Summa summae S. Thomae, Tomus II

to follow a probable or more probable opinion concerning the objective honesty of an act.

A probable opinion is an assent of the mind given to one side on account of a fitting motive persuading its truth, yet a fallible assent, and therefore accompanied with fear of the opposite side. Hence the probability is greater or lesser according as the motive is more or less fitting and weighty.

The motive or foundation of probability is twofold, intrinsic and extrinsic; hence also a twofold probability, intrinsic and extrinsic. The intrinsic foundation consists of reasons drawn from the very nature, properties, causes and effects of the thing, and even from the inconveniences of the opposite side. The extrinsic foundation is the authority of doctors who hold or have held this opinion; which authority, however, moves only insofar as those doctors are presumed to teach or to have taught this opinion for good reasons. Whence extrinsic probability is rather to be estimated from the merit and erudition of the doctors, and from their study and diligence in examining the matter, than from their number. That the authority of one young and modern theologian does not suffice to found an extrinsic probability is clear from this proposition condemned by Alexander VII: « If a book be that of some young and modern author, the opinion must be judged probable, provided it does not stand established that it has been rejected by the Apostolic See as improbable. »

A probable opinion can be considered in two ways, separately and comparatively with the opposite, which may be equally, less, or more probable; and according to this last consideration the present question proceeds. For we do not deny that an opinion solidly probable, considered separately, if nothing appears against it, or nothing that has not been evidently solved, can safely be chosen; because man cannot always have entire certainty in morals, and he acts prudently who acts according to weighty reasons which nothing solid overthrows.

While a probable opinion is considered in conflict with the opposite, the more the probability of the one grows, the more the probability of the opposite is diminished; and when one becomes more probable and more like the truth, the other becomes less probable and more like falsehood, so that then it ceases to be solidly and expediently probable, as being incapable of persuading the truth; because the stronger motives of the one crush out the efficacy of the motives of the opposite.

The security of an opinion consists in removal from the danger of sinning, and thus it is safer by how much it removes further from the danger of sinning: whence that opinion which stands for the law is safer; that which stands for liberty is less safe. Security and probability of opinions, therefore, differ, as you see. Probability is drawn from the appearance of truth, security from removal of the danger of sinning: whence there can be given an opinion safer though less probable, and an opinion more probable though less safe. It is plain in the common example. The opinion of St. Bonaventure, which teaches that a sinner is held to repentance immediately after his fall, is safer but less probable; the opinion of St. Thomas, who teaches the opposite, is less safe, but more probable.

I say: In the conflict of two opinions concerning the objective honesty of an action, it is not lawful to follow the less probable and less safe, leaving aside the more probable and safer¹

Omitting many proofs from Scripture, the Fathers, the Supreme Pontiffs and theologians of every school, which may be seen in our former work,

It is proved 1° from St. Thomas, who in Quodlibet VII, a. 13, says: « If he who holds several benefices falls into some doubt from the contrariety of opinions, and thus, if, while such doubt remains, he holds several benefices, he exposes himself to danger, and without doubt sins, as loving temporal gain more than his own salvation². » Which words seemed so open to Amedaeus Guimenius, author of the Apologica Casuistarum, that in his Tract. de Opin. probab., n. 6, he exclaimed: « If these things are true, woe to those who act from probable opinion! »

It is proved by many reasons: 1° He who in the conflict of opinions concerning the objective honesty of an act follows the less probable standing against the law, leaving aside the more probable standing for the law, cannot frame for himself a conscience morally certain of the honesty and formal licitness of his act, neither from direct principles nor from reflex principles. Therefore he sins. The consequence is plain from what we said above, that only a morally certain conscience is the rule of our actions; because otherwise it is to act imprudently and expose oneself to the danger of sinning formally, and consequently to sin. And thus it is commonly admitted by probabilists. — The antecedent holds also for its first part; for from a less probable principle there cannot be deduced directly and immediately a morally certain conclusion: this too the adversaries concede. The whole difficulty, therefore, lies in the second part of the antecedent. Wherefore it is proved, the second part of the antecedent: 1° The reflex principles from which the probabilists contend they can immediately frame a conscience morally certain of the formal honesty of their action, by following the opinion less probable and less safe, that is, standing for liberty against the law, are: « He who acts probably acts prudently and safely. » — « The law which is probably judged not to exist is insufficiently promulgated and invincibly unknown, and therefore does not bind in act. » — « In doubt, better is the condition of the possessor of his liberty »; and certain others of less moment, for these are the principal ones. But these principles are uncertain and at most probable. Therefore from them there cannot be drawn a certain conclusion, or framed a conscience morally certain in practice of the formal honesty of the action. — The consequence is plain; for the conclusion cannot be more certain than its principles. — Proof of the minor: All anti-probabilists deny these principles as absolutely false, and without doubt their denial is probable; for they are authors most weighty in number and authority, nor are their reasons improbable: which two things found a probable opinion. Therefore these principles are uncertain and at most probable; for if they are probably false, they are only probably true. Wherefore, if the probabilists wish their reflex principles to be certain, such that from them a morally certain conscience can be framed, they must before all else prove that all the arguments we bring against them are not only not certain, but not even probable: which when they have done, we shall gladly associate ourselves with them.

2° Everyone is bound, in controversies and difficulties arising daily, especially in matters of faith and morals, sincerely to seek the truth while it lies hidden, and to strive toward it as much as he can. This principle is most certain and is proved in many ways: 1° From that of Ecclus., XXXVII, 20: Before all works let the word of truth precede thee. 2° Because the religion of Christ is a school of truth; for he himself is the way, the truth and the life, and he testifies that he came into the world to give testimony to the truth, and that he wished to institute a religion in which true adorers would adore the Father in spirit and in truth. 3° The office of an upright man requires that he not knowingly depart from the truth of the law, which all nations seek and intend. 4° Finally, right reason dictates it, whose object is truth. — I subjoin. But he who follows what he judges more probably false and contrary to the truth of the law, most certainly neither loves nor sincerely seeks the truth, nor strives toward it as much as he can. Therefore it is not lawful to follow the less probable opinion against the law, leaving aside the more probable for the law.

