2. On The One Counseling

102. The one counseling damaging is he who by his persuasion morally moves another to inflict damage upon a third person.³⁹ The one counseling agrees with the mandator in this, that each impels another to do damage; but he differs in this, that the one counseling ordinarily is the secondary cause of the damage, while the mandator is the primary cause. For the executor of counsel ordinarily acts in his own name, while the executor of mandate acts in the name of another. From this it follows that the executor of counsel is primarily, but the one counseling only secondarily, bound to reparation of the damage inflicted.

Counsel can be given in diverse ways, but chiefly it is twofold: doctrinal and impulsive. Doctrinal counsel either convinces the reason that the action is licit or, all circumstances having been weighed, is to be done; or it instructs concerning suitable means for completing the action. Such doctrinal counsel, and false counsel at that, would be provided, e.g., by a confessor who persuaded a penitent that the procuring of abortion is licit and to be done. But impulsive counsel rather influences the will by exhortation, prayers, promises, etc. Impulsive counsel is called naked if it does not rest on intellectual motives; but it is called clothed if, together with persuasion, convincing motives or other means of acting also are supplied.

For judging the obligation of restitution arisen from counsel, nothing else is required except the application of the principle brought forward above, namely: counsel then obliges to reparation of the damage following, if it was truly, efficaciously, and formally against commutative justice.

³⁹ If someone by wicked counsel harms only the one himself who seeks counsel, he is not a cooperative damager, but a solitary one. Such counsel is not treated here, since what was already said above, n. 93, must be applied to it.

103. Corollaries. a) The efficacy of counsel. Counsel is not judged efficaciously damaging when it is given to him who is already altogether determined to inflict damage and is not moved by the counsel to perpetrate a greater evil. But if someone unjustly has persuaded not the substance itself of the damaging action, but the mode, time, or other circumstances, one must see whether this counsel efficaciously inflicted some damage.⁴⁰ If so, the obligation of repairing that damage is present; otherwise not. In practice it is often doubtful whether the counsel given truly efficaciously produced the damage perpetrated. This holds especially if plebeian women and others generally, whose insufficiency is known, have given harmful counsel. Therefore the grave obligation of repairing damage which the one taking counsel inflicted upon a third person is present rather rarely. Especially it is very doubtful whether he who by his example alone moves another to unjust damaging is bound to restitution. Valentia, Sanchez, Laymann, the Salmanticenses,⁴¹ and Concina⁴² deny, because a wicked example is indeed the occasion, but not the cause, of damage; Billuart⁴³ and others affirm; but in the particular case one must see whether the example or scandal given truly and efficaciously flowed into the action of another. If so, the obligation of reparation is present; otherwise not. For the most part the influence of a bad example is doubtful, and therefore there is no obligation of reparation. Thus at least, if exhortatory words are not joined to the wicked example.

b) Is it lawful to persuade a lesser evil to him who is already prepared for a greater evil? Leaving aside the question concerning the morality of that counsel in other matters (concerning which see above I, n. 611, on the morality of human acts), in the present place we speak only of counsel of a lesser evil in the matter of commutative justice. But we answer with a distinction:

α) He who persuades a lesser evil to be inflicted upon the same person does not sin, nor is he bound to reparation of damage. Hence Reuben, persuading his brothers not to kill Joseph, but rather to cast him into the cistern, did not sin; he who persuades a robber prepared to kill a man not to kill, but only to take away his money, does not sin. Yet he who gives such counsel with a wicked spirit (for example, because the damager can more easily and securely cause the lesser evil) not only sins, but also is bound to restitution insofar as this circumstance harms the neighbor.

β) He who persuades that damage in goods of fortune be inflicted rather upon rich persons in general than upon a poor man likewise does not sin. In practice this case rarely occurs, because a damager altogether prepared to act is also accustomed to be determined as to the persons to be damaged. Hence he who by his counsel wishes to turn him away from an evil action ought to persuade him of something not general but special; but this is not lawful to persuade.

γ) He who persuades that the damager inflict damage rather upon rich Peter than upon poor Paul and perhaps a friend, sins and is bound to reparation of the damage. Thus the common and true opinion, because such a counselor is truly the unjust efficacious cause of the damage inflicted upon this determinate person. And this person is reasonably unwilling that damage has been inflicted upon him from that counsel.⁴⁴ Certain theologians,⁴⁵ however, even in this case excuse the counselor from sin and from reparation of the damage inflicted, because, they say, counsel of this kind is conformable to charity, and therefore the person damaged is indeed gravely unwilling against the damager, but not against the counselor. Tanquerey rightly says:⁴⁶ "This argument seems weak; for if the counsel had not been given, damage would not have been inflicted upon this determinate person; but this person is not bound to yield his right for avoiding a greater damage of another. Hence in practice the prior opinion seems to us to be followed."

c) On the obligation toward the damager. The one counseling a bad action ordinarily is held to nothing toward the damager, unless nevertheless a) he used deceit, fraud, or lies, and β) by his office he was bound to give right counsel. The reason is that he who executes the counsel received freely and knowingly damages. But no injury is done to one who knows and wills. But if the one executing the counsel was led into error by the lies and frauds of the counselor or by reverence toward the counselor's state and office, he truly suffered injustice and has the right to demand indemnity. This last case can occur especially in the office of advocate and confessor. An advocate or confessor giving false counsel, from which material damage follows either for the one accepting and executing the counsel or for a third person, sins, and if he does not revoke the counsel given according to his powers, he is obligated to reparation of all the damage. For anyone seeking counsel has a strict right of demanding that he who by office ought to give counsels have sufficient knowledge and employ moral diligence. He also who, not by reason of office, but as a merely private person, has given harmful counsel, is bound at least from charity to revoke it; and this holds whether he gave the counsel in good faith or in bad faith. The reason is that everyone is bound at least from charity to prevent damage to the neighbor.

d) On the necessary revocation. He who vigorously revokes counsel given before the damage has been inflicted is not bound to reparation of the damage which, notwithstanding the revocation, the damager is going to inflict. Thus all teach, if the counsel was impulsive, naked, and not clothed. But if the counsel was supported by reasons and indicated means for execution of the work, simple revocation does not suffice, but the counselor is bound with all his strength to prevent the damage of the neighbor; and if he cannot turn the damager away from execution of the unjust action, he is bound to warn the person to be damaged, so that he may guard himself. But if the counselor has done all these things (especially if he gave the bad counsel in good faith), he is now held to nothing further, because he is not the theologically culpable cause of the damage. But if the counselor in bad faith gave the counsel which he now so vigorously revokes, he likewise seems to be free from repairing the damage inflicted, a) because then he truly did everything he could to prevent the damage of the neighbor, and β) because the damager is then judged to act no longer from force of the counsel received, but from his own malice. Certain authors, however, teach the contrary, e.g., Billuart,⁴⁷ Lugo.⁴⁸

⁴⁰ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 3.

⁴¹ Curs. theol. mor. tr. 13, c. 1, n. 114.

⁴² De iust. et iur. lib. 2, diss. 2, c. 9, n. 17.

⁴³ L. c. § 3, n. 5.

⁴⁴ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 1, n. 6.

⁴⁵ Vasquez, Turrianus, Ballerini; Gopfert (Moraltheol. II, 164) calls this opinion sufficiently probable.

⁴⁶ De iust. c. 3, n. 522.

⁴⁷ De iure et iust. diss. 8, a. 13; cf. St. Alphonsus, Theol. mor. l. 3, n. 559.

⁴⁸ De iust. et iur. disp. 19, n. 37.