On the restitution to be made by those who cooperate in unjust damage

Certain difficulties are expounded concerning cooperators in general.

I. Besides him who exercises the unjust action per se and immediately, of whom we have spoken hitherto, there often intervene those who cooperate with the damaging action physically or morally, as he who commands or counsels theft, who lends the thief ladders or keys, and the like.

II. Nine modes are commonly enumerated with the Author, by which one can cooperate in an unjust damaging, comprehended in these verses :

« Command, counsel, consent, the flatterer, recourse,

Partaking, silence, not hindering, not disclosing. »

These modes differ in that the six former concur to damage positively and directly, the three latter negatively only and indirectly.

[III. It must be said in general that those who concur directly to damage are held to compensate it. The reason is that they are the positive, efficacious and formally unjust cause of this damage. And this is confirmed by the condemnation of the following proposition, n. 39, made by Innocent XI, March 2, 1679 : « He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that inflicted damage. »³⁹⁰] ³⁹⁰ Ibid., a. 7, o.

IV. That it may be known when and how much these modes oblige to restitution, this general rule must be kept : They oblige to restitution insofar as they influence efficaciously into the damage; for the whole obligation of restoring arises from influx into the damage. Wherefore, if they certainly influence efficaciously into the whole, they oblige to restitution of the whole; if into part only, they oblige only to part; if they certainly influence in no way whatever, to nothing; if probably, they oblige according to the measure of probability; if under doubt, proportionately to the doubt, as was said above.

[It is to be noted here, from the principle laid down and demonstrated in the treatise on Human Acts, dissertation VI, art. 3, that if the influx of some action into damage inflicted on another be only probable, or doubtful, which is the same thing, the agent is not held to compensation until it be certainly established that this action concurred positively, efficaciously and unjustly to the damage. The reason is that a doubtful obligation is no obligation. To this you will recur. So concludes St. Liguori.³⁹¹] ³⁹¹ Lib. IV, n. 575.

V. But if they do not influence unto the substance of the damage, but only in its manner, for example so that it be more quickly, more boldly, more atrociously, at such place, at such time, with such increase, it is doubtful. We with St. Antoninus, Paludanus, Navarro, Gabriel, Henry of St. Ignatius, Henno and others believe more probably that one thus influencing is held to restore only as much as that mode or circumstance was damaging to his neighbor; because he is only the efficacious cause of that circumstance and not of the substance of the act according to its damaging species³⁹² . ³⁹² Id., ibid., n. 376.

VI. From what has been said you will infer : 1° If you command, counsel, etc., theft to one already disposed to steal, whether of himself or from another's command or counsel, so that he is moved to steal no more by you, but would steal independently of it : you sin indeed in affect against justice, but you are not held to restore because you do not influence efficaciously into the damage.

2° If one prepared to steal ten, you counsel him to steal twenty, then you are held to ten only and not to twenty; because efficaciously you influence to ten only : unless perhaps by your counsel you have made him firmer toward the whole theft.

[Even if the thief had been made firmer by counsel toward the whole theft, the counselor would not be held to repairing the whole unless it were established that he efficaciously concurred to the whole, namely that the thief would have changed his will if he had not been impelled to carry it out. Therefore, in the case proposed, the counselor is held to ten only, because he is the certain efficacious cause of only half of the damage.]

3° If to one prepared to steal today you counsel stealing tomorrow, you are bound insofar as this circumstance harms your neighbor, because efficaciously you influence into it alone. But you are bound to nothing if you counseled for the purpose of turning him away from theft, hoping the thief would change his mind or occasion fail, or for some upright purpose.

4° If to one prepared to steal twenty, you persuade him to steal only ten from the same person, with the mind of turning him away from the greater, you do not sin nor are you held to restore anything; because you rightly persuade, and usefully manage the owner's affair. For the sense of this counsel is not absolute : « Do this lesser evil, » but conditional : « If you have decreed to commit this kind of evil, do rather that wherein there is less than what is greater. » But if you persuade this with a perverse mind, for example because he will steal ten rather than twenty more easily or more safely, you sin and are bound to restore insofar as this circumstance harms your neighbor.

I said, « from the same ; » because if to Peter prepared to steal twenty you persuade John to steal ten, you sin and are held to restore ten to John; because you thereby efficaciously cause damage to him, so that without you he would not be damaged; nor do you have a right of keeping Peter whole at John's loss, whence John is reasonably unwilling. Say the same, if to someone prepared indeterminately to steal from anyone, you persuade stealing determinately from such a one; because equally you are the cause of the damage of him whom you designate. Otherwise, if you persuaded only in general that he steal rather from a rich man than from a poor man, designating no one in particular nor indicating any; because then you injure no one, but only persuade a lesser evil, to turn him away from the greater.

§ II

The individual modes are expounded.

COMMANDING

I. One commanding is said to be he who by his express or tacit mandate moves another to inflict damage upon someone in the name of the commander himself. He is held not only for the damage which he expressly commanded, but also for that which, the circumstances being weighed, could humanly have been foreseen as about to follow from his command : as if he command a servant to mutilate Peter, but the servant in mutilating kill him.

II. Where the commander revoked the mandate tacitly or expressly, and that revocation came to the knowledge of the agent, regularly the commander is not bound to restore qua commander, even though the effect follow; for through the revocation made known, the mandate expires, and thus he can no longer be reckoned the cause of the damage, nor does the agent then act in the name and by the will of the commander, but in his own name and by his own motion.

