Case XVII: Restitution on Account of Cooperation in Injustice

Case.—During twenty years of service in a very large firm, Brown appropriated altogether about $10,000, taken at various times and in amounts varying from $1 to $100. Generally he was alone in his dishonesty, but sometimes, especially in the case of larger amounts, he had accomplices among his fellow workmen, with whom he shared the money stolen on the occasion. Moreover, during the past five years he had been a superintendent for the company at a good salary, and he had given employment in his department to a number of men on the express condition that they should pay him a percentage of their wages, foreseeing that most of them would get this money out of the company. And often, to increase his own as well as their earnings, he had instructed and encouraged them to report more time and labor than had actually been given to certain special work. All the money thus obtained by him from the men amounted to about $6,000. How much of this sum the men had unjustly taken from the company in order to pay him, and how much had come from false returns of work, he had no idea, having given no special thought to the matter.

Fifteen years ago the company failed and dissolved, all its holdings being sold to pay its creditors. The assets were not sufficient to pay all the creditors in full. Brown went to a distant growing city and invested his savings in real estate. He was very successful, and is now worth over $100,000. During all these years he neglected the Sacraments. Recently he attended a mission and now desires to make all things right.

Out of the many questions which this case suggests, let us consider the following, which will suffice for its ordinary solution.

1. Were all Brown’s thefts sins?

2. Is the above statement of the case sufficient for the integrity of the confessions? Or must Brown tell approximately the number of times he took an amount constitutive of mortal sin?

3. Does it make any difference whether he was alone or had accomplices in his thefts? Is it necessary to mention this circumstance in confession?

4. As superintendent did he commit any special sin in instructing and influencing those under him to make exaggerated and unjust reports of work done?

5. What about the hiring of men upon the condition named? Because graft is a common practice of industrial life, is it therefore justifiable in conscience? Is it allowable to increase charges for work in order to meet the demands for graft?

6. Is the statement given for this feature sufficient for confession? Or must Brown tell the number of men he led into these dishonest ways, the number of parties injured and the amount in each case?

7. What restitution is he bound to make? Has he any obligations of this kind on account of his accomplices or on account of those whom he wrongly advised and encouraged?

8. Must he pay any interest?

9. To whom shall he make restitution?

1. It would seem that in such a case as Brown’s, who steals whenever the chance offers and whose only care is that he be not caught, each theft is to be considered as a distinct moral act. Therefore, his every theft of a separate sum deemed in this country materia absolute gravis certainly constitutes a distinct mortal sin, unless we suppose that he started out with the intention of stealing $10,000, or that seeing a chance to get away with a very large sum, say $1,000, he saw fit to take it in installments of from $50 to $100. His stealings of lesser amounts were only venial sins. If, however, in the course of any one week, or month, or perhaps two months, while appropriating these lesser amounts, he adverted to the fact that together they amounted to a very considerable sum (a half larger than the materia gravis in a single theft), he was in this also guilty of mortal sin. (See Cath. Encycl. on theft; Tanquerey, 441, 444, edit. 1910.)

2. In itself it is not sufficient. For just as a penitent who has been away from confession for years is obliged to tell the number of times he missed Mass or got drunk or sinned contra sextum, so must Brown tell the number of his mortal sins against justice, as nearly as he can. On those occasions when he took $100 at a seizure, he committed only one mortal sin. At other times he no doubt committed several mortal sins, while getting a like sum. If, however, in the long interval of years, he has forgotten these details, the statement of his case as given would suffice in the confessional.

3. Merely that there are accomplices does not change the nature of the sin of injustice and is not a circumstance which must be mentioned in the confession of the sin, except where a number conspire to steal an amount materialiter gravis, though the amount taken by each is only Jevis. Of course there is more or less scandal.

4. But that Brown advised and encouraged men under him to be dishonest toward their common employer is a sin against charity as well as against justice. To lead men into the habit of theft, as Brown did, is a grave sin against charity, even though we might make the very unlikely supposition that none of these men while under him ever sinned gravely in the matter. He sinned against justice and indeed gravely many times by reason of the serious losses incurred by the firm and others through this multiplied dishonesty and thievery.

