Innkeepers and Victuallers

125. On the cooperation of innkeepers. Innkeepers can cooperate in the sins of others chiefly in three ways:

1. By furnishing forbidden foods. a. It is not licit voluntarily to offer forbidden foods to guests: for this would be to invite them to sin.

b. It is licit to serve meats on prohibited days to those asking for them, because it would be too hard and dangerous to ask individuals whether they have a legitimate cause; but if it is established that they are not excused, meats can be supplied only from a grave reason of notable damage, as if otherwise the gathering of guests would be notably diminished.

c. Hence if they foresee that there will be guests who ask for prohibited foods, they can set the table with licit and illicit foods; and if they foresee that no one will ask for fasting foods, they can prepare only meat foods. But they are bound to admonish the guests that they can receive fasting foods, and they ought to serve such foods to those asking.

In a private family in which a table is provided for outsiders for a paid price, it is not licit without a special cause to cooperate in violating abstinence; therefore even to those asking, forbidden foods cannot so easily be supplied. Yet a moderately grave cause excuses this cooperation if the sin cannot be prevented by denied supplying.

2. By serving wine. a. It is never licit spontaneously to offer wine to one who is foreseen as going to become drunk from it; for this supplying would be formal cooperation.

b. It is licit from the sole cause of profit to serve wine to guests flowing in indiscriminately, although it is foreseen in a confused way that some of them will sin by drunkenness, quarrels, and blasphemies, both because the sins cannot be prevented (for wine will be supplied to them in other taverns), and because the innkeeper would undergo grave damage; for since sins of this kind ordinarily happen in taverns, he would suffer a great loss of guests.

c. But in a particular case it is not licit to serve wine which he asks for to a guest who will become drunk, from the sole cause of profit nor because of the guest's indignation; but for cooperation in a determinate and certain sin to be licit, a graver cause is required, for example fear of a quarrel, blasphemy, or notable damage from the diminution of guests.¹

3. By proposing evil newspapers. a. It is not licit to expose newspapers which are altogether evil, namely which almost always are opposed to faith or good morals, although they may be asked for by many who on that account will leave the inn; for the damage of the innkeeper, although grave, cannot be a sufficient cause for permitting the spiritual ruin of many which would follow from it. It is added that newspapers of this kind are also prohibited by ecclesiastical law.²

b. Newspapers which only more rarely contain something that is opposed to faith or good morals can be supplied to those asking in a separate place if otherwise they would suffer notable damage.

c. Only if it is established by experience that almost all guests ask for those papers and otherwise would leave the inn, can they be publicly proposed, provided good newspapers are also exposed at the same time. Thus in greater cities it can scarcely any longer be prevented that papers of this kind are now publicly exposed by innkeepers.

¹ Cf. Ethel-Bierbaum, Theologia moralis, 2nd ed., I, pr. 1, n. 17.

² Constitution Officiorum ac munerum, n. 21.

493. 1. One receiving or furnishing recourse is said to be he who knowingly cooperates in the damage of the neighbor by furnishing security to the damager. This can happen in two ways: either by receiving another's thing or by protecting the author of the damage.

It belongs to the nature of one receiving that by his manner of acting he influence the will of the damager and determine it either to inflict damage again or to retain the thing taken away.

a. Therefore these are not receivers: alpha. those who receive criminals at home as friends and blood-relatives, or by reason of office as innkeepers, or to avert grave damage from themselves; beta. those who defend thieves or criminals in judgment in those things in which they themselves could defend themselves.

b. But these are receivers: alpha. innkeepers who receive thieves into lodging and conceal them lest they be captured; beta. tavern-keepers who accept from sons under family power money or other things secretly taken from their parents; gamma. parents who do not impede the thefts of sons and in this way add courage to them for repeating thefts.

2. The receiver is bound to repair damages of which he himself is the efficient cause; therefore if the one furnishing recourse brought it about that damage was inflicted or that the thing taken away was retained.