I said that he is not bound to restore « as commander, » because he can, even after revocation of the mandate, be bound under other titles : 1° As counseling, if by commanding he imbued the agent's mind with perverse arts and counsels, whose force and impression he did not sufficiently wear away. 2° As not hindering, if, notwithstanding the revocation of the mandate, he does not impede, insofar as he can, the agent obstinate in perpetrating the crime, because he is the cause why his neighbor is in such danger, which therefore he is bound by justice to avert if he can. At least this is probable.

[If it be established to the commander that the revocation of his mandate was not heard or understood by the agent, v. g., on account of deafness, or because letters were intercepted, he is bound to reparation of the damage; for in fact he efficaciously flowed into the damaging action. The sin indeed was retracted, but the freely posited cause was not removed.]

III. When the commander cannot revoke the mandate efficaciously, he is bound to warn the one about to be damaged that he provide for himself³⁹³ , even at equal loss to himself, if there be hope of impeding this evil, yet not at a loss to himself far greater and of higher order. ³⁹³ S. Lig., lib. IV, n. 559, 2ª sent.

[IV. The commander is bound to repair the damages which accrue to the agent from execution of the command, if he impelled him through fraud, force or grave fear, and foresaw the ensuing damages at least confusedly. The reason, because he is the positive, morally efficacious and unjust cause of the damage. Otherwise, probably, if the agent wished spontaneously, or hired for pay, to take upon himself the whole burden and consequences of his action.

V. If the agent damage another through avoidable error, v. g., if commanded to kill Peter, he kill Paul, or if damage befall someone because the agent spontaneously exceeded the limits of the command, the commander is bound to nothing : because he is not the positive and morally efficacious cause of an effect which he could not foresee.

VI. A superior who ratifies the simple proposal of inflicting damage upon someone is held to restitution; for by his approbation, converting the proposal into firm will, he becomes in a manner a commander relative to the inferior, and has flowed positively, efficaciously and unjustly into the damage.]

COUNSELING

[I. One counseling is said to be he who by counsel, prayers, promises, suggestion of a motive, or showing a way of doing harm, induces another to inflict damage upon a third person. He differs from the commander; because the executor of the command acts in the name and for the advantage of the commander, but the executor of the counsel in his own name, although at the impulse of another's counsel.]

II. Counseling is taken in a twofold way : 1° For him who pronounces judgment upon the goodness or malice of an action, as he who says a contract is licit when it is illicit. 2° For him who, the injustice of the action supposed and known, urges it, either by proposing the utility, pleasure, honors which will come from it, or exciting to it by prayers, blandishments, promises, or finally furnishing the means and ways by which it can be done efficaciously and safely.

[Counsel is otherwise distinguished. 1° It is doctrinal, when the counselor pronounces judgment upon the justice or injustice of someone's act; or impulsive, if he move the executor to the act. 2° It is naked, when the counselor merely opens his opinion concerning the justice or injustice of the act, or simply pushes toward it, adding no reason and no motive; but clothed, if reasons and motives are brought forward by the counselor whereby the counsel, whether doctrinal or impulsive, is confirmed.

This distinction is reduced to the superior one. Counsel of the first kind above expounded is doctrinal, and can be either naked or clothed. Counsel of the second kind is at once impulsive and clothed.

III. In general it must be said, as above, that he is held to reparation who by the counsel he gave was made the positive, efficacious and formally unjust cause of damage inflicted upon someone. This evident principle is confirmed by the condemnation of the following proposition by Innocent XI : « He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that inflicted damage. » Whence]

Counselors of the first mode, to whom it belongs by reason of office or profession to give counsel, such as parish priests, confessors, preachers, theologians, advocates, physicians, etc.; likewise those who conduct themselves as competent counselors and profess themselves experts in such matters, are held, from theological fault and according to the measure of the fault, to restitution of the damage which follows from their false counsel, both to him who asks the counsel and to him against whom it is asked. Because, since they are bound and reputed to have the requisite expertise, they deceive others who follow their counsel in good faith, and thus through fault and deception are the cause of the damage. By opposite reason, counselors who do not profess expertise by reason of office, nor conduct themselves as experts, are not held for the damage to him who asks counsel; for there is no injury to the knowing and willing. They are nevertheless held to him against whom the counsel is asked, because the latter is neither knowing nor willing.

[It is here to be observed that the counselor is not held toward him who suffered the loss unless the counsel was unjust, efficacious and formally unjust or culpable. Furthermore, in this latter case, namely if the counselor, neither expert nor presenting himself as expert, being asked, opens his opinion simply and without the mind of harming, his counsel lacks none of the three conditions required for the obligation of repairing damage to exist. Therefore. Otherwise, however, it must be said if, conscious of his inexpertise, he volunteers counsel from whose execution he foresees, at least confusedly, that damage may befall a third person. So commonly³⁹⁴ .] ³⁹⁴ S. Lig., lib. IV, n. 564.

But it must be observed, with Silvius, Lessius and others, that no one is held to any restitution whatsoever with respect to anyone who indicates while giving counsel that he doubts, or who simply opens his mind, saying that it seems so to him, yet not persuading the other to follow; because, since he determines nothing with certainty, affirms nothing, persuades nothing, if nevertheless he acts who asked counsel, caring not to have greater certainty, and thence damage follow to himself or another, it must be attributed to his own will alone and rashness.

Say the same of him who answers according to the more probable opinion; for then he does not sin, even if perchance he is deceived.

[The same must also be said of him who, when some obligation toward a third party is in question, answers according to an opinion truly and solidly probable, even if the opposite seem somewhat more probable. This conclusion is drawn from the principle laid down by us in dissertation VII on Human Acts, on Probability.]

