Co-operation in Injustice

477. Prenotanda. Cooperation in general is concurrence with another acting. As it is taken here, it is concurrence with another unjustly inflicting damage; therefore a cooperator is said to be one who with another is the cause of unjust damage.

a. This cooperation is either positive or negative: negative consists in the omission of an action due from justice for impeding damage; positive consists in an action by which damage is unjustly inflicted with another; each can be physical and moral.

b. Positive moral cooperation influences the will of the damager; physical cooperation concurs with the damaging action, or assists the damager in inflicting damage. Negative moral cooperation consists in the omission of an action due from justice by which damage must be impeded through influence on the will of the damager, as if someone omits counsel or command by which he can and must turn another away from inflicting damage. Negative physical cooperation consists in the omission of an action by which damage can be impeded through influence on the damaging action, as if a guard does not drive away a thief.

c. This cooperation differs from that of which there was speech above (n. 116 ss.) in that here there is question alpha. of cooperation in a sin against justice; above, of cooperation in a sin against any virtue; beta. of formal cooperation, from which the obligation of restitution arises; above, of formal and material cooperation; gamma. of any cooperation whatever, whether the cooperator is an equally principal or secondary cause; above, of cooperation with another acting principally.

478. Obligation of restitution. 1. Unjust cooperation induces the obligation of restitution: for it is the cause of damage unjustly inflicted, at least partial cause, whether the cooperation was positive or negative.¹

Therefore even negative cooperation, by which another's damage is not impeded when it ought to have been impeded from justice, induces the obligation of restitution. To impede the damage of others pertains of itself to charity, just as to preserve and promote the good of others does, because commutative justice only requires this: that we not violate the rights of others nor inflict damages on them. Yet per accidens, namely from contract or from office or quasi-contract, there can be an obligation of justice to procure the good of others and to impede the damages of others.

2. In order that unjust cooperation induce the obligation of restitution, these conditions are required: that it be truly unjust, efficacious of damage, and theologically culpable: for an action by which damage is inflicted on the neighbor induces the obligation of restitution only under this threefold condition (n. 454).

Therefore no obligation of restoring exists if the action of the cooperator influenced nothing in the damage; and this generally has place in moral cooperation when the damager is already determined of himself and independently of the cooperator to inflict the damage.

¹ Therefore proposition 39 was condemned by Innocent XI: "He who moves or induces another to inflict grave damage on a third person is not bound to restitution of that damage inflicted."

479. The diverse modes of cooperation are contained in these verses:

Command, counsel, consent, flattery, recourse,

The participant, the silent, the one not opposing, the one not manifesting.¹

Of these nine modes, some set forth negative cooperations (the silent, the one not opposing, the one not manifesting), others positive cooperations; and indeed four (command, counsel, flattery, recourse) set forth moral cooperations, while two (consent and participant) set forth physical cooperation.

It is clear that moral cooperations are so many inductions to sin, while physical cooperations pertain to that cooperation of which there was speech above (n. 116 ss.).

¹ Cf. St. Thomas II-II, q. 62, a. 7.

THE question of restitution is complicated and beset with special difficulties when there are more agents of injustice working together than one. There will, indeed, be the same roots of restitution which we treated of above, but difficulties arise as to who among the co-operators is bound to make restitution, and who is primarily bound. One may help another, or co-operate with another, in inflicting an injury in various ways. Nine ways are commonly enumerated: by counsel, by command, by consent, by provocation, by praise or flattery, by being partner in the sin, by silence, by concealment, by defending the ill done. In the first six of these ways the co-operation is positive, in the last three it is negative, Something must be said about each (cf. Can. 2209).

One co-operates with another in injustice by counsel when, by giving advice or by urging motives, or by showing how it may be done, he causes that other to commit an act of injustice. Such a one is obviously the moral cause of the injury, and all the conditions required for imposing an obligation of making restitution are present. If the principal agent was already determined to commit the injury, this will in that case not be due to the counsellor, and he will not be bound to repair it. Nor will the counsellor be bound to make reparation to the principal agent for any loss which the latter suffered in consequence of inflicting the injury, unless he induced him to act by fraud or other unjust means. Moreover, if before the injustice was committed the counsellor efficaciously withdrew his advice, and proposed equally strong motives for desisting from the act, it would seem that he cannot be obliged to make restitution. If, however, he had showed the other how to commit the crime and thus made it possible, he must take means to prevent it being committed, otherwise he will be responsible. Confessors, lawyers, doctors, and others whose expert advice is asked are under a special obligation not to give advice which is injurious to their clients or to third parties. If they do this, they will be bound to make compensation to the injured party not only when they acted maliciously, but also when they gave injurious advice through gravely culpable ignorance or precipitancy. Others who do not specially hold themselves out as experts will not be bound to compensate those who ask their advice and suffer loss through following it. No injury was done by giving them what they asked for, no fraud was committed by the assumption of skill or knowledge which was not possessed; if they chose to follow the advice, they took the risk on themselves, and scienti et volenti non fit injuria.

He who follows unjust advice acts in his own behalf and in his own name, and so is the principal cause of the injury done. He is bound in the first place to make restitution, and if he fail to do so, the counsellor is bound.

We co-operate in injustice by command when by whatever means we induce another to do an injury in our name and on our behalf. It does not matter whether one of the parties is in a position of superiority with respect to the other or not, nor by what means he induces the other to perform the injurious action, whether by threats, or promises, or commands, or requests; it is sufficient if by any means he induces the other to do his unjust will. Henry II made himself guilty of the blood of St Thomas a Becket by complaining that none who ate his bread would avenge the insults offered him. Mere approval, however, of injustice which has already been done does not render him who approves liable to make restitution.

One who by command induces another to commit an injury is bound in the first place to make reparation for the injury — and for all the damage which was the necessary consequence. In his default the instrument of his injustice is bound to make restitution. The one who gave the command is not bound to compensate his agent for loss or damage which he suffers in executing the will of his principal, unless compulsion or other unjust means were used to procure his co-operation. Nor is he bound to make restitution for damage which his agent did in excess of the instructions given, Furthermore, if before the command is executed he recalls it and the recall is notified to the agent, he will not be responsible for what the agent may do on his own authority; he will be responsible, however, if by any chance the intimation that the command is recalled does not reach the agent.

One who co-operates in injustice by giving his consent or vote that the unjust action should be done is bound to make reparation if his consent was the moral cause of the injustice, And so members of legislative bodies who agree together to pass an unjust law are jointly and severally bound to make reparation for all the harm that the law does. Jurymen, too, whose vote is necessary for an unjust verdict are all responsible for the injustice if they give the verdict. Sometimes, however, when injury is inflicted by the unjust votes of many, the obligation of making restitution will depend on the manner of voting. If all acted conjointly, giving their votes in a body, each and all will be responsible for the harm done; if, however, the voting took place successively, those who voted first and whose votes were necessary and sufficient for passing the unjust measure will indeed be bound to make restitution; but those who voted subsequently, and whose votes were not required to make the measure law, may be excused from the obligation of making reparation except in the case of conspiracy, though they, too, sin against justice. Those who give an unjust vote when it is the only means of preventing a greater evil do not do wrong, and are not bound to make restitution. When one of two evils is necessary, we may lawfully choose the less.

Whoever by provocation or ridicule, or by praise or flattery, causes another to commit an injury, or is the cause why reparation is not made for injustice committed, is himself bound to make restitution in the same way as one who is the cause of injustice by counsel.

One may be a partner in the infliction of injuries in various ways. He who helps another to perform an unjust action is a partner in injustice in the strict sense. One, however, who receives stolen goods or affords protection to a wrongdoer, and so encourages him in committing injustice, is also a partner in his sin. A receiver of stolen goods is obviously bound to restore them to their owner, and if by holding himself out as ready to receive them, or by affording protection to the thief, he is the cause of injustice being committed, he will be responsible for that too. To what extent the partner in injustice is bound to make restitution will depend on circumstances. He will be responsible for the whole damage inflicted if it could not have been inflicted without his help, or if the partners conspired together to commit injustice. Otherwise it will be sufficient to make reparation for such part of the damage as each respectively caused, in the estimation of a prudent person.

When treating of charity we saw that it was never lawful to co-operate formally in another’s sin, but that according to the principle of a double effect it is sometimes allowed to co-operate materially in the sin of another.

This doctrine may be applied to the matter before us, and so though it is never lawful to help another to do what is always and intrinsically wrong, as to kill an innocent person, yet in other cases it is not sinful to co-operate materially with the unjust action of another. A servant who is threatened with instant death unless she gives up a key to a robber, or shows where her master’s money is kept, would act heroically if she died rather than betray her trust; she would not commit sin if she preferred her own life to her master’s property.

On account of one’s office, or in virtue of a special contract, there is sometimes a special obligation to prevent injury being done to others, and if the obligation be not fulfilled, there is negative co-operation in the injury inflicted. Apart from such special office or contract we are bound in charity to prevent injury to others as far as we can, but not in justice. This negative co-operation may be committed by concealment of injustice which has been done, as when a servant conceals thefts committed against his master’s property which has been entrusted to his care. It may be committed by silence, as when a policeman accepts hush money to say nothing about a robbery. It may also be committed if one whose duty it is to protect another’s rights or property neglects that duty and allows them to be injured. On account of defence of an unjust act which has already been done there will not arise an obligation to make restitution, unless such defence was the cause why restitution was not made for the crime defended. All approbation and defence of wrongdoing is nevertheless sinful. One who culpably neglects to prevent his animals from doing harm to his neighbour is bound to make restitution.

Sometimes these negative co-operators are excused from performing their strict duty on account of the very serious inconvenience to which it would subject them, and which they are not presumed to have obliged themselves to undergo. In such cases they will be excused from making restitution for injuries which they did not prevent.

Whether restitution is owed from unjust cooperation, and how many kinds are there? - Restitution must be made from unjust cooperation. For there is not always only one cause of damage given, and a cooperator in unjust damage to a neighbor is truly its cause. Hence all those who in any way are an influencing and efficacious cause of the damage that followed are held to restitution; and those who, obliged by office and obligation of justice to guard against damage, did not guard against it. But cooperation in damage to neighbor can be done in nine ways, of which the first six are positive, the later three negative. All are contained in the following verses: Command, counsel, consent, flatterer, recourse, participant, silent, not preventing, not revealing. St. Thomas, 2. 2, q. 62, a. 7; C. B. 830.

What of the one ordering and of the one commanding? - One ordering is he who by his own authority compels another to execute something; but one commanding is he who, by free agreement, commits to another something to be executed, and thus, or with a wage promised, induces him to act, so that he may inflict damage on another in his name. - The one ordering or commanding is bound to repair every damage ordered and inflicted by force of the order or mandate; but otherwise if he only approves damage done in his name. The reason is that in the former case he efficaciously influences the damage. But as regards the latter case, mere approval of a deed pertains nothing to the reason of mandate; and therefore he who merely approves something already done neither ought nor can be called one commanding. L. 558; St. Thomas, 2. 2, q. 62, a. 7; E. M.

Whether one commanding is bound to restitution if he revoked the mandate before the damage was inflicted? Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; but otherwise if it in no way or too late becomes known, because in the former case the mandate vanishes and does not influence the damage; in the latter it does not vanish and does influence. L. 558.

Whether one commanding is held concerning damages which come to the mandatary in the execution of the mandate? La-Croix with others affirms, because one commanding, by ordering damage, is judged to take upon himself the obligation of preserving the mandatary unharmed. But it seems that this must be restricted to the case in which the one commanding coerced another by fraud, deceit, force, or fear, unless the damage is altogether fortuitous, having no connection with the commanded act. Otherwise the mandatary seems voluntarily to have taken upon himself the whole burden and its consequences; and unless a pact about indemnity preceded, the one commanding will be held not from justice, but only from a certain equity. But not even from equity, if knowingly and willingly he accepted that dangerous mandate. - Gousset 950.

Whether one commanding is bound to repair damage which the executor from invincible error inflicted on another? - Resp. Negatively, because the true cause of the damage is the error of the mandatary. Nevertheless, it must be excepted if perhaps it was too difficult to avoid the error. For although all agree that the one commanding is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was in the power of the mandatary to preserve the limits of the mandate. Therefore, also in the case if it was not morally possible to avoid the error, the error must be imputed to the one commanding. C. B. 278.

Whether a superior, ratifying damage, is to be compared to one commanding? Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposed infliction of damage and truly influences it. L. 558.

What of one counseling? One counseling sins against justice whenever knowingly and willingly he furnishes an iniquitous counsel by which another is efficaciously induced to inflict damage unjustly, because the damage is imputable also to him. This is also established from proposition 39 condemned by Innocent XI. Hence one counseling who in good faith gave damaging counsel, once the truth is known, is bound to retract it, and indeed from justice. But one counseling is not bound to restitution if the executor was already determined of himself to damaging, so that even without that counsel he would have inflicted the damage; because then the counsel did not efficaciously influence the damage. But it is otherwise if the executor was also efficaciously moved by that counsel, because then it is truly an efficacious con-cause of the damage. L. 561, 562; St. Thomas, 2. 2, q. 12, a. 2, ad 4; a. 7; Gousset 952; C. A. 1300, 1315; E. M.

Whether one counseling is bound to restitution who revokes his counsel before the execution of the damage? Resp. Negatively, if the counsel was naked, that is, simple, because by revocation the whole force of the counsel is removed.

If the counsel was clothed, or supported by motives, there is controversy. Probably also negatively, provided other motives were employed in the retraction, at least equally efficacious, because then the damage is only from the malice of the other, and the counsel is the occasion of the damage but not the cause. Thus Azor, etc., against others whose opinion St. Lig. says is more probable. Except if to a thief determined to inflict damage you showed the way of entering the house which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw that the thief would not change his depraved plan, unless nevertheless you warned him to whom the damage threatens, to which in the case you are bound, as the doctors cited by St. Alphonsus, 559, judge, if without equal or greater damage you can warn the one to be damaged about the impending damage. L. 564; Gousset 955.

Whether one counseling a lesser evil to avert a greater is bound to restitution? Resp. Negatively, if the matter concerns the same person, because the counsel favors him, far from harming him; but otherwise according to many, if the matter concerns another person of whom the damager was not thinking, because this person is deservedly judged reasonably unwilling. L. 565, 577. Yet others hold the contrary, led by the reason that this is not to induce to a lesser evil, but to remove from a greater. Vasquez, Op. de Scand., art. 1, dub. 2, n. 14; Turrianus, de Fide, Spe, etc., disp. 95, dub. 6.

What if another is already determined to damage, e.g., to killing, and you persuade only the mode, namely that he kill by poison, not by sword; in that place, not in another, or at that time? "There is a twofold probable opinion. The first says that you are bound to restitution, because by persuading the mode you concur to the substance of the damage; but by persuading that the damage be inflicted sooner, you are the cause of the whole damage, since the other could have changed his mind during that time.... The second opinion absolutely excuses from restitution, provided it is certain that the other would not have changed his depraved mind.... The reason is that the one counseling then is not an efficacious cause of evil as to the substance of the damage; and this is more probable to me.... And thus likewise they most probably excuse from restitution him who materially cooperates in damage to the owner, namely when the other would still certainly have inflicted the damage without his cooperation, e.g., if someone holds a ladder for him who would climb even without help." L. 563, 576.

