Chapter 15 — Religious are condemned for going to law

Objections

We will now consider the arguments brought forward to prove that religious ought not to go to law, nor to allow themselves to be defended by force of arms.

Obj. 1: In 1 Corinthians 6:7, we find the following passage: to have lawsuits at all with one another is defeat for you. Why not rather suffer wrong? Why not rather be defrauded? On these words, the Gloss observes: perfect men should simply to ask for what belongs to them, avoiding contention or legal proceedings. (Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 6:7 (PL 191:1578C).) Hence as religious are in a state of perfection, they ought not to contend with anyone.

Obj. 2: Our Lord says: if any one would sue you and take your coat, let him have your cloak as well (Matt 5:40). These three precepts, remarks the Gloss, embody the perfection of justice. (Biblia sacra cum glossis (Venice: 1588) 5, 22E at Matt 5:41.) Hence religious, who profess to lead a life of perfection, ought not to go to law; they ought rather to suffer themselves to be despoiled of their goods.

Obj. 3: Again, we read: from him who takes away your cloak do not withhold your coat as well . . . Of him who takes away your goods do not ask them again (Luke 6:29). The Gloss says: this rule respecting our garments applies likewise to our other possessions. (Glossa ordinaria 5, 786 at Luke 6:29 (PL 114:263).) Religious, therefore, who are specially bound to the observance of these precepts, ought neither to prevent others from robbing them, nor to ask for their property to be returned.

Obj. 4: Our Lord gave the following order to his apostles: if any one will not receive you or listen to your words, shake off the dust from your feet as you leave (Matt 10:14). The same precept is recorded by Luke 9:5. From these words we see that apostles, and apostolic and perfect men, ought not to litigate if they are not received into a town, or hamlet or a society.

Obj. 5: if any one is disposed to be contentious, we recognize no other practice (1 Cor 11:16). They, therefore, who institute legal proceedings depart from the apostolic rule of perfection.

Obj. 6: Charity does not insist on its own way, the Apostle writes (1 Cor 13:5), or as the Gloss explains, requires not that her own property should be returned to her. (Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 13:5 (PL 191:1660C).) Therefore, men who go to law to secure the restitution of their goods, have not charity.

Obj. 7: St. Gregory says (Moral., 13): he that for the sake of some earthly possession disagrees with another, shows that he loves a material good better than his neighbour. This is contrary to the order of charity. (Gregory the Great, Morals 31.13.23 (CCSL 143B; PL 76:586B).) They then who disturb their neighbour’s peace in order to recover their own property, sin against charity.

Obj. 8: St. Jerome gives the following rule: as long as threefold truth (Cf. Summa theologiae, I, q. 16, a. 1, ad 1.) be preserved, anything should be done or left undone to avoid scandal. (This is not found in works by Jerome, but found in John of Rupella's Summa de vitiis, "De scandalo," (cod. Paris, BN lat. 16417, f. 160 rb); Cf. Bernard's gloss on Liber extravagantium decretalium (Decretales Gregorii Papae IX), ed. Moguntia (1473), bk. 5, tit. 41, ch. 3, p. 606b: "Veritas que triplex est, scilicet bone vite . . . alia discipline . . . alia iustitie.") Now a man can, without any injury to the threefold truth, suffer himself to be despoiled of his goods; and if he, in order to recover them, institutes a lawsuit, to the disturbance and scandal of his neighbour, he is acting against charity.

Obj. 9: Food is essential for the maintenance of life; but we may abstain from food, in order to avoid scandalising our neighbour: if food is a cause of my brother’s falling, I will never eat meat, lest I cause my brother to fall (1 Cor 8:13). If then in order to avoid giving scandal, we are to refrain from so necessary a thing as food, we ought, with far greater reason, to renounce any other temporal good rather than disturb or scandalize our neighbour.

Response

I answer that, on the other hand, we can adduce proofs that holy men are at times justified in availing themselves of the protection of the law. St. Paul, when in danger of being delivered to the Jews, appealed to the hearing of Augustus (Acts 25:10), that is, he appealed to the Roman law. An appeal is to go to a higher judgment. Therefore, perfect men may go to law.

We know, by the example of the same saint that it is at times lawful for apostolic men to be defended by armed force. For in Acts 23 we read that St. Paul procured his rescue from the snares of his enemies by means of an army. (Acts 23 verse 17 and following.)