IV. Counselors of the second mode, namely those who urge the crime either by prayers, blandishments, praises, etc., or by proposing the advantages resulting from it, or by indicating the ways by which it can be done more safely and efficaciously, are held to nothing with respect to him who asks counsel, because there is no injury to the knowing and willing; but they are held with respect to him against whom the counsel is asked, if damage ensue to him from it, which is beyond doubt from what was said above. But to what he is bound, if to one already prepared for the substance of the crime he counsel only place, time, increase, decrease, and similar accidents, I also said in the cited place.

[That is, he is bound insofar as the quantity of the damage was increased by the counsel : whence to nothing, if nevertheless the whole damage would have been inflicted.]

V. There remains, therefore, the difficulty whether, the counsel having been timely recalled before the damage is inflicted, the counselor remains absolved from the burden of restoring, if nevertheless the damage be done. The question is commonly resolved with a distinction, according to the diverse mode of counseling.

A counselor of the first mode, the counsel timely recalled, is ordinarily not bound to restitution, as if you had said and urged that a contract is licit which is illicit, if before the deed you declare that you were deceived, you are not bound; because then the whole reason of acting ceases.

Among counselors of the second mode also a distinction must be made. He who urged the crime leaning on prayers alone, promises, or a false supposition, the counsel timely recalled, does not seem held for the damage; because then the reason of acting arising from counsel ceases too. But he who counsels crime by proposing its utility, pleasure, honor, etc., or by indicating means and ways by which it may be done more securely and efficaciously, is not regularly absolved from the burden of restoring by the simple recall of such counsel; for notwithstanding this recall, there remains regularly the whole force of the counsel, that is, the weight of the reasons and the impression made by them in the other's mind. For however much you say to him : « Do not do it, I repent having indicated or urged it to you, » you do not prevent the crime from appearing useful, pleasurable, etc., to him, nor from knowing the ways and means of perpetrating it which you furnished to him.

Wherefore, if moved by these he execute the crime, he is his cause, and liable to restitution.

VI. What then shall the counselor do, that he be freed from the obligation of restoring? He ought, as far as lies in him, destroy by more efficacious reasons and motives the reasons and motives of the prior counsel. If he cannot do that, he ought to warn him against whom he gives counsel, if he can without far greater loss to himself, that he watch over himself and his affairs, as was said concerning the commander. Finally, if, notwithstanding this, damage be done from the given counsel, the counselor, however repentant, nay even justified, remains liable to restitution, because he remains the true cause of the damage; and if he be dead and perhaps blessed in heaven, this obligation passes to his heirs. And hence you will conclude a fortiori that he is not exempted from the burden of restoring who urges the wrongdoer to restore, and he does not restore.

[Thus a distinction must be made, to solve this doubt. 1° If the counselor gave simple or naked counsel, and recalled it, especially if he showed its falsity, he is excused from restitution; because he is no longer the efficacious cause of damage proceeding from the malice of the executor. So commonly.

2° But if the counsel was clothed, that is, leaning on urgent motives, it is contested. Several hold the counselor not exempted from the obligation of reparation even if he recall the counsel; for, they say, the motives proposed continue always to move. Many indeed excuse from compensation, provided other motives of equal efficacy be opposed; because the previously posited cause is elided, and the author of the damage acts from his own malice, especially if the counselor tried to stir his conscience. St. Liguori calls this opinion, which seems probable to the theologians embracing it, very probable, and indeed most probable, sufficiently probable, although he holds the opposite more probable³⁹⁵ . We judge, however, that it can be held as absolutely probable and indeed more probable, if truly the counselor tried in the best way he could to avert the damage. ³⁹⁵ Lib. IV, n. 559.

It is objected by patrons of the prior opinion : He who cast fire into a house to burn it, and afterward grieving vainly tried to extinguish it, is certainly held to compensation of the damage. Therefore, by parity.

I answer. I deny the parity. In the case of fire, fire is the material and physical cause, which acts necessarily, and not of itself. Therefore the effect must be attributed to the first and voluntary cause, from whose action it truly proceeds. In the case of counsel, however, both causes are moral and free, and if the first ceased to act in the second and even to withdraw it from the effect, the latter acts of itself, and the damaging action is to be attributed to it alone. Therefore.

Except however the case where the counselor supplied to the actor a means of inflicting damage which the latter would not have found, v. g., a wholly hidden way of entering the house; because the cooperation was truly efficacious, especially if it had been foreseen that the thief's will would not change. Then one must reason as concerning fire cast into a house.

But if the counselor cannot turn the executor away from inflicting the damage, he is bound by justice to admonish the owner, that he may provide for himself³⁹⁶ , as was said above.] ³⁹⁶ Id., ibid.

CONSENTING

[I. One consenting is here understood to be he who by unjust suffrage, vote or sentence is the cause of damage inflicted on another. Hither come all who by common counsel decree or do something; likewise counselors, deputies, senators, judges, etc., who concur to enacting or promulgating laws, to issuing sentences, to distributing offices, etc.

II. The suffrage of the consenter is either consultative or decretory, as it is given by way of counsel only, or by way of sentence by virtue of which execution must be done. There can be added a purely approbative suffrage.

One consenting by consultative vote is bound to reparation as the counselor, that is, insofar as he certainly and efficaciously induced the superior or another to inflict unjust damage. He can discern, moreover, from circumstances whether the superior was moved by his vote wholly or in part.

One consenting by decretory vote is bound to reparation as the commander, that is, whenever and insofar as knowingly and freely he gave efficacious consent to the unjust damage of his neighbor. The reason is that he concurs positively and efficaciously to the validity of the decree by virtue of which the damage was inflicted. Whence he is bound, like the rest, pro rata and in solidum³⁹⁷ . ³⁹⁷ Cfr. Marc. Instit. moral. Alphons., n. 983 et 984.