Whether one persuading damage from ignorance, but with grave fault, is bound to restitution? - If he gives counsel from his state or office, e.g., of advocate or confessor, he is bound, because then he is truly the unjust and efficacious cause of the damage. If he is not such a person, he is not held toward the one asking counsel, unless deceit is present, or he affects great expertise which he does not have; for that one ought to impute it to himself if he is deceived, since he asks counsel from an unskilled man. But he is held toward a third person if he foresees that damage will follow to him; for one inducing another into an error harmful to him is the unjust and efficacious cause of the damage. - But one giving inculpably a counsel harmful to another is afterward bound, when he adverts to the matter, from justice to do as much as he can, yet without great inconvenience, lest damage occur. L. 564; Gousset 954; C. A. 1299, 1300, 1315.

Whether one knowingly counseling evil to another is held also concerning damages which the latter suffered by executing the depraved counsel? - Resp. Negatively, of itself. The reason is that he inflicted no injury on him, since no injury is done to one knowing and willing. Yet it is otherwise if the one counseling so circumvented the executor by frauds or sophisms that the latter did not advert to the iniquity of the counsel. Cf. n. 1398.

Whether one counseling is held primarily, or only secondarily, to restitution? - Of himself, he is held only secondarily, because the executor is the principal agent, as one who is judged, speaking of himself, to act in his own name and for his own utility. L. 560.

What of one consenting? - One consenting is held to restitution whenever he knowingly and freely emits a vote or sentence on which the violation of another's right directly depends; that is, whenever he gives efficacious consent to the damage or injury of neighbor. Efficacious consent: because if the consent did not efficaciously influence the injury, he would not be held to restitution, since he would consent affectively indeed, but not effectively, to the harm. Likewise if, with fraud or special pact excluded, he by his vote impeded another from attaining a good to which he had no right. - He is not held concerning damage who authentically revokes the sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although when the error is detected he is bound from charity, indeed from justice, to revoke his vote, if by time this is permitted to him. - L. 566; St. Thomas, 2. 2, q. 62, a. 7.

Whether one consenting, who gives an unjust vote, is bound to restitution if there are not lacking other votes already sufficient for the damage?

It is certain that all consenting are equally bound to restitution if they gave their votes by agreement, since, once the conspiracy is entered into, there is one moral action of all. It is also certain that all consenting contract the obligation of restoring when they cast their vote at the same time; because since none was then prior or posterior, the sentence resulting from the sum of votes is deservedly attributed to the individual voters. - It is also certain that those are not to be excused from restitution who first give a vote before the number is completed, even if they foresee that others who consent will not be lacking, because they truly influence the damage. For although without them it would have been inflicted, nevertheless through them it is in fact partially inflicted. But whether, with conspiracy and simultaneous casting of votes excluded, the last voters can be excused from the obligation of restoring when the number of votes required for the definition of the business has already been completed, is disputed. Several grave theologians affirm, because voters of this kind are in no way the cause of the damage, since it has already been sufficiently prepared and determined by others. Others deny, because since a sentence is never judged perfect unless it is concluded by the casting of all votes, the last influence the unjust sentence no less than the first. Lugo d. 19, nn. 17, 22; L. 566, 574.

Whether he contracts the obligation of restoring who does not cast a vote when he can cast it? Resp. Negatively, when the right of casting a vote has been conceded to someone as a mere grace or favor to him, because no one is compelled to use a privilege, and consequently here he inflicts no injury on another. - Resp. Affirmatively, if it had to be given from office, and its omission were the efficacious cause of grave and unjust damage. Cf. n. 705.

In present civil society, Ministers, Senators, Deputies, and others of this kind have the vote from an office and public function undertaken. Likewise citizen electors, who are endowed with certain qualities required by law, have the vote from the privilege of the law. A right of voting of this kind is to be exercised for the common utility, from legal justice, which looks to the public good of the community. Hence this privilege and right of voting, by reason of the conditions required by law, is at the same time an office or obligation of voting by reason of the public good, from legal justice. If Deputies before their election announce a program, e.g., of defending divorce, of expelling religious orders and usurping their goods, etc., are not their electors held for the damage as quasi-mandators? Do not Deputies publicly assert that they execute the mandate of their electors? But if electors abstain from casting a vote, they can indeed sin against legal justice; nevertheless they are not held to restitution, because they are not held to voting from commutative justice.

What of the flatterer? - A flatterer is said to be one who by praising, flattering, or blaming moves another to inflict damage. He who has induced another to inflict damage, by proposing praise, or otherwise the disgrace that will follow, is held for the damages. For such cooperation has the character of counsel, since, namely, motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling. - Those who represent to a man affected by injury the greatness of this injury in such a way that, moved by it, he takes revenge, are held to restoring, provided they adverted at least probably that damage would follow. But he is not held to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted. L. 567.; St. Thomas, 2. 2, q. 62, a. 7.; E. M.

What of recourse, or of one harboring, or providing refuge?

One harboring, namely he who knowingly and freely provides refuge and security to a robber, is held for the damages arising from this. For in this way he efficaciously and unjustly determines, or makes firmer, the will of the thief in the purpose either of stealing, or of not restoring, or of stealing again. In like manner merchants, and especially innkeepers, and all others who receive stolen things, the thefts of sons of the household, servants, etc., or conceal them, or even are accustomed to claim them for themselves in payment for merchandise, drinking bouts, etc., are held to restitution. - Among those harboring are not to be counted those who receive at home friends or blood relatives who are malefactors; nor those who conceal them under hope of amendment, or show them the way by which they can flee, when they are sought for prison or for death. L. 568.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1314.

What of one participating? - A participant is twofold: one in the prey, another in the damaging action. One participating in the prey is held to restitution of the part which he received and keeps with himself. For he is a possessor in bad faith of another's thing. One participating in the damaging action, or concurring with another, whether immediately or proximately, in physically inflicting damage, is held to restitution. For immediate cooperation, e.g., carrying off money together with a thief, helping him, is cooperation in the damage itself. But proximate cooperation is that which already begins to injure, e.g., breaking open the door of a house with a thief, and therefore contains injury and brings in the obligation of restitution; namely, unless fear of a graver evil excuses. One participating in the damaging action only mediately or remotely is excused from restitution. For mediate and remote cooperation contains no injury, and is forbidden by charity alone. Nor is it forbidden even by charity if the act in itself is not intrinsically evil, and one furnishes it to avoid grave damage. If the one inflicting damage would certainly have inflicted it in the same way without another's cooperation, the cooperator is excused from restitution, because cooperation is not understood if superfluous work is furnished; for instance, holding a ladder for one climbing, who without such help would have climbed well enough by himself. L. 563.; Billuart diss. 8, art. 13.; St. Thomas, 2. 2, q. 62, a. 7.; L. 571.; C. A. 1313.

Whether immediate cooperation to damage of neighbor in matter of justice is ever licit? As regards damage to life, it is never licit to cooperate immediately, not even with danger to one's life, because it is never licit directly to kill an innocent person. As regards damage to members, likewise it is never licit, even to avoid death, to concur immediately in another's mutilation, unless perhaps for averting his death; because then it is rather to save life for him. - As regards damage in goods of fortune, three cases are commonly admitted in which, from grave fear, cooperation is licit, for the reason that the owner is not judged reasonably unwilling: namely, 1. if the cooperator can and wills to repair the damage, when perhaps he is held to this; 2. if grave damage would equally and certainly have been inflicted by the principal agent without the cooperator; 3. if the damage is slight with respect to the owner: for then from charity he ought to bear it with an even mind.

But it is controverted whether it is licit for you to cooperate immediately in grave damage of neighbor from very grave fear, e.g., of death, if you cannot or do not wish to repair the damage. Some deny it, because the act seems intrinsically evil, since it injures the right of neighbor, who deservedly is supposed to be reasonably unwilling. And indeed the injured person is not held to consent to this cooperation either from justice, which does not oblige one to save the life of another with so great a burden to oneself, or from charity, which likewise does not urge with so great an inconvenience. Yet others probably affirm it. For one placed in extreme necessity can secretly take that by which he may avoid death, because then all goods are common.

Why therefore will he, to whom death is threatened, not be able to cooperate in the secret taking of the goods of neighbor, in order to rescue his own life from proximate danger? Can the owner be reasonably unwilling? Moreover, with the will of theft excluded, that material action, e.g., of taking and carrying away money, is in itself indifferent. - L. 563, 571.; H. A. tr. 10, n. 56.; St. Thomas, 2. 2, q. 78, a. 4.

What of the silent one, the one not preventing, the one not revealing, or of negative cooperators? Negative cooperators are those who do not impede the damage of neighbor, when from pact or from office they are held to impede it. They are commonly called the silent one, the one not preventing, the one not revealing. The silent one is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is held to this from office or contract. One not preventing is said to be he who, while damage is being inflicted, does not resist, does not guard the thing, although he ought to furnish this from justice. One not revealing is called he who, after damage has been inflicted, does not denounce the damager to the injured owner, or to a superior, although from office and therefore from justice he ought to denounce him.

No one by reason of damage not impeded is held to restitution unless he is held from justice to impede it; for he who is not bound to impede damage from justice is obliged from charity alone, the violation of which does not oblige to restitution. All who are obliged from contract, or from office, to impede the damage of another, if they culpably neglect this, are held to restoring; for they ought from justice to impede damage. Therefore, if they omit it, they sin against justice, and consequently are obliged to repair damages. In order that one cooperating negatively be held to restitution, it is necessary that he could have impeded the damage without grave inconvenience; because neither a contract nor positive law is usually accustomed to oblige, at least for the most part, with a grave burden. Nor likewise is he held who does not prohibit, because he would attempt this in vain. Here belong those who hire out their work to others for impeding damage, such as guards of fields, forests, etc. Those also are held to compensation of damage who ought to be over others in some office, if those others cause damage in it, so long as they remain under their vigilance; those who choose and admit incapable or dishonest persons in the management of some business, for by that very fact they assume upon themselves the damages which those persons can inflict in exercising that office; those who inhabit buildings, if someone from their household under their custody, e.g., if a boy not yet having attained the use of reason, throws something into the public way with damage to passers-by; those who do not impede the damage of others from their own thing, e.g., from their animal running through another's field and doing pauperies, from their buildings collapsed by ruin, etc. For from commutative justice each one is obliged that damage not be inflicted on others through his things just as through his actions. Namely these are held from quasi-contract, from quasi-delict. C. I. 1151. seqq.; C. G. 1328. seqq.; C. A. 1309, 1320.; C. L. 2380, seq. 2394. seqq.; C. B. 831, 839, 841.; L. 573.; St. Thomas, 2. 2, q. 62, a. 7.; Cf. 683. "Pauperies is damage given without injury of the doer; for an animal, which lacks sense, cannot have done injury." L. Si quadrupes 1. Si quadrupes pauperiem fecisse dicatur Dig.

Whether a confessor is held to restitution if, from grave negligence or ignorance, he omitted to admonish a penitent concerning restitution to be made? Resp. More probably negatively. For although from office the confessor is held to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not held to this from an obligation toward a third party. Except if the silence of the confessor is equivalent to positive approval, e.g., if, having been questioned, he avoids an answer in such a way that the absence of obligation is suggested to the penitent. L. 578.

Whether a counselor is held to restitution if, through omission of a vote, he did not oppose an unjust sentence? Resp. Affirmatively, if he ought to cast a vote from office, because an office is to be fulfilled from justice, at least commonly speaking, and with a just cause excluded, and unless one sees that he will accomplish nothing by his vote. Resp. Negatively, if he has the right of voting from mere privilege, or from mere favor; or if he could cast a vote only from mere charity; for then he can omit the vote without injustice. Lugo d. 19, n. 61 seq.; L. 574.

Whether he is held to restitution who accepted money from a thief in order to be silent, if he ought not from office to cry out? Resp. More probably negatively, at least of itself. The reason is that he could be silent at the prayers of the thief without injustice, since he is not held from justice to cry out. Therefore, by parity, he can be silent on account of gifts promised or handed over without injustice. But it would have to be said otherwise if he accepted money in order to observe whether anyone was coming; because then he would cooperate positively in the theft. L. 571.

Whether guards not denouncing damagers are held to compensate all damages and also to pay the fine? Resp. to the 1st: Affirmatively, of itself, because they are appointed to impede damages. Except if there is question of things of lighter moment, for which, from custom and the presumed will of the owner, secret admonition suffices. Resp. to the 2nd: More probably negatively, on account of the contrary practice, with which common sense agrees. But the reason is that, unless something else was expressly agreed, these men hire out their work that the owners not be affected by damage, not that they become richer. The same is to be said of a judge not exacting a punitive fine. For the judge is held to this by reason of vindicative justice, not to enriching another or the treasury, which is altogether accidental. Nevertheless, if a denunciation of the damager has been made before the judge, he is held to punishing and to procuring reparation of the damage. L. H. A. tr. 12, n. 73. Cf. here 1394.

Cooperation in the damage of the neighbor can be done in nine ways, of which the six former are positive, the three latter negative. All are contained in the following verses:

Command, counsel, consent, flatterer, recourse, Participating, mute, not resisting, not manifesting.

Negative cooperators are those who do not impede the damage of the neighbor, when from office they are held to impede it. They are commonly called mute, not resisting, not manifesting. 1. The mute is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is held to this from office or contract. 2. The one not resisting is said to be he who, while damage is being inflicted, does not resist, does not guard the thing, although he ought to do this from justice. 3. The one not manifesting is called he who, after damage has been inflicted, does not denounce the damager to the injured owner or to the Superior, although from office and therefore from justice he ought to denounce. Besides, the same principles and the same moral applications belong to all these.

690. Principles. - I. No one by reason of damage not impeded is held to restitution unless from office he is held to impede it; for he who is not compelled to impede damage from office is obligated from charity alone, whose violation does not oblige to restitution.

II. All who are obligated from office to impede the damage of another, if they culpably neglect this, are held to restore; for from justice they ought to impede the damage. Therefore if they omit it, they sin against justice, and consequently are obligated to repair the damages.

III. In order that one cooperating negatively be held to restitution, it is necessary that he could have impeded the damage without grave inconvenience, because neither contract nor positive law is accustomed, at least for the most part, to oblige with a grave burden. - St. Lig., n. 573.

691. Questions. - Q. 1. Whether a Confessor is held to restitution if from grave negligence or ignorance he omitted to warn the penitent about restitution to be made?

Resp. More probably negatively. For although from office the Confessor is held to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not held to this from an obligation toward a third party. Except if the silence of the Confessor is equivalent to positive approval, for example, if when asked he so declines a response that the absence of obligation is suggested to the penitent. - St. Lig., n. 578. - Lugo. - Suarez, and others commonly.