3° It is not lawful to follow the less safe opinion if it is not properly, solidly and expediently probable. But the less probable opinion, in conflict with the more probable, is not properly, solidly and expediently probable. — The major the probabilists now admit. — The minor is proved: That opinion is properly, solidly and expediently probable whose motives are so weighty and solid as to suffice for obtaining the assent of a prudent and learned man: thus the probabilists define it. But the motives of the less probable opinion, in conflict with the more probable, do not suffice for obtaining the assent of a prudent and learned man, but only for instilling some fear of the opposite. Therefore. — Proof of the minor: 1° The force and efficacy of those motives is overcome and crushed by stronger motives. Therefore. 2° A prudent man cannot assent to an opinion which he judges more probably false than true; for assent is an act of the mind by which we judge something true or more like the truth. Therefore. And so, although the less probable opinion in itself, or respectively in regard to him to whom its opposite does not appear more probable, can be called properly, solidly and expediently probable, yet otherwise comparatively in regard to him to whom the opposite is more probable.

4° He who acts according to the less probable and less safe opinion, in conflict with one more probable and safer, acts imprudently. Therefore he sins. — The antecedent is proved: Either he doubts of the honesty of his act, or he does not. If he doubts, he acts imprudently while that doubt stands, as he would act imprudently who took food which he doubted was poisoned; if he does not doubt, he is far more imprudent, since he does not doubt where there is so great reason for doubting, as he would be most imprudent who did not doubt food to be poisoned, while stronger motives dictated it to be poisoned.

5° According to the most celebrated rule of law, « in doubts the safer part is to be chosen³. » But he who judges the action more probably illicit more than doubts of its honesty, as is plain from the terms. Therefore. And by this argument alone the whole controversy is absolutely decided; but this cardinal rule, which the probabilists keenly impugn, we shall establish with all its supports in the following article, and we shall shut off all the evasions of the probabilists.

Finally attend to the following propositions condemned by Innocent XI, March 2, 1679: « Speaking generally, while the question is of probability, whether intrinsic or extrinsic, however slight, provided one does not pass beyond the bounds of probability, confident we do something, we always act prudently. » It is no. 3. — Likewise: « An infidel will be excused from infidelity, not believing, led by a probable opinion. » It is no. 4. From the condemnation of which propositions these common principles of the probabilists seem condemned: « He who acts probably acts prudently⁴ »; What is probable: therefore licit⁵; and the like.

Obj.: The probabilist can frame for himself a morally certain conscience from this syllogism: He who acts as he probably judges to be licit acts prudently; for a probable opinion is that which rests upon a weighty motive, and to which a prudent man can assent. But he who follows the less probable opinion acts as he probably judges to be licit. Therefore he acts prudently.

I answer. I distinguish the major: He who acts as he probably judges to be licit acts prudently — if he does not judge it more probably illicit, pass the major; if he judges it more probably illicit, I deny the major. And in this sense distinguish the minor; I deny the consequence. For he truly is imprudent who does what he judges more probably illicit.

You will insist 1°: He who acts according to an opinion truly and solidly probable acts prudently, because he acts from a weighty and solid motive to which a prudent man can assent. But the opinion, even though less probable, in conflict with its more probable opposite, is truly and solidly probable; for it rests upon a weighty motive, nor is it contrary to Scripture, councils, or the Fathers, or evident reason. Therefore.

I answer. The major being granted, I distinguish the minor. For the less probable opinion, in conflict with its more probable opposite, is truly and solidly probable respectively in regard to him to whom the opposite does not appear more probable — grant the minor; respectively in regard to him to whom the opposite appears more probable — I deny it. For since its motives are crushed by the stronger motives of the more probable, it is not sufficient to obtain the assent of him to whom the opposite appears more probable; but that opinion only is truly, solidly and expediently probable which suffices to obtain assent, according to the probabilists themselves. See the third proof by reason.

You will insist 2°: The comparative supposes the positive. Therefore, if of two opinions one is more probable, the other is truly probable.

I answer. If probable be taken strictly and properly for that which is capable of obtaining the assent of a prudent man, I deny the supposition of the antecedent; for then the more probable is not taken comparatively but adversatively, so that the sense is: One is probable, the other is not. In which sense the Apostle spoke, I Cor., VII, 9: It is better to marry than to burn. And Susanna, Dan., XIII, 23: It is better to fall into your hands without wrongdoing than to sin in the sight of God — not that it is good to burn or to die; but because it is good not to marry and not to sin, evil to burn and to die. But if probable be taken less strictly and less properly for that which instills some fear of the opposite, then the more probable can indeed be taken comparatively, but nothing thence against us.

You will insist 3°: The less safe remains truly safe in the presence of the safer; e.g., the married state is truly safe, although religion is safer. Therefore similarly the less probable remains truly probable in the presence of the more probable.

I answer. I deny the consequence. The disparity is that greater and lesser security, especially in things pertaining to counsels and not to precepts, do not arise from contrary reasons which destroy one another, as greater and lesser probability do. Thus security in religion arises from the possibility of the commandments, likewise in the married state. But, on the contrary, the probability, e.g., of the triple contract as licit arises from the fact that society is not destroyed; the probability of the same as illicit arises from the fact that society is destroyed.

You will insist 4°: From what has been said, the less safe remains safe in the presence of the safer. But the less probable opinion is less safe. Therefore it remains safe in the presence of the more probable and safer. Therefore it is lawful to follow it.

I answer. I deny the minor. For the less probable opinion standing against the law is called less safe not comparatively but adversatively, that is, it is not safe, and the other is safe, as we said above of the less probable and the more probable.