One consenting by purely approbative suffrage, since the resolution is already definitive, is not the positive nor efficacious cause of the damage, and therefore is bound to nothing by justice. Of him below.

III. Distinguish with Cajetan, in Summula, vo. Restitutione, § 8, between consent which is cause, and consent which is only consent, and not cause. V. g., an unjust war is in question; the counselors, or those to whom it belongs, are convened, they consent : their consent is not only consent but also cause of the unjust war, because the business hung upon their consent, and that they are held to restitution is beyond doubt. Say the same of senators voting for an unjust sentence, of voters casting votes in election of an unworthy man to prelacy or benefice. Many others hear that the unjust war has been decreed, the unjust sentence passed, the unworthy man promoted, they approve, consent, say : « Let it be done, so be it. » Their consent is only consent, and not cause of the unjust war, the iniquitous sentence, the promotion of the unworthy, since the will of the unjust voters does not hang upon them, is not changed by them, etc., and although they gravely sin by consenting to iniquity, they are nevertheless not bound to restitution of damages. So, with some things added, Card. Lugo praises it.

[In the former case the consenter is the positive, efficacious and formally unjust cause of the damage; in the latter he is cause under no title.

IV. Since now the number of suffrages sufficient for decreeing the damaging action is completed, is he bound to reparation pro rata and in solidum who adds his suffrage?

It must be said : 1° It is certain that all consenting are equally bound to reparation, if they gave their suffrages by agreement; because, a conspiracy entered, they acted as one agent, and theirs is one moral action.

2° It is also certain that all contract the obligation of repairing, if they gave their suffrages at the same time; because, since none was then prior or posterior, the sentence or decree is attributed to all by right.

3° It is certain likewise that those are not to be excused from reparation who cast their suffrage first, before the required number was completed, even if they were certain others would act similarly; because they flowed positively and efficaciously into the damage. So commonly.

4° Is the same to be decreed concerning those who voted, conspiracy and simultaneous emission of suffrages set aside, when the required number of votes had already been completed? It is contested. Several weighty theologians deny, because suffrages of this kind were in no way the cause of the damage, which had been sufficiently prepared and determined by others. Others affirm, because he who thus emitted his suffrage willed to concur positively in inflicting the damage, and indeed concurred efficaciously, seeing that the sentence or resolution was not definitive except, as is supposed, after all the suf frages had been collected; whence all acted as one agent, and the damage must be attributed to all in solidum³⁹⁸ . This latter opinion seems to us more probable and truer. ³⁹⁸ Cfr. Gury, n. 682.

But if anyone doubt whether his suffrage was among the prior ones and necessary to the damage, besides the reason brought forward to establish the obligation of reparation, another must be added, namely that he at least impaired the right which the damaged party had to exact reparation from another voter, namely by rendering the matter uncertain³⁹⁹ . Whence, like the rest, he is bound pro rata and in solidum. ³⁹⁹ S. Lig., lib. IV, n. 366.

Some exempt voters thus from the obligation of repairing damage when the sanction of king or president is required for the validity of the sentence or law, as happens in constitutional governments; because, so long as this sanction is lacking, nothing is definitive, and the harmful decision must be ascribed to the executive power. But that reason is not peremptory; for the sentence or law pertains conjointly to the voters and to the sanctioner, who act as one agent and are together the positive, efficacious and formally unjust cause of the damage. Whence, as all concurred to the damage, all are bound to concur to reparation.

V. But is he bound to repair the damage who does not cast his vote, when he could?

A distinction must be made. Either the vote was to be given from mere benevolence, but not from office, and concerning another's thing not owed, as concerning conferring some favor, and the omission generates no obligation of repairing damage, because no injustice was inflicted. Or the vote was to be given from office, and the omission was the efficacious cause of the damage, and this damage must be compensated.

VI. It can happen that a gravely harmful vote be cast in good faith and concur efficaciously to damage. V. g., the question of proclaiming a war just from elsewhere is agitated; the minister of arms falsely affirms that everything is ready and victory is most probably to be hoped for. War is proclaimed, everything goes to ruin and citizens suffer gravest detriments. If the affirmative vote can no longer be opportunely recalled, he who gave it is not bound to repair the damage pro rata sua ; because, if he was the positive and efficacious cause of the damage, he was not its formally unjust cause, that is, culpable theologically.]

FLATTERER

The flatterer or adulator is said to be he who by praises, flatteries, or even reproaches moves someone to inflict damage, exaggerating or reproaching an injury inflicted upon another, declaring it not to be borne by a noble man, extolling vengeance, mocking patience, vituperating poverty, preaching the utility of theft. Those therefore who by these and similar modes move morally to unjust damaging sin gravely and are held to restitution. Nor is it necessary that they intend damage directly; it suffices that they intend it indirectly, inasmuch as they foresee or can foresee it about to follow from their flattery. This mode of cooperating differs little from the counselor. For what else is it to reproach another with his cowardice, or praise vengeance, than to counsel it to him ? What therefore I said at greater length concerning the counselor, hold here for what is said.

[He is not bound, however, to reparation of damage who approves or ratifies a crime already perpetrated, unless his approval be the cause why reparation is not made, or new damages be inflicted which he could have foreseen at least confusedly.]

RECEIVER

Receiver, that is, one granting recourse, or harborer, vulgarly receleur, is called whoever offers security, convenience, protection, custody to the wrongdoer, whence it comes that he either inflicts damage, or does not restore damage inflicted. And that this one too is held to restitution is manifest, since he is the cause of unjust acquisition or detention. Whence the common adage : « S'il n'y avait point de recéleur, il n'y aurait point de voleur »^{400 400} Si nullus esset receptor, fur nullus esset.

