SECTION IV.
Restitution is that part of justice to which
a man is obliged by a precedent contract, or a foregoing fault, by his own act
or another man's, either with or without his will. He that borrows is bound to
pay, and much more he that steals or cheats.[179] For if he that borrows, and pays not when he is able,
be an unjust person and a robber, because he possesses another man's goods to
the right owner's prejudice, then he that took them at first without leave is
the same thing in every instant of his possession which the debtor is after the
time in which he should, and could, have made payment. For, in all sins, we are
to distinguish the transient or passing act from the remaining effect or evil.
The act of stealing was soon over, and cannot be undone; and for it the sinner
is only answerable to God, or his vicegerent; and he is, in a particular
manner, appointed to expiate it by suffering punishment, and repenting, and
asking pardon, and judging and condemning himself, doing acts of justice and
charity, in opposition and contradiction to that evil action. But because, in
the case of stealing, there is an injury done to our neighbour, and the evil
still remains after the action is past, therefore for this we are accountable
to our neighbour, and we are to take the evil off from him which we brought
upon him; or else he is an injured person and a sufferer all the while; and
that any man should be the worse for me, and my direct act, and by my
intention, is against the rule of equity, of justice, and of charity; [180] I do not that to others which I would
have done to myself, for I grow richer upon the ruins of his fortune. Upon this
ground it is a determined rule in divinity, "Our sin can never be pardoned till
we have restored what we unjustly took, or wrongfully detained:" restored it (I
mean) actually, or in purpose and desire, which we must really perform, when we
can. And this doctrine, besides its evident and apparent reasonableness, is
derived from the express words of Scripture, reckoning restitution to be a part
of repentance, necessary in order to the remission of our sins. `If the wicked
restore the pledge, give again that he had robbed, etc., he shall surely live,
he shall not die.'[181] The practice of this
part of justice is to be directed by the following rules:--
1. Whosoever is an effective real cause of
doing his neighbour wrong, by what instrument soever he does it, (whether by
commanding or encouraging it, by counselling or commending it,[182] by acting it, or not hindering it, when he might, and
ought, by concealing it, or receiving it,) is bound to make restitution to his
neighbour; if, without him, the injury had not been done, but, by him or his
assistance, it was. For, by the same reason that every one of these is guilty
of the sin, and is cause of the injury, by the same they are bound to make
reparation; because by him his neighbour is made worse, and therefore is to be
put into that state from whence he was forced. And suppose that thou hast
persuaded an injury to be done to thy neighbour, which, others would have
persuaded if thou hadst not, yet thou art still obliged, because thou really
didst cause the injury, just as they had been obliged, if they had done it; and
thou art not at all the less bound, by having persons as ill-inclined as thou
wert.
2. He that commanded the injury to be done is
first bound; then he that did it; and, after these they also are obliged who
did so assist, as without them the thing would not have been done. If
satisfaction be made by any of the former, the latter is tied to repentance,
but no restitution; but if the injured person be not righted, every one of them
is wholly guilty of the injustice, and therefore bound to restitution, singly
and entirely.
3. Whosoever intends a little injury to his
neighbour, and acts it, and by a greater evil accidentally comes, he is obliged
to make an entire reparation of all the injury of that which he intended, and
of that which he intended not, but yet acted by his own instrument going
further than he at first purposed it.[183]
He that set fire on a plane-tree to spite his neighbour, and the plane-tree set
fire on his neighbour's house, is bound to pay for all the loss, because it did
all rise from his own ill-intention. It is like murder committed by a drunken
person, involuntary in some of the effect, but voluntary in the other parts of
it, and in all the cause; and therefore the guilty person is answerable for all
of it. And when Ariarathes, the Cappadocian king, had but in wantonness stopped
the mouth of the river Melanus, although he intended no evil, yet Euphrates
being swelled by that means, and bearing away some of the strand of Cappadocia,
did great spoil to the Phrygians and Galatians; he, therefore, by the Roman
senate, was condemned in three hundred talents, towards the reparation of the
damage. Much rather, therefore, when the lesser part of the evil was directly
intended.