5. As to giving men employment on the condition that they give the superintendent or foreman hiring them a portion of their earnings, while there is no justification for such action, and no adequate title to such moneys, since he gets a salary for this very work, unless it could be supposed the firm knew and approved thereof, nevertheless it is difficult to assert there is sin in it. But if such a condition and levy is a proximate cause of leading the men to defraud the firm, in order to make up the amount of levy, or if in hiring the men the superintendent or foreman looks rather to his own profits than to the efficiency of the workmen, and the welfare of the firm, then he is sinning against justice, and mortally if the injury is grave. The same principles can be applied to all forms of graft. Graft is unlawful as often and in so far as it causes injustice. It is not lawful to make anyone pay for work not done, or to add to bills or to falsify returns in order to meet the demands of graft, unless the willingness of the master or employer to meet these gratuitous charges can be most reasonably presumed (see Sabetti No. 544 and No. 535, (60); Tanquerey No. 768). As to Brown’s case, there can be no doubt that he committed grave sins in this respect, for he was knowingly and intentionally more or less the cause of direct injustice to his employers and to their patrons.

6. Again we must say that in itself it is not sufficient for the integrity of the confession. Brown was the cause of the sins of his men as mandans or at least consulens. Therefore he was the cause of grave scandal in the case of each man. Also he was the cause of grave sins against justice which each man committed. Therefore, in confession he is obliged to tell as nearly as he can the number of men so influenced, and the number of times they sinned.

His remembrance of the facts may be extremely vague, but he can certainly be more explicit than is the statement of the case in its exposition. As to telling the number of the parties robbed, valde controvertitur.

7. Plainly restitution must be made of the $10,000. Also, since he is more or less certain that all of the $6,000 or most of it was stolen by the men that they might have wherewith to pay his graft, he is bound to make restitution of all or, according as a conscientious judgment will determine, of most of it. Moreover, since this sum represents only a portion of the damage he caused to be inflicted upon others by the workmen, as mandans or consulens or co-operator, he is obliged to do what he can to repair all the damage thus inflicted; and if they have not made and will not make restitution of their share, he is bound to make good for them in so much and in so far as he was the efficient cause of all the thefts. It is stated he has no idea of the amount of certain losses for which he is responsible. There is, however, a minimum amount of which he can positively assert, “it is that much at least,” and to the full extent of this minimum he is certainly obliged to make restitution.

8. As to interest: Although it is true that res fructificat domino still in the payment of restitution interest cannot be demanded unless it is certain that the injustice had unquestionably caused a loss of this kind. Of course, if there is no doubt at all of the lucrum cessans in a given case, interest must be paid to the full extent of the loss. (Tanquerey 508. “If the owner, being endowed with the greatest diligence, is accustomed to gain twenty percent from business, and through the theft was prevented from gaining it, the thief is bound to pay it; otherwise he does not compensate for the losses unjustly inflicted.’) Ordinarily, however, such is not the case. For there is no telling what might have happened to the principal had it remained with its rightful owner. True, he might have invested it advantageously or put it in a savings bank. But this is not certain, and so in praxi interest cannot always be demanded in restitution. (Tanquerey 510: “In practice, however, it is often difficult to determine whether and when the aforesaid conditions are fulfilled; if the matter remains doubtful, only compensation for the value that the thing had at the time of the theft is to be required.”) As a matter of fact, the affairs of the firm from which Brown stole were so badly managed that the company failed utterly. Indeed, the $10,000 which he is now restoring might have been lost altogether had he not taken it. Accordingly he is certainly not bound to pay interest on it.

It would be different if Brown had stolen a horse and wagon from a poor expressman whose livelihood depended upon them, and who could not replace them, and upon whom as a result debts piled up as never before, and he and his family lived in hardship never experienced before. In such a case not only must restitution of horse and wagon be made, but also restitution on account of damnum emergens.

9. As the firm from which Brown stole the $10,000 no longer exists in any way, and the administrator or receiver has no doubt long ago closed up its accounts, he must make some reasonable effort to find the heirs, creditors and stockholders, and according to his best judgment divide the money between them pro rata—in proportion to each one’s just title to it. If he cannot find all the heirs, creditors and stockholders, he must hand over the shares of the missing ones to charity. The same rule must guide him in making restitution for damage done by him as mandans, consulens or efficient co-operator.