[Likewise held to restitution are merchants, and especially innkeepers, who receive thefts from sons of families, servants, hired workmen, and either conceal them in favor of such persons, or retain them for themselves as the price of goods and drinking bouts handed over by them.

He is not bound, however, who, after the theft is accomplished, aids the thief to flee, or receives him safely with his theft from friendship or from duty of office, as an innkeeper; provided he not thus flow into new thefts, offering thieves indiscriminately hope of refuge for the future. Nor likewise he who receives the thief from fear of grave damage⁴⁰¹ , for at his own grave loss he is not bound to avert another's damage.] ⁴⁰¹ S. Lig., Lib. IV, n. 568.

PARTAKER

[I. He who formally cooperates with another in a damaging action, concurring to the execution of his evil will, is always held to restitution. The reason is that the action of such a cooperator is positive, efficaciously and formally unjust, and therefore vested with all the conditions imposing restitution.

He who concurs only materially with another to inflicting damage can be excused from sin and from restitution, if namely he act from necessity or from a just and proportionate cause, without the mind of harming. The reason is that under such conditions cooperation is neither illicit nor unjust. 1° It is not illicit, although it be an aid to the damager, because for a just cause one can cooperate materially in another's sin; for, as was already said with the Angelic Doctor, when of one act there are two equally immediate effects, one good, the other evil, a just reason standing, the good effect can be intended and the evil permitted. 2° It is not unjust, although it inflict loss upon the owner of the thing; because, in a conflict

⁴⁰² of rights, the lesser must yield to the greater, as is plain from what was said concerning him who is in extreme necessity. Moreover, since each one has a right to preserve his own goods, no one can be forbidden that action which per se is necessary for averting his own damage, although indirectly and per accidens damage befall another from it.] ⁴⁰² Here q. 64, a. 7, c.

II. A partaker is twofold, in plunder and in crime. A partaker in plunder only is he who, after the damage is inflicted, receives part of the plunder or theft; and this one, if while receiving his part he did not know it was stolen, is held to restore only that part if it exists; or, if it no longer exists, only that by which he was made richer, because he is bound only by reason of a thing received. If he knew it was stolen, he is bound, if it exists, to give it back ; if it does not exist, an equivalent, even if he was not made richer thereby : because he is bound by reason of unjust acquisition. Whence he who in good faith drinks wine, not knowing it is stolen, is held only insofar as he spared his own wine or beer ; if knowingly, to its value, even if he spared nothing of his own wine or beer.

A partaker in crime is not only he who immediately per se exercises with another a damaging action, as if two together kill a man, despoil a house, etc.; for these are rather to be called co-executors than cooperators : but also those who offer help or instruments for inflicting damage, as they who lend ladders to the thief, apply them, hold them, support the climber, accompany him that they may hearten him, make false keys, keep watch, supply poison or arms to the thief against an enemy, carry off plunder already made farther away, etc. That these, while they do these things spontaneously and without urgent necessity, are held to restitution of the whole damage in solidum is established, even if without their aid the damage would have been inflicted, because in fact they efficaciously flow into the whole.

III. But the question is very entangled and torments theologians not a little : whether those who do these things through fear of death or of some other grave evil, as happens, v. g., among captives rowing for the Turks against Christians, among peasants carrying away the stolen plunder of soldiers, etc., sin and are bound to restitution ?

I say 1°: To execute through fear of death an immediate damaging action, such as throwing down walls, boring through a wall, seizing moneys and other movables, casting them out the window, driving cattle from stables, casting fire into a heap, etc., is illicit and begets the obligation of restoring; because such actions are intrinsically evil. For what else is this than stealing ? But what is intrinsically evil cannot be adorned by any good end, and evils must not be done that goods may come.

[This conclusion is indeed true and certain in itself. Nevertheless three cases are commonly admitted in which, on account of grave fear, immediate cooperation in inflicting damage on one's neighbor is licit, because then the owner is not reckoned reasonably unwilling : 1° if the cooperator can and will repair the damage; 2° if, the cooperation failing, the damage would nevertheless certainly and equally have been inflicted by the principal agent ; 3° if the damage be light with respect to the owner; for then he ought to bear it with equanimity out of charity ⁴⁰³ . Except however damage to life, because it is never licit directly to kill an innocent man, and damage to limbs, or mutilation, to which it is not licit to concur except to forestall the mutilated person's death.] ⁴⁰³ Gury, n. 687.

But whether it be licit to cooperate immediately, out of gravest fear, in inflicting grave damage upon goods of fortune, if the cooperator cannot or will not repair it? Many deny, because the cooperation is intrinsically evil, and the owner is bound neither by justice nor by charity to preserve another's life at so great a burden to himself. St. Liguori, considering the matter with respect to the owner and the thief ⁴⁰⁴ , distinguishes under the former. Either the cooperator fears only damage of his own of the same kind : he would act unjustly by cooperating to keep himself whole, unless he did so with the mind of compensating ; because the owner is not bound to impede a like loss of another at the sacrifice of his own means. Or damage of a higher order is feared, for example death, or mutilation, or grave injury, and the cooperation becomes licit; for otherwise the owner would be unreasonably unwilling. As to cooperation in the damager's sin, since it is merely material, it becomes licit from a just cause.] ⁴⁰⁴ Lib. IV, n. 571.