You will insist 5°: The opinion absolutely and singly probable favoring liberty against the law is safe. But, from what has been said, safety is not destroyed by another safety. Therefore.

I answer. The antecedent being set aside, I distinguish the minor. Safety is not destroyed by another safety when security arises from elsewhere than from probability — grant the minor; if it arises from probability itself, I deny the minor and the consequence.

Other and indeed more urgent arguments drawn from the insufficient promulgation and invincible ignorance of the law, from possession of liberty, from the right of following the more benign side, etc., we shall propose and solve in the following article. Whence be it

Many probabilists, conquered by the arguments brought forward for the assertion of the preceding conclusion, in order that vague probabilism may have some worth, acknowledge at length that it is not licit to follow the less probable and less safe opinion, when a solidly more probable and safer one concurs; but they contend that it is at least licit to follow one equally or almost equally probable but less safe, leaving aside the equally probable safer one. Against whom

I say: In the conflict of two opinions equally probable concerning the objective honesty of an act, we are held to follow the safer.

It is proved. 1° by almost all the arguments whereby we proved the prior conclusion. Reread that. I only renew the third reason.

When both parts of a contradiction are equally probable, neither is properly and expediently probable. Therefore all the principles of the probabilists collapse. — Proof. of the antecedent. That is properly and expediently probable which is prudently approvable, or which is worthy that it be approved and assent be rendered unto it as true, although with fear of the opposite part. But when both parts of a contradiction, all things weighed, appear to anyone equally probable, he cannot prudently approve either as true in these circumstances ¹, or neither is sufficient for obtaining his prudent assent. Therefore. — The major is the adversaries'. — Proof of the minor. When both parts of a contradiction are equally probable, the motives of each mutually elide themselves and weigh equally, so that as much as these strive to obtain assent, so much do those strive toward the opposite; whence the intellect remains suspended and truly doubtful between the two ²: just as a balance remains suspended in equilibrium while in either scale there are equal weights, or as a stone drawn toward opposite parts by a twofold equal force rests unmoved. Therefore.

The probabilists say: The will can command assent to one part, as, e.g., in doubt concerning someone's probity, the will commands that he be judged good ³.

I answer. according to some, impossible that the will efficaciously command the intellect assent to one part where the moments are equal. But, granted this to be absolutely possible, at least certainly it cannot come about prudently and rationally, but at most according to a mind preoccupied by passion or affection, not moved by reason: which suffices us. The reason is, because to judge prudently and rationally is to judge according to the merits of the cause and the moments of reasons; but he judges not according to the merits of the cause and the moments of reasons who judges for one part rather than for another when the moments are equal on both sides. Thus no one will reckon prudent and rational that empire of the will saying to the intellect: « Although no reason move thee to opine this contract licit rather than to opine it illicit, I will nevertheless that thou opine it licit rather than illicit. » Nay, on the contrary, there is none who does not disapprove such empire as imprudent and rash.

If thou say: From affection toward one part, that part which before appeared equal will appear more probable, I answer. 1° This granted, one already runs outside the thesis. 2° From affection one part cannot appear more probable, except insofar as affection obscures the intellect, and the obscuration inclines and makes him attend less lightly or not at all to the reasons for the safer part, more or solely to the reasons for the less safe part; and this is to act imprudently and irrationally.

To the example of him who from empire of will judges his neighbor probus in doubt concerning his malice, I answer: in this case there is present a certain rectifying principle of that empire, namely the law of charity and justice forbidding that one judge his neighbor evil unless it stand certain that he be such. But the probabilists have nothing similar.

It is proved. 2° most invincibly. This is the constant and undoubted rule of law: « In doubts the safer part is to be chosen. » But he who moves among two equally probable opinions is doubtful ⁴, as is manifest from what was said. Therefore.

Proof. of the major. 1° Cap. Significasti, de homicid., lib. V Decretal., tit. 12, c. 18: in doubt whether a priest killed a man, he must be judged a homicide and irregular; because, as Innocent III says, « in this case it is safer to abstain than rashly to celebrate, for the reason that in the one no danger, in the other indeed great danger is feared. » Cap. Petitio tua, same tit., c. 24: when a cleric fighting against enemies of the Catholic faith struck some, and thence doubted whether he had killed anyone and incurred irregularity, Honorius III answers thus: « We command that, if thy conscience bite thee concerning the killing of anyone in that conflict, thou reverently abstain from the ministry of the altar: since it is more advisable in such doubt to abstain than rashly to celebrate. » And cap. Ad audientiam, same tit. ⁵, when a certain priest, wishing to correct one of his household, wounded him with a knife casually slipping from its sheath, it was doubted whether he had died from the occasion of the wound. Clement III responds thus: « We have judged that answer should be given to your discretion that, since in doubts we ought choose the safer path, it befits you to enjoin upon the aforesaid priest that he minister not in holy orders » ⁶.

2° Cap. Illud, de clerico excommunicato, lib. V Decretal., tit. 27, c. 5. When the bishop of Hildesheim doubted whether the excommunication lata sent against him by the bishop of Magdeburg, Legate of the Holy See, to be borne without premised monition and without signification of the lata censura, bound him, and in this doubt had celebrated divine offices, Innocent III wrote back to the Chapter of Herbipolis in these words: « Although however he seem not to have stood wholly culpable in this, because nevertheless in doubts the safer way is to be chosen, even if he doubted of the sentence lata against him, he ought nevertheless rather to abstain than handle the ecclesiastical sacraments... While making mercy toward him, we have not judged the punishment which canon threatens those who after excommunication have presumed to celebrate divine offices... to be inflicted upon him » ⁷.