Q. 2. Whether servants are held to restitution when culpably ¹ they do not impede damages which are brought upon the master?

¹ Some fault could be present even short of the obligation of restoring, when they are held from charity alone; for in the present matter an obligation from charity can be present even in those cases in which no obligation of justice is present.

Resp. 1. Affirmatively, as it seems ², if it is a matter of damage inflicted by outsiders. The reason is that by the very fact that servants are admitted into the family, they are judged to undertake the obligation of defending it against outsiders. - St. Lig., l. 3, n. 344. - Lugo, Vogler, etc.

² The word it seems, from the sentence of St. Thomas, is the word of one opining. And in this sense it is more probable that the Author used it. Indeed Lugo (De Iust., Disp. 19, n. 106), however much, with Soto, Navarro, and Lessius alleged, he adheres to this sentence, does not conceal that just as many adhered to the opposite one, namely Molina, Rebellus, Azor, and Bonacina. Therefore the Confessor ought to abstain from urging the obligation of restitution.

Resp. 2. More probably negatively, if it is a matter of damage inflicted by other servants, unless the thing had been specially committed to them; because hired servants do not seem to be hired except for labor and for defending the household from outsiders. - St. Lig., ibid. - Others nevertheless dissent not improbably ³.

³ On this matter Lugo (Disp. 19, n. 105): All admit that he is not held when he sees theft being done by another domestic servant, unless care and custody has been committed to him by a special office. Therefore the opposite opinion must be held as the anomaly of some more recent author. But Lugo adds these things as regards practice: A servant would also be held when a key is given to him for taking something out of some place, because for that time the custody of that place is entrusted to him. Those also are held who have care of the pantry, or are placed over the custody and vigilance of domestic things or the household.

692. • Q. 3. Whether a Superior is held to repair damage inflicted by his subjects?

Resp. 1. As regards the external forum, affirmatively both from Roman Law, especially if servants and children are concerned, and from French Law ⁴, in which express mention is made 1. of the father, and with him dead, of the mother, relatively to minor children living with them; 2. of the master or one mandating ⁵, relatively to servants or mandataries; 3. of the instructor and artisan, relatively to pupils. Nevertheless recourse is given to the Superior against the one damaging, for requiring compensation.

⁴ Yet the French Code warns (art. 1384), consonant with Roman law in this, that an obligation of this kind, whether in parents, or in teachers, or in artisans, ceases whenever they make it plain that it was not in their power to impede that deed concerning which otherwise they are held to respond according to their condition. But as regards parents specifically, besides the fact that generally they ought to respond concerning the deeds of children which they could have impeded, a threefold case is expressly expressed in the law in which this burden presses them: namely 1. when at their command a son has done something; 2. whenever the business done by a son has yielded to their utility or profit; 3. when the son does not lack adventitious peculium, of which they receive the usufruct.

⁵ It was elsewhere observed that the notion of one mandating by no means of itself demands that he be superior to the mandatary.

Resp. 2. As regards the internal forum: 1. Affirmatively, if the silence of the Superior ⁶ is equivalent to a positive impulse. 2. But he is not held whenever theological fault is lacking. 3. Nor is he probably held, although he sinned gravely by not impeding the damage, if by his silence he in no way influenced it, especially since it is a matter of damage inflicted on another who is not a subject ⁷. The reason is that the quality of Superior by itself does not suffice so that someone is constituted as a kind of sponsor concerning the damages of subjects, unless from a special public office he ought to impede these. - Lugo. - Gousset, against others. - See St. Lig., n. 578.

⁶ For example, of the commander of a cohort of soldiers.

⁷ But even if damage had been inflicted on a subject, it would have to be inspected whether the Superior from a debt of justice undertakes to himself the damages of his subjects to be impeded.

Q. 4. Whether a husband is held concerning damages inflicted by his wife which he himself did not impede?

Resp. In the internal forum it seems that what was said concerning sons under paternal power or other subjects in Resp. 2 of the preceding question must be said concerning a wife. Hence probably he is held to nothing from mere silence, even gravely culpable. But in the external forum nothing is established in Roman Law or in French Law.

693. • Q. 5. Whether a councilor is held to restitution if by omission of a vote he did not resist an unjust sentence?

Resp. Affirmatively, if he ought to bring a vote from office, because the office must be fulfilled from justice, at least speaking commonly and with a just cause excluded. But negatively, if he has the right of vote from privilege, or from mere favor; for then he can omit the vote without injustice. - Lugo, D. 19, n. 61 and following. - Vogler, n. 304.

Q. 6. Whether he who accepted money from a thief so that he might be silent is held to restitution, if from office he ought not to cry out?

Resp. More probably negatively, at least of itself. The reason is that he could be silent on account of the thief's prayers without injustice, since he is not held from justice to cry out. Therefore, by parity, on account of gifts promised or handed over he can be silent without injustice. - Lugo. - Tamburinus, etc. - But otherwise it would have to be said if he accepted money so that he might observe whether someone is coming; because then he would cooperate positively in the theft.

Q. 7. Whether guards not denouncing damagers are held to compensate all damages and also to pay the fine?

Resp. to the first: Affirmatively, of itself, because they are constituted to impede damages; except if it is a matter of things of lighter moment, for which, from custom and the presumed will of the owner, secret warning suffices.

Resp. to the second: More probably negatively on account of contrary practice, with which common sense agrees. - Lugo. - Lessius. - Vogler, etc. The same must be said of a judge not procuring compensation of damage, or not exacting a punitive fine. Yet if denunciation of the damager has been made before a judge, he is held to punishing and to the reparation of the damage. - St. Lig., Hom. apost., tract. 13, n. 73. - See Casus, n. 681 and following.

515. Not only those who principally inflict damage are bound to restitution, but also unjust cooperators, namely all those who truly have influence with him in causing the damage.

¹ St. Thomas, 2. 2., q. 62, a. 7; Soto, lib. IV, q. 7, a. 3; Sayrus, lib. X, tr. II, cap. 4; Lugo, disp. XIX; Billuart, diss. VIII, art. 13; St. Alphonsus, n. 557-581; Carriere, n. 1162-1233; Ball. P., n. 354-396; Lehmk., n. 1000-1018; Noldin, n. 467-489.

The general principle is that cooperators are bound to the reparation of all and only the damage of which they were the unjust, efficacious, and culpable cause, as is clear from what was said above, n. 477. - We shall inquire two things: 1. which cooperators are bound to restitution; 2. and how?

Reason of the Order. - Since already before, n. 129 ss., we treated cooperation in general, and at n. 132 we showed how commutative justice can be injured by material cooperation itself when not excused, it is lawful for us to dispatch this argument rather briefly. First we shall describe the various modes of unjust cooperation; then we shall have to treat the consequent obligation of restoring.

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.

100. The things which have been said thus far regard the damaging action in itself and the agent himself, insofar as he acted either alone or principally. But it often happens that several persons cooperate for procuring one and the same damage. Therefore the question at once occurs: what and how great an obligation of restitution falls upon the individual cooperators in that case. Cooperation can be done in nine ways, according to those familiar little verses:

Command, counsel, consent, flatterer, recourse,

Participant, mute, not hindering, not manifesting.

The three latter modes are called negative cooperation, because it is done through omission of a due act; but the six former are called positive cooperation, because it is done through a positive act, whether physical or moral.

General Rule. Exactly the same two principles hold in cooperative damaging which were brought above concerning simple damaging, namely 1. from cooperation there does not arise an obligation of restitution unless it is truly, efficaciously, and formally unjust; 2. from material cooperation there does not arise an obligation of restitution unless a) after the condemnatory sentence of a judge; b) unless it has been freely stipulated so.

Some difficulty exists in the very application of these principles; hence concerning the individual modes of damaging cooperation the following things should be noted briefly.

107. The one providing recourse, or receiving, is he who provides refuge to an evildoer or thief as such,⁵¹ either a) so that he may escape safely from those pursuing, or b) so that he may be able to deposit stolen goods. I have said as such, because if he receives and favors him not as a thief or evildoer, but as a friend, or kinsman, or one worthy of mercy, he is not a receiver or one providing recourse. By deserved right receivers of evildoers of this kind are punished gravely by civil law; for they often cause greater damage than the evildoers or thieves themselves.⁵² But in the forum of conscience receivers are held to repairing damages, insofar as a) they render evildoers more secure for doing injuries, and b) they are the cause why the goods taken away are not restored. Receivers of this kind are especially several so-called "dealers in antiquities"⁵³ and dealers in old things,⁵⁴ who knowingly buy from servants, sons of families, and other men things taken away by theft. As to the mode of restitution, these receivers are to be treated like possessors in bad faith, or sometimes (if the thing bought is not certainly taken away by theft) like possessors in doubtful faith.⁵⁵

The one providing recourse not rarely also participates in the thing unjustly taken away. But then he is held to restitution not only as one providing recourse, but also as one participating in the prey; concerning this there will immediately be discussion.

⁵¹ Commonly Hehler, receleur, receiver of stolen goods.

⁵² Hence the common adage: "Without a receiver, no thief!" "If there were no receiver, there would be no thief."

⁵³ Altertumshändler, antiquaire.

⁵⁴ Althändler, Trödler, brocanteur.

⁵⁵ Cf. below n. 216 sqq.

976. NOTIONS. 1. Cooperator is taken here in a broader sense for every one who, besides the executor, has influenced the damage inflicted on one's neighbor, whether he did this by moving the executor to inflict damage, which we have said is scandal, or by furnishing him aid in the execution, which we have marked as cooperation in the stricter sense.

Cooperators, accepted in this sense, St. Thomas (2. 2, q. 62, a. 7) enumerates in the following little verses:

Command, counsel, consent, flatterer, recourse,
Participant, mute, not resisting, not manifesting.

2. Of these cooperators: a) the first six concur positively and directly, insofar as by mandate, counsel, vote, etc., they morally move the executor to inflict damage, or insofar as they physically participate with him; b) the three later are said to concur negatively and indirectly, insofar as they do not impede the damage which they can impede and which they are held from justice to impede.

Note. In France, by occasion of the unjust laws which were trying to overturn the Church and Religious Orders, there was no small labor of experts, so that for the different cooperators the degree of fault and the obligation of restitution might be established. Concerning this matter there exist grave responses of the Sacred Penitentiary, which above, in n. 526, II, we reported.

977. GENERAL PRINCIPLE. Those who cooperate positively in the damage of another are held to restitution, if their cooperation certainly was: 1. unjust; - 2. an influencing and efficacious cause of the damage; - and 3. theologically culpable. This is established from the things said concerning the unjust damager (n. 949).

Hence: 1. You are not held to restitution if the executor was already determined to inflict the damage by himself or through others, although by command, counsel, consent, etc., you gave scandal to him. On the contrary, you are held to restitution if by your action you truly moved him, even if certainly another would not have been lacking who would have moved him to the same thing (III, 562, 563).

2. If you influenced, not indeed into the very substance of the damage, but into the mode of the damage, for example that the damage would be inflicted more quickly, more spiritedly, or more easily by other means, you are not held to its reparation except insofar as that very mode was damaging, or certainly increased the damage; in which case you are held concerning the excess of damage alone (III, 576).

3. If you cooperated only materially, or physically, in the damage, and the principal agent certainly would still have inflicted the damage without your cooperation, you most probably are not held to restitution. Thus, for example, he is excused from restitution who holds a ladder for a thief climbing up, if the thief would have climbed up even without the aid (III, 563, fin.).

4. If there is doubt concerning cooperation, that is, concerning the influence of your mandate, counsel, consent, recourse ... taciturnity, etc., you are held to nothing (recall the things said in n. 949, it is added 4).

These things having been premised in general, one must speak of the individual cooperators. Cf. Lugo, disp. 19, s. 2; Lessius, l. 2, c. 13.

978. NOTIONS. One mandating or commanding is said to be he who asks or commands something to be done in his own name. A mandate is given either expressly or tacitly, namely by word or by deed, by which someone signifies to another that it will be pleasing to him if he inflicts damage.

PRINCIPLES. I. The one mandating is held to repair unjust damage inflicted on a neighbor by force of the mandate and at least confusedly foreseen. The reason is that he is the efficacious and culpable cause of unjust damage; for he who acts through another is judged to act through himself. - But otherwise, if he afterward only approves damage inflicted in his name or for his favor (III, 558; H. Ap., X, 43).

II. The one mandating is held concerning damages which come upon the mandatary on account of the execution of the mandate, if he drove him by fraud, force, or grave fear, and at least confusedly foresaw the damages going to follow. The reason is that he is the unjust cause of damaging. Otherwise probably, if the mandatary spontaneously, or hired by wage, wished to take upon himself the whole burden and consequences (Croix, l. III, n. 24).

From these things it follows: 1. The one mandating is held to nothing: a) if he revoked the mandate, and the revocation became known to the mandatary before the execution of the mandate;⁰¹ b) if the mandatary, from avoidable error, damaged another, for example if, ordered to kill Peter, he killed Paul; c) if the damage happened from the fact that the mandatary of his own accord exceeded the limits of the mandate. For in these cases, the damage has followed not from the mandate, but from the malice or error of the mandatary.

2. He is held to restitution: a) a Superior who ratified a purpose of inflicting damage and truly influenced it; b) the one mandating, to whom it is established that the revocation of the mandate was not heard or understood by the mandatary, for example because of deafness, distraction, or because the letters were intercepted, etc. (cf. n. 949). See Ami du Cl., 1913, p. 23.

1. If the one mandating had revoked his mandate, and the revocation had reached the mandatary later because of the negligence of the Office of posts, of itself the one mandating would be held to restitution, because his mandate continues to act, so that the action of the servant remains the action of the master; but he himself has recourse to the Office of posts, supposing that it could suspect that the letters to be transmitted contained the revocation of a mandate, and retained them from culpable negligence.

979. NOTIONS. One counseling is said to be he who by counsel, prayers, promises, and therefore by corrupting, suggestion of a motive, or showing the way of harming, induces another to inflict damage.

He differs from one mandating because the executor of a mandate acts in the name and for the advantage of the mandator, but the executor of counsel acts in his own name, although from the impulse of another's counsel.

Counsel is: 1. by reason of the act, doctrinal, if the one counseling pronounces concerning the justice or injustice of some act; or impulsive, if he moves the executor to the act; 2. by reason of the mode, naked, if he merely states an opinion concerning the justice or injustice of the act, or merely exhorts to it, no motives being added; or clothed, if he brings reasons by which the counsel, whether doctrinal or impulsive, is confirmed.

980. PRINCIPLES. I. The one counseling is held to repair damage inflicted by the executor, if he gave to him unjust, efficacious, and gravely culpable counsel. This is established from the things said (n. 977), and is confirmed from the 39th proposition condemned by Innocent XI: "He who moves another to inflict grave damage on a third party is not held to restitution of that damage inflicted." Therefore the one counseling is held, who has known his own lack of skill and has foreseen that damage at least in a confused way.

