Co-operation by consent, flattery, participation and receiving

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.

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.

104. Consent is sometimes taken for the approval of some deed. Thus, e.g., an irreligious man, hearing that iniquitous laws have been passed against the Church, exclaims: This has been done well. I plainly consent. Such consent of itself in no way flows into the damage inflicted; nevertheless per accidens it can cause unjust damaging, because iniquitous legislators, seeing the consent of the people, are made more courageous in establishing wicked laws and do not revoke iniquitous laws already passed. In the present place we speak of consent which of itself damages; and then the one consenting is said to be he who by his external approval, vote, or sentence truly and efficaciously cooperates in damage to the neighbor, e.g., a juror,⁴⁹ who with others issues an unjust sentence; a deputy who by his vote with others establishes an iniquitous law (e.g., concerning ecclesiastical goods to be seized); an elector who with others chooses someone unworthy for an office or benefice.

Here again the general principle announced above must be applied, namely, the one consenting is bound to reparation of the damage if he has truly, efficaciously, and formally cooperated by his consent in the damage. From this principle the following corollaries flow:

⁴⁹ Commonly, der Geschworene, le juré.

105. a) He who was negligent in choosing deputies for "Parliament" is not obligated to reparation of the damage which arose from iniquitous laws which were established by the deputies, both because the vote of one elector has very little influence upon the election of a deputy and because electors cannot answer for all the laws which the elected deputies will establish. But nevertheless the faithful are to be diligently and prudently instructed that they uprightly exercise the right of suffrage, lest wicked deputies be elected. With merit someone called the carelessness and vain fear of those citizens who do not give their vote for good deputies an electoral sin. And this sin does not seem to be of lighter weight. Certainly if in our times Catholic men with united strength exercised the right of suffrage for electing good deputies, there would not be so many very wicked laws. For this reason it is especially displeasing to men devoted to Indifferentism and unhealthy Liberalism if priests diligently warn the faithful to exercise the right of suffrage duly; and therefore the enemies of religion continually stir up complaints against such priests, as if they were inserting themselves into political matters. And therefore in this matter there is need of great prudence, lest priests be accused either in public newspapers or in a lay tribunal.

b) Deputies in public assemblies who either α) from agreement (i.e., who belong to the same parties, or are of the same "faction") or β) by secret votes⁵⁰ or γ) by other modes have efficaciously established an iniquitous law, are held under grave sin to reparation of the material damage caused. In practice a twofold difficulty can arise, namely, whether the vote of one or another deputy truly flowed efficaciously into the establishing of the iniquitous law, and then how much damage has arisen from the law established. Often each difficulty, and especially the second, cannot be solved with certainty. But if it is not certainly established concerning the efficacious influence of the vote, the obligation of repairing the damage cannot be imposed. Since almost always it is a question of laws injuring ecclesiastical goods, upon a deputy who has so sinned and now desires to do penance, after absolution from censures perhaps incurred, there is suitably imposed a fitting alms to be given to the Church, unless the confessor wishes, for greater security, to consult the Sacred Penitentiary.

c) He who either culpably or in good faith gave consent for inflicting damage is bound to revoke it. But if he did this before the damage was inflicted, he is obligated to nothing beyond; but if he did not do this, he is held concerning the repairing of the damage.

⁵⁰ The same seems to hold also in public votes; and not only when public votes are given simultaneously, e.g., if deputies rise together or raise the hand as a sign of voting, but also in successive votes. For a sufficient reason is not brought forward why the earlier voters ought to be in a worse condition than the later ones. Cf. Billuart, De iure et iust. diss. 8, a. 13, § 4.

106. A flatterer or adulator is said to be he who, by praising, blaming, flattering, moves another to damaging.

Thus, e.g., he is a flatterer who mocks the patience of the injured person; who exaggerates the injury inflicted, saying repeatedly that things of this kind are not to be borne by a noble man; who describes the vileness of the offender, etc., and does all these things to instigate another to revenge. Likewise he is a flatterer who proclaims the utility of theft or damaging. Therefore he who by these or similar modes truly, efficaciously, and formally moves another to unjust damaging is bound to restitution. Nor is it necessary that he directly intend the damage; it is enough that he indirectly wills it, foreseeing that it will follow from his flattery. The things said above concerning the one counseling hold also concerning the flatterer, since he is nothing other than one counseling in a particular mode, namely by flattering, etc.; hence the flatterer is subject to the same obligations as the counselor, provided nevertheless that he truly flowed efficaciously into the damage of another.

Sometimes he who approves or praises an unjust work done is called a flatterer. It is plain that approval of this kind does not induce the obligation of repairing damage, unless nevertheless from it the damager was induced to new injuries or was instigated not to repair the injury already done.

108. The participant is twofold: a) a participant in the prey, who receives part of a thing unjustly taken away; b) a participant in the action, who helps another damager in an unjust action, e.g., by providing tools to a thief, by keeping watch, etc.

a) The participant in the prey ought to restore all those things which he himself received from the thief, unjustly taken away. Therefore he is to be treated as a possessor in bad, doubtful, or good faith.⁵⁶

b) The participant in an unjust action ought to repair the damages of which his own action is the efficacious and culpable cause. But it is altogether required that theological fault have been present; otherwise the obligation of restitution does not arise, and this especially if the cooperation was only material.⁵⁷ For the participant is excused from reparation of the damage caused, provided that the required conditions are present, namely 1. that the act not be intrinsically evil; 2. that it be elicited from a relatively grave cause; 3. that the good effect intended by the cooperator arise immediately from a good or at least indifferent cause.