3° The Clementina Exivi, de verborum significatione, the Friars Minor asking the Apostolic Seat whether under mortal sin they were held to those things expressed in the rule of St. Francis in words of imperative mode, Clement V responds thus: « We therefore, since we delight in sincere consciences, attending that in those things which regard the salvation of the soul, to avoid grave remorse of conscience, the securer part must be held, etc. » ^[2. St. Ligorius to the Clementina Exivi answers thus: « The case was, as is read in the same text: Antecedently it had been doubted by the Brothers whether the rule obliged only to the vows of poverty, chastity and obedience. But Nicholas III pope had already declared it to oblige also to those evangelical counsels which were expressed in the rule in obligatory words of precept or equivalent to precept. Then the Brothers supplicated Clement V, that he declare to them « what things must be judged equivalent to precepts. » Therefore Clement, before he had expounded those things which seemed equivalent to precepts by force of the words and by reason of the grave matter treated, premised those words: « Ad

4° Cap. Dominus, de secundis nuptiis, lib. IV Decretal., tit. 21, c. 3. Lucius III, teaching how Christians captive among Saracens, who had entered a second marriage, and now doubted of the death of the prior spouse, ought comport themselves, says: « If some man or woman... judge that there should still be doubt for them of the death of the prior spouse, let him not deny the debt to her who married him if she ask it, which however shall by no means be exacted from him. » Likewise cap. Inquisitioni, de sentent. excom., lib. V Decretal., tit. 39, c. 44: Innocent III, asked what is to be done by a spouse anxious about an impediment of marriage and its validity, the other party ignorant and doubting nothing, answers in this mode in these words: « Since conscience beats upon the mind from probable and discreet credence, though not evident and manifest, he can indeed render the debt, but he ought not demand it; lest in either respect, against the law of marriage [denying the debt], or against judgment of conscience [demanding the debt], he commit offense. » Plain is it that the holy Pontiffs resolve these doubtful cases according to the rule of following the safer. In such cases namely, it is safer to render the debt, lest the right be violated which the contracting party bona fide certainly believes himself to have; it is safer not to demand: because, since the law of marriage binds not to demand, he would expose himself without necessity to danger of illicit copula. But the probabilist would resolve that both can be done licitly, both render and ask ⁸ Therefore in that case there was no question of two equally probable parts, but only whether there were obligation to follow that part which, according to the rigor of the rule and according to what Nicholas III had already declared, was not only safer, but was uniquely safe: since it already stood that the rule by force of the words and gravity of the matter obliged to observances, as precepts, not only the three principal vows of religion, but also the evangelical counsels which were set forth in the rule, and therefore these themselves could not be passed over without grave remorse of conscience. Hence said Clement, to avoid such remorses, that the securer part must be held, which in very fact was uniquely true and uniquely secure, and on the other side no reasons supplied which could excuse the transgression of those counsels from grave fault. »

The objections are solved.

Obj. 1°: No law, even existing a parte rei, binds subjects proximately and in second act, as long as it has not been sufficiently intimated and promulgated to them without their fault. But, as long as, after all diligence employed, there remains truly, certainly and solidly probable among all that no prohibitive law of an action is given, that law, if perchance it exist a parte rei, is not sufficiently intimated and promulgated to subjects. Therefore.

I answer. 1° from this argument it follows that he who doubts whether he has sinned mortally is not held to confess the sin, saying that the law of confession is not sufficiently promulgated; likewise that probabilist doctors teach ill that something is illicit when they know it to be upheld by others as licit. For then, according to the posited principle, law is not sufficiently promulgated.

I answer. 2° I deny the supposition of the minor: namely that it be certainly and solidly probable in doubt that no law be given; because, as we have proved, two equally probable opinions mutually elide each other, whence neither is certainly and solidly probable, but doubtful ⁹. But, this granted,

I answer. 3° and principally. I distinguish the minor. As long as there remains certainly and solidly probable that no law be given, it is not sufficiently promulgated, if it be not equally certainly and solidly probable that it be given, I concede the minor; if it be equally certainly and solidly probable that it be given, I deny the minor. For then the law becomes doubtful, and therefore sufficiently promulgated to bind, if not directly and by its own force, at least indirectly and by force of general law, namely that in doubt the safer part must be chosen ¹⁰, consequently that a doubtful law must be observed, because this is safer.

Obj. 2°: Invincible ignorance of law excuses one acting from it. But certain and solid probability about non-prohibition of some action, even in concurrence of equal probability, is necessarily joined with invincible ignorance of law. Therefore. — Proof. of the minor. That ignorance is invincible which after so many years of study, so many exertions of minds, could not be overcome. But such is ignorance of law against whose existence truly and certainly probable motives militate. Therefore.

I answer. this argument, akin to the preceding, is solved in almost the same mode. 1° From it follow the same inconveniences as from the preceding. 2° It falsely supposes solid probability in concurrence of equal probability ¹¹. 3° and principally, I distinguish the minor. Certain and solid probability of non-existence of law, even in concurrence of equal probability for the contrary part, is certainly joined with invincible ignorance excluding distinct and certain cognition of law, I concede; excluding doubtful cognition of law, I deny. But in doubt the safer must be followed. And hence it can be answered, 4° distinguishing that same minor thus: Certain and solid probability of non-existence of law, even in concurrence of equal probability, is necessarily joined with invincible ignorance of the certainty of existing law, I concede; of its existence itself, I deny. And herein perhaps the adversaries hallucinate. Indeed he who foundedly doubts of the existence of a law is invincibly ignorant of the certainty of its existence, or that it certainly exists; but he is not invincibly ignorant that it exists, since he has doubtful cognition of it ¹². Nor before the probabilists was it ever heard that he who doubted of some thing was invincibly ignorant of it ¹³: thus a son who doubts whether his father lives is not invincibly ignorant, otherwise he could seize his goods; a woman who doubts of her husband's life is not invincibly ignorant that he lives, otherwise she could leap over into second nuptials; he who doubts whether he be excommunicated or irregular is not invincibly ignorant that he is excommunicated or irregular, otherwise he could safely comport himself as not excommunicate and regular, against the decisions of the holy Pontiffs; a woman who doubts the validity of her marriage is not invincibly ignorant that it is valid, otherwise she could both render and demand the debt, which the laws prohibit ¹⁴.