It is irrelevant to the matter that, even without his counsel, the damage would have happened otherwise, for example by inundation, or that it would have happened that another would give the same counsel. Indeed the one counseling is held if counsel, of itself not sufficiently efficacious, moved together with the counsel of others (cf. n. 992 seqq.).

From these things you will gather: 1. One persuading a lesser evil to one prepared to inflict a greater evil with respect to the same person is held to restore nothing, because he is not the cause of the damage but the cause of the lessening of the greater evil. But he is held if he persuades this to the prejudice of a third party; for with respect to him reasonably unwilling, the persuasion would be an unjust cause of damage. Except if this third party ought from charity to suffer this lesser evil in order to avert the very grave damage of a neighbor, namely lest the neighbor himself fall into very grave necessity (cf. n. 520). St. Alph., III, 565, 577.

2. He who, to one already determined to damage, persuaded only the mode of inflicting it, is not held to restitution if the mode was merely accidental, as commonly are the circumstances of time, place, and means. Otherwise, if the mode has somehow redounded into the very substance, for example if it increased the damage, if from uncertain it rendered it certain (III, 563, 576).

981. II. The one counseling generally is not held concerning damages which come upon that very person to whom he gave counsel. The reason is that the one counseling, unlike the one mandating, brings no force upon the one executing; besides, he who seeks counsel uses it freely. But injury is not done to one knowing and willing.

Except: 1. if the one counseling, by reason of state or duty, is considered expert, for example an advocate, physician, confessor; - 2. if the counsel was given deceitfully, namely for this purpose, that damage would come upon the one seeking counsel; 3. if the counsel was doctrinal, and the one counseling affected expertise which he lacks. For in these cases there is deception and damaging injury, from which the obligation of restoring arises (III, 564, 578).

982. III. The one counseling who revokes the counsel given before the event of the damage is excused from restitution. The reason is that, although the counsel was even clothed, if the one counseling tries in the better way he can to dissuade the damage, by bringing forward at least the reason of eternal salvation, which for a Christian ought to outweigh all other worldly reasons, the damage no longer happens by force of the counsel, but from the malice alone of the executor. But if he cannot turn the executor away from inflicting damage, he is held from justice to warn the one to be injured, so that he may guard himself (III, 549).

983. NOTIONS. One consenting is here understood as one who, by unjust suffrage, vote, or sentence, is the cause of another's damage. Here come those who decide or do something by common counsel; likewise counselors, deputies, senators, judges, etc., who concur positively in issuing laws or sentences, in distributing offices, etc.

The suffrage of the one consenting is either consultative or decretory, according as it is given by way of counsel only, or by way of sentence by force of which execution must be made. Besides, consent is given not only by positive action, but also by negation, absence, silence, abstinence from suffrage, etc.

PRINCIPLES. I. One consenting by a merely consultative vote is held to restitution just like one counseling, that is, insofar as he certainly and efficaciously has induced a Superior, or another, to inflict unjust damage. But this can become known to him from circumstances, for example if he knows that the Superior was moved wholly or partly by his vote (cf. n. 980).

984. II. One consenting by a decretory vote is held to restitution like one mandating, that is, whenever and insofar as he knowingly and freely gave efficacious consent into the unjust damage of one's neighbor. For in this case, the damaging decree arises from all efficacious suffrages, or those necessary for the validity of the decree; hence each one is held in proportion and in solidum, as will be explained below.

Hence: 1. The one consenting is not held concerning the damage: a) If in good faith he cast an unjust vote; yet, when the error has been discovered, he is held, if he can, and indeed from justice, to revoke his vote. b) If the suffrage, although unjust and culpable, did not influence the damage; for example because it was given when the number of necessary votes had already been completed, or because it was authentically revoked at an opportune time. - c) If, fraud being excluded, he impeded another by his suffrage from obtaining a good to which the latter did not have a strict right (cf. n. 921).

2. But in truth, he is held concerning unjust damage: a) If he was among the first voters whose suffrages were necessary for defining the matter, even if he foresaw that others who would consent were not going to be lacking. b) If he was indeed among the last or among the superfluous, but gave the unjust suffrage from a prior agreement or conspiracy. - c) If at the same time with others, by way of one, he gave his vote, for example by acclamation (III, 566).

Note. As regards a judge who orders an unjust sentence to execution, see below n. 2292.

It is asked. Whether one doubting whether his suffrage was among the prior and necessary ones is held to restore?

Resp. The true opinion teaches that the one doubting is held like the others, in proportion, and, if others do not restore, to the whole; because at least by his suffrage he worsened the right which the damaged person had of exacting restitution of the damage from another furnishing suffrage, by rendering the matter uncertain. Hence there is by no means doubt that he is in some way a concause of the whole damage1 (Lugo, disp. 19, nn. 22 and 85).

Note. One consenting who is not held to restitution precisely by force of decretory suffrage, for example because he was one of the last voters, can be held by another title, namely: 1. as one counseling, if namely he foresaw that the Superior or prince, or a superior legislative assembly, would be moved by the great number of superfluous suffrages to approve an inequitable law or sentence which otherwise would not have been approved; 2. as one not resisting, if with his contrary vote he could have impeded the damage and ought to have done so from justice. See what is to be said in n. 988.

985. I. A flatterer is he who, by praise, adulation, reproach of sloth, or otherwise, impels another to inflicting damage. He is subject to entirely the same obligations as one counseling, provided he knows, and this suffices, that he efficaciously influences the damage (III, 567).

II. One receiving or furnishing recourse is he who furnishes security or protection to an evildoer; from which follows the infliction of damage or the omission of restitution.

Such a one is held to restitution insofar as, with grave fault, he positively and efficaciously influences unjust damage: for example by receiving a thief, hiding the theft or the instruments of theft, and furnishing such things by which the evildoer is encouraged or helped to inflict damages, or not to repair those inflicted (cf. 949).

But he is not held who, after the theft has been perpetrated, helps the evildoer to flee, or who receives him into safety with the theft from friendship, or from office, as an innkeeper; provided by this he does not influence future thefts, by furnishing to thieves the hope of refuge in the future. Nor likewise is he held who receives a thief from fear of grave damage; for this one must generally be regarded as participating in the delict, and therefore as such must be treated as regards the obligation of restitution (III, 568; H. Ap., X, 52).

986. NOTIONS. A participant is twofold: one in the prey, another in the delict or in the damaging action (cf. n. 517).

Concerning a participant in the prey, or in the thing unjustly taken away, since he is the possessor of another's thing, we have already spoken (n. 940 seqq.). - Concerning a participant in the delict, there will be speech here.

A participant in the delict can cooperate in the damage of one's neighbor either formally or materially; if he cooperates materially, he can do this proximately or remotely, immediately or mediately, as we noted above (n. 517).

PRINCIPLES. I. He who formally cooperates with another in a damaging action is always held to restitution. The reason is that the action of such a cooperator is strictly, efficaciously, and formally unjust.

Hence, if damage has followed, he is held to restitution who acted as guard for the greater security of a thief or assassin. Likewise, he who by an intrinsically evil action has cooperated in the damage of another, for example if two consented in this, that they should set fire to buildings.

987. II. He who only materially concurs with another in the infliction of damage can be excused from sin and from restitution, if namely he acts from a just and proportionate cause, without a depraved mind of harming. The reason is that, in such conditions, cooperation is neither illicit nor unjust. 1. It is not illicit, even if it is an aid to a thief or damager, because it is licit from a just cause to cooperate materially in the sin of another (n. 519). 2. It is not unjust, because, in a conflict of rights, the lesser must yield to the greater, as we noted in n. 914. Besides, since each one has the right to preserve his own goods, that action is forbidden to no one which of itself is necessary and direct for averting his own damage, although indirectly and by accident damage may happen to another. Thus a sailor licitly casts another's merchandise into the sea, lest he himself perish (cf. nn. 739, 949, Condition 1). See the holy Doctor (III, 569, 571, 697).

Hence: 1. He who helps a thief, compelled by fear of death or grave infamy, does not sin, nor is he held concerning the damage; because the owner of the thing is held to yield his right of an inferior order, and to consent, even with the loss of his own goods, that another may provide for life or for his own honor. For in an unequal or inferior cause, the condition of the possessor is not better.

2. He who positively and directly, by immediate concurrence, helps a thief to inflict damage on account of fear of similar damage in his own goods, is held to restitution; because no one can cooperate positively and directly in the damage of another in order to preserve himself unharmed in the same genus of goods; for in an equal cause, the condition of the possessor is better. Yet: a) the one cooperating does not sin if he does this with the intention of compensating afterward; b) he does not sin, nor is he held to compensation, if without his cooperation the damage would certainly and equally have been inflicted; for the saying holds: "What profits me and does not harm you, you are held to permit"; c) he does not sin, nor is he held to restitution, who participates indirectly, or only by mediate concurrence, for example by returning a sword to one about to kill, when he does this because of fear of greater or similar damage. Read St. Alphonsus, III, n. 571 (ed. G., II, p. 67), who profoundly and, as he himself acknowledges, with no one preceding him, decides this most intricate question. See also the things said above in n. 520.

NOTIONS. Negative cooperators are those who, on account of culpable negligence in their own office, are the cause why damage is unjustly inflicted on one's neighbor. Of this sort are the mute, the one not resisting, the one not manifesting.

The mute is said to be he who before the damaging is silent and does not warn, while he is held to warn. The one not resisting, he who, while damage is being inflicted, does not impede it, although he is held to impede. The one not manifesting, he who after the damage has been inflicted, does not denounce it, although he is held to denounce.

Negative cooperators are called some properly, others improperly. Negative cooperators properly so called are only those who from justice, from an office which has had its origin at least from a quasi-contract, must impede the damage of one's neighbor, and do not satisfy their duty; negative cooperators improperly so called are those who from other motives, for example of charity, legal justice, must avert these damages, and culpably do not avert them.

988. PRINCIPLES. I. Negative cooperators properly so called are held concerning another's damage if they could morally have impeded it and culpably omitted it. This is the conclusion of the principles in n. 949.

It is said 1. Could morally have done so, that is, with efficacy and without excessive inconvenience, respect being had to the gravity of the damage to be impeded, to the stipend accepted, etc., according to the estimation of prudent persons. The reason is that laws and pacts are accustomed to be accepted and observed so benignly (cf. ibid., Condition 3). Hence it happens that negative cooperators are often excused, because of grave fear, from reparation of damage (Lehmkuhl, Cas. consc., n. 737).

2. And culpably omitted; because, without theological fault, there cannot be an obligation of restoring under the title of damaging, as was said in the preceding number. In doubt, the things have force which we noted in the same place, added 4. Cf. St. Alph., II, 40; III, 573; IV, 237.

From these things resolve: 1. A prince, magistrate, commander of war are held to restitution of damages which are given by wild beasts, robbers, soldiers because of their culpable negligence. - Likewise counselors, canons silent, absenting themselves, not impeding an inequitable constitution or election. Likewise guardians, administrators of goods, etc., not impeding damages coming upon pupils, minors, churches. Likewise guardians of mountains, vineyards, forests, fields, fishponds, who do not impede damages, or do not manifest those done (compare n. 968, 2). Servants guarding the goods of the owner, specially committed to them, if they do not impede damages from outsiders. Likewise princes and owners of territories, if they know that public roads are infested by robbers and, when they can, do not impede, are held to compensate merchants and other travelers for the damages which they receive from those men.

2. A counselor, deputy, senator, etc., who in casting suffrages was the last voter and foresaw that it would happen that the unjust suffrage of others would be invalidated, weakened, or changed, is held to restitution if he omitted the voting. But in doubt whether it would have happened that others would retract themselves, they are presumed going to change counsel if they erred inculpably; otherwise if culpably, because then their depraved will possesses (III, 566).

Note. Not rarely it happens that stipended officials concur in inflicting damages not only by omission, but also by action. In this case, they are held to restitution under a twofold title, namely because of negative and positive cooperation.

989. II. Negative cooperators improperly so called indeed sin if they do not impede the damage of one's neighbor without grave inconvenience; but they are not held to restitution unless they are bound by the sentence of a judge. Thus commonly. Recall the things said in n. 949, Condition 1.

Hence: 1. A father, husband, master is not held concerning damages of subjects, unless he must forestall them from a special and public office; or unless by his silence he seems positively to approve those causing damage; or unless by his negligence he seems to intend the damage. The same must be said of a teacher toward disciples, of a confessor toward penitents, and generally of every Superior not publicly constituted for repelling the temporal damages of inferiors. 2. Nevertheless, positive law, and therefore the judge, deservedly takes notice against some of them, for example against parents, in order to render them more vigilant, as we have already said l. c., Condition 3, note 1 (cf. St. Alph., III, 40; Gousset, I, 963 seqq.).

Cooperation toward the damage of a neighbor can be done in nine ways, of which the first six are positive, the three latter negative. All are contained in the following verses:

Command, counsel, consent, flatterer, recourse,

Participating, silent, not preventing, not manifesting.

That cooperation may induce the obligation of restitution, it must, like any damaging, be unjust, the efficacious cause of damage and indeed certainly such, and theologically culpable (n. 746). Hence he who influences only the mode of inflicting damage is bound to restore only insofar as that mode was harmful to another, or was the certainly efficacious cause of damage. Cf. n. 764. q. 4° and Mar. p. 278. n. 79, 80.

759. • One commanding or mandating is called he who induces another, whether by explicit or implicit command (for example by silence, which is equivalent to consent), as one set over him; or by force, threats, or prayers; or by express or tacit contract, to inflict damage in his name, that is, for his utility or favor (and thus he is distinguished from one counseling), upon another.

One commanding is bound to repair every damage commanded and inflicted by force of the mandate; otherwise, however, if he only ratifies damage already done. The reason is that in the former case, but not in the latter, he efficaciously influences the damage.

760. Questions. - Query 1° Is one mandating bound to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; otherwise, if for any cause whatever it does not become known at all or becomes known too late; because in this case, but not in that one, he influences the damage (n. 750. q. 4°).

Query 2° Is one mandating bound concerning damages which come to the mandatary in the execution of the mandate?

Resp. Affirmatively, if the one mandating compelled the other by fraud, force, or unjust fear, or if an agreement concerning indemnity preceded; but not even in this case is he bound concerning damages coming to the mandatary by his own fault or by accident (which no one furnishes), unless he also promised to furnish against accident. Otherwise, negatively.

Query 3° Is one mandating bound to repair damage which the executor from invincible error inflicted upon another?

Resp. Negatively, provided the error does not almost follow spontaneously from the mandate itself because of the difficulty of the thing commanded (Mar. p. 280. n. 86). The reason is that the true cause of the damage is the error of the mandatary, not the mandate.

761. • Query 4° Whether and when must one mandating also warn him whom he commanded to be harmed?