What are the obligations of the depositary? - 1. The depositary cannot, per se, use the deposited thing. The reason is that the thing is given to him for custody, not its use conceded. Use of the thing can be judged permitted only if it can reasonably be judged that the owner of the thing consents to it, e.g., if by use the thing is exposed to no danger, nor made worse; if someone has deposited money not closed nor sealed. Wherefore, if the owner is unwilling, the owner must be compensated for the use made of the thing, if from this the depositary has become richer. C. I. 1846, 1852; C. G. 1930, 1936; C. H. 1767, 1770; C. A. 958, 961, 965; C. B. 698; C. L. 1437, 1438; Lugo d. 33. n. 4. - But he who truly uses another's thing at his own risk, even if he knows the owner is unwilling, acquires for himself what he gains thence by his own industry. By his own industry, since a thing consumable by use does not bear fruit by that use, but is destroyed. By his own industry, for fruits produced by the thing itself must be returned with the thing itself. C. I. 1852; C. G. 1936; C. A. 958, 961. But C. B. 698 and C. H. 1770 say that if the depositary uses deposited money, interest is owed from the day of use. L. 748.

2. The depositary must take that care of the deposited thing which he takes for his own things. L. 32 h.t.; L. 1 § 5 de Oblig. et action.; C. I. 1343; C. G. 1927; C. H. 1766; C. A. 961, 964; C. B. 690. - This obligation is stricter if the depositary offered himself to receive the deposit; if he stipulated a fee for the deposit; if the deposit was made for the convenience of the depositary alone; if an agreement intervened that he is liable for any fault. C. I. 1844; C. G. 1928; C. H. 1182, 1766; C. L. 1435, 1451. If the deposit is made for the depositor's favor alone, the depositary is bound only to furnish against fraud and grave fault, which is equated with fraud. L. Quod Nerva Dig. Depositi. If the deposit is also made for the favor of the depositary, as when he receives a stipend or fee, the depositary is liable even for slight fault, though not very slight fault. L. Depositum Dig. Depositi § 8 coll. § ult. Inst. de Locat. et cond. Except sailors, innkeepers, and stable-keepers, who are liable even for very slight fault, but not for fortuitous event or greater force. L. Et ita Dig. Nautae etc. Yet Laymann, de Deposito n. 1, with others, judges not improbably that this, namely that they are liable for very slight fault, is not valid in the forum of conscience before the sentence of the judge. - St. Thomas 2. 2. q. 62. a. 6; L. 750. According to C. I. 1867; C. G. 1953; C. H. 1784; C. A. 1316; C. B. 701, innkeepers and stable-keepers as depositaries are liable for theft or damage inflicted, if the theft was perpetrated or the damage inflicted by servants or persons placed over the direction of the inn, or by outsiders who frequent it. The depositary is held by no obligation if anything happens by prevailing greater force, unless he had already previously delayed returning the thing requested by the depositor. C. I. 1845, 1868; C. G. 1929, 1954; C. H. 1182, 1784; C. L. 1435, 1436; C. A. 964, 965. Exception for the internal forum, if the thing would have perished equally and at the same time and danger with the owner, because then that delay was not the cause of the loss. According to C. A. l.c., the depositary is not liable for a fortuitous event, even if the more precious deposited thing could have been saved by damage to his own thing.