Obj. 3°: In doubt of existing or obliging law, possession stands for liberty. But in doubt the condition of the possessor is better, L. In pari (II), de Reg. juris, and Reg. 65 in Sexto. Therefore no one is constrained to observance of a doubtful law ¹⁵.

To this argument, which is one of the principal foundations of the whole of probabilism, there is a twofold adequate solution. The first denies the major; the other denies the minor outside the matter of justice. Therefore

I answer. 1° I deny the major; because, in doubt of existing law, either none or at least doubtful is the possession of liberty. But it stands that doubtful possession makes not the condition of the possessor better, not even in the matter of justice. — Proof. of the antecedent. 1° Possession of liberty is nothing else than right of doing what one pleases. For here there is no legal possession, which is defined: « Detention of a thing, with aid of body, mind and right. » Whence nothing else can be understood than right or power of doing something licitly. But man never had right of doing what he pleased in doubt of law; for never did he have right of doing anything whatever rashly and without consulted reason, which would happen if in doubt of law he chose not the safer. 2° He who doubts of law doubts of obligation of law, that is whether he is held to observe what the law commands or prohibits. Therefore possession of liberty in him is not certain, but doubtful. 3° While the probabilists say someone can licitly act against a doubtful law because he possesses liberty, they beg the principle and prove the same by the same. For liberty here is understood, not physical, but moral, which, as was said, is nothing else than right and power of doing something licitly. Whence to prove that one can licitly act against law because he has liberty, is to prove that he can licitly put forth this action, because he has right and power of putting it forth licitly; which is plainly to suppose what is in question, and to prove the same by the same. 4° Where there is certain existence of law, there is certain non-existence of liberty. Therefore where there is doubtful existence of law, there is doubtful liberty.

I answer. 2° I deny, or rather distinguish the minor. Better is the condition of the possessor in matter of justice, I concede; in matters of other virtues, I deny. For in matter of justice the condition of the possessor is better: 1° because, since men, on the one hand greedy of things, are not wont to leave their own among others, and on the other hand an upright man is not wont to acquire possession of anything without title, hence in doubt possession infers presumption that he is lord of the thing who possesses it; 2° because, since goods of fortune are subject to human power in order to common good, legislators decreed that in doubt the possessor can retain as his own the goods he possesses, on account of common good, namely lest dominions of things remain uncertain and lawsuits become unending, as we expound more widely in the tract. de Jure et Justit., dissert. IV, a. 3. But in matter of the other virtues neither reason runs. And truly never nor anywhere is it found in law that this law was enacted outside the matter of justice; but, on the contrary, laws everywhere decree, in matters of the other virtues, the safer part in doubt to be chosen.

Obj. 4°: According to rule of law 57 ff de Regulis juris, lib. 50, tit. 17, and elsewhere: « The more benign opinion is to be preferred. » Therefore the safer is not always to be chosen.

Some answer that this rule was given broadly for the external forum regarding penalties inflicted in doubts of fact, and this is to follow the safer; for it is safer to dismiss the guilty unpunished than to punish an innocent unjustly. Others answer that the more benign opinion in law is not called that which favors liberty or concupiscence, this indeed ought rather to be called malignant and perverse; but that is called more benign, according to jurists, which favors testament, religion, or oath; or, according to Sylvestrus, which favors the needy, orphans, widows and pilgrims. Moreover the more benign opinion, however it be understood, is to be preferred when it is consonant with rules of prudence, such as is not opinion favoring liberty against law, in concurrence of any probable opinion favoring the law.

I say: When the question is of the objective honesty of an act alone, it is licit to follow the opinion manifestly and solidly more probable though less safe, or favoring liberty, in conflict with one less probable but safer or favoring the law. This is most common opinion, against Wendrock ¹, in his notes on Epist. v of Louis de Montalte; against Sinnich in his Saule exrege; and against a few others who will that the safer is always to be followed.

I said, « When the question is of the objective honesty of an act alone, » namely whether it is licit or not; or when the question is of the greater probability of right, and it is asked whether a precept or law binds. For if the question be of the greater probability of a thing or fact, that is, of the validity, substance, quality or condition of some thing, it is not always licit to follow what is more probable, because of the danger of nullity of the thing, or of harming another, which the greater probability of an opinion about fact does not wash away. Thus, e.g., although it be more probable that baptism be valid in thin beer, that a beast and not a man lie hidden in a bush; yet it is not licit without necessity to confer baptism in thin beer, nor to fire into this bush, because this greater probability of fact, since it changes nothing in things, nor makes that which is required for the validity of an act to be not required, nor that which is present to be absent or harmless, does not wash away the danger ². Otherwise when the greater probability is of right, whether the action be licit, whether a prohibiting law exists; because, since a law which is prudently believed not to exist does not bind in act, the greater probability of the opinion according to which the law is prudently believed not to exist washes away the danger of acting formally against a law binding in act. Whence this proposition was condemned: « It is not illicit, in conferring sacraments, to follow a probable opinion concerning the validity of the sacrament, leaving aside the safer, unless law, convention or danger of incurring grave damage forbid it. Hence an opinion merely probable is not to be used in the conferral of baptism, of priestly or episcopal Order. » It is the first among those condemned by Innocent XI.

It is proved of the conclusion, 1° from the definition of the Apostolic See. It is licit to follow the most probable among probable opinions. Therefore also the solidly more probable. — The antecedent stands from the condemnation of this proposition, which is Sinnich's: « It is not licit to follow the most probable among probable opinions. » It is the third among those condemned by Alexander VIII. — The consequence is proved. If it were not licit to follow the solidly more probable opinion, this would be so, according to the adversaries, because there remains fear of the opposite and danger of transgressing the law. But the most probable opinion also necessarily includes fear of the opposite. Therefore, if notwithstanding this it is licit to follow it, it is also licit to follow the solidly more probable. — Proof of the minor: The most probable opinion remains within the bounds of probability. Therefore it is necessarily attended with fear of the opposite side; for a probable opinion is essentially an assent given to one side from a motive fit to persuade morally, yet fallible, and therefore with fear of the opposite side.