In practice the quantity of reparation to be made is often determined with difficulty. Let this be the general rule: if the cooperation was so necessary that without it the damaging action would have been impossible, then the cooperator is held to repair the whole damage (in solidum).⁵⁸ But if even without the cooperation the damage would have been caused, the cooperator is held to repairing only a part of the damage, and indeed according to the quantity of influence.

Authors are accustomed here to raise the question whether those are excused from fault and restitution who, on account of fear of grave detriment, cooperate in an unjust damaging action. The solution of this question cannot be given otherwise than by recurring to the principles concerning the indirect voluntary. But difficulty exists in the right application of those principles. Authors teach rather commonly: 1. that it is never lawful immediately and positively to cooperate in the unjust killing of another; 2. that it is never lawful immediately to cooperate in the unjust grave wounding of another. But if it is a question of damaging in goods of fortune, then authors do not agree. All indeed concede that remote cooperation in damaging is licit, provided that a proportionately grave cause is present. Thus, e.g., on account of fear of death or of another very grave evil, it is lawful to hold a ladder for a thief climbing up, to hand over to him the keys for opening a chest, to carry away prey already taken, and similar things.⁵⁹ Billuart⁶⁰ and the Salmanticenses⁶¹ teach that proximate cooperation in unjust damaging is illicit and intrinsically evil; on the other hand, St. Antoninus,⁶² Sporer,⁶³ St. Alphonsus,⁶⁴ Lehmkuhl,⁶⁵ and several others teach that from a very grave cause, e.g., fear of death, it is licit, and indeed rightly. For the taking away or damaging of another's thing is not unjust except insofar as the owner is reasonably unwilling. But the owner is not reasonably unwilling if I, placed in very grave necessity, cause him damage in fortune, especially if I have the intention of repairing this damage according to my powers.⁶⁶ Cf. the things said above, n. 87, concerning great goods of another to be taken away in extreme necessity.

⁵⁶ Cf. below n. 209 sqq.

⁵⁷ Cf. the things said above (I, n. 52 and 618) concerning the indirect voluntary and cooperation.

⁵⁸ What restitution in solidum is, cf. below n. 223.

⁵⁹ Cf. Billuart, De iure et iust. diss. 8, a. 13, § 6, dico 2.

⁶⁰ L. c. dico 1.

⁶¹ Curs. Theol. mor. tr. 21 de praec. decal. c. 8, n. 75, where the opposite opinion previously exhibited is revoked.

⁶² Summ. theol. P. 2, tit. 1, c. 12.

⁶³ De iust. tr. 4, c. 3, n. 41 and 42.

⁶⁴ Theol. mor. l. 3, n. 571.

⁶⁵ Theol. mor. I, n. 1205.

⁶⁶ Cf. St. Alphonsus, Theol. mor. l. 3, n. 571.

313. One consenting (consentir; toestemmen or behagen) in general is everyone who approves a deed, but then he does not influence the damage except per accidens; but in the present matter there is understood one who by his consent exteriorly manifested, namely by words or other signs, per se influences the damage to be inflicted.

Consent is also favor, approval, sentence, or vote, whether of election or of resolution; but vote is twofold: merely consultative, which belongs to cooperation by counsel; and decretory, which has the force of a precept or law, and constitutes a special mode of cooperation, as in senators or deputies who by vote establish an unjust law, in judges or jurors who pass an unjust sentence, in collators who make an unjust conferral of office, in electors who promote an unworthy person, all of whom act in almost the same way as mandators.

One consenting is bound to restitution when his consent was an efficacious and culpable cause of damage unjustly inflicted. Hence:

1. if there are several consenting, and all together give an unjust vote, whether by putting in a secret ballot or by rising, all equally concur in the damage and are bound to restitution;

2. if from mutual conspiracy they give wicked votes, all are likewise bound;

3. if they give a vote successively and by living voice, a) certainly those are bound to restitution who cast their vote earlier, until the number necessary for the wicked sentence is completed, even if they foresee that those who would furnish consent will not be lacking, because they truly influence the sentence and consequently the damage; b) but those who, after the sufficient number has been completed, give a vote, are also bound if the votes are revocable, because the damage is not yet consummated; probably they are not bound if the votes are irrevocable, because the damage has already been accomplished and consequently they are not its efficacious cause, unless sometimes per accidens, insofar as they could be a cause, after the manner of one counseling, that the decree be entrusted to execution more easily or revoked more difficultly;

4. if, before the sentence is passed, they efficaciously revoke the unjust vote, they are immune from restitution, because no efficacious cooperation is now present;

5. those who give a vote unjust of itself, but concerning a thing not intrinsically evil, when it is the only means of impeding a greater damage, can be freed from injustice and from repairing the damage; especially if it is publicly known that it is done in this way only to avert a greater evil.

In doubt whether someone gave his vote after the sufficient number of votes had been completed, he is bound to restore, at least pro rata and according to the measure of the doubt, because, although he has not certainly caused the damage, nevertheless he certainly caused uncertainty about the author of the damage, insofar as he brought it about that, on account of the exceeding number of votes, some are not certain who are bound to restore in solidum; and thus he has now made worse the condition of him who suffered the damage, in relation to reparation of the damage.