Resp. Negatively, at least from justice, if he has already efficaciously revoked the mandate. Otherwise affirmatively, provided a much greater inconvenience, for example danger to reputation or liberty, does not threaten him from the warning. For what removes the obligation of repairing damage also removes the obligation of guarding against it. But the obligation of furnishing for damage inflicted is to be fulfilled as soon as it can be. Mar. p. 279. n. 84.

One counseling is called he who by counsel, prayers, promises, suggestion of a motive, or showing of the way or means of harming has induced another to inflict damage.

762. Principles. - I. One counseling sins against justice as often as knowingly and willingly he furnishes unjust counsel by which another is efficaciously induced to inflict damage unjustly; because the damage is imputed also to him. It is established also from proposition 39 condemned by Innocent XI, p. XVI.

II. One counseling who in good faith gave damaging counsel, when the truth is known, is bound to retract it, and indeed from justice, whenever without equal damage to himself he can retract. This is clear from what was said n. 749. q. 3°.

III. But one counseling is not bound to restitution if the executor would, without that counsel, just as well and in the same way have inflicted the damage; because then the counsel did not efficaciously influence the damage. Otherwise, however, if the executor was moved at the same time by the counsel of the other, although the damage would have happened even without this counsel; for in fact he would truly be an efficacious concause.¹

763. Questions. - Query 1° Is one counseling bound to restitution who revokes his counsel before the execution of the damage?

Resp. 1° Negatively, if the counsel was naked, that is, simple, because through revocation the whole force of the counsel is taken away. - Thus commonly.

Resp. 2° If the counsel was clothed, or founded upon motives, it is controverted. According to S. Alph.², sufficiently probably also negatively, provided that in the retraction other motives have been employed, at least equally efficacious, for example of eternal salvation, against others, whose opinion he calls indeed more probable, yet not far more probable. Except if you showed to a thief determined to inflict damage the way of entering the house, which otherwise he would not have found, or something similar; because your cooperation then was truly efficacious, especially if you foresaw³ that the thief was not going to change his depraved purpose, unless nevertheless you warned him to whom damage threatens, to which in the case you are bound.³

Query 2° Is one counseling a lesser evil in order to avert a greater evil bound to restitution?

Resp. Negatively, if it is a question of the same person, because the counsel favors him; otherwise, however, if it is a question of another to whom otherwise damage would not have been inflicted. For this latter, outside the case in which he is bound from charity to undergo this damage (n. 279. 305. q. 1°), is judged reasonably unwilling.

764. • Query 3° Is one counseling evil to another who notices it bound also concerning the damages which this man has suffered by executing the depraved counsel?

Resp. Negatively, of itself. The reason is that he inflicted no injury upon him, since no injury is done to one knowing and willing. - It is otherwise, however, if the one counseling has so circumvented the executor with frauds or sophisms that this man did not notice the iniquity of the counsel.

Query 4° Is one counseling only the mode of an unjust action bound to restitution?

Resp. Negatively, if the mode is merely accidental, as are commonly the circumstances of time, place, and means. Otherwise, however, if the mode in some way redounds into the substance, for example if it increases the damage, etc.¹

Query 5° Is one persuading that damage be inflicted more quickly bound to restitution?

Resp. Negatively, if he is certain that the other is determined to evil and that he is not going to change his depraved mind; otherwise in the other hypothesis.²

765. • Query 6° Is one counseling bound to restitution primarily or only secondarily?

Resp. Of itself, he is bound only secondarily, because the executor is principally acting, as being one who is judged to act in his own name and for his own utility. But if the counsel is useful to the one counseling, this man will be bound primarily; otherwise if it is useful to the executor alone. But if it is useful to each, or if from the damage inflicted useful advantage came to neither, each will be bound according to proportion and in solidum.³

Query 7° Is one giving harmful DOCTRINAL counsel (or not only impulsive counsel) from gravely culpable ignorance bound to restitution, and how?

Resp. 1° If the one giving counsel does this from his state or office, for example an advocate, physician, confessor, etc., he is bound to restitution concerning the unjust damage which follows from his counsel, whether toward the one seeking counsel or toward him against whom it is given. The reason is that from a tacit contract the consulter has a strict right to the due knowledge and diligence of that man.

Resp. 2° If the one counseling is not such a person as by reason of his office or state professes skill, 1° he is not bound toward the one seeking counsel, unless from deceitful counsel, or unless he affects great skill which he lacks. 2° Nevertheless he is obligated toward a third person who suffers damage from this, if he himself knew his own lack of skill and foresaw, at least in confused manner, the damage to follow.⁴

766. Resolutions. - 1° Women, common people, and others generally, whose insufficiency is known, if they do not deceitfully affect skill, are bound to restore nothing to those who have sought counsel from them. Nevertheless they are bound toward others to whom damage has been inflicted from their counsel, if they sufficiently foresaw that damage; for they are guilty, when by giving rash counsels in those things which they do not know, they expose themselves to danger of injuring an unwilling innocent person.¹ - But what if someone through, for example, newspapers, or otherwise publicly, affects great skill in healing some disease, or attributes to some medicine, otherwise harmless, an almost extraordinary or more general power than it has? From custom those sayings do not obtain full faith, nor will he be guilty of injustice, unless he either lacks ordinary knowledge, or omits ordinary diligence, or because of falsely thought knowledge exacts a salary, or because of medicine not extraordinary exacts a price above the common one.

2° If by persuasion or exhortation you have been the cause that greater damage be inflicted than otherwise would have been inflicted, you are bound only concerning the excess of damage. Hence if to a thief separately determined of himself to steal $100 you persuaded him to steal 200, more probably you contract only the obligation of restoring 100.

3° If two together counsel theft to Peter, who, induced by their counsel, steals, each is bound to restitution; for although Peter would have stolen even if only one of them had counseled, nevertheless in fact each by his own counsel influenced it, and by that very fact each was the cause of the theft. - S. Alph.,² Lugo.³

4° Physicians, pleaders, confessors, and the rest who from office are counselors, only moderately learned, who in a difficult matter give counsel by which another is harmed, are bound to restore, even if they are not ignorant that they are unequal to solving, treating, etc. the more difficult cases. Likewise, even if they are equal to their office, if they treat difficult matters without a mature examination having been premised according to the gravity of the thing, provided that at least in confused manner they attended to the obligation of investigating the matter more thoroughly and to the damage that would arise from their negligence; because all these harm others by culpable ignorance.⁴

767. Principles. - I. One consenting is bound to restitution whenever knowingly and freely he either gives consent or carries a vote, by which he efficaciously influences the damage of another. I say: influences; because one who, seeing damage done or hearing that it has been done, only approves it, without moving another to harming, sins only internally against justice. I say: efficaciously; because if he did not efficaciously influence the injury, he would not be bound to restitution. Resolve the same if, fraud or special agreement being set aside, by his vote he impeded another from the obtaining of a good to which he had no right.

II. He is not bound concerning the damage who authentically revokes a sentence or vote previously given before the wickedness is consummated; nor one voting in good faith, although, as was said above n. 749. q. 3°, when the error is detected he is bound from justice to revoke his vote, if time permits him this and he can do it without grave inconvenience.

768. Questions. - Query 1° Is one consenting bound to restitution who gives an unjust vote if other votes already sufficient for the damage are not lacking?

Resp. 1° It is certain that all consenting are equally bound to restitution if they gave votes by agreement, since, after conspiracy has been entered into, there is one moral action of all. Likewise if they are carried secretly.

Resp. 2° It is also certain that all consenting contract the obligation of restoring when they carried the vote at the same time; because, since none was then earlier or later, the sentence resulting from the sum of the votes is deservedly attributed to the individual voters.

Resp. 3° It is likewise certain that those are not excused from restitution who first give a vote before the number has been completed, even if they foresee that others who consent will not be lacking, because they truly influence the damage. For although without them it was to be inflicted, nevertheless through them it is in fact partially inflicted. - Thus commonly. - Lugo.¹

Resp. 4° But whether, conspiracy and simultaneous collection of votes being set aside, the last voters can be excused from the obligation of restoring when the number of votes required for the definition of the business has already been fulfilled, is controverted. S. Alph.,² Lugo,³ and several others affirm, because voters of this kind are in no way the cause of the damage, since it had already been sufficiently prepared and determined by others. - I say: "for the definition of the business." For it would be otherwise if the vote were consultative, or (because by it the number of votes is increased) if it were foreseen to influence the sanctioning of an unjust thing which otherwise would be prohibited. (p) p. 475.

769. • Query 2° In doubt whether your vote was among the earlier and necessary ones for inflicting the damage, are you bound to restitution?

Resp. The true opinion, according to S. Alph.,¹ teaches that anyone is bound according to proportion; and when the others do not restore, that you are bound to the whole. The reason of the former is clear of itself. The reason of the latter is that by your vote at least you made worse the right which the injured party had of recovering from the other voters the damage inflicted. The case would be if the votes had been cast secretly.

Query 3° Do you contract the obligation of restoring if you do not cast a vote when you can cast it?

Resp. 1° Negatively, if the right of giving the vote was conceded to you for your mere favor or grace; because then you inflict no injury upon another.

Resp. 2° Affirmatively, if it would have to be given from office, and its omission was the efficacious cause of grave and unjust damage. - Lugo and others commonly. (l) p. 482.

770. • A flatterer is called one who by praising, flattering, whispering, censuring, or exaggerating injury moves another to causing damage. Concerning the flatterer these things must be held:

1° He who has induced another to inflict damage by proposing praise or otherwise ignominy to follow is bound concerning the damages. For such cooperation has the character of counsel, namely when motives for acting, of themselves commonly efficacious, are proposed. Wherefore the flatterer is subject to altogether the same obligations as one counseling, concerning which see above n. 762 and following.

2° Those who so represent to a man affected by injury the magnitude of this injury that he, being moved, takes revenge, are bound to restore, provided they noticed at least that damage would probably follow.

3° But he is not bound to restitution who approves or ratifies a deed already perpetrated, unless he is the cause why restitution is not made, or new damages are inflicted.²

771. • 1° One receiving, namely one who knowingly and freely furnishes security and convenience to a malefactor as malefactor, so that he may either inflict evil more confidently, or not repair it after it has been inflicted, is bound concerning the damages thence coming. For thus he determines efficaciously and unjustly the will of the thief in the purpose either of stealing, or of not restoring, or of stealing again, or makes it firmer.

2° Likewise merchants and especially innkeepers are bound to restitution who receive thefts of children of the family, servants, etc., or conceal them, or are even accustomed to vindicate them for themselves as the price of merchandise, drinking-bouts, etc.

3° Among those receiving are not to be counted those who receive at home friends or blood-relatives who are malefactors; nor those who hide them under hope of amendment, or show them the way by which they can flee, when they are being sought for prison or for death.¹

One participating is twofold: one in the prey, another in the damaging action. Hence the following things must be established.

772. Principles. - I. One participating in the prey is bound to restitution of the part which he received and detains with himself; this is clear from what was said above concerning the possessor of bad faith.

II. One participating in a damaging action through formal cooperation, or such as truly concurs with the evil will itself of the one damaging (cf. n. 303), for example by protecting him; by accepting a small gift from him so that you do not cry out while he inflicts damage; by making him more certain concerning the time or more convenient mode of placing the damaging action - is always bound to restitution. The reason is that in this case there are present the three conditions which are required for a damaging action to induce the obligation of restitution, namely the action is unjust, the efficacious cause of damage, and theologically culpable.² See what was said n. 746.

III. One participating in a damaging action through material cooperation is excused from sin and from restitution if he acts from a just and proportionate cause (n. 306). But a cause of this kind will be:

a. In cooperation toward damage of life, equal damage of your own life, as if you handed over the sword to one about to kill at his request, while otherwise you yourself would be killed; for no one is bound to impede the damage of another (even if the other is in extreme necessity) with equal damage to himself. Thus the more common opinion (S. Alph. L. IV. 571. 697. Istr. e prat. C. X. 56, although otherwise in H. A. X. 56. 116.). As is clear of itself, excepted is an action which would be immediate cooperation in the killing action itself, or the co-killing of another with another; for this would be formal cooperation from the end of the work (Istr. e prat. ib.).

b. In cooperation, whether immediate or mediate, toward damage in goods of fortune, a just and proportionate cause will be damage to you of a higher order, that is, of life, of members, or grave damage of reputation. The reason is that the one suffering damage, in this case, as to your cooperation would not be reasonably unwilling. - But he would be if your damage were only of equal order.¹ Except 1° if the inequality is excessive, as if by stealing little from others you can preserve yourself harmless in great things. But in that case you are bound to restore the value of the thing taken to the owner, since it is a question of a thing in the same genus, and equivalently you possess what belongs to another;² 2° if one cooperating toward damage in goods of fortune can and wishes to repair those things; 3° if the damage in goods of fortune without the cooperator would have been equally and certainly inflicted by the agent through himself, and in this case he neither sins nor is bound to restitution. The reason of the exceptions is that otherwise the owner would be unreasonably unwilling.³

Negative cooperators are those who do not impede damage which by at least tacit agreement they are bound to impede. They are commonly called the silent, the one not preventing, the one not manifesting. 1° The silent is he who does not speak, does not cry out, does not forewarn the one to be damaged, while he is bound to this by office or contract. 2° The one not preventing is called he who does not furnish help which he can, and from justice ought to furnish, lest damage be inflicted. 3° The one not manifesting is called he who, while he can and from justice ought, does not manifest the malefactor to the injured owner or to the Superior, and by this reason is the cause why the injury is not repaired. Moreover, the same principles and the same moral applications fit all these cooperators.

773. Principles. - I. No one by reason of damage not impeded is bound to restitution unless he is bound by agreement to impede it; for one who is not driven by agreement to impede damage is obligated from charity alone, whose violation does not oblige to restitution.

II. All who are obligated by agreement to impede the damage of another, if they culpably neglect this, are bound to restore; for from justice they ought to impede damage. Therefore if they omit it, they sin against justice and consequently are obligated to repair the damages.

III. That one cooperating negatively be bound to restitution, it is necessary that he could have impeded the damage without grave inconvenience; because neither contract nor positive law is accustomed to oblige with grave burden (at least for the most part, n. 137. § fin.).¹

774. Questions. - Query 1° Is a confessor bound to restitution if from grave negligence or ignorance he omitted to warn a penitent concerning restitution to be made?

Resp. More probably negatively. For although from office the confessor is bound to instruct the penitent well, and therefore sins gravely if he omits this when it is necessary, nevertheless he is not bound to this from justice toward a third party. Except if the silence of the confessor is equivalent to approval; for example, if, having been questioned, without sufficient cause he so declines a response that the absence of obligation is suggested to the penitent. - S. Alph.,² Lugo, Suarez, and others commonly.

Query 2° Are servants bound to restitution when they culpably do not impede damages which are inflicted upon the master?