If you say, with Daelman and certain others, to whom only the most probable is licit, that in the most probable opinion there remains indeed fear, but such as in practice does not deserve attention from a prudent man: this same thing we say of the opinion manifestly and solidly more probable.

It is proved 2° by authority. 1° St. Thomas, IIa IIae, q. 70, a. 2, ad 1: « In human acts, he says, upon which judgments are founded, demonstrative certainty cannot be had, because they are about contingent and variable things; and therefore probable certainty suffices, which reaches the truth in the more numerous cases, although it fail in the few. »

2° St. Antoninus in Summa, I p., tit. 3, c. 10, § 10, says that anyone can act according to a probable opinion, « provided he have probable reasons more for the thing itself than for the opposite opinion. »

3° The Supreme Pontiffs in dispensations and in various cases have often used, and use, the more probable or absolutely probable opinion ³, although less safe; but kings also, in administering the affairs of the kingdom, and judges both ecclesiastical and secular, in deciding litigations, follow not always what is safer, but what is more probable. Whence those rules or common axioms of law: « What is more like the truth is to be preferred. » — « Where opinions are discordant, let the judge follow the common one. »

It is proved 3° by reason ⁴. 1° He does not sin formally who does what he prudently, reasonably and in good faith judges not even to be material sin against the law. But he who follows the opinion solidly more probable concerning the objective honesty of his act does what he prudently, reasonably and in good faith judges not even to be material sin against the law. Therefore. — The major is certain; for prudence, reason and good faith are rules of our actions. — Proof of the minor: 1° He judges prudently and reasonably who judges according to the merits of the cause, as is plain from the terms, and in all judgments both public and private. But he who judges licit that which is to him more probably licit, or that which weightier and more solid motives persuade to be licit, judges according to the merits of the cause, as is plain. Therefore.

2° He judges prudently who judges from the motive whereby a prudent man is wont to be determined to judgment. But a prudent man is wont to be determined to judgment from a motive weightier and more solid. Therefore. 3° He judges prudently who would judge imprudently if he judged otherwise. But he who judged illicit that which is more probably licit would judge imprudently, as he would judge imprudently who should judge black a color more like white than black. Therefore.

2° He who does what he judges more probably objectively honest, or contrary to no law, if perchance there be a prohibiting law, invincibly ignores it. But invincible ignorance of the law excuses from formal sin, as is plain from this second proposition condemned by Alexander VIII: « Although invincible ignorance of the law of nature be granted, this, in the state of fallen nature, does not excuse the agent from formal sin by virtue of itself. » — Proof of the minor: He who seriously strives for the truth, and does all that he morally can to attain it, and follows that which comes nearer to it, if perchance he reaches it not, invincibly ignores it; because that ignorance is invincible which cannot be overcome by human study, as the Author says, Ia IIae, q. 76, a. 2, ad 1. But all this he furnishes who, after sufficient examination, follows the more probable opinion. Therefore.

You will say, with Daelman, that ignorance of the law or of the objective malice of an action is not judged invincible where there are found certain arguments known to the agent on behalf of that law or that malice. Whence, although perhaps he then invincibly ignore the certainty of the malice, yet he does not invincibly ignore the malice or the law which he knows probably to be such.

On the contrary: 1° From this argument it follows that neither from a most probable opinion would there be invincible ignorance of the law, since with it are found also arguments known to the agent of the existence of the law. 2° Although there are arguments on the contrary side both in the most probable and in the more probable, these are to be neglected and set after the more probable and weightier ones; whence it comes about that the agent who seriously seeks the truth, and strives toward it as much as he can, cannot prudently judge that less probable part to be true, but rather the contrary, which is more like the truth. Whence, in respect of him, as to prudent judgment, those lighter considerations stand just as if they were not, and thus they do not prevent the ignorance of the law, at least while binding in act, from being morally invincible.

It is proved 4° from the inconveniences. If the safer is always to be followed, it follows 1° that the study of moral theology is utterly useless. For in vain are we wearied, in vain we turn over books, spend nights and days inquiring which opinions are truer or more probable; in vain we heap up arguments, mostly non-demonstrative, to establish them; in vain the unlearned consult the learned whether this or that be licit; since before every study, before every inquiry and consultation, all men know that it is safer, and safe alone, to abstain from these things.

It follows 2° that all books of moral theology are to be prohibited and banished, even the works of SS. Thomas, Bonaventure, Antoninus, etc., as scandalous and inducements into sin, since there is scarcely one author who does not often teach more probable opinions favoring liberty against the safer ones standing for the law.

It follows 3° that these holy Doctors and innumerable others distinguished in doctrine and piety gravely sinned by teaching those more probable opinions less safe, and more gravely than those who follow them in practice; because doctrine creeps forth the further, infects the more, and endures the longer.

It follows 4° that the yoke of Christ is aggravated beyond measure and made altogether intolerable, as will appear to one running through the various states and cases.

Note, that almost all the arguments objected, if they avail anything, prove that it is not licit even to follow the most probable opinion: which is condemned. Whence, since they prove too much, they prove nothing.

Obj. 1°: St. Thomas, Quodlibet VIII, a. 13, says: « That which is done against the law is always evil, nor is it excused by being according to conscience. » Therefore it is not licit to act according to the more probable opinion; because, if it chance to be against the law, as may happen, the agent sins.

