§ 1. Various Unjust Cooperations

Notions. 1. Concerning how formal cooperation differs from material, cf. n. 129.

They are accustomed to enumerate the modes of cooperation in these little verses:

Command, counsel, consent, flatterer, recourse.

Participant, silent one, non-resisting, non-manifesting.

Thus six positive and three negative modes of cooperation are alleged.

I. On One Mandating or Commanding. 1. To him are imputed all damages which have been inflicted by the commanded action; and those also which, by a morally necessary nexus, are joined with the execution of the mandate. For the one mandating is truly the principal author.

2. These are imputed, provided it is established, as is to be presumed, that the executor was moved morally by the mandate to act unjustly.

The unjust things, moreover, which the mandatary has done from his own malice or vincible error are not imputed to the one mandating, as such. Yet if by the mandate a power was conferred without which the damage could not be inflicted, the one mandating can be held by another title of cooperation.

3. The causality of the mandate and therefore its imputation is suppressed by a revocation which becomes known to the mandatary before execution. Yet if the mandatary was instructed or excited by the one mandating, this force of counsel, even when the mandate has been revoked, subsists. But if from a fortuitous event or another's malice the revocation was hidden from the mandatary, the one mandating remains obligated toward the injured person. But he who has maliciously impeded the revocation will have to restore the damage to the one mandating, and easily, with respect to the injured person, contracts the principal guilt of the unjust action.

4. The one mandating is not bound per se to repair the damages which the mandatary himself has suffered, unless he has unjustly compelled him (by force and fear or by deceit) to inflict the damage.

5. Finally, damages alien to the mandate which are going to happen to a third party, the one mandating is not bound to make good, if they could morally have been avoided.

On the Counselor. 1. A counselor, unless he has efficaciously revoked the damaging counsel, must per se repair the damages proceeding from it, both those which have been inflicted on another from efficacious counsel, and those which he who accepted the counsel suffered, if he deceived this one by deceit or blameworthy error. But a persuader of a lesser evil to one who otherwise cannot be turned away from perpetrating a greater seems to many immune from injustice. Cf. what was said n. 128.

Moreover there is distinguished simple or naked counsel, without added motives, and counsel clothed with reasons; doctrinal counsel, by which some knowledge is communicated, and suasive counsel, by which the will is persuaded.

In doctrinal counsel the force of a principal action is easily present, as if an unlearned person, deceived by you, applied a lethal remedy, while suasive counsel contains secondary cooperation.

2. Especially in this matter those are to be blamed who profess special expertise and, without competent knowledge or sufficient investigation, rashly give counsels to those who can prudently trust them. This is especially to be attended to by those who, as confessors, advocates of causes, notaries, and physicians, are accustomed to give counsels by office. But a good counsel which pertains to the execution of a promised function is owed from justice. But he who has given counsel as a friend must nevertheless take care lest his action produce damaging effects. - Excuses in this matter are usually sought either from a deficient deliberation of the agent, or from the levity of the one believing, who has relied on things said in passing. In the latter case neither are damages to be repaired, nor is the counsel to be retracted from justice.

3. Mere persuasion of a depraved action imposes no obligation of justice toward the executor. But he who by his counsel has induced another to inflict damage, and has foreseen this, must repair that damage as its secondary cause. But counsel given to him who was already determined toward evil is not damaging per se. I say per se: for new counsel could have damagingly influenced perseverance in the evil proposal. But he who by depraved counsel truly moved another to act is not therefore excused because, after him, others have given or would have given counsel.

4. Efficacious retraction of the counsel removes that imputation. Here simple or naked counsel must be distinguished, which is retracted by simple revocation; counsel clothed with reasons, which is retracted only by new reasons being adduced; and doctrinal counsel, by which the mode of execution, which otherwise would have lain hidden, has been indicated: that is not retracted unless you have impeded the execution itself or at least have timely warned him who is going to suffer damage so that he can guard himself against it.

1. Notions. Those are here called consenting who, by joined votes, establish and decree something. Those who have constituted an unjust work in this way must repair, at least in part, the damages thence following according to the quality of the work and the efficacy of their cooperation. The work, moreover, can be a law, a judicial sentence, a decree, a counsel, the conferral of an office, or a mandate. Again it can happen that the votes were given by formal compact, so that they had authority over the votes of others; and it can also happen that they were given without mutual relation, by separated wills. Therefore:

2. Rules. a) Those who, from conspiracy, i. e. moved by an express or tacit compact, have given a vote, are the authors of the damage by one morally single action, so that the whole damage is imputed to each; i. e. they are held in solidum, as will be confirmed below, n. 671.

b) Those who, without conspiracy, gave a vote necessary for the damage, as if, for obtaining a law, as many votes as were given were required, likewise bear the imputation of the whole damage, according to the common sentence.

c) If, beyond the required number, votes have been given without conspiracy, writers go off into various opinions.

By several more recent authors all voters for an unjust law, decree, or judgment are condemned to restitution. These seem to us to think rightly. For the evil or damage is effected not by the votes as individual votes, but by the sentence, decree, or law, which is the common work of all who vote. Those consenting, therefore, must be compared with men who, more in number than was necessary, have accomplished one damaging work (suppose the carrying off of a chest).

Conspiracy being set aside, these must divide the damage among themselves by a proportionate part. By a proportionate part, i. e. by a man's share, unless unequal force of cooperation is demonstrated.

And according to that opinion, the mode of voting, whether simultaneous or successive, public or secret, does not change the obligation.

The more common opinion, however, is accustomed to distinguish these things.