Resp. More probably negatively as to damages inflicted by other servants or domestic persons, unless the matter was specially committed to them by agreement, namely at least tacit, for example the key of the wine-cellar handed to them. - More commonly and more probably affirmatively as to damages inflicted by outsiders. - The reason is that in the former case, because of foreseen quarrels, they do not seem to have taken this burden upon themselves in the contract of hiring work, but they do seem to have done so in the latter.³ Yet today, since to each one his works are usually entrusted by a contract diligently circumscribed, neither can this be admitted generally. Wherefore attention must be paid to this contract,¹ or, failing it, to custom.

775. • Query 3° Is a superior bound to repair damage inflicted by his subjects (workers, servants, children, wife)?

Resp. 1° For the civil forum see Kent.²

Resp. 2° As to the internal forum, theological fault being supposed: a. Affirmatively, if the obligation of guarding against damage has also been taken upon himself by agreement, at least tacit, for example if a master committed work to be done by agreement, to be executed by the workers subject to himself; or if someone from public office ought to impede the damages of others.³ b. Likewise affirmatively, if, seeing damages to be inflicted by subjects or knowing them already inflicted, he is silent, and the circumstances are such that by his silence, as a flatterer, he efficaciously influences the inflicting or repeating of the damage. c. Negatively in the other cases, where it is a question of a prelate who ought to watch over his subjects only from piety; for violation of this can induce guilt of grave fault indeed, but not the obligation of restitution. But if in the cases concerning which under c, the civil law decrees damage to be furnished by the one set over, this disposition of the law will pertain to legal justice, nor will it oblige before sentence.⁴

776. • Query 4° Is he bound to restitution who by omission of a vote did not prevent an unjust sentence?

Resp. Distinguish between the right of a vote from office and of a vote from privilege or from mere favor, according to what was said n. 769. q. 3°.

Query 5° Is he bound to restitution who accepted money from a thief so that he would be silent, if he ought not to cry out from office?

Resp. More probably negatively, at least of itself. The reason is that he could be silent because of the thief's prayers without injustice, since he is not bound from justice to cry out. Therefore by parity he can be silent without injustice because of gifts promised or handed over. - Lugo, Tamburinus, etc. - But it would have to be said otherwise if he accepted money so that he would watch whether anyone approached; because then he would positively cooperate with the theft.

Query 6° Are guards who do not denounce damagers bound to compensate all damages and also to pay the fine?

Resp. to the 1st. Affirmatively, of itself, because they are constituted to impede damages; except if it is a question of matters of lighter moment, for which, from custom and the presumed will of the owner, secret admonition suffices.

Resp. to the 2nd. More probably negatively, on account of contrary practice, with which common sense agrees. The same must be said concerning a judge not imposing, or a magistrate not demanding, a punitive fine. Except if denunciation of the damager has been made before the judge.

S. Th. II-II, q. 62, a. 7.

309. Unjust cooperation is a concurrence given to the unjust action of another; it is direct and positive if it is done by a positive action, indirect and negative if it is done by omission of the action of one who can impede the injustice and is bound to this from justice. This can be done in nine diverse ways, as St. Thomas shows, art. 7:

One is bound to restitution not only by reason of another's thing received, if he detains another's thing, but by reason of injurious receiving; and therefore also whoever is the cause (physically or morally) of an unjust receiving is bound to restitution. And this happens...:

A. directly, when someone induces another to receive... a) either on the part of the receiving, by moving to the very receiving, which is done by commanding (1), counseling (2), expressly consenting (3), and praising someone because he receives another's thing (4); b) or on the part of the receiver, by recourse (5), because, namely, he accepts him and gives aid; c) or on the part of the thing received, because he is a participant and as it were an associate of the injustice (6);

B. indirectly when someone does not impede, though he can and ought to impede: either the silent man, who withholds a precept or counsel which would impede the injustice (7); or he who does not obstruct, who withholds aid by which he could oppose it (8); or he who does not manifest it, who conceals it after the fact (9).

Not all these modes obligate equally to restitution: "It must be known... that five of the foregoing always obligate to restitution: 1) command, because, namely, he who commands is principally moving, whence he himself is principally bound to make restitution; 2) consent, in that case, namely, without which robbery cannot be done; 3) recourse, when, namely, someone is a receiver of thieves and gives them patronage; 4) participation, when, namely, someone participates in the crime of robbery and in the booty; 5) he who does not obstruct is bound, when he is bound to obstruct... But in the other cases enumerated, someone is not always obligated to make restitution: for counsel, or flattery, or anything of this kind, is not always an efficacious cause of robbery. Whence then only is the counselor, or the flatterer, that is, the adulator, bound to restitution, when it can probably¹ be judged that an unjust receiving followed from causes of this kind."

¹ Understand in the strictly scholastic sense, as uniquely probable.

319. Practical observations. - 1. Conjectural signs of efficacious cooperation are handed down in Theol. Mechl. n. 39, q. 5: a) if the one inflicting damage uses the means suggested by the cooperator; b) if he has done some things which the cooperator suggested and which otherwise he would not easily have done; c) if the cooperation was apt to move the executor and the damage followed, unless the contrary is drawn out from the circumstances.

2. One doubting a) whether he was the total cause of the damage is not bound to restitution in solidum, unless by his action he rendered the thing uncertain; - b) whether the principal cause has restored, if after inquiry has been made it is probable that restitution has been made, is not to be compelled to restitution; - c) whether cooperators of the same grade have restored, and this is probable, is not to be compelled except to restore his own part.

3. In practice cooperators are not always to be urged to restore the whole, even if they are bound in solidum. As St. Alphonsus says, Th. M., l. II, n. 579: "it must nevertheless be noted that the uneducated, although they are bound in solidum, rarely is it expedient to obligate to the whole; since these with difficulty persuade themselves that they are bound to restore the part taken away by associates. Indeed, it can sufficiently be presumed that the owners themselves, to whom restitution is owed, consent that they restore only the part taken away by them; since otherwise it is greatly to be feared that they will restore nothing if they are obligated to the whole." To these the confessor should say that they restore what they judge themselves to owe according to the dictate of their conscience.

4. Sometimes in positive law (as in art. 50 of the Belgian Penal Code) the obligation of restoring in solidum is established much more generally than is really present in the forum of conscience. Therefore this disposition of law, insofar as it extends beyond the obligation of natural law, obligates only after the just and correct sentence of a judge, and from legal justice only, because it has the nature of a penalty.

I. Theologians reckon nine kinds of persons who concur, either positively or negatively, in the loss of others, and who are comprehended in these verses:

Command, counsel, consent, flattery, harbouring, Partaking, silence, not opposing, not disclosing.

II. He who inwardly assents to a man already wholly prepared to inflict an evil, no counsel or persuasion being added, sins indeed against charity, but not against justice: therefore he is free from restitution, because he does not flow into another's loss. But before discourse be instituted concerning causes cooperating to evil, a few things are to be premised concerning those who hinder the obtaining of a good.

III. QUESTION I. Whether one who applies an efficacious impediment, that a man may not obtain a benefice to which he has a right, whether in the thing or to the thing, is liable to restitution? ANSWER. The common opinion affirms it, whether this impediment be applied by fraud, guile, or force, or by entreaties, persuasion, and gifts. It is to be observed nevertheless that if the collator had constantly decreed to confer the benefice, the whole loss is to be made good. If the collator was doubtful, the loss is to be compensated according to the degree of hope. That the impediment may bring in the debt of restitution, it must be efficacious, that is, that on account of such impediment the effect should follow. The reason is obvious. He who by force, guile, or fraud hinders a man from obtaining a benefice to which he has a right, whether inchoate or consummated, inflicts an injury upon him: he who by counsel and persuasion hinders the obtaining injures both distributive and commutative justice. Therefore he who hinders is bound to make good the loss, either wholly or in part, according to the quality of the greater or lesser right which the candidate had to the benefice. But if you turn away the candidate himself by entreaties, persuasion, or counsel, you are held to nothing; because to one willing and consenting no injury is done. And if you should secretly disclose to the collator a hidden but true crime, on account of which the candidate would be deprived of the benefice, you would owe to restore nothing, since that would turn to the public good, provided the offence rendered the candidate unworthy or less worthy.

IV. QUESTION II. To what is he held who hinders a promise made from being fulfilled? ANSWER. If the promise be accepted, the loss is to be made good, because the promisee had a right to the thing promised him. If the promise be not accepted, and by counsel or persuasion you draw back the collator, you are held to nothing. He who by guile or fraud draws back a rich man from bestowing an alms upon a poor man is bound to make good the loss inflicted upon the poor man. If you should persuade a testator lying sick, who had destined a legacy to Sempronius, to institute him his heir, or rather to leave the legacy to yourself or to a friend, Sempronius being neglected, authors commonly teach that you neither sin nor are held to restitution; but I assert that you should never do it. An exception is the case in the Clementine On Privileges, where it is severely commanded to religious that they draw not testators back from bequeathing goods to mother churches. Let all who assist testators counsel them to distribute their legacies justly and prudently, the order of charity and of justice being preserved. He who without fraud or guile persuades someone not to confer an undue good upon Peter out of vehement hatred, is to me more probably bound to restitution. Since although inward hatred does not bring in this debt, it is nevertheless conjoined with an outward persuasion, which, though absolutely regarded it be innocent, in these circumstances becomes evil. This opinion nevertheless I submit to the judgment of others.

V. He who hinders goods from being applied to the treasury, which on account of some crime are wont to be applied after the judge's sentence, is held to restitution; but not before the sentence pronounced: since before the sentence is passed no one has a right to goods of this kind. He who hinders legacies left by a testator, that they should be distributed among the maidens of this or that city adorned with such prerogatives, from being distributed to them, and takes care that they be conferred upon others, sins and is held to restitution: because the maidens of such a city have a right to goods of this kind. What if a dispensation be obtained from a superior? Dispensations of this kind are commonly without just cause. In which case both he who asks and he who grants sin, and are liable to restitution. But if the cause of dispensing be just, there is no debt of restitution.

VI. He who hinders a collator from conferring an ecclesiastical benefice upon the worthier, is held to restitution, both he who hinders and the collator who knowingly deprives the worthier of the benefice. Which restitution is to be made both to the worthier man excluded and to the Church, as will be said more fully when the discourse shall be of benefices.

VII. QUESTION III. What is to be said of those who cooperate in another's loss? ANSWER. He who assents to a man already prepared to inflict an evil, all counsel and persuasion being removed, sins against charity, but not against justice: therefore he is immune from restitution, because in no way does he flow into the injury of another. That a cooperator therefore may be subject to restitution, his cooperation must flow in and be a cause. But if you should by counsel persuade one not prepared to steal or to injure another's right, then you are held to restitution. Nor does it matter that the executor would have been persuaded by another: because this does not take away that you are the cause of the loss. The same seems to be said of him who persuades one prepared to steal that he should execute the theft more quickly, when between the counsel and the execution there flows so much time that the executor could change his will. Read Vol. VII, Book I, dissertation 2, chapter 4, § 1.

VIII. QUESTION IV. When you doubt whether by any of the cooperations recounted in the two verses you have been the efficacious cause of the loss, are you held to restitution? ANSWER. You can doubt whether you have counselled, commanded, and so forth; or, being certain of the counsel, the command, and so forth, you doubt whether the evil followed; or you doubt whether your counsel, persuasion, and the like was the efficacious cause of the loss. The Salmanticenses, no distinction being made, absolutely deny that this doubter is liable to restitution, resting upon the axiom: the condition of the possessor is the better.

IX. But the question needs explication. If you doubt in the first way, whether you gave counsel, you are held to nothing: because no one is presumed evil unless it be proved. When, being certain of the counsel, command, mandate, and so forth, you doubt of the loss thence following, then in the degree of the doubt you are bound to compensate the loss. Since indeed, while it is certain that a cause of its own nature bringing loss has been posited, and it is doubtful whether the loss followed, then there is danger lest the loss have in fact followed. There is danger therefore that you have injured justice. Therefore you ought to withdraw yourself from this danger. When finally, being certain of the depraved counsel, mandate, and the like, and of the loss that followed, you doubt whether your counsel, mandate, and so forth was the efficacious cause of the loss, Molina, Bonacina, Lessius, Sánchez, and others assert that you are liable to restitution — some of the whole loss, others in proportion to the doubt. To this second opinion I incline. Since it does not seem equitable that he who doubts should be bound by the same burden as he who is certain of the loss inflicted. The circumstances nevertheless are to be regarded. Hence gather that I do not incline to the severer opinions, but to those which are plain by solid reason.

X. QUESTION V. He who by his own depraved example is the cause that others perpetrate evil, is he held to restitution? ANSWER. Many, seeing Sempronius stealing, laying waste another's vineyard, committing adultery, and the like, are moved by this example to commit similar evils: is Sempronius held to restitution? The common and true opinion denies it, because although the depraved example be an occasion to them, it is nevertheless not an inflowing cause. Further, only an evil cause flowing into the loss inflicted brings forth the debt of restitution. Sempronius alone sins, as regards this, against charity.

XI. QUESTION VI. What of those who by command, counsel, or consent flow into a neighbour's loss? ANSWER. Under command are comprehended all those who order an injustice to be done, for the executing of which another was not prepared. This command can be imposed tacitly or expressly. When by force of that mandate the loss follows, he who commands is always held to restitution. Tacitly this command can be imposed in various ways. What! says a master to his servants, or a friend to his friends: does none of you avenge my injury? He would do me the greatest favour who should kill my enemy. By these and like expressions a tacit mandate can be made. All the circumstances nevertheless are to be regarded before it be determined that anyone is liable to restitution by force of a tacit mandate.

XII. If the mandate, before the execution follows, has been retracted, and this has become known to the mandatary, the debt of restitution fails. But if it be revoked either in mind only or outwardly, when it does not reach the ears of the mandatary, he who commands is not freed from restitution. If the mandatary exceed the limits of the one commanding, in practice the one commanding is with difficulty freed from the compensation of the whole loss. Wherefore in the chapter He who commands concerning homicide, in the Sixth, it is decreed that he who commands a beating from which homicide follows is subject to irregularity, even though the one commanding did not intend the homicide. For in practice mandataries scarcely ever contain themselves within the prescribed limits. Wherefore those who command freely cast themselves into these iniquitous consequences. Therefore they are bound to make good all the evils which in fact follow from the mandate. If nevertheless one commanding should enjoin something lawful, from which no evil to follow can prudently be foreseen, then he would be free from restitution, even if an evil should follow.

XIII. Counsel, by which the counsellor with guile, fraud, and evil mind persuades, brings in the debt of restitution. Authors dispute whether a counsellor, the counsel being revoked, is liable to restitution, when he who was counselled has in fact committed the evil. To me the more probable opinion is that a counsellor who with a sincere mind and all industry revokes his counsel is free from restitution. A mandate and a counsel differ indeed; but when a counsellor strives with true and solid reasons to dissuade his client from the evil which he had counselled, and leaves nothing untried that he may obtain his wishes, then the evil proceeds from the client's malice alone. If evils befall mandataries, or those receiving counsel, at their own asking, both the one commanding and the counsellor are free from restitution, because it was in their power to reject either the mandate or the counsel. If nevertheless the one commanding were a lord or superior, then he would be held to restitution, because a superior's command induces a certain coercion. If anyone steal or kill in your name, no counsel or mandate having been received from you, you are not bound to restore or to compensate the evil that followed without your knowledge, although you should ratify the evil committed, because ratification can afford no influx into an evil already committed. But if the executor should be moved by your complacency and ratification to omit restitution, then you would be liable to restitution.

