Jacques Maritain Center : Elements of Moral Theology


§ 1. Definitions and divisions.

Injury ("injuria") is the violation of another's right. it is at once sin against the individual man, against society, and against God, whose law of justice and charity is broken.

Divisions. It is "formal injury" when it is intended; it is only "material" injury, when it is not intended. It is grave or light relatively to the injured person. It is direct, or it is indirect when it is foreseen and permitted in its cause.

Note that the question of involuntary injury -- e.g., that done by one intoxicated -- has been considered under the question of ignorance, q. v., page 466.

But common law accepts no such defence, considering the ease with which such plea is made, and punishing the voluntary loss of reason (Blackst. iv. page 25).

Damnum, loss, may be caused without injury, for "scienti et volenti non fit injuria," except when a man cannot lawfully yield his right.

(Qu. 1. Parental right versus legislation concerning children's education?

Qu. 2. Abridging the suffering in case of mortal injury when so requested?)

Injury also may be caused without loss, as in the case of rash and unjust judgment.

Injury may be otherwise divided according to its object, as done to goods of fortune, of body, of soul, of good name.

For the ends of civil society the most fundamental division is, (1) private wrongs, infringement of the private or civil rights of individuals considered as such; and (2) public wrongs, "nefas," where the community as well as the individual is considered to have been injured. The latter are crimes and misdemeanours. In civil law a crime or a misdemeanonr (a lighter act of similar nature) is an act committed or omitted in violation of a public law. To constitute a crime in the view of civil law there must be an overt act, as well as a vicious will. Felony in the United States is a crime punishable with death or confinement in a State prison.

Minors. By common law an infant under seven years cannot be guilty of felony; between seven and fourteen years, inquiry must be made whether he is "deli capax." If he be over fourteen years, without question the felonious act is felony in him.

§ 2. Theft.

Theft (see Part III., page 302) is unjust taking of another's property, the owner being unwilling. The "formal" part is the intent to defraud.

Divisions. It is (1) simple theft, the secret taking; (2) robbery, taking with violence; (3) fraud, deceiving in contracts; (4) sacrilege; (5) peculation, the very common stealing from the public purse. All are mortal violations of the law of nature.

The evil intention is the formal part of the sin in theft; but the crime of stealing is not altogether so viewed in common law.

Thus the attempt to commit a felony is only a misdemeanour. So also is coiiperation in the form of solicitation or incitement to commit the theft. "The attempt and not the deed confounds us," is not true of common law. In theft also, as viewed by common law, there must be actual possession taken, and not the mere preparation for it (Blackst. iv. 222, 231). To constitute stealing, however, there must be felonious intent; otherwise the act may be only trespass (page 232),

But if other injury be done, even though unforeseen, while one is guilty of an unlawful act, he is held to be answerable for that injury. Homicide committed by one engaged in a felonious act may be viewed as murder.

Blackmail. Sending letters which threaten to accuse of crime, etc., with a view to extort money, is an attempt to rob, and crime by modern law.

The theft may be of a thing so trifling as to cause no appreciable injury (see Part III., page 304); but it is not to be overlooked that by accumulation the thief may be enriched; e.g., retail dealers by short measure and light weight.

(Qu.: Suppose that the price set upon the goods is proportioned to the light weight or short measure

In the case, again, of children and servants, it is certainly true that if the article be trifling in value, or be consumed, not preserved, given away, or sold, the owner may be presumed to be less unwilling to part with it than in other cases of theft. But this applies only to the "material" part of the act. We are bound to consider the formal intent, and the tendency of what may possibly be venial sin in itself.

It may be suggested, indeed, that the taking of the little thing without the owner's knowledge or assumed consent may neither harm him, nor intend to do so, nor sensibly enrich the taker. In this case there is, undoubtedly, the sin of theft, but surely not so grave as other sins which violate justice and charity.

Since the fruits of productive property, including private or public funds, belong to the owner of the same until he transfers its use, it is evident that if the guardian or trustee or treasurer of that property appropriate to himself those fruits of it -- say, using for himself the interest on those funds, or seeking profits on them in "speculation " -- he is indirectly a thief, even if he restore the property undiminished. For he is not a "usufructuarius."{1}

Extreme necessity -- i.e., immediate danger of life or limb, etc. -- "knows no law." I mean that there is a natural right to use, sufficiently for the pressing necessity, whateyer can be found, and that taking it is no theft. For the owner's dominium utile is subject to God's higher dominion and law, and the human steward is bound not to be unwilling in such a case of need.