We know further that it is permissible for holy men sometimes to defend themselves, especially in the case of an ecclesiastical judgment. For, when Paul and Barnabas were at Antioch, no small contest arose between them and those who taught the brethren that they must be circumcised. (Acts 15.) Then Paul and Barnabas went up to the apostles in Jerusalem about this question. St. Paul, alluding to this discussion, speaks of the false brethren secretly brought in, who slipped in to spy out our freedom which we have in Christ Jesus, that they might bring us into bondage: to them we did not yield submission even for a moment, that the truth of the gospel might be preserved for you (Gal 2:4). Hence religious and perfect men may appeal to an ecclesiastical court in defence of their liberty.

St. Gregory expressly says (Moral., 31) that religious may defend their property by legal means. On the words of Job 10:16, and if I lift myself up, St. Gregory says: when the care of our material property imposes upon us the necessity for travelling, we must, if we are despoiled of our possessions, at times endure our loss. At other times we must, while taking every pains to preserve charity, prevent such robbery. We should act thus not only to secure our own property, but, still more to prevent those who would pillage us from losing their souls. Hence in defending our possessions against rapine, our chief care ought to be not so much to guard ourselves against loss, as to save our enemies from committing sin. (Gregory the Great, Morals 31.13.22 (CCSL 143B; PL 76:585D-586A).)

St. Gregory likewise commenting on the words of Job 24:26, he goes out to meet the weapon, says, we are generally left in peace and quiet if we care not to confront the wicked for the sake of justice. But, if our heart is inflamed with desire for eternal life and our mind is truly enlightened, we shall, as far as circumstances permit or the cause require, throw ourselves into the breach in defence of righteousness. We shall go forth to intercept the wicked in their misdeeds, even though they do not seek us out. For, when unjust men aim their blows at the virtue that we love in others, they wound us also, even though they may seem to venerate our person. (Gregory the Great, Morals 31.28.56 at Job 39:21 (CCSL 143B; PL 76:605C).) Hence we see that it is the duty of perfect men to defend others who may be attacked, even though they themselves are not provoked.

It is a charitable office to deliver the oppressed from their oppressors. I broke the fangs of the unrighteous, and made him drop his prey from his teeth (Job 29:17). Rescue those who are being taken away to death (Prov 24:11). Rescue the weak and the needy; deliver them from the hand of the wicked (Ps 82[81]:4). Now we are bound to perform charitable offices, primarily towards those most closely connected with us. Hence, as religious are most closely bound to their religious brethren, they ought in charity to oppose those who oppress their order. By this and by all the preceding arguments, we learn that religious not only may, but ought to resist the violence and artifices of their enemies.

We must remember that the assailants of religious orders attack them, sometimes in spiritual and sometimes in temporal matters. When religious are oppressed in what concerns their spiritual rights, they ought to resist their oppressors with all their might, especially when the questions involved affect not only themselves, but others. For religious embrace the religious life solely in order to be free to devote themselves to spiritual interests. If their spiritual liberty is curtailed, their object in becoming religious is frustrated. Consequently, as it is a point of perfection for them to carry out their object, it is likewise a point of perfection for them to resist all the obstacles which may be placed in the way of its attainment.

If religious are attacked as to their material interests, perfection demands that so long as their injury be of a private and personal nature, they should bear it patiently, as St. Gregory reminds us, lest by resistance they incite their enemies to violence. (Gregory the Great, Morals 31.13.22 (CCSL 143B; PL 76:585D-586A).) If, however, the damage inflicted on them affects not only their own, but the common welfare (even in temporal matters), they ought, as far as possible, to resist their oppressors. It is not perfection but indolence and cowardice to endure such oppression when it might be resisted. For, as we have just said, everyone is bound in charity to defend his neighbour from injury as far as he is able to do so, according to the words of Proverbs 24:11: rescue those who are being taken away to death; hold back those who are stumbling to the slaughter.

Replies to objections

Ad 1: By the words of St. Paul, quoted in the first objection, some things are forbidden to all men; others are forbidden to the perfect only. All men, as we know by the Gloss, (Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 6:7 (PL 191:1578D).) are forbidden to plead a cause before a heathen tribunal, or to assert their rights by contention or by fraud. Perfect men are forbidden to go to law in order to obtain the restoration of their property. This rule applies, however, as Gratian tells us (Decretals, 19*,* q. I, Episcopus), (Gratian, Decretum, P. 2, C. 14, q. 1, ch. 1, writing by Gratian (Friedberg, 1:732-733).) to the restoration of private property. It is as lawful for them to recover common possessions, as it is for them to hold them. For their common property belongs not to themselves, but to the Church. Therefore, when they sue for its restitution, they are seeking to recover what they hold for the Church. This Gloss is not authentic but magisterial. ("This gloss" refers to the one used in obj. 1: Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 6:7 (PL 191:1578C).) It is taken from St. Augustine, who holds that it is allowable and pardonable for imperfect men to go to law, but that such a course is not becoming in the perfect. (Augustine, Enchiridion, ch. 78, para. 21 (CCSL 46; PL 40:269).) But, if it be not lawful for those in a state of perfection to appeal to a legal tribunal, such a course cannot be permissible for bishops, since the episcopal state is one of higher perfection than is the religious. Otherwise, an appointment to a bishopric would not be promotion for a religious.

