which we daily commit declaring 
himself constituted a priest for ever according to the order of 
Melchisedec, he offered up to God the Father his own body 
and blood under the species of bread and wine ; and under the 
symbols of those same things he delivered (his own body and 
blood) to be received by his Apostles, whom he then consti- 
tuted priests of the New Testament; and by those words, Do 
this in commemoration of me, he commanded them and their 
successors in the priesthood to offer (them) ; even as the Catholic 
Church has always understood and taught." 1 

A sacrifice is defined to be an offering of some visible object 
made to God by the performance of a sacred action on the 
part of a priest or publicly deputed minister, by which we 
confess the supreme lordship of God. A sacrifice, therefore, 
differs from an ordinary offering in that it is an act of public 
worship paid to God alone by a duly authorized minister, who, 

1 Trent, sess. xxii, c. i. 
106 



NATURE OF THE SACRIFICE OF THE MASS 107 

by slaying the victim or in some way changing it, proclaims 
the supreme dominion of God over all things. 

The sacrifice of the Eucharist is called the Mass, and it 
may be offered for all the ends for which the various sacrifices 
of the Old Law were instituted by God. It is the supreme 
act of worship which we pay to God, and under this respect 
it is called latreutic; it is eucharistic, inasmuch as through it 
we render thanks to God for his graces and benefits ; it is im- 
petratory, inasmuch as it placates the anger of God, which has 
been roused against sin and the sinner; and it satisfies the 
justice of God and thus remits the punishment due to sin. 

The introductory portion, up to the offertory, is called the 
Mass of Catechumens, the principal parts of the Mass being the 
offertory, the consecration, and the communion. There is 
much difference of opinion among divines as to what constitutes 
the essence of the sacrifice of the Mass. Some place its essence 
in the communion, others in the consecration, others in the 
consecration together with the communion. More probably 
the consecration of both species, by which the death of 
Christ is mystically represented by the separate consecration 
of the bread and wine, contains the whole essence of the sacri- 
fice. The question belongs rather to dogmatic than to moral 
theology. 

2. The Mass is a representation and a reproduction in an 
unbloody manner of the sacrifice of our Lord on the Cross. 
The principal minister, Jesus Christ, is the same; the victim 
is the same; the only difference is the manner of offering, as 
the Council of Trent teaches. A rightly ordained priest is the 
secondary minister, who in the name of Christ and of the C