(Qu.: Suppose that the extreme need is in another, and that you yourself have no means of supplying it from your own resources

But restitution afterwards is due, if that become possible. What was secretly taken may he secretly restored.

§ 3. Restitution.

(See Part III., page 286.)

Violation of right, being an offence against God, must in all cases be made good as a. condition of pardon from Him. Compensation, indemnification, etc., are required by commutative justice in the law of nature, and in the revealed law (S. Jas. v. 4), as well as in human law.

But violations of distributive justice or of charity as such do not demand restitution, because, strictly speaking, they cannot be made good in the same manner with violations of commutative justice. The fault can be amended, but the past loss cannot be repaired. This is the principle which applies to penitence in respect of retributive justice. A propitiatory sacrifice must supply what penitence cannot.

Note, however, that the same offence may violate both forms of justice. Thus a negligent ruler may cause grave loss to the ruled, and violate the implied contract with them, and become subject to the law of restitution proper.

Restitution is based upon the law of nature that "since all wrongs may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right whereof the person injured is deprived" (Blackst. iii. 116). As a negative law -- sc., "Thou shalt not withhold his right from thy brother" -- restitution is always obligatory; but as a positive law -- sc., "Restore at once his right" -- it is binding under the due conditions. The obligation arises from (1) unjust possession of another's property; (2) from unjustly causing loss; (3) from unjust cooperation in injury done by another.

Maxims. (1) "Res clamat domino." The right of the owner follows the thing wherever it may go. By common law he may recover his property even from a bona-fide purchaser wherever it may be found (Blackst. iii. 4; 363). In such a case, however, the original bona-fide purchaser is not bound in conscience to make restitution if the thing have passed into other hands and cannot be recovered.

(Qu.: Suppose that in good faith he has sold the thing, to whom does the price of it belong?)

(Note that property thus found must not be taken with violence. The owner must not be guilty of a "breach of the peace." He may not enter a third person's house for the purpose of getting his own, if that third person have not been accessory to the wrong. He may take possession of his own house or land, and eject an intruder, as also he may abate a public or private nuisance as an injury to the public -- e.g., nuisance made by an act of commission -- only it must be done without riot. He may distrain goods for rent not paid, and cattle trespassing on his premises (Blackst. iii. 5, 218;, iv. 167). "Sic utere tuo ut alienum non laedas," says common law as well as the Divine law.)

Prescription, as already noted, gives claim to property in pure water, etc. But damage, if any, must be direct, not consequential.

(2) "Resfructificat domino;" i.e., the natural fruits or profits of a thing, and the use or enjoyment of it, belong to the owner thereof. This is included in the idea of dominion.

(3) "Res naturaliter perit domino;" i.e., when the object ceases to exist, dominion of it ends; but there may be still existing an equivalent which belongs to the owner of the previous property.

(4) "Nemo ex re alterius locupletari delet;" i.e., no one may rightfully be enriched through another's property; hence it follows that the measure of restitution due in such a ease is the quantity of the thing detained from its owner, together with the accrued profits.

(Qu.: If a public treasurer or a trustee of funds make a profit by "speculating" with those funds, to whom does the profit belong?)

How and to whom restitution is to he made. (See Part III., page 285.) In the common frauds in trade the owner may be unknown or cannot be reached; then that which is gotten by fraud, not belonging to the possessor, can only be restored by giving to charitable uses for which society at large is responsible.

In many cases it is impossible to make full restitution for the injury done against commutative justice; then the restoring such part as is possible is obligatory on conscience as a condition of pardon for the sin.

Extreme necessity justifies delaying or withholding restitution.

The restitution may be made secretly, or through another; all that is required is that the wrong be made right.

Note the grave sin -- very common -- of keeping up the expenses of life, and thus defrauding creditors.

The possessor bona fide, as soon as he knows that the thing possessed is not his own, is bound to restore it to the rightful owner, if he be known; and this, in whole or in part, as the thing may be at the time, together with the profits which have been derived from it, if any there have been.

If he have bought stolen property, he has run his risk in doing so, and he must lose, since the rightful owner cannot justly be made the loser (Blackst. iv. 363).

But the possessor bona fide is bound to no compensation if he have consumed, destroyed, given away, or lost the thing, or if it have been stolen from him. For it is not the materially causing loss (damnificatio) which demands restitution, but the formal injury.

But the case is different if he have become richer by the possession of another's property; then he is bound to return the natural and the civil fruits of the thing, but not such fruits of it as he has gained by his own industry in using it.