The fact that a man has embraced a state of perfection does not render things unlawful for him which before were lawful, unless by vow he has bound himself to refrain from them. Hence it is no more unlawful for a man to go to law after he has become a religious than it was before he embraced the religious state, unless indeed, by instituting legal proceedings, he should violate his vow of poverty or should occasion scandal. Litigation would be an infraction of the vow of poverty, were a religious to contend for some private property, since by his vow the possession of such property is interdicted to him.

It may be added, and perhaps with truth, that the words of the Gloss to which reference has been made do not apply to a state of perfection, such as is the religious state. For religions have no personal possessions; and hence the Gloss could not say absolutely that they might claim their own property. The words of the Gloss must, rather, be understood to refer to the perfect in charity, i.e., to those who possess perfect charity, in whatsoever state of life they may be. Although they do not sin by making a legal claim to their property, they nevertheless, by so doing, diminish the perfection of their charity. Hence the Gloss does not say that it is forbidden for perfect men to go to law, but that it is unbecoming in them to do so. But in certain cases it is not even unbecoming in them to institute legal proceedings.

The first of such cases, is, when a dispute has arisen concerning a spiritual matter. Thus, we read in the Acts that when dissension arose at Antioch on the question of circumcision, Paul and Barnabas went to Jerusalem to submit the point to the apostles (Acts 15:2). Again, St. Paul speaks of false brethren secretly brought in (Gal 2:4).

The second case is that in which contention arises on some matter (even though it be a temporal concern) which may be a cause of spiritual harm. St. Paul, although he longed to depart and to be with Christ (Phil 1:23), appealed to the Roman law for release when he saw that his death or imprisonment would be an obstacle to the spreading of the Gospel.

The third case is that in which material loss may accrue to another, especially to the poor. We defraud others if, through our negligence, we suffer them to be robbed. If they are under our charge, our fault becomes more grievous. By such negligence, we do not offer to God a perfect sacrifice. For like one who kills a son before his father’s eyes is the man who offers a sacrifice from the property of the poor (Sir 34:20).

The fourth case is when the contention involves our neighbour’s spiritual welfare, in as much as he would lose his soul were he to keep the property of another. Hence St. Gregory, on the words of Job 39:16, though her labor be in vain, yet she has no fear, says: at times it is our duty to bear with patience the robbery our goods; at other times we must charitably resist those who cheat us. This we do, not from self interest, but lest, through their dishonesty, they should lose their souls (Moral., 31). (Gregory the Great, Morals 31.13.22 at Job 39:16 (CCSL 143B; PL 76:586A).)

The fifth case is when the example of dishonesty would deprave many: because sentence is not speedily pronounced against the evil, the children of men commit evils without any fear (Sir 8:11).

Ad 2-3: We answer the second objection, that, as the Gloss says, the perfection of justice is established in three precepts. (Biblia sacra cum glossis (Venice: 1588) 5, 22E at Matt 5:41.)

First, if one shall strike you on the right cheek, offer him the other. (Matt 5:39.)

Second, if anyone will contend with you in judgment and take your coat from you, let your cloak go also. (Matt 5:40.)

Third, whoever would force you to go one mile, go with him another mile. (Matt 5:41.)

The third precept is not to be understood literally, for we do not read that it was so interpreted, either by Christ or by his disciples: if anyone force us one mile, we must be prepared, if need be, to go another with him. (Biblia sacra cum glossis (Venice: 1588) 5, 22E at Matt 5:41.) Again, St. Augustine, speaking of the first of these three precepts, says in his book De mendacio, that it is to be understood to signify that a man must be prepared, for the sake of truth, to suffer not only buffets, but any torments in a spirit of charity to those that inflict them. (Augustine, De mendacio, ch. 14, para. 27 (CSEL 41:447; PL 40:507).) Literal obedience to the precept is not enjoined; since neither our Lord (John 18:22-23.) nor St. Paul (Acts 23:2-3.) turned the other cheek. The third precept must be understood in the same sense, namely, that a man must be ready to endure any material loss in the cause of righteousness and charity. But, as we have said before, cases arise in which, without any prejudice either to charity or truth, we are justified in legally asserting our claims to property. The same goes for the third objection.