I say 2°: It seems to us more probable that actions which are not immediately per se damaging, but which precede or follow upon the damaging, such as lending ladders, keys, etc., opening the door, supporting the climber, rowing for the Turks against Christians, constructing embankments, carrying off farther the plunder already made, etc., if done through fear of death or of another evil far graver than the damage to be inflicted, are not illicit nor liable to restitution; because those actions are indifferent in themselves, and are done for a good end, namely for saving life. But it is not illicit to posit an action indifferent in itself for a good end, although evil follow from another's malice, especially when the good effect is of greater moment than the damage which follows from it per accidens.

If you say with the adversaries that these actions, although indifferent in themselves, nevertheless as done here and now are not indifferent, but truly concur to damage, I answer that they do not concur to damage as they come from the agent, but from the perverse use and evil will of the thief abusing them.

It is confirmed, the conclusion from an inconvenience. If the aforementioned actions were to be condemned, I do not see how nearly infinite actions which everywhere are admitted as licit could be excused. Thus he will sin and be liable to restitution who, driven by fear of death, returns a deposit of a sword to one demanding it for the slaughter of an enemy, or deposits money to one about to abuse it for usury, drunkenness, whoring, etc. Similarly the innkeeper will sin who supplies drink through fear of death to those about to make themselves drunk. Likewise the girl will sin who from an honest or even useful and necessary cause presents herself to the sight of a youth whom she knows will thence sin. Likewise guilty will be he who from hearing confessions, or from another honest action which he performs, foresees pollution ensuing, and six hundred other things, which no less than the aforementioned actions, as done here and now, concur to the evil effect. Nay more, actions which influence remotely will also be illicit. Thus he will sin and be liable to restitution who sells arms or poisons indiscriminately, knowing that some use them for others' ruin; similarly he who sells bird-limes, dice, playing cards, which he knows many abuse, and thus running through almost innumerable actions which occur continually : for these also are actions which influence in their own way into the evil effect, and although less proximately than the preceding ones, they nevertheless influence.

IV. You will ask whether, when several concur immediately to damage, v. g., despoil a vineyard, house, treasury, etc., they are bound to restitution of the whole in solidum.

I answer, with a distinction. 1° If they concur by mutual consent and counsel exciting one another, all are bound in solidum ; because then each is the cause not only of the partial damage which he does per se, but also of the damage which another does, and thus all as one cause flow into the whole damage. So more probably Soto, Bannez, Cajetan and others, whom Silvius cites and follows, against Paludanus, Sylvester, Navarro, etc.

2° If several concur to damage, not by common consent mutually exciting one another, but per accidens, each is bound only to his own part. As if, several laying waste a vineyard or despoiling a treasury, you arriving take your part, you are bound only to your part, and not to the parts of the others ; because you do not flow into theirs.

V. But there is a further question : whether by stealing a light part you sin mortally and are bound under mortal sin to restore this light part, if you know grave damage is being inflicted elsewhere by others or has been inflicted; nay, even if you know it not then, or learn afterward, are you likewise bound to restore your light part under mortal sin? V. g., traveling you enter a vineyard, see it already largely despoiled, or know it is soon to be despoiled, meanwhile gather one cluster and another : do you sin mortally and are you bound under mortal sin to restore these few clusters? Likewise you steal one cluster and another from an intact vineyard, not knowing what is thereafter to happen, afterward learn it was totally despoiled by thieves : are you again bound under mortal sin to restore your few clusters?

I answer, negative with Soto, Malderus, the Salmanticenses, Lessius and others; because no one sins mortally unless he has inflicted grave damage, or been the cause of grave damage inflicted by others. Yet in both proposed cases you inflicted no grave damage, nor were you the cause of grave damage inflicted by others. Therefore.

SILENT, NOT HINDERING, NOT DISCLOSING

I. These three concur to damage negatively only, inasmuch as they do not impede it when they can and ought to impede it; whence it comes that the damage is imputed to them.

The silent one is he who holds his peace when he could and ought to speak, forbidding the thief, dissuading him, reproaching him, crying out, etc., lest he do damage, or that damage inflicted be repaired.

The non-hindering one is he who, when he could and ought to impede the damage by bodily aid, or procure its restitution, omits to do so.

The non-disclosing one is he who, when he could and ought, does not denounce, does not uncover the wrongdoer, whether before the deed, that he may be impeded, or after, that reparation be made.

Therefore the silent one omits verbal effort toward the damager ; the non-hindering one, bodily effort toward the same; the non-disclosing one, verbal effort toward the magistrates or owners damaged or about to be damaged.

II. That these three, while they do not impede damage, be held to its restitution, three things are required : first, that they have culpably omitted to impede it; second, that they could have impeded it without grave loss to themselves; third, that they be bound to impede it from justice ⁴⁰⁵ . ⁴⁰⁵ Here q. 62, a. 7, c et ad 3.

III. Those indeed are bound to impede from justice who are bound from contract or quasi-contract, that is, from office : for he who takes up an office implicitly obliges himself to render the things which belong to that office.

Hence you will infer that guards of cities, fields, vineyards, forests, rivers, tolls, customs dues, are held to restitution of the dues or of damage inflicted in fields, forests, etc., while they do not impede thieves, plunderers, defrauders, etc.

As to payment of the fine which the damagers would pay if denounced or caught, it is probable the guards are not bound to it while they do not denounce or apprehend the damagers; because guards are not bound from justice to accuse for this end, that the state or owner grow rich from fines, but that the thief pay the dues and damages be impeded. Therefore. — Proof of the antecedent. Their office is not, nor are they constituted for this, that they procure fines, but that they receive the dues and that the things committed to them be kept whole. Therefore.