3. He must return the deposit as soon as it is sought, if this can be done. L. Depositum § 22 Dig. Depositi. The reason is that the deposited thing is for the convenience of the depositor alone; and accordingly there can per se be no cause for retaining the deposit. Per se; for accidentally it sometimes must not be returned, as if it is demanded for one's own or another's harm. L. Depositum § 39 Dig. Depositi. But the thing is to be restored whenever the thing is asked back, even if perhaps a day was established in the contract for restitution. But before the established day, the depositary regularly cannot restore the thing except from a just cause. C. I. 1860; C. G. 1994; C. A. 462, 963; C. H. 1766, 1775, 1776; C. B. 695, 696; C. L. 1448. If a deposit has been made by a person who can contract obligation with a person who cannot contract it, the depositor has only a vindicatory action for the deposited thing if it exists with the depositary, or otherwise an action of restitution up to the concurrence of the quantity which has been turned to the utility of the depositary. C. I. 1842; C. G. 1926; C. L. 1433. 4. The depositary must restore the deposited thing to him who deposited it. If nevertheless he understands the thing to be stolen and knows its owner, he must warn this owner, after establishing a suitable space of time in which he may himself demand it back; but if this owner has been negligent, the depositary is freed from every obligation by restoring the deposit to him from whom he received it. Therefore the thing is regularly to be restored to him who deposited it, even to a thief, if the owner, having been summoned, has failed. L. 31 h.t.; C. I. 1853, 1854; C. G. 1937, 1938; C. H. 1771; C. L. 1441, 1442. Cf. here 1343, 1351. When the depositor has died, the thing is to be restored to the heir. If there are several heirs and the thing is divisible, his part is to be returned to each; but if the thing is indivisible, all must agree as to the mode of receiving the thing. L. 1 § Si pecunia 36 h.t.; C. I. 1855; C. G. 1939. When the depositary has died, the thing is to be restored by the heir. But if the heir in good faith has sold the thing, he is bound to return only the price, or his action to it, if not yet paid. C. I. 1851. 5. Restitution must be made by him with whom the deposited thing was, and in that place in which the thing is found without bad fraud of the depositary. L. 12 § 1 h.t.; C. I. 1859; C. H. 1774. According to C. G. 1943, in that place in which it was deposited. According to C. B. 697, in that place in which it was to be guarded. 6. The depositary, as also the borrower, cannot compensate to themselves debts from deposit, from commodatum, and precarium. Thus according to positive law. L. ult. C. de Commodato; L. Si quis C. Depositi; C. Bona fides de Deposito; C. I. 1289; C. G. 1293, 1885; C. H. 1200, 1747. Nevertheless, if someone retained the thing under this title, he would indeed sin against legal justice, but by no means against commutative justice. By natural law, "it is probable," says Lessius 1. 2. c. 27. n. 16, "that compensation has place in the forum of conscience when no other reason is available for obtaining the thing owed to oneself." But if the depositary finds that the deposited thing is his own, he is held by no further obligation. C. I. 1861; C. G. 1946; L. 753.

532. Hence the following are obliged to restitution: (a) merchants and innkeepers who accept from children of families, servants, etc., money or things secretly taken away from parents or masters, because thus they favor thefts of this kind; (b) advocates who in a civil matter patronize manifestly unjust causes, or, in a criminal matter, an unjust accuser; but not those who, in a criminal trial, defend evildoers when these ought from the law itself to have a defender; (c) those who furnish help to a thief or another evildoer, by watching and warning if perhaps persons occur who are going to denounce or impede the crime; (d) tavern-keepers who receive thieves and conceal them lest they be seized.

Guilt of lending

60. 6. On the lending of a book. a) Of itself, it is less grave to lend a book than by selling it to hand over full possession of it. Therefore a proportionate reason, such as a librarian of a public library has, can excuse the lending of those books which, although prohibited, have a useful use.¹ Moreover, a positive faculty is granted by the Holy See.

On a librarian,

b) But concerning booksellers who also rent the books which they have for sale, or concerning libraries which are set up by private funds, one must respond more cautiously. This private industry easily contains some recommendation of prohibited works, which is entirely to be avoided. Catholics besides must beware of scandal. Therefore these will neither rent such books without license, nor openly display them, nor hand them over without distinction of persons.

On innkeepers

c) Here the question is asked concerning innkeepers, whether or not they can set evil newspapers before guests.

We think this question is to be solved thus,² leaving aside positive prohibition.

How far innkeepers can set out evil newspapers

alpha) On account of the additional reason of scandal, they cannot, even if they would be abandoned by many clients, set out those newspapers which are entirely opposed to faith and morals.

beta) But those which more rarely contain something less right, they will be able, for a reasonable cause, to hand over to be read, especially if, on account of the announced matters, for example commercial news, there is some necessity for several to read some sheet; at least then they can supply these things to clients of this kind in a separate place.

gamma) But the Confessor should practically see what he can obtain. The matter must be urged more severely in those places where, as in the countryside, these newspapers will be removed both more usefully and with greater scandal if displayed. Let him certainly lessen the evil which he cannot extinguish, by effecting that they be handed over only to those asking, or in a separate place, not indiscriminately, and that at least good newspapers be displayed at the same time.

¹ Cf. Hollweck, Die kirchlichen Strafgesetze, section 107, 4, who thinks it is lawful for public libraries, excepting obscene books, to contain all prohibited books and to leave the reader to his own conscience. We can concede this for those places where it can scarcely be otherwise. This will often happen in larger cities.