Suppose that this wrongful possessor has sold the thing; then, if the owner reclaim it, the seller is bound to return the price to the buyer, for in the contract of sale a good title to the thing was implied.

(Qu.: Suppose that he has sold at a profit, to whom does that profit belong?)

The possessor mala fide -- i.e., knowing that the thing is not his own -- is bound to compensate the owner for every kind of loss, including profits, which might have been derived if the thing bad remained in the owner's possession. There are various difficult cases of conscience in this regard, but the maxims given above will generally solve them.

If the thing unjustly possessed pass through various hands in bad faith, each person so receiving it is responsible for the whole.

The possessor in doubtful faith. is bound to make careful inquiry. If this be done, and the title still remain in uncertainty, he may retain the thing with a good conscience; for "melior est conditio possidentis;" the presumption is in his favour, and other claimants to the thing must show a better title than his.

§ 4. Damnificatio.

Though unjust damage requires indemnification, yet the moral fault, which offends God, must be distinguished from juridical fault as resting on a sentence from a civil court. For the law will punish omission of due care if it cause loss, whether there has been any moral fault or not.

The unjust damager is bound to full restitution of the thing or its equivalent, and also of its profits; e.g., if a house be burned, or if workmen lose time through your neglect, those who suffer loss must be indemnified for rent in the one case, for loss of wages in the other.

Conditions. (a) There must have been an unjust act of omission; (b) it must be the cause of the loss and morally culpable -- i.e., through foresight, intention, or criminal negligence. These conditions are requisite to constitute the moral fault; but even otherwise the sentence of the court in finding juridical fault binds conscience -- e.g., if one have used all ordinary or due care. E.g., suppose that animals belonging to you cause the loss; if it be through your negligence, you are morally bound; if not so, you are not bound to make compensation until the sentence of the court so decrees.

Suppose, again, that without moral fault on your part loss occur through your fulfilment of your official obligations, as in the case of a physician; there is no obligation of restitution.

Suppose, again, that you at first caused the loss without fault, but afterwards did not do your best to stop that loss; you owe restitution.

(Qu.: Suppose that loss is caused to society by your aiding in giving office to the unworthy?)

§ 5. The unjust accessory.

(See Part III., page 292.)

Cooperation may now be further considered in its application to injury done.

(1) Command causing moral compulsion requires restitution for injury done if the loss directly result from the command, and this also if the one commanded suffer loss in consequence of his obedience to the command.

(Qu.: Responsibility of the one commanded -- e.g., a clerk executing fraudulent orders; a railway clerk obeying the orders of his superiors?)

(2) Advice may be a cause of loss; and restitution is due if that advice were efficacious; but it is not due if the act would have been done in the same way without the advice.

The advice may have aided in causing the result, without its being properly efficacious.

Again, it may be inquired whether that advice were given with the weight of authority. If not, there may be no obligation of restitution, as in the familiar case of those who are not experts volunteering their advice in difficult matters. Compare the injurious advice of the priest, the lawyer, the physician, with the friendly words of neighbours; the former may be the efficacious cause of loss when the latter count for very little. The one who follows bad counsel, knowing it to be bad, may suffer in consequence thereof; but he has no claim for indemnification from his adviser. "Scienti et volenti non fit injuria."

(3) Consent binds to restitution for loss, if it be efficacious. Consider the political obligations of voters, and their contributing to public loss by knowingly voting for the less worthy, or by withholding their votes from the worthy.

(4) Praise or blame before the act is done is equivalent to counsel, and is to be judged by the same rules. Restitution is not due when the act already done is applauded.

(5) Participation may be either in the injurious act or in its profits. In both eases restitution for injury done is obligatory, subject to the conditions respecting co6peration which have been already pointed out.

(6) By silence, by not hindering, by not revealing, negative cooperation in injury is given. For the injury is not hindered when it is possible so to do (e.g., not voting for the more worthy candidate for office). In such cases the law of charity is violated, which sin calls for repentance and amendment, not for restitution, unless the duties of one's office have been neglected.

Observe that the superior is answerable, in common law as well as in morals, for the negligence of his employees, if his own negligence were culpable. This is true of both servants and agents. But in common law exception is made if the negligence of those employees were wilful, criminal injury, or out of the line of their authority. But, on the other hand, owners of hacks, or inn-keepers, are liable for injuries done through drivers or servants, and can claim no such exception (Blackst. i. 430).

§ 6. What things are to be restored?