It is confirmed. Fines are not imposed that the state or owner grow rich from them, but that laws be kept and subjects held to duty. For pecuniary fines are imposed for no other reason than corporal ones, for example imprisonment, exile, the galleys. In these, however, only the reason of the law to be kept is attended to. Therefore also in those. Therefore guards are not constituted that the state or owner derive advantage from fines. If however through their silence or negligence the defrauding of dues or the damaging of things committed to them is increased, they are bound to some restitution, according to the judgment of a prudent man.

You will ask whether a witness who, legitimately interrogated by a judge, holds his peace and refuses to bear testimony, is held for the damage which follows from his silence.

I answer, more probably negative, with Bannez, Silvius, Lessius, etc.; because the command of a judge or superior does not impose an obligation of commutative justice, but only of legal obedience. Whence the witness by holding his peace does not sin against commutative justice, but only against legal obedience. Nor does it stand in the way that judge or superior intends to impose on him the office of testifying, because such a one does not accept it.

But the obligation of commutative justice, especially in our free acts, arises rather from the acceptance of the obligated party than from imposition by a superior, inasmuch as by accepting he promises and binds himself; otherwise, if he does not accept.

The same, for the same reason, seems to be said of him who, a monitory having been promulgated to reveal a crime, does not reveal it. But again of this below, while we treat of the injustice of a witness.

IV. It is asked 1° specially whether a confessor who through ignorance or gravely culpable negligence does not enjoin restitution upon a penitent who is bound thereto makes himself liable to this restitution.

I suppose that, if the penitent asking whether he ought to restore, the confessor answered nothing, he himself would certainly be held to restore, because one silent in these circumstances holds himself not merely negatively toward non-restitution, but is reckoned to concur positively to it, as persuading or consenting; for then the common saying is verified : « He who is silent seems to consent. » The question therefore concerns the confessor who holds himself merely negatively by silence.

I answer. It is more probable that the confessor, qua such, whether he have care of souls from office or not, is not bound in the case proposed to restitution. So of our authors Ledesma, Serra ; among foreigners, Valencia, Sa, Laymann, Sporer, Daelman, etc., against Navarro, Silvius, the author of the Supplement of Tournely, etc.

Proof 1°. The confessor is bound first from office to admonish the penitent concerning the obligation of restoring with respect to spiritual things only, not with respect to temporal things, whether of the penitent himself or of another third party ; for that office is wholly spiritual. Therefore, while he omits to admonish, he violates justice with respect to temporal things not at all, but with respect to spiritual things only. But violation of justice alone induces the obligation of restoring, and consequently the confessor is bound to repair spiritual damages, if they follow from his silence, not temporal ones.

Proof 2°. Given that the confessor, by virtue of administration of the sacrament of Penance, is bound from justice with respect to the temporal good too of the penitent; nevertheless this obligation is not extended to the temporal good of another third party, with whom by virtue of this very administration precisely he entered into no pact nor any convention, even tacit ⁴⁰⁶ . Therefore, omitting to admonish, he will indeed sin against the justice owed his penitent, but not against this third party. — I subsume. But restitution is owed to him toward whom justice is owed and with respect to whom it is violated. Therefore. ⁴⁰⁶ S. Lig., lib. IV, n. 578.

That third party has indeed a right that the penitent restore to him, but he has no strict right that the confessor, qua such, admonish the penitent in this matter, since by virtue of his office he did not bind himself thereto ; as though the confessor by reason of administering the sacrament of Penance were ex officio procurator of the temporal goods of anyone whatever.

[It is asked 2° whether a superior is held to repair damage inflicted by his subjects.

I answer 1°. He is bound in the external forum, unless he prove he could not have forestalled the damage. So by Roman law and commonly by present civil law ⁴⁰⁷ . In Gallican law express mention is made : 1° of the father, and after his decease, of the mother, relative to minor children dwelling with them ; 2° of the master or commander, relative to servants and agents ; 3° of the teacher and craftsman, relative to disciples and apprentices. If no theological fault has been committed by the superior, he is not bound to reparation until after sentence of the judge, if recourse is given him against the damager, who in conscience ought to make him whole if he can. ⁴⁰⁷ Cod. civ., art. 1384.

I answer 2°. In the internal forum he is not bound for the damage of the superior unless he commit theological fault against justice with respect to the injured person, that is, unless his silence or tolerance was morally equivalent to positive impulse.

The reason is that the superior, although he ought rightly govern his subjects, is not bound from justice to watch over the temporal goods of others ⁴⁰⁸ .] ⁴⁰⁸ Goiset, n. 963 et 964 ; Gury, n. 692.

[It is asked 3° whether servants are held to restitution for not impeding damages inflicted upon their masters.

I answer 1° affirmative, if the matter concerns goods specially committed to them; for they are bound by contract.

I answer 2° probably affirmative, when the damage is inflicted by strangers, even upon goods not specially committed to them ⁴⁰⁹ . This seems to arise from quasi-contract; for masters reasonably hold their servants as set against such plundering of their goods. Several also say servants are then bound in solidum if several were similarly negligent herein ⁴¹⁰ . ⁴⁰⁹ S. Lig., lib. IV, n. 344. ⁴¹⁰ Id., ibid.

I answer 3° negative, more probably, against certain ones, if the damages be inflicted by fellow-servants ; because servants are not hired that they watch over one another.]

§ III. — In what order are cooperators in damage bound to restore ?

I. I suppose 1° that he who still has the thing existing with himself is bound before all to restore it : because he is bound by reason of the thing received, and this obligation is the greatest of all; for so long as the thing exists it cries out to its owner, as is commonly said, and is owed to him. But if in good faith he consumed it, he is bound insofar as he was made richer, because that succeeds in place of the thing ; if in bad faith, he is bound to the whole equivalent, otherwise he would reap profit from his new iniquity. Whence rule of law 36 in 6° : « He is had as possessor who ceased to possess through guile. » Moreover, since knowingly and willingly he received advantage from that thing beyond the rest, it is equitable that beyond the rest also he undergo the burden of restoring.