² Cf. Lehmkuhl, I, 664; Arndt, pp. 235, 236, n. 175.

An innkeeper is in the habit of serving every customer who asks for drink, even if he is plainly drinking too much or is already intoxicated. The man may be wasting on drink money that belongs to his wife and children, but the innkeeper pays no attention. Is not such behavior a grievous sin? And can an innkeeper receive absolution if he habitually acts thus and will not promise to alter?

A question of this kind touches one of the difficulties in Moral Theology. The point is whether and under what conditions it is permissible to connive at another's sin.

The doctrine of cooperation forms probably the most difficult part of practical moral theology. It is easy enough to say, as do the writers of most books on the subject, that formal cooperation is never permissible, but that material cooperation is allowed for comparatively important reasons. What is meant by formal and material cooperation? It is often difficult to distinguish them, and still more difficult to decide whether the existing reasons are sufficient to justify material cooperation. Lehmkuhl says (I. n. 648): "Not all difficulties in this matter can be solved. The theologian can give only principles and certain rules, the application of which in individual cases he must entrust to the practical prudence of the person acting or giving counsel"

There can be no doubt that formal cooperation occurs whenever no an innkeeper invites or urges those already half or wholly intoxicated to go on drinking. Lehmkuhl says in this connection: "To incite someone to drink more copiously is certainly intrinsically evil" (Theol. mor., I. n. 403). Berardi writes (Praxis confessariorum, pag. 169, n. 786): "Precisely to incite someone to drunkenness is intrinsically evil."

Let us imagine a case in which the innkeeper was aware that his customer intended to commit some great crime, possibly murder, and was drinking spirits in order to nerve himself for his task;—would it then not be permissible for the innkeeper to encourage him to go on drinking, until he was incapable of any action, and so was prevented from committing the intended crime? No, it would not be permissible, if such encouragement is a formal cooperation in the sin of intemperance, for formal cooperation is never allowed; it is intrinsece evil, so that we must apply to it the Apostle's words (Rom. iii, 8): " Non faciamus mala, ut veniant bona." St. Augustine lays down this principle very clearly in his work contra mendacium (c. 20, n, 40): "No one is to be led even to eternal salvation with the assistance of a lie." The end can never justify bad means, means recognized as bad.

To prove how difficult it often is to distinguish formal from material cooperation, we may refer to the debated question, whether it is right to encourage some one to commit a sin, in order to deter him from committing some more grievous offense, which he is on the point of doing. This question bears a close resemblance to the one under discussion. St. Alphonsus (Theol. mor., lib. 3, tract. 3, n. 57) considers the theory that it is right " probabilior," giving as his reason that in such a case the lesser sin is no longer an evil but a good action, being less bad (the person advising does not seek evil but good, namely, the choice of the lesser evil).

Following this line of argument, some writers maintain that it is right to advise a man to drink too much in order to preserve him from immorality. Schwane, however, in his Moraltheologie (Part 1, § 47, p. 147), says: "A lesser sin may be called a lesser evil, but not a good thing, and not a moral advantage, which is the point to be proved. It is always forbidden to cooperate in any sin by counsel. Other theologians, such as Laymann, Gury, Collet, etc., state the matter more precisely, and say that it is permissible to advise a man to commit a lesser sin in order to prevent his sinning more grievously, if the lesser sin forms a part of the greater. For instance, it is permissible to say to one about to commit a murder: ' Stop, do not kill him, only wound him.' By saying this, we should not give any formal cooperation to the sin, but we should only be preventing its complete committal."

To return, therefore, to our original question: An innkeeper might set some strong wine before that particular customer, foreseeing that he would get drunk, yet not urging him to drink it. Setting wine before him is only a material cooperation in the sin of ebrietas and is permissible for relatively important reasons. The wish to prevent the intended crime is certainly a sufficient reason for allowing the sin of drunkenness. Lehmkuhl says ( Theol. mor., I. n. 744): "It will probably be lawful to induce someone to drunkenness, even one that is formal for him, for this end and this end alone: that he himself may be prevented from a greater sin upon which he is resolved—for example, homicide."

Let us now ask: May the innkeeper supply spirituous liquors to his customers at their request, when he sees that they are drinking to excess?