I answer. St. Thomas speaks of what is against the law culpably and vincibly ignored, and according to a conscience culpably and vincibly erroneous. So this text is explained by St. Antoninus, Sylvester, Adrian and others commonly, both Thomists and outsiders. « These words of blessed Thomas, » says St. Antoninus in Summa, I p., tit. 3, cap. 10, § 10, after the middle, « cannot be understood except of those things wherein it plainly appears from Scripture or the determination of the Church that it is against the law of God, and not of those wherein it appears not; otherwise he would contradict himself in the same book, which is not to be believed. »

Obj. 2°: From an opinion merely more probable concerning the objective honesty of an act, there cannot be formed a practical conclusion morally certain of the formal honesty; for the conclusion cannot be more certain than the principle. Therefore.

I answer 1°. I retort the argument. From an opinion merely most probable there cannot be formed a practically certain conclusion,

Therefore. — I answer 2°. I distinguish the antecedent. From an opinion merely more probable there cannot be formed immediately a practically certain conclusion — grant it; mediately — I deny it. For the more probable opinion concerning the objective honesty of an act being posited, the agent, by means of a reflex judgment morally certain which has that more probable opinion for its object, forms a practical dictamen morally certain, in the manner already stated in the proofs, namely: He does not sin formally who does what he prudently judges to be objectively licit. But he who acts according to the opinion solidly more probable does what he prudently judges to be objectively licit. Therefore he sins not. — The major is physically certain. — The minor is morally certain.

You will insist 1°: Tutiorists, and those who stand for the most probable opinion, deny the minor of this reflex judgment. Therefore it is not morally certain.

I answer 1°. I retort the argument. Tutiorists deny the minor of a similar reflex judgment where the question is of the most probable opinion. Therefore that minor is not morally certain. Therefore it is not licit to follow the most probable opinion; which is condemned.

I answer 2°. I distinguish the antecedent. Tutiorists, and those who stand for the most probable opinion, deny the minor of this reflex judgment, and they are exceedingly few in comparison with those who affirm it, and deny it unfoundedly — grant the antecedent; and they are comparatively more numerous, and deny it foundedly — I deny the antecedent: especially since all things whatsoever they urge against probabiliorism fight equally against the most probable, as is plain from what has been said, and nevertheless it remains certain that it is licit to follow the most probable. Whence their denial takes away nothing of the moral certainty of this minor; for as Cajetan rightly observes, s. v. Opinione uti, n. 4, « a thing is not held by opinion [he understands opinion properly so called, which is held with founded fear of the opposite side] because divers doctors illustrate

⁵

and hold contrary sentiments; for alongside such contrariety there can stand that one side is supported by sufficient reason unto moral certainty, and it is then no longer opinion with those who grasp that reason; but because many know not how to discern between moral and mathematical certainty, they somehow place everything under opinion. »

You will insist 2°: This reflex judgment does not take away the probable danger of acting against the law, since what is more probable may be false. Therefore.

I answer. 1° I retort the argument against the most probable opinion. 2° I distinguish the antecedent. It does not take away the danger of acting formally against the law — I deny it; of acting materially against the law — I subdistinguish. It does not take away the danger which a prudent man ought to despise — grant it; which a prudent man ought not to despise — I deny it.

You will ask 1° how great, in the less safe opinion, the excess of probability must be, that it may be lawful to follow it.

I answer. It is not required that it be the most probable, nor does any light excess in probability suffice; but a notable and morally grave one is required.

The reason of the first part is : 1° Because he who follows the more probable acts prudently, as was proved. Therefore this suffices, nor is the most probable required. 2° Because if the most probable were required, it would be so, according to its patrons, in order that no probable danger of sin remain. But then it would cease to be most probable and would become morally certain, and thus it would never be lawful to follow the most probable among probable opinions; which is rejected. Therefore. 3° Nothing is opposed against a more probable opinion which cannot be opposed against the most probable, as appears from what has been said. But this notwithstanding, the most probable suffices. Therefore also the more probable. 3° The contrary opinion would furnish occasion for continuous scruples and anxieties, since it could scarcely be discerned when an opinion would be the most probable, unless perhaps by most probable they understand gravely more probable.

The reason of the second part is, because such and so great must be the excess that, morally speaking, it shake off doubt and move a grave and prudent man to assent to it rather than to the other. But, morally speaking, any thin and light excess does not suffice for this; little indeed is reckoned as nothing in moral matters. Therefore.

You will ask 2° how a confessor, or a learned man consulted about the liceity or illicitness of some action, v. g., whether a triple contract be licit, ought to answer the consulter.

I answer. He cannot answer according to the less probable opinion, whether less safe or safer; because either he would say licit what he himself judges more probably illicit, or he would say illicit what he himself judges more probably licit; and thus he would lead the consulter into doing what he himself, being consulted, judges evil, or into abstaining from what he judges good, and would therefore deceive the consulter on either side, either too much relaxing or too much straitening his conscience.

He must therefore answer according to the more probable opinion which he holds, yet not always simply and absolutely. For if the opposite opinion also be truly probable and be upheld by many learned men as more probable, and a loss to a third party be at stake, suppose because restitution to be made or a contract to be entered upon is in question; he ought to answer that he himself feels more probably thus for such and such reasons, yet that there are not lacking learned and grave men who hold the opposite, whom he can approach, and that he choose before God what will be more probable to him. The reason is, because if he answered simply and absolutely according to the opinion more probable to himself, he would expose the consulter to danger, namely of restoring what he ought not restore, or of not restoring what he ought restore, or of entering a contract harmful to another, or of abstaining from a contract profitable to himself.

You will ask 3° whether a confessor can and ought to absolve a penitent resisting his opinion.

I answer. 1° If the opinion of the penitent be certainly less probable, and he acknowledge it as such, and wish to follow it, the confessor ought to deny him absolution, as indisposed, even though he say he is a probabilist¹. This is clear from what was said in art. 1.

2° If the opinion of the penitent be singular, supported by no solid reason and scarcely championed by anyone of weight, however much the penitent from pertinacy esteem it more probable, the confessor ought to instruct him concerning the improbability of his opinion, and if he will not acquiesce, to dismiss him unabsolved; because he who irrationally and out of pertinacy adheres to an improbable opinion is not sufficiently disposed.