4. He that hinders a charitable person from
giving alms to a poor man is tied to restitution if he hindered him by fraud or
violence, because it was a right which the poor man had, when the good man had
designed and resolved it, and the fraud or violence hinders the effect but not
the purpose; and therefore he who used the deceit or the force is injurious,
and did damage to the poor man. But if the alms were hindered only by entreaty
the hinderer is not tied to restitution, because entreaty took not liberty away
from the giver, but left him still master of his own act, and he had power to
alter his purpose, and so long there was no injustice done.[184] The same is the case of a testator giving a legacy,
either by kindness, or by promise, and common right. He that hinders the
charitable legacy by fraud or violence, or the due legacy by entreaty, is
equally obliged to restitution. The reason of the latter part of this case is
because he that entreats or persuades to a sin, is as guilty as he that acts
it; and if, without his persuasion, the sin and the injury would not be acted,
he is in his kind the entire cause, and therefore obliged to repair the injury
as much as the person that does the wrong immediately.
5. He that refuses to do any part of his duty (to
which he is otherwise obliged) without a bribe, is bound to restore that money,
because he took it in his neighbour's wrong, and not as a salary for his
labour, or a reward for his wisdom, (for his stipend hath paid all that,) or he
hath obliged himself to do it by his voluntary undertaking.
6. He that takes anything from his neighbour
which was justly forfeited, but yet takes it not as a minister of justice, but
to satisfy his own revenge or avarice, is tied to repentance, but not to
restitution. For my neighbour is not the worse for my act, for thither the law
and his own demerits bore him; but because I took the forfeiture indirectly I
am answerable to God for my unhandsome, unjust, or uncharitable circumstances.
Thus Philip of Macedon was reproved by Aristides for destroying the Phoeenses,
because, although they deserved it, yet he did it not in prosecution of the law
of nations, but to enlarge his own dominions.
7. The heir of an obliged person is not bound to
make restitution if the obligation passed only by a personal act; but if it
passed from his person to his estate, then the estate passes with all its
burden. If the father, by persuading his neighbour to do injustice, be bound to
restore, the action is extinguished by the death of the father, because it was
only the father's sin that bound him, which cannot directly bind the son;
therefore the son is free. And this is so in all personal actions, unless where
the civil law interposes and alters the case.
*These rules concern the persons that are obliged
to make restitution; the other circumstances of it are thus described.
8. He that by fact, or word, or sign, either
fraudulently or violently, does hurt to his neighbour's body, life, goods, good
name, friends, or soul, is bound to make restitution in the several instances,
according as they are capable to be made. In all these instances we must
separate entreaty and enticements from deceit or violence. If I persuade my
neighbour to commit adultery, I still leave him or her in their own power, and
though I am answerable to God for my sin, yet not to my neighbour. For I made
her to be willing, yet she was willing,[185]
that is, the same at last as I was at first. But if I have used fraud, and made
her to believe a lie,[186] upon which
confidence she did the act, and without she would not, (as if I tell a woman
her husband id dead, or intended to kill her, or is himself an adulterous man,)
or if I use violence, that is, either force her or threaten her with death or a
grievous wound, or anything that takes her from the liberty of her choice, I am
bound to restitution; that is, to restore her to a right understanding of
things and to a full liberty, by taking from her the deceit or the violence.
9. An adulterous person is tied to restitution of
the injury, so far as it is reparable, and can be made to the wronged person;
that is, to make provision for the children begotten in unlawful embraces, that
they may do no injury to the legitimate by receiving a common portion; and if
the injured person do account of it, he must satisfy him with money for the
wrong done to his bed. He is not tied to offer this, because it is no proper
exchange, but he is bound to pay it if it be reasonably demanded; for every man
hath justice done when himself is satisfied, though by a word, or an action, or
a penny.
10. He that hath killed a man is bound to
restitution, by allowing such a maintenance to the children and near relatives
of the deceased as they have lost by his death, considering and allowing for
all circumstances of the man's age, and health, and probability of living. And
thus Hercules is said to have made expiation for the death of Iphitus, whom he
slew, by paying a lulct to his children.
11. He that hath really lessened the fame of his
neighbour by fraud or violence is bound to restore it by its proper
instruments; such as are confession of his fault, giving testimony of his
innocence or worth, doing him honour, or (if that will do it, and both parties
agree) by money, which answers all things.[187]
12. He that hath wounded his neighbour is tied to
the expenses of the surgeon and other incidences, and to repair whatever loss
he sustains by his disability to work or trade; and the same is in the case of
false imprisonment, in which cases only the real effect and remaining detriment
are to be mended and repaired, for the action itself is to be punished or
repented of, and enters not into the question of restitution. But in these and
all other cases, the injured person is to be restored to that perfect and good
condition from which he was removed by my fraud or violence, so far as is
possible. Thus a ravisher must repair the temporal detriment or injury done to
the maid, and give her a dowry, or marry her if she desire it. For this
restores her into that capacity of being a good wife, which by the injury was
lost, as far as it can be done.