It pronounces that those who at the same time, for example by rising, have given their vote are guilty of the damage in solidum. If they have voted successively, it obligates in solidum only those whose vote was necessary. For they gave a cause necessary for the whole damage; but after them the matter was morally completed. Therefore, according to the common sentence, those who afterwards acceded are per se dispensed from restitution: their accession was not damaging, unless the greater number became the cause why, for example, the law was sanctioned by the senate or by the king. But if, because the votes were secret, efficacious votes cannot be distinguished from inefficacious ones, each is condemned for the proportion of the doubt.

It was the opinion of some that, on account of the doubt, each should be excused. Ill. D. Waffelaert, De Iust., t. 2, n. 323, deservedly said that this opinion wanders from common moral sense, so that St. Alphonsus, l. 3, n. 566, called true the opinion which obligates at least to the proportionate part, to be paid for the doubt.

If another consideration is lacking, that proportionate part will be a man's share. Afterwards St. Alphonsus, Homo Apost., tr. 10, n. 50, obligates each one according to his proportion to repair the damage; but to the whole if the others do not restore. Lugo too admits this necessity of restoring the whole if the others do not restore, Iust. d. 19, n. 85.

You should observe, therefore, that in a secret ballot the votes which the more common opinion has as the only efficacious ones are defined not by the order in which they were given but by the order in which they are proclaimed. But each one who knowingly gave a vote consented that his vote should exercise this efficacy.

Whose votes, however, were first pronounced is not known, unless they can be recognized by a special mark having been added. Thence comes that doubtful efficacy of the individual votes, on account of which the more common opinion obligates all for the proportion of the doubt, or most often by individual men's shares.

Finally, if votes are given openly but in a revocable mode, then all are held for the damage, because all the votes, up to the last, were efficacious. So Carrière, De Iust. et iure, 1188; Tanquerey, 528, who, however, here omit to declare whether they impose an obligation in solidum or a divided one.

3. Special things to be noted. a) He who, by force of office, and therefore from justice, was bound to give a vote, can already by the very omission of the vote sin against commutative justice.

b) If the matter admitted by the votes was not intrinsically evil, the necessity of averting a greater evil can remove the very stain of injustice from the voting.

c) If the votes were only consultative, the efficacy of the counsel is to be weighed. If this is demonstrated, those things which were said about consent in a decree will return concerning consent in counsel.

He can be held for damages by a twofold reason: insofar as, through praises, blame, reproach of cowardice, and adduced human considerations and advantages, he has efficaciously impelled someone to inflict damage; or insofar as by similar arts he has impeded restitution. He can decline the obligation by an efficacious revocation.

While he offers security either to an evildoer or to things carried off by robbery or taken away by theft, he will be held for damages: a) insofar as he moved the evildoer to perpetrate the crime; b) insofar as he supplied the means of executing the crime, which the other used; c) insofar as he did not make restitution or impeded it.

That cooperation, if it was material, can be excused by grave damage.

He who, by hiding a man or defending him from magistrates, has freed him from penalties, cannot be accused of injustice, although he can sin against charity owed to other citizens or to the state. Yet at the same time, according to his powers, he must effect that the protection of an unjust man does not stand in the way of restitution nor otherwise become damaging.

A participant can participate either in the booty or in the bad action itself.

If in the booty: he must be treated as a possessor of another's thing, and indeed as a possessor in bad faith, if he knowingly and unjustly received a part of the booty.

But if, in circumstances in which he cannot escape the stain of injustice, he has participated in the unjust action, he must repair the damages of which, either by acting or by cooperating, he was an efficacious cause. Yet immediate participation must be separated from mediate participation. One participating immediately, or committing the unjust thing himself, violates a negative precept unless he is excused by the right of necessity; one participating mediately omits the positive precept of taking care lest our action bring damaging effects: wherefore he is excused by every detriment which is notable in itself and relatively. - Finally, he who truly doubts concerning the damage inflicted or concerning the efficiency of his action, when the doubt perseveres after sufficient investigation, strictly owes nothing, since no one seems to be despoiled of his thing on account of an uncertain obligation.

What if several have given a cause of damage efficacious per se, yet in such a way that it is unknown which of the several was truly the author of the damage? For example, two or more gave counsels: by which of them the author was moved is not known; two at the same time, without conspiracy, by firing a gun, killed or wounded a man, but it is not known which did it; two or more approached the same wife and offspring is born certainly adulterine. For if the husband himself also approached, so that perhaps the offspring is legitimate, the damage itself will not be established.

This matter is not outside controversy. From the principles it must be said as follows. Those who acted conscious of future confusion consented that the damage should be effected by one morally single action, as one which cannot be distinguished. Wherefore they will have to bear it by a man's share. But he who was ignorant of this is held only by an uncertain obligation. Cf. St. Alphonsus, l. 3, 658.

On Negative Cooperators. 1. They must by restitution repair the damages which they themselves would have impeded by the action unjustly omitted. But officials placed over taxes do not seem to be held by justice to exact fines.

2. But if it is not established that some damage would have been impeded, no restitution will necessarily have to be made. But in doubt concerning the quantity of the damage, justice is satisfied if the least certain quantity is returned. Cf., however, here immediately below, 3.

3. If several who ought to have acted omitted the action from conspiracy, all will be held for the damage in solidum.

If without conspiracy, nevertheless each, according to Lugo, d. 19, n. 108, will be held in solidum if by his action he could have impeded the whole damage either immediately or mediately, by determining others who had previously abstained.

He gives the reason because each was a total cause. And add: a necessary one, since, with one acting, the damage would have been impeded. But if the action of one was foreseen as useless for impeding the damage, Lugo nevertheless, l. c. nn. 110-112, obligates each to act from justice, because the action of one suffices to remove the excuse of inability by which the others would contend that they were freed from the obligation. For with one acting, the others by their cooperation could impede the damage. That reason seems rather subtle.