3° Finally, if the opinion of the penitent, which he believes more probable, be truly solidly probable and championed by many grave and learned men as more probable, a distinction must be made. Either by following it the validity of the sacrament is imperiled, as if the penitent judge it more probable that merely timid attrition suffices, and approach otherwise undisposed; unless he abandon it, he ought not be absolved, because by his own judgment he exposes the sacrament to nullity². Or by following it the value of the sacrament is not imperiled, suppose if he judge it more probable that he is not bound to restitution in such a case, or to abstain from such a contract; even if he will not acquiesce with the confessor, and be otherwise disposed, he ought to be left in his opinion and absolved; because 1° in an equal cause the confessor ought not flatter himself, nor believe that he holds the key of knowledge, as if he alone knew all things and alone saw, while others who hold the opposite are blind and in a state of damnation; 2° because the penitent, after he has declared his sins and is otherwise disposed, has a right to absolution, which the confessor cannot deny him without injury, nor judge him indisposed because he adheres to an opinion well founded as more probable for himself, since acting according to it he does not sin. Therefore.

You will ask 4° whether it is lawful for everyone to follow the opinion which he esteems at first sight more probable.

I answer. No one can lawfully follow except that opinion which, after sufficient diligence applied, proportioned to the quality of the thing, the condition of the person and the opportunity of time, he sincerely judges before God more probable; because otherwise he would act imprudently and rashly, voluntarily exposing himself to the danger of acting against the law.

But what diligence is to be esteemed sufficient? Although no certain general rule can be given, nevertheless according as it more commonly happens I propose the following:

The unlettered may esteem as more probable and safely follow the opinion or counsel of their pastor or confessor who is held a prudent and learned man, or of another man equally prudent and learned; because they have nothing better they can do. But if they consult two of equal weight contradicting each other, let them choose the safer.

The half-learned should consult those more learned, suspect neither of excessive rigor nor of excessive laxity, or should peruse books in which, when they find an opinion unanimously asserted by authors, and the opposite passed over in silence or rejected with one mouth, they may follow it as more probable. If they read an author confessing that the common opinion is opposed to his own less safe one, let them follow the common; because those half-learned cannot of themselves weigh the force of reasons, and can scarcely follow any other rule than that of authority. If the grave author whom they read says two contradictory opinions are equally probable, let them follow the safer; if the less safe be more probable, they may follow it.

Finally, learned men should hold as more probable, and persuade others as such, that opinion which, passions and prejudices set aside, but the moments of the reasons on this side and that maturely weighed, and the gravity and weight of authors pro and con attended to, they sincerely judge such before God.

PRINCIPLES

1° Among the moral virtues prudence holds the principal place; for it is at once the head and, as St. Thomas says, the « complement »³ of all the others, directing them that they be exercised within the limits of good and right. Whence, unless man acts prudently, he does not act rightly. Moreover, as long as he is anguished in a practical doubt concerning the honesty of an action to be posited here and now, he does not act licitly unless the doubt be shaken off, that is, unless he determine himself under the guidance of prudence, by which, as the same Angelic Doctor says, « according to its essence it is an intellectual virtue, but according to its matter it accords with the moral virtues; for it is right reason of things to be done »⁴. For « it pertains to prudence not only the consideration of reason, but also the application to work, which is the end of practical reason »⁵. Therefore the whole question of probability is reduced to one point, namely whether, when the law is doubtful, that is, only probably existing, the agent acting prudently can embrace and follow the opinion favoring liberty.

2° Moreover no one acts prudently unless he be morally certain of the honesty of his action; for the Apostle says, Rom., XIV, 23 : All that is not of faith, that is, of firm and founded persuasion of the legitimacy of the action, is sin. Here there is not treated of objective certitude, which cannot be obtained when the action is only probably commanded or forbidden, because then the morality of the very action is doubtful. There is required therefore subjective certitude. And this certitude cannot be metaphysical in practical things, in which are applied only remote conclusions of principles speculative and known through themselves.

There suffices therefore moral certitude, to which alone belongs the order in which it is required. There must be asked therefore whether the agent can be morally certain of the honesty of his action, omitting the doubtful or probable law and following the opinion favoring liberty.

3° From thence it must be concluded that probability alone does not of itself confer the right of acting against a doubtful law. For if the honesty of the action is only probable, it remains doubtful, and since the action is to be posited here and now, the agent is constituted in practical doubt, in which it is not lawful to act unless the safer part be preferred, because he who does not act from faith has no moral certitude of the honesty of his action, and knowingly and voluntarily commits himself to the danger of sinning, and by that very fact sins formally, even though the matter of sin be not actually present. For he is not led by the virtue of prudence, which, as we said, is « right reason of things to be done. » It is necessary therefore that, in this case, conscience be formed and made certain from some principle taken outside probability itself, by which it is demonstrated that it is practically licit to act against a doubtful law.

From this it follows that that principle invoked by certain probabilists does not suffice : « He who acts probably acts prudently. » For if it be taken nakedly and in itself, it is deservedly attacked by the adversaries, because from such probability there cannot of itself follow anything except the probability of the honesty of the action, which cannot render conscience morally certain. But that it be admitted, it must be understood in this sense, that one acts probably legitimately when the probability affects only the obligation of the doubtful law, and conscience is rendered certain elsewhere concerning the honesty of the action.

4° From these things it is clear that the principles by which conscience is formed in practice must be sought outside the practical case; for if they could be drawn directly from the very question, the doubt would vanish and certitude occupy the place of probability. These principles, now perspicuous in themselves, or demonstrated and admitted, project into the doubtful case their own proper light, which is reflected from thence toward the intellect of the agent, so that the moral obscurity called a practical doubt is wholly dissipated, although the thing itself objectively do not yet become clear.