13. He that robbeth his neighbour of his goods,
or detains anything violently or fraudulently, is bound not only to restore the
principal, but all its fruits and emoluments, which would have accrued to the
right owner during the time of their being detained. By proportion to these
rules we may judge of the obligation that lies upon all sorts of injurious
persons; the sacrilegious, the detainers of tithes, cheaters of men's
inheritances, unjust judges, false witnesses, and accusers; those that do
fraudulently or violently bring men to sin, that force men to drink, that laugh
at and disgrace virtue, that persuade servants to run away or commend such
purposes; violent persecutors of religion in any instance; and all of the same
nature.
14. He that hath wronged so many, or in that
manner (as in the way of daily trade) that he knows not in what measure he hath
done it, or who they are, must redeem his fault by alms and dargesses to the
poor, according to the value of his wrongful dealing, as near as he can
proportion it. Better it is to go begging to heaven, than to go to hell laden
with the spoils of rapine and injustice.
15. The order of paying the debts of contract or
restitution is, in some instances, set down by the civil laws of a kingdom, in
which cases their rule is to be observed. In destitution, or want of such
rules, we are, 1. to observe the necessity of the creditor; 2. then the time of
the delay; and, 3. the special obligations of friendship or kindness; and,
according to these, in their several degrees, make our restitution, if we be
not able to do all that we should; but, if we be, the best rule is to do it so
soon as we can, taking our accounts in this, as in our human actions, according
to prudence, and civil or natural conveniences or possibilities, only securing
these two things; 1. that the duty be not wholly omitted; and, 2. that it be
not deferred at all out of covetousness, or any other principle that is
vicious. Remember that the same day in which Zaccheus made restitution to all
whom he had injured, the same day Christ himself, pronounced that salvation was
come to his house.[188]
16. But besides the obligation arising from
contract or default, there is one of another sort which comes from kindness,
and the acts of charity and friendship.[189]
He that does me a favour hath bound me to make him a return of thankfulness.
The obligation comes not by covenant, not by his own express intention, but by
the nature of the thing, and is a duty springing up within the spirit of the
obliged person, to whom it is more natural to love his friend, and to do good
for good, than to return evil for evil, because a man may forgive an injury,
but he must never forget a good turn. For everything that is excellent, and
everything that is profitable, whatsoever is good in itself, or good to me,
cannot but be beloved; and what we love we naturally cherish and do good to.
He, therefore, that refuses to do good to them whom he is bound to love, or to
love that which did him good, is unnatural and monstrous in his affections, and
thinks all the world born to minister to him with a greediness worse than that
of the sea, which, although it receives all rivers into itself, yet it
furnishes the clouds and springs with a return of all they need.
Our duty to benefactors is to esteem and love
their persons, to make them proportionable returns of service, or duty, or
profit, according as we can, or as they need, or as opportunity presents
itself, and according to the greatness of their kindness, and to pray to God to
make them recompense for all the good they have done to us; which last office
is also requisite to be done for our creditors, who, in charity, have relieved
our wants.
[179] Chi non vuol rendere, fa mal a
prendere.
[180] Si tua culpa datum est damnum, jure
super his satisfacere te oportet.
[181] Ezek. xxxiii.15.
[182] Goth. 3. Qui laudat servum fugitivum,
tenetur. Non enim oportet laudando augeri maium. - Ulpian. in lib. i. cap. de
servo corrupto.
[183] Etiamsi partem damni dare noluisti, in
totum quasi prudens dederis, tenendus es. Fx toto enim nolaisse debet qui
imprudentia defenditur. Sen. Contr. Involuntarium ortum ex voluntario censetur
pro voluntario.-Strabo.
[184] Pleonektei onsen o
ou bohzhsas crhbasi oi anelenxerian.-Eth. 1. v. c. 4.
[185] Di alloroion ergon
ptaiei onxeis,-Epict.
[186] Non licet suffurari mentem vel
Samaritani.-R. Maimon. Can. Eth.
[187] Sic Vivianus resipuit de injusta
accusatione: apud Cassiodo. 4.41.
[188] Luke, xix. 9.
[189] Gratitude.