Therefore, while he restores, the other cooperators are not bound to restore; not to the owner, because he has what is his own; not to him who restored, because he has no less than he ought to have. Except however first, if the commander concede to the executor the thing taken away or part of it as wages; second, if the master order the stolen thing, for example a sheep, to be consumed by his servants. For in these and similar cases the commander and master seem to take upon themselves before others the burden of restoring.

I suppose 2° that, when several concur equally to damage, they are bound equally to restitution, each for his own part : as, if ten by common counsel burn down a house worth a thousand gold pieces, each is bound to render one hundred; if two counsel theft of a hundred gold pieces, each is bound to refund fifty; because the obligation of restoring arises from influx into the damage. Therefore, where the influx is equal, the obligation is equal. From which it also follows that, if among those concurring in the same mode, v. g., among several counselors, one flow more than another, he is bound also to restore more. But if the others fail, each is bound in solidum ; because each flows into the whole damage, if not by totality of cause, at least by totality of effect.

[And because they acted as one agent.]

But while one restores, the others owe to refund to him each his own part ⁴¹¹ : because the owner who received integral restitution from him is reckoned to have transferred to him the whole right he previously had; and otherwise his diligence would put him in a worse condition, since the fault and slowness of the others would plead their cause. Add that the non-restorers are the cause why he must restore the whole, when otherwise it would have sufficed to restore part, and therefore they are the cause of his damage. ⁴¹¹ Here q. 62, a. 6, ad 3.

II. There remains therefore the question of those who concur in diverse modes : v. g., commander, executor and counselor concur to the same damaging; it is asked whether among them there be some order, such that certain ones are bound first to restore the whole, and these failing, others.

I say : Primarily and principally the commander is bound; secondarily the executor, and consequently the others by orders, so that, the commander restoring, the rest are free from restitution; but the executor restoring, the commander is bound to restore to him, while the subsequent others remain free ⁴¹² . ⁴¹² Ibid., a. 7, ad 2.

Of the commander it is plain; because he is the principal cause by whose authority, name and grace the deed is done, wherefore all are subordinated to him and serve as instruments. Whence by the common sense of all he is reckoned to take primarily upon himself the burden of restitution of the whole. Indeed it would be iniquitous, nay ridiculous, that he who ordered others to do the crime in his name and for his advantage should exact from others part of the restitution.

To the commander here must be reckoned he who by force, fear, threats compels another to the crime. Likewise he who, whether by fraud or by prayers alone or counsels, induced another to inflict damage for his advantage; for these are equivalent to the commander, and are, just as he, principals in the deed, so that they too are reckoned to take upon themselves the burden of restitution. Indeed he who by these modes would induce a commander to command would be bound before the latter himself, because he would be more principal than he in the damage.

Of the executor acting without a commander it is also plain, because he himself is principal in the deed and damages in his own name. Of the executor truly acting by authority and name of the commander, certain ones doubt, because then he is only a secondary agent, like the other cooperators, and consequently seems bound only for his own part, like the others.

Nevertheless it is more probable that even such a one after the commander is bound to the whole, and while he restores, the other cooperators are bound to nothing; because, although he acts not for himself but for the commander, he is nevertheless after the commander principal among the rest who serve him and are subordinated to him, just as he is to the commander, namely by instructing, encouraging, heartening, arming him, etc., and that for his advantage. Whence it follows that he takes upon himself before the rest the burden of restoring.

Moreover understand this of the executor who conducts the affair in his own or the commander's name; for if he acted in the name of other cooperators, he would be bound neither before nor more than they : as if five enter common counsel for burning a house and one cast fire for all and in their name, they are held equally with him, for he is not more the principal cause than they. Whence, while he restores, the others are bound to restore to him their part.

Among the other cooperators positively, however, no order seems probable, but each is bound to his own part greater or lesser according to the measure of influx; yet so that, the others failing, each is bound to the whole, and they who restore the whole, the rest owe their parts. The reason is that none is the principal cause of another, nor is anyone subordinated to or serving another as his instrument, but each acts per se in his own line. If the flatterer is not the instrument of the counselor, nor the counselor of the flatterer.

[When damage followed from counsel, the counselor or consenter is not held per se before the executor, because the latter is posteriorly the principal cause of the damage. This however is understood, supposing that the counsel, as often happens, is useful to the executor alone. But if it be useful to the counselor alone, the latter is bound first. But if to both, both are bound pro rata. Even if the damage inflicted profited neither materially, the same order must be kept, considering whether the damaging action was posited for the pleasure or vengeance of this one or that one, or of both. One failing, however, the obligation of reparation falls solidly upon the other ⁴¹³ .] ⁴¹³ S. Lig., lib. IV, n. 560.

Nevertheless between cooperators positively on one side and cooperators negatively on the other there is an order, such that cooperators positively are bound to restore first, and while they restore, cooperators negatively remain free : not because these are subordinated to those, as I said of cooperators positively with respect to the commander and executor, but because cooperators positively properly concur to damage, cooperators negatively improperly only, namely insofar as they do not impede, as they are bound from office; and thus accepting office, they are not reckoned by common estimation of men to take upon themselves the burden of restitution except after others. And indeed it would be ridiculous for one concurring positively, when he had restored the whole, to say to one concurring negatively : « Render me part of the restitution, because you did not impede me willing or counseling theft. »