XIV. Consent bringing in the debt of restitution is not a mere complacency in another's evil; but it is a cause efficaciously flowing into the evil to be made good. You subscribe to an unjust suit, you give your vote for an unjust war, for a theft, for a homicide to be perpetrated, for an unworthy master to be elected: you are subject to restitution of the loss that followed — when nevertheless your vote is necessary for the passing of the sentence, for the election of the unworthy man, and so forth. For if without your vote the sentence, the election, and the like was already concluded, then your vote does not flow into the effect: therefore you are free from restitution, but not from sin. If nevertheless you should give your vote first, although you foresaw that all the rest would give their votes, then you would be liable to restitution, because in truth your vote flowed into the evil. Wherefore in practice scarcely anyone is free who subscribes to an unjust sentence, or who gives his vote for an unworthy man, from restitution: because it can rarely be established whether the votes of the rest are antecedent or subsequent. Wherefore let each beware of this danger.

XV. Flattery indicates those who by praises, encomiums, and applause, or by reproaches and mockeries, provoke and impel someone to commit an evil. You reproach a husband for tolerating his wife's adultery, for suffering the injury done him: he, stirred by your mockeries, kills his wife, the reviler, the offender. You are the efficacious cause of the evil committed. Therefore you are liable to restitution. Nor is it enough that you should reply that you did not do this with an evil mind, nor intend the vengeance or the homicide: because it is enough to have brought in the outward speech to the committing of the evil. Whether ignorance, inadvertence, and other circumstances may sometimes excuse, I leave to the judgment of prudent men.

XVI. Harbouring signifies the receivers of thieves and malefactors, to whom they afford refuge, security, and opportunity for committing evil, all of whom are liable to restitution. Those who after evils committed receive malefactors under the title of mercy, that they may help them to take flight, are free from the burden of restitution.

XVII. Partaking is he who takes something of the plunder, or confers some aid to the committing of the evil. Wherefore a partaker is said to be either of the unjust action or of the thing received. Partakers of the unjust action are called all who concur to the evil: as smiths by fabricating false keys, watchers keeping guard that robbers may steal in safety, those who move ladders for entering houses, those who keep, hide, or sell things taken away by theft in the robbers' name, or themselves buy them. All these are held to restitution.

XVIII. QUESTION VII. What of those who negatively cooperate in another's evil, as are the silent, the non-opposing, the non-disclosing? ANSWER. These three indirectly cooperate in the committing of another's evil, namely by not crying out, by not hindering, by not disclosing, when they could and are bound in justice. These are held to restitution. Now they are bound in justice who are appointed to it either by office or by contract. Bound to restitution therefore are governors, public ministers, physicians, surgeons, guardians, curators, keepers, who do not hinder an evil which by their office they ought to hinder; shipmasters who do not hinder the sinking of the ship; fathers of families who do not oppose the dissoluteness of their sons; commanders of war who do not draw back their soldiers from unjust plunderings; princes who do not, so far as they can, hinder homicides, robberies, and monopolies.

XIX. Those who are bound by the title of charity alone, even if they keep silence with an evil mind, are held to nothing. Because the debt of restitution supposes an injury of justice. These are not obliged in justice. Therefore there is no debt of restitution. The Salmanticenses with others defend that these are not held to restitution, even if they should accept money from a thief for keeping silence. Since, they say, if they can be silent without money, why not also with a price accepted? Is not this an excellent reason? He who accepts your price that he may be silent flows into the theft, and enters into an iniquitous bargain with you: therefore he is held to restitution.

XX. Servants who see strangers filching their master's goods are held to restitution if they keep silence and do not oppose according to their strength. Since by reason of their service they ought in justice to guard and defend their masters' goods from foreign invaders. Servants also who see goods entrusted to their own custody filched by domestic thieves, if they keep silence, if they do not oppose, if they do not disclose, are held. But if they see common things stolen, they sin against charity if they keep silence, but they are free from the burden of restitution, since they are not bound in justice to guard the aforesaid common things against domestic thieves. The circumstances, customs, and agreements nevertheless are to be regarded.

XXI. Keepers of fields, vineyards, meadows, and woods, hired at an agreed price by the lord that they should watch and guard the aforesaid goods from any invader whatsoever, are bound to make good the losses if they keep silence and do not resist according to their strength. The same is to be said of keepers hired by a prince, that they suffer not wares to be carried out or brought in without the customs being paid.

XXII. QUESTION VIII. What order is to be observed among cooperators in an unjust action, when they are held to restitution? ANSWER. When many concur to a theft, those first of all are bound to restore … … in whose hands the goods subsist, or the price of the same. Restitution having been made by these, the rest are free. When the goods do not subsist, because nothing was filched but only an evil inflicted, it is to be made good first by those who were the principals, and by the others in default of them. Those are called the principal cause who direct, who incite, and who animate others to inflict the loss. And those who by threats, guiles, and frauds induce others to commit an evil, ought to restore as principals. After the principal cause, nevertheless, the executors themselves of the theft are bound to make good the loss. These, however, would have an action against the principal cause, which is always bound to compensate the executors, if these should restore. When many secondary or principal causes equally concur, each is held according to the advantage which they carried off. But if one neglect to restore, then each is held in solidum, and the rest are always bound to compensate him who bore the whole burden of restitution. The principal causes and the executors failing or refusing to restore, there succeed in the debt of restitution the negative causes, who ought to restore in solidum, more or less according to the greater or lesser duty of hindering, regard always being had to that cause which is more strictly bound to hinder.

XXIII. QUESTION IX. How are all the causes recounted bound to restore in solidum? ANSWER. The discourse is of many causes executing the same theft or loss, not of many partakers of the same thing taken away by theft. For it is certain that you, having been invited to a supper made of things taken away by theft, are held only to the restitution of that part alone which you ate. Similarly, when many enter to lay waste a vineyard, no conspiracy having been made among them, but each ignorant of the other's design, and each of himself bringing in the loss, then each is bound to compensate the loss inflicted by himself, since he conferred no influx into the loss inflicted by the others. These things are beyond dispute.

XXIV. When many concur to the committing of the same evil, if one be the principal mover, he ought first and in solidum to restore. Thus princes and their counsellors are bound to make good the losses of war; captains and tribunes the losses of the soldiers, because these are the principal movers. Inferior soldiers, in default of the principals, ought to compensate those losses which they themselves immediately execute; when they concur to the same individual loss — say to the burning of the same ship or house, to the killing of the same man, to the electing of the same unworthy person — all and each are bound in solidum to make good the loss which they brought in by common conspiracy, as the common and more probable opinion teaches: since although physically each executes a part of the loss, morally nevertheless each flows into the whole loss. For by reason of mutual counsel and reciprocal conspiracy all constitute one moral cause of the whole loss. Therefore each is held in solidum.

XXV. QUESTION X. Whether from a shameful promise there arises an obligation of performing the thing promised? ANSWER. Sempronius, that he might induce a maiden to fornication, a wife to adultery, an assassin to homicide, promised a fixed wage. That before the execution the promise brings in no obligation, and is to be rescinded, all confess. It is disputed whether, the promise being fulfilled, the price promised is to be paid. The Salmanticenses affirm it, tract 13, chapter 1, point 6, no. 154, and assert that this is the common opinion of the Doctors.

XXVI. The opposite opinion is defended by Adrian, John Medina, Navarrus, Vigerius, Paul Comitolus, Henry of St. Ignatius, and the Continuator of Tournely. Since indeed the laws, both sacred and civil, decree that stipulations, agreements, and promises entered upon for a shameful cause have no force, and are to be held as void. Gregory IX in the chapter Pactiones established these things: According to lawful sanctions, an agreement shameful, or of a shameful or impossible thing, brings in no obligation either of right or of fact. The civil laws in the law Generaliter, 26, Digest, On Verbal Obligations, title 1, decree these things: Generally we know that shameful stipulations are of no moment. Again in the law Mercedem, the same title, On Contracts, these things are added: That actions are to be denied for a shameful cause, upon a stipulation interposed against good morals, is demonstrated by the authority of law. Finally the law Pacta, Code, On Agreements: That agreements which are made against the laws and constitutions, or against good morals, have no force, is of undoubted right. Many other things from either law I pass over.

XXVII. The laws recounted, since they are absolute, urge equally before and after the crime committed: and it is proved by reasons. For if after the evil committed the price is to be paid, the stipulation has force. But the laws declare that it has no force. What of this, that the Doctors themselves, defenders of the common opinion, teach that stipulations of this kind are to be rescinded? Therefore by their own confession they are of no moment. Besides, if the stipulation here has force after the deed, as those Doctors contend, it assuredly has it not from a new agreement or convention between the contracting parties, but from the agreement which preceded the deed. It is necessary therefore that those Doctors confess one or the other: either that this stipulation is valid both before and after the deed, or that it is null both before and after the deed.

XXVIII. Finally, does an obligation once altogether extinguished revive? All deny it. Therefore far less can an obligation which was null before the deed, and by every law natural, divine, and human is held null, revive. God and all laws punish more severely the depravity of a crime committed than of one to be committed. Therefore if on account of the shamefulness of a thing not yet done they take away the force of obligation from a stipulation, much more ought they to take it away on account of the iniquity of the thing done. Again, obligations which impel to evil and foster crimes ought not to be tolerated. But if stipulations and agreements of a wage to be paid for a crime to be committed were to be observed, the licence of sinning would range more freely, and an entrance would be opened to infinite crimes. Lastly, vows and oaths concerning a sin to be committed are by the common opinion null: therefore far more are human promises null, which surely bind less than vows and oaths made to God.

XXIX. The cited Doctors object. Two things are to be distinguished in a crime: one, the depravity of the action and the offence of God; the other, the pleasure, the delight, the entity of the action, the trouble, the danger to which the shameful person is exposed. The first cannot be venal. The second by its own nature and of itself is vendible. ANSWER. This distinction being laid down, the soul, an angel, the sacraments are vendible, inasmuch as they are beings. The aforesaid crimes do not fall under contract inasmuch as they are beings of a metaphysical precision, but as involved in their own conditions. The pleasures which are in crimes are wicked. Therefore if the crimes themselves are not venal, neither can the pleasures which accompany crimes be sold. Therefore the cited opinion of the Doctors is to be reckoned false.

XXX. QUESTION XI. What is to be said of a harlot's gain? ANSWER. That a harlot's gain may be retained, and ought to be paid, all commonly confess. Therefore the opinion hitherto defended is false, and the opinion of our adversaries true. I answer that a harlot can demand back and retain the price of her whoredom, not on account of any stipulation, not on account of consent to fornication, not on account of the pleasure, not on account of any danger or trouble, not finally because she can let out the use of her own body; but because the laws, which for the avoiding of greater evils permit harlotry, punish fornicators with this mulct, that they pay a wage to the harlot in penalty of the crime committed. I add that those laws are permissive. Whether before the divine tribunal they are always just, is not established for us. This is certain, that princes can permit lesser evils, that they may avoid greater. But hence it does not follow that subjects can use those same laws. Wherefore I would urge all harlots compunct with a sincere heart to distribute the gain of harlotry among the poor, and would grant to them, as to the poor, something more or less for their sustenance according to the diversity of circumstances.

XXXI. QUESTION XII. Whether maidens, wives, and honourable women receiving a price for chastity sold are bound to restore it? ANSWER. Fr. Leonard Lessius writes these things, Book II On Justice, chapter 14, doubt 8, no. 52: “And although the evil work for which he gave is not appraisable at a price inasmuch as it is evil, nevertheless inasmuch as it is delightful or useful to the one and detrimental to the other, it is appraised at a price among men. Therefore what has been received for it on this account is not to be restored, unless perhaps someone exceed the estimation; as if a harlot, who is accustomed to grant the use of herself for one gold piece, should extort fifty from some young man as the price. This, however, has no place in her who is reckoned honourable; as if some matron or daughter should accept a hundred gold pieces for the use of her body from one who was able to give: for he who was able to give could also RETAIN. SHE CAN VALUE HER OWN CHASTITY AT SO MUCH, AND AT MORE. For things which have no fixed price, and are not necessary to life, but are sought for the sake of pleasure, can be appraised at the seller's discretion, and, as Peter Navarra and others probably teach, at others' too.” Thus far he: which doctrine assuredly, like others of this kind, St. Francis de Sales did not commend, although he commended the works of the same author, which are indeed praiseworthy for many rightly handed down instructions. That women or girls of this kind can, justice alone being regarded, retain a gift spontaneously given by one who has the faculty of giving, I do not absolutely deny. Concerning these gifts, nevertheless, I inculcate that the same is to be done which St. Thomas hands down, II-II, q. 100, art. 6, reply 4, concerning a price simoniacally received: namely, that it is not to be rendered back to the guilty party himself, but to be laid out either upon the worship of God or upon the poor: both that the handle of sinning may be taken from women prone to avarice, and that no monument of past unchastity may remain, and that by the things wherein a man sins, by these he may be tormented, according to the saying of the Holy Ghost. To this so equitable an opinion no one can be repugnant, save perchance he who does not do penance, but feigns it.

XXXII. QUESTION XIII. Are harlots, whether public or secret, bound to restore the price received from a religious for a shameful union? ANSWER. I would not stir up such little questions, did I not find them agitated by others. Pellizarius, Manual of Regulars, tract 4, chapter 2, section 4; Malchardus, Vol. I, book 5, part 2, tract 1, document 1; de Lugo, disputation 3, section 3; John of the Cross, book 1, chapter 5, doubt 10, and others defend the negative opinion. When, they say, a religious obtains a faculty from his superior of disposing of the goods granted him for use, while he draws them off into shameful things, although in the mode of alienating he acts against the superior's will, nevertheless the alienation itself is valid. And to this alienation absolutely regarded the superior consents. These things are not so much to be refuted by arguments as to be lamented with bitter tears. No superiors can grant licence for paying a price for a shameful act. The alienation therefore is invalid. Therefore restitution is necessary.

XXXIII. QUESTION XIV. Whether one receiving a price for an unjust sentence to be passed ought to restore it? ANSWER. The positive laws detest and prohibit all donations to be made to judges for unjust sentences, to advocates for the unjust defence of clients, to witnesses for false testimony. The Salmanticenses, tract 13, chapter 1, point 7, no. 169, teach that donations of this kind, natural law being regarded, are valid. But this opinion is to me false, and to be rejected.