In this case, too, the cooperation in the sin is only material, and is therefore permissible for relatively important reasons. We ought therefore to examine the reasons, and see whether they are sufficient or not. If the innkeeper fears to refuse to serve his customers, lest they should use oaths and foul language, he may certainly choose the lesser of two evils, and tolerate their drunkenness in order to prevent blasphemy. Again, if he fears to refuse to serve them, because of great loss to himself, knowing that his profits will be greatly diminished, he is not bound to refuse to supply what is ordered. Berardi says (J. c.): a moderately grave cause suffices, such as would exist if otherwise the innkeepers were notably harmed by a reduction in customers.” St. Alphonsus writes (lib. 3, tract. 3, n. 70).: “They are sufficiently excused by fear of any grave harm whatsoever.” Lehmkuhl says (J. c. n. 673): “A moderately grave cause seems both to be required and to suffice for there to be an excuse from sin.”

The innkeeper is bound not ex justitia, but ex caritate, to prevent his customers from committing the sin of intemperance. If charity be exclusively taken into consideration, the desire to avert some serious damage is enough to justify him in cooperating in another’s sin by good or indifferent actions,—in this case by supplying the drink that is ordered. It cannot be laid down as a general rule that innkeepers ought to refuse to serve such customers, since a rule of this kind would certainly inflict great loss upon them in their business. In special cases, however, it is undoubtedly an innkeeper’s duty to refuse to supply any more drink to a man ebrietati proximus, when such a refusal would not cause him any serious loss. Berardi says (J. ¢.):“The motive of profit alone—namely, because this or that drunken person pays the price of the wine requested—does not suffice.”

The expression “belonging to their wives and children” is probably not to be taken in the literal sense that the drunkard pays his reckoning with money that is not his own. If this were the meaning, the question would require special discussion. It most likely means that he wastes on drink what should be the family income, and reduces himself and his relations to poverty and want. In this case the innkeeper is not bound by justice, but only by charity, to avert ruin and want from the family. Although he is bound only by charity, it is clear that in such a case it is his duty to put up with considerable incommodum, and that he ought to have very strong reasons to justify him in supplying such drunkards with spirituous liquors when they order them in excess.

We have, finally, to notice the case where there are other inns in the neighborhood in which the innkeepers will not hesitate to supply a customer, so that a refusal on the part of one to serve him will not keep him sober. On this subject we may quote Schwane, who says in his Speciale Moraltheologie (Part I, § 48, n. 3): " Occasionally a decisive importance is ascribed to the circumstance that the action in question is the conditio sine qua non of another's sin, in such a way that material cooperation is allowed when the sin will certainly be committed quite apart from it, but it is not allowed when the sin depends upon that action, and if there were no cooperation the sin would not be committed at all." This circumstance has certainly a bearing upon the imputation of cooperation, but not in such a degree as to render the cooperation permissible as soon as it ceases to be the conditio sine qua non. An innkeeper may foresee that a customer who is evidently drinking to excess will go elsewhere and obtain what he wants if he is not served in the house where he now is. This reason does not justify the innkeeper in cooperation, *. e., in supplying spirits in excessive quantities—all that can be said is, that in cases where very probably a refusal on his part to sell would prevent the sin of drunkenness altogether, much stronger reasons are required to justify the sale than in other cases.

Enough has been said to enable us to see how an innkeeper ought to be dealt with in the confessional with regard to this point. The first thing to ascertain is whether he is in the habit of sinning grievously. If so, he must be admonished to be truly contrite for his sins, and to resolve firmly to avoid them in future. If he cannot be brought to these dispositions, absolution must of course be refused. The confessor must, however, be certain, as the result of his examination, that the penitent's action is really sinful.

We can only repeat what was stated above in words quoted from Lehmkuhl: Only general principles can be established: their application must be left to practical common-sense. An innkeeper with a prosperous business, who is respected in the neighborhood where he lives, can keep good order in a case of this kind far more easily than a poor rival, who is dependent upon the money that he takes each day. The former can say to his customer: " You have had enough for today, friend," without being obliged to fear lest he should give offense. A great deal depends upon the circumstances in a matter of this sort.

Other equally practical questions might be asked regarding innkeepers, e. g., whether they may serve their customers with flesh meat on abstinence days, or supply certain newspapers, but we have restricted ourselves to the question that was actually asked.— Professor Josef Weiss.