(1) Goods of the soul. The injury which is done through deceit, fraud, or unjust fear must be repaired; otherwise, only charity binds the conscience, for "scienti et volenti non fit injuria." Such unjust injury may be error in faith or in morals, and it is the erroneous official teacher, not the unofficial, who is bound to correct the error, if it were due to ignorance or negligence, not to guile or deceit.

Common law is very careful in defining what slander and libel are actionable (Blackst. iii. 123), setting very definite limits in this regard; e.g., limiting the time within which action may be brought.

But note the attempt of American newspapers to relax the common law of libel.

But though it is strictly just so far as it goes, conscience must go much further to the intended wrong and the injury actually done. For the truth of the charge will not release conscience from its obligation, whatever American newspapers may claim, if there were no just warrant for the publication. But the legal distinction between malice in fact -- i.e., actual malice -- and malice in law -- i.e., a wrongful act intentionally done -- is equally serviceable in our science of Moral Theology.

(2) Goods of body -- e.g., loss of life or limb, or violation of chastity -- call for retributive justice, and no proper restitution can be made. (Vid. infra, Satisfaction.) But all eLmsequent losses which can be measured demand strict restitution.

(Qu.: Is the seducer who has not made promise of marriage bound to marry the seduced? If illegitimate progeny be in question, both human and Divine law make him responsible for the support and education of that offspring, and, in many eases at least, this may require marriage.)

(3) Goods of fortune have been already considered as a question between man and man; but they are also due to the state, according to Divine command as well as the law of nature, since they are necessary for the common good. Lawful government, therefore, has a right to part of the people's goods, and that part may be collected either directly or indirectly, as excise or tariff.

Conditions. (a) Taxes must be just, i.e., imposed for the common good; (b) they must he laid equally on all; if so, they are binding on conscience (S. Matt. xxii. 21; Rom. xiii. 6).

Note, therefore, the sin of evading such burdens, thereby increasing those of other citizens; of corrupting assessors, custom-house officers, tax collectors, etc. But there are many difficult questions involved in the determining what is right.

Injuries in trade. "Forestalling" the market -- i.e., contracting for merchandise on its way to market, etc., with a view to the undue enhancing of the price of it; "engrossing" provisions by buying them up for the same purpose ("corners"); spreading false rumours for the same end; getting a monopoly of necessaries, or making a combination for the same purpose, are offences punishable by common law{2} as well as by the Divine law (Blackst. iv. 158). Should they not be, at least, as severely treated by human legislation as "conspiracy" among labourers? The same principles apply to interference with workmen, preventing them from hiring themselves, compelling them to join unions ("scabs"), or other interference with the freedom of labour.

(Qu.: Do harmless adulterations violate the law of justice if the price of the article be reduced accordingly?)

Satisfaction to retributive justice. (See Part III., page 308.) The question is not now of what is due to Divine retribution, but of penalties inflicted by human law, such as capital punishment, confinement in prison, exemplary damages, and the like. These rest upon the just sentence of human law, and not on the satisfaction which the penitent voluntarily offers to the broken law of God.

One is bound, therefore, when condemned, to bear the penalty of the law if he be guilty and if the law be just; but no moral law requires him to come forward and denounce himself.

It follows, also, that escape by breaking jail is justly treated as felony by common law, as also "rescue," or aiding another to escape.

(Qu. 1. Suppose that the condemned to death or long Imprisonment has opportunity to escape without injuring others; is he guilty before God in doing so?)

Qu. 2. Suppose that he is innocent, or known to be so, what is his right? What is the duty of the one who knows his innocence?)

Observe that public nuisances, being an injury to the community, are subject to similar retributions of justice, and by common law may be suppressed or fined. Such are houses of prostitution, gambling houses, lotteries, tramps, and vagabonds (Qu.: drinking "saloons"?) (Blackst. iv. 168).

{1} NOTE ON ARREST. -- A warrant from a justice of the peace is preferable to a private arrest if the offender be not likely to abscond; because if it be erroneously granted, no action lies against the party obtaining it unless it be proved that he obtained it maliciously. The warrant, however, is limited by the jurisdiction of the magistrate who issues it.

By common law, a justice of the peace, a sheriff, a coroner, or any peace-officer, may arrest any person on reasonable charge of felony presented to him, or if he himself witness any suspicious act (Blackst. iv. 291). But where a felony is actually committed, any private person may arrest the felon, and is bound to do so. Even on reasonable ground of suspicion he may do so, though he is liable to action for assault and false imprisonment. Any private person may interfere to prevent a felony, and may apprehend and detain the one attempting it (page 293).

(Qu.: Disturbance in church?)

{2} Recent decisions with respect to "trusts" extend the scope of the civil law.

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