Ad 4: Our Lord ordered his apostles to shake the dust from their feet as a witness against those who refused to receive them. The Gloss, commenting on the words, shake off the dust from your feet (Matt 10:14), says: do so, as a witness of the travail which you have fruitlessly endured on their behalf. (Glossa ordinaria 5, 838 at Luke 10:10-11 (PL 114:285).) This shall be an appeal to to divine judgment. That this is what our Lord meant, we know by his words: truly, I say to you, it shall be more tolerable on the day of judgment for the land of Sodom and Gomorrah than for that town (Matt 10:15). By these words, our Lord instructs his disciples, to depart from those that will not receive them. For they, like infidels, are reserved for the final judgment of God. St. Paul says of unbelievers: God judges those outside (1 Cor 5:13). Those that are within are committed to the judgment of the Church. Hence if any man desire to be received into the Church, and those who belong to the fold refuse to communicate with him, he should appeal not to the judgment of God, but to the tribunal of the Church.

Ad 5: Contention is forbidden to all those who are weak in faith. The words of St. Paul, to have lawsuits at all (1 Cor 6:7), are thus explained by the Gloss: the audacious clamour of contention wars against the truth. (Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 6:7 (PL 191:1578D).) The same explanation is given of the words in Romans 1:29: full of envy, murder, strife. (Peter Lombard, Commentaries on the Psalms and St. Paul, at Rom 1:29 (PL 191:1335D).) Hence they who appeal for justice, without noisy assertion of their claim, are not contentious.

Ad 6: It is not true that none can, without a violation of charity, demand the restitution of their goods. What is true is that when avarice leads a man to demand such restitution, he is not acting in charity. On the words, charity seeks not her own, the Gloss says: charity seeks not her own, for she does not love money. (Peter Lombard, Commentaries on the Psalms and St. Paul, at 1 Cor 13:5 (PL 191:1660C).) However, as we have seen from a passage of St. Gregory, already quoted, zeal for fraternal correction may at times stimulate a man to demand the restoration of his property. (Gregory the Great, Morals 31.13.22 (CCSL 143B; PL 76:585D-586A).)

Ad 7: If a man go to law, he need not necessarily be in discord with his neighbour. Although peace of heart should not be lost for the sake of any earthly gain, it does not follow that it is never permissible to make a legal claim to our property. Peace of mind may be preserved in a law court, as on a battle field. Otherwise, war would be always unlawful.

Ad 8: A man who justly claims the restitution of his goods does not actively give scandal. If scandal is taken at his action, he is merely the passive cause of such scandal. There are two kinds of scandal. There is a Pharisaical scandal, by which men, out of malice, take scandal at their neighbour and cause scandal to him. When our Lord was told that the Pharisees were scandalized at him, he said: let them alone; they are blind guides. And if a blind man leads a blind man, both will fall into a pit (Matt 15:14). There is likewise the scandal taken by weak and ignorant persons. When possible, we must avoid giving this scandal; but we must not do anything wrong out of fear of occasioning it. Now it is wrong to suffer the property of the Church to be pillaged; and, even at the risk of giving scandal, we must resist such injustice. Thus St. Thomas of Canterbury defended the rights of the Church, at the sacrifice of his life, making no account of the scandal taken by the King of England. (Vincent of Beauvais, Speculum historiale* 29.14-20.)* Even if he could, without sin, have suffered the Church to be robbed, the fear of being a passive cause of scandal, would not have been sufficient cause to justify him in permitting such pillage to take place. It is also possible to obviate giving scandal to weaker brethren by speaking to them gently and pointing out that it is really more to our neighbour’s advantage to check him in a course of injustice than it would be to suffer him, by indulgence, to fall into a habit of dishonesty. Furthermore, a man is more strictly bound to preserve himself from taking scandal than to avoid scandalizing others. Therefore, if he knows that unless he reclaims his own possessions, he will himself be scandalized, it is his duty to demand them.

Ad 9: Though it be true that food is essential to the preservation of life, this proposition does not apply to every kind of food. A man may abstain from one dish, and live on another. Hence it may be better, for the sake of avoiding scandal, to refrain from one kind of food, rather than to abandon certain temporal possessions. For, by not requiring their restitution, we may, as has been said, occasion sin.