XXXIV. It is disputed whether by force of positive law prohibiting donations of this kind they ought to be restored. A twofold opinion is found, and each is reputed probable by the Salmanticenses. The former denies the debt of restitution, because the laws indicated oblige only in the exterior forum, say authors of this kind, but not in the interior forum. This opinion I reject as false and improbable. Since indeed the aforesaid laws, resting upon the law of nature, oblige in each forum. Let St. Augustine be heard upon this argument, who in Epistle 54 to Macedonius writes thus: But an advocate ought not therefore to sell a just judgment, or a witness true testimony, because an advocate sells just patronage and a jurist true counsel. For those bend themselves to the examination of either party, and these take their stand on one side. But since judgments and testimonies, which ought to be sold neither false nor true, are sold when iniquitous and false, assuredly money is much more wickedly taken, because it is also wickedly given, although by the willing. But he who gave for an unjust judgment would indeed wish to demand it back, did he not fear, or were he not ashamed, to have given it. … Nevertheless, if justice be more sincerely consulted, justice says to the advocate: Render what you received, when you stood against the truth, favoured iniquity, deceived the judge, oppressed a just cause, and conquered by falsehood.

XXXV. This testimony Fr. Leonard Lessius objects to himself, Book II On Justice, chapter 14, doubt 8, no. 55, in these words: “You will say: St. Augustine in the fifty-fourth epistle to Macedonius says that it is more wickedly that money is accepted for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored. Therefore also for an unjust one. So Soto.” But he adds: “I answer by denying the consequence. For it is not because a thing is more wicked that it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss given by the injury. But he who accepts for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence, to the passing of which he who accepts the money has already set his mind, on account of the injury which is done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust one than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work is performed, since he says it was given by the willing. For to one willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned given under compulsion, from fear of an unjust sentence.”

XXXVI. If in explaining some article of faith a man should with this liberty, and with a most vain wrapping of distinctions, entangle and elude the opinions of the holy Fathers, it would be all over with the articles of faith. And because in explaining the commandments of morals the opinions of the Fathers are in fact adulterated with various cavils, therefore Christian theology has been in a deplorable manner relaxed and obscured by not a few casuists. The doctrine of St. Augustine is unshaken. Wherefore Vásquez and de Lugo, disputation 18, section 5, no. 57, confess that St. Augustine stands on our side; nor nevertheless do they themselves fear to defend an opinion disapproved by Augustine. The reason of our opinion is evident. A judge by force of his office is bound to pass sentence. Therefore he cannot receive a price. For a just sentence, someone will say, I grant. For an unjust one, I deny. Since he is compelled by force of his office to pass a just sentence, therefore he cannot receive a price for a just sentence to be passed, and if he receives it, he is bound to restore it. But he is not obliged to pronounce an unjust sentence, and therefore he can receive and retain a price for an unjust sentence to be passed. Would you have things yet more absurd? Because we set forth such paradoxes, which strike common sense, to be derided, some refute us. But we entreat them to prove that these are not paradoxes worthy of severe confutation. But let Marcus Tullius come forth into the midst, who in Book II of the Offices, chapter 21, wrote these things against the reproved opinion: But the chief point in the whole management of business and of a public office is that even the least suspicion of avarice be driven away. "Would that," said Gaius Pontius the Samnite, "fortune had kept me for those times, and that I had been born then, when the Romans began to accept gifts: I would not have suffered them to rule longer." Truly he would have had to wait many generations. For this evil has but lately invaded this commonwealth. And so I the more gladly suffer that Pontius lived rather then. … There is therefore no viler vice … than avarice, especially in princes and in those who govern the commonwealth. For to make merchandise of the commonwealth is not only shameful, but wicked and abominable.

XXXVII. QUESTION XV. When that which is restored does not reach the creditor's hands, is the debtor bound to restore anew? ANSWER. Many things hinder immediate restitution, which therefore must be made either through a confessor or through another person. If the intermediary person be designated by the creditor, or if he grant the debtor the faculty of choosing him, and the debtor in good faith choose a person reckoned worthy, it is certain that the thing perishes to the creditor, and that the debtor is immune from a new restitution. The same is to be said when the person is designated by the judge. It is disputed only when the debtor of himself chooses this person. Many defend that the thief is not liable to a new restitution after he has consigned the thing to be restored to a faithful and honest man, even if it perish.

XXXVIII. The opposite opinion is to me the more probable. Since indeed the nature and essence of restitution is to constitute the equality injured by unjust acceptance; and the creditor is always unwilling so long as he does not obtain his own thing or dispose of it, and the equality is restored. But here the equality is not restored unless the thing taken away return into the creditor's hand. The thief is the cause of the unhappy outcome. He, by taking away another's thing, exposed himself to these dangers.

XXXIX. If a possessor of good faith send a thing found by an honest man to its lord, and it perish, he is not liable to a new restitution. Since he is held neither from unjust acceptance nor from the thing received. But if the thing be owed from a contract of loan, of deposit, of pledge, and the like, authors distinguish. If the thing to be restored be the same in kind — as this garment, this horse, which you received on loan for use — and it be sent by an honest man, the thing perishes to the creditor, because it was his, and therefore it perishes to the lord. On the contrary, if the thing be not the same in kind, but in genus — as moneys, wheat, wine, which you received on loan — they perish to you, not to the creditor, because those things were yours. These things are common ground.

XL. QUESTION XVI. In what place, and at whose expense, ought restitution to be made? ANSWER. A possessor of good faith ought to restore in the place where the thing subsists. If the lord be absent, he is to be admonished, and at his expense the thing ought to be carried to him. But if this possessor of good faith has transferred the thing elsewhere, then he ought to send the thing to the lord at his own expense. On the contrary, a possessor of bad faith is bound to restore the thing in that place where the thing would have been, had it not been taken away, and at his own inconvenience. Restitution owed from a contract ought to be made where the contract was celebrated, unless it be otherwise appointed by the contracting parties. A loan is to be restored at the borrower's expense, since it turns to his advantage. On the contrary, a deposit, since it turns to the depositor's advantage, is to be demanded back at his expense.

THERE FOLLOW three others, namely the Silent one. He is called silent who ought to have spoken in order to prevent the damage. He can be bound either by office, as a Prelate, or by contract. I shall treat of these in the doubts below.

The SECOND is the Non-obstructor, when he ought to have obstructed, as Prince, Magistrate, and the like.

The THIRD is the Non-discloser of the one causing damage, when he was bound, as a witness in court, keepers of vineyards, woods, etc. Many doubts are raised about these.

TANNERUS disp. 4. quaest. 6. dub. 2. num. 72. requires three conditions for these persons to be bound to restitution. The first is that he was bound to procure such a good, or ward off such an evil, by a debt of Commutative or Distributive Justice. The second is that he was bound to procure it for that very person who has been damaged, whose cause he ought to have pleaded. The third is that the procuring of such a good was deliberately omitted, or omitted with proportionate fault. From this doctrine innumerable cases are resolved. See also Vasquez prim. 2. disp. 175. Lessius Lib. II. cap. 12. disput. 10. et 18.

WHETHER, THEREFORE, he who is the indirect cause of damage by not obstructing it, when he can and ought, is bound to restitution; many assert universally. So Angelus, and Cajetan in the summa, under the word Restitutio, Richard in 4. dist. 15. art. 5. quaest. 4. Valencia also, at the place cited, judges it probable.

OTHERS, however, as reported by Valencia, say he is bound only when he could and ought to have obstructed it out of justice; for instance, because he was Praetor, etc. So it seems D. Bonaventure holds in the Speculum, cap. 1. under the word Damnificatio, Sylvester V. Restitutio 3. Adrian IV, quaest. de Restitut. Soto Lib. 4. de Iustitia, quaest. 7. art. 3. Medina quaest. 9. de rebus restitutis. Alensis 4. part. quaest. 86. num 3. art. 4 §. 7. Altissiodor lib. 4. summae, tract. de poenitent. cap. de Restit. and almost Valencia; Bassaeus num. 15. citing Peter of Navarre lib. 3. cap. 4. numero 130. Lessius lib. 2. cap. 13. dub. 10. Bonacina disput. 1. quaest. 2. punct. 11. Azor 3. part. lib. 4. cap. 17. Fillucius tract. 32. num. 75. Sylvius 2. 2. quaest. 62. art. 4. quaestio 4. and art. 7.

As to the keeper of the gates of woods who connives at the carrying-off of timber, many, as reported by Diana part. 2. tract. 5. resol. 54, deny that they are bound to make good the losses inflicted.

THERE ARISES another question: Whether a Confessor, and others on whom the office of prohibiting unjust detentions rests, are bound to Restitution if they omit to admonish, etc. As to the Confessor, they affirm it: Summa Rosella, V. Restitutio 2. §. 5. Summa Angel. V. Restitutio, ultim. §. 5. Navarre in the Manuale, cap. 17. num. 22. and others as reported by Valencia disput. 5. quaest. 6. puncto 3. and Bonacina de restitut. disput. 1. quaest. 2. punct. 11. The same view is followed by Nunges in addit. ad 3. part. Tom. 2. quaest. 8. art. 4. dub. 5. Zanchus in the directorium confess. part. 2. praecepto 7. cap. 26. dub. 3. Gabriel in 4. dist. 15. quaest. 2. art. 3. Sylvester V. usura, 7. quaestio 2. and other Neoterics as reported by Diana Tom. 1. Tract. 16. resol. 1. Bassaeus num. 8.

The CONTRARY opinion is that of Bonacina and others as reported by him, Filliucius tom. 1. tract. 7. cap. 12. quaest. 7. num; 37. Lessius Lib. 2. cap. 10. dub. 6. Malderus 2. 2. tract. 5. cap. 3. dub. 24. Bartholomew of Saint Faustus in spec. confess. disp. 4. quaest. 121. num. 7. Aegid. Coninch. de Sacram. disp. 8. dub. 17. num. 144. Rebellius de oblig. iust. part. 2. lib. 17. quaest. ult. num. 12. and part. 1. Lib. 2. quaest. 14. sect. 8. num. 63. Diana limits this, provided the Confessor does not persuade the penitent not to make restitution. But the obligation to join restitution with not dissuading is one and the same. This indeed is taught also by Suarez tom. 4. in 3. part. disput. 32. sect. 6. and Rebellius at the place cited, Caspensis disp. 5. sect. 9. §. 1. num. 86. Sanchez Lib. 7. Decalogi, cap. 6. Tanner. disp. 4. quaest. 6. num. 75. referring to others, Bassaeus, V. Restit. 3. §. 7. num. 16. Crousers ad cap. 7. Reg. Min. lib. 31.

The opinion of D. Bonaventure, as I see, is this second one; for in the Confessionale, cap. 4, where he professes to teach confessors what they are bound to do, and what penalties they incur by omitting it, he says: Attendendum igitur, quod cum sint tria genera poenitentium, primis nulla potest iniungi poenitentia utilis ad salutem. Horum autem sunt sex genera. Primi raptores, Secundi usurarii, Tertii incendiarii, Quarti fures, Quinti Simoniaci, Sexti dolosi circumventores, ut sunt perversi Iudices, advocati iniqui, testes falsi, negotiatores fraudulenti, et alii huiusmodi, quibus omnibus non potest alia iniungi poenitentia, nisi illa Evangelica, Matth. 18. Redde quod debes, et illa Apostolica, Rom. 13. Reddite omnibus debita. Et illud Ecclesiastici 4. Redde debitum tuum. Quod si hanc acceptare noluerit confitens, nulla alia iniungi potest, quae valeat ad salutem; quia, ut dicit Augustinus epist. 54. ad Macedonium 14. quaest. 6. Si res aliena, propter quam peccatum est, possit reddi, et non redditur, poenitentia non agitur; non remittitur peccatum, nisi restituatur ablatum. He then enumerates the rest shortly after in part. 7. He indeed condemns confessors who omit the debt; but he imposes nothing about Restitution upon them.

IT IS PROVED, because the obligation of restitution arises from the virtue of Justice alone; but the Confessor is bound to admonish not from his own justice, but from religion.

From the conditions adduced above other decisions are had. The first is that a Defendant who unjustly denies the crime in court is not bound to pay the monetary penalty due to the judge before the sentence. So Tanner. num. 76. with Adrian quodlib. 6. Navarre in the manuali, cap. 18. num. 49. Couarv. in Epitome 124. part. 2. cap. 6. §. 8. num. 10. Azor. Lib. 5. cap. 8. quaestio 5. Vasquez prim. 2. disput. 175. cap. 5. against Soto Lib. 4. quaest. 6. art. 6. Molina Tract. primo, tract. 2. disp. 95. The same seems to hold of witnesses, if they testify falsely. So Tanner. with Sà V. Restitutio, and Azor. at the place cited. The reason is that they are not bound out of justice to procure the good of the Judge or of the Treasury; nor has the Treasury acquired any right, under Commutative Justice, to the money before the sentence.

IT IS GATHERED secondly that both the Defendant and the witnesses, unjustly denying the truth, are bound to restore to the damaged party the expenses and other losses inflicted by the denial of the truth. So from the common teaching Carbo quaest. 31. Sà at the place cited, Soto Lib. 4. quaest. 7. art. 3. Medina Cod. de restit. quaest. 9. Tanner. num. 77. For they were bound out of justice not to damage the innocent party; yet they can be excused if grave losses to themselves threaten from the confession. So Tanner. with Lessius, and Sà. They judge it probable, indeed, that Molina holds they are never bound, disput. 83. Sylvester V. Testis, Lessius Lib. 2. cap. 30. dub. 8. Vasquez speaking of the Defendant in the chapter above cap. 2. Tanner. num. 79. Because it does not so plainly appear that these are bound to it out of justice.

IT IS GATHERED thirdly that a Judge negligent in delivering sentence is bound to restore the losses to the Republic and to the parties, but also the penalty which he would have paid to the Treasury for the Defendant had he proceeded rightly. The same they assert likewise of the fiscal officer: Sylvester V. Poena, quaest. 28. Salon art. 7. controv. 5. Carbo quaest. 31. who says it is the common opinion, and Vasquez agrees as to the fiscal officer. The reason is that out of justice these are bound to it by their office.

The CONTRARY, however, as to the Judge, regarding the monetary penalty to be paid to the Treasury, is held by Azor. at the place cited, ad 4. Sà V. Restitutio; Vasquez at the place cited. Lessius Lib. 2. cap. 3. dub. 10. as to the fiscal officer, whom others reported by Salonius follow.

IT IS GATHERED fourthly that toll-collectors are bound to restitution for the neglect of a just toll; but say otherwise of the monetary penalty which would come to the Treasury if they neglected to procure it. Say the same with Bassaeus of the keepers of things and fruits, from which something is given to the Prince.

IT IS GATHERED fifthly that Keepers of forests, rivers, etc. are not bound to pay the penalty which would have come to the Treasury had they reported the transgressors to the Magistrate. So Sylvester V. Restit. 3. quaest. 5. §. 7. Bassaeus num. 17. Lessius lib. 2. cap. 13. dub. 10. Tanner. num. 83. against Cato and Salonius. The reason is that their office out of justice regards not the good of the Treasury, but the security and defense of the public good. Except the tributes, as I said, excerpted from these.

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.