Of Restitution.

R Eftitution is that part of Justice to obliged by a precedent Contract, Chi non vuoi fault, by his own act or another man' rendere, fa or without his will. He that borrow mal apren.

dere.

pay, and much more he that steals or if he that borrows, and pays not when an unjust person and a robber, because other man's goods to the right owne then he that took them at first withou same thing in every instant of his poff the Debtor is after the time in which h could have made payment. For in all 1 diftinguish the tranfient or paffing act maining effect or evil. The act of steal over, and cannot be undone, and for it only answerable to God, or his Viceger is in a particular manner appointed to e fuffering punishment, and repenting, and don, and judging and condemning himsel of justice and charity, in opposition and co to that evil action. But because in the c ling there is an injury done to our Neig the evil still remains after the action is fore for this we are accountable to our I and we are to take the evil off from him brought upon him, or else he is an injured fufferer all the while: and that any man the worse for me, and my direct act, and by

Si tuâ culpâ datum est tion, is against the Rule of Equity, of Justi damnum, ju- Charity; I do not that to others which I w re fuper his done to my felf, for I grow richer upon th

fatisfacere te oportet.

his fortune. Upon this ground it is a de Rule in Divinity, Our fin can never be paz we have restored what we unjustly took, or detained: restored it (I mean) actually or in pu defire, which we must really perform wher

And this doctrine, besides its evident and apparent reasonableness, is derived from the express words of Scripture, reckoning Reftitution to be a part of Repentarice, necessary in order to the remiffion of our fins. [If the wicked restore the pledge, give again Ezek. 33. 15. that he had robbed, &c. he shall surely live, he shall (a)Ὁ γὰς not die.] The practice of this part of Justice is to be ἐπαινέσας directed by the following Rules.

*

Rules of making Reftitution.

τὸν πεπρας κότα, έδεν τι ἡοσον τῶν πεπραγ

Totilas apud

1. Whosoever is an effective real cause of doing μένων αὐτ his Neighbour wrong, by what instrument soever he does it, (whether by comrnanding or incouraging it, velαι. by counfelling or commending (a) it, by acting it, Procop. Goth. or not (6) hindring it when he might and ought, by 3. concealing it or receiving it) is bound to make refti- Qui laudat fervum fugitution to his Neighbour; if without him the injury tivum tenehad not been done, but by him or his assistance it was. tur. Non enim oportet For by the same reason that every one of these is guil- laudande auty of the fin, and is cause of the injury, by the same geri malum. they are bound to make reparation; because by him Ulpian. in lib. his Neighbour is made worse, and therefore is to be 1.cap.de Serput into that state from whence he was forced. And (6) Ο έμ suppose that thou hast perswaded an injury to be πρησμέ done to thy Neighbour, which others would have vo το α perswaded if thou hadst not, yet thou art still obliged, να ψαντος, because thou really didft cause the injury; just as they ἀλλὰ κιτ had been obliged if they had done it: and thou art κατασβή not at all the less bound by having persons as ill in- σαι δυναclined as thou wert. μένο, δρά

vo corrupto.

ὅτον ὅλως μη βολη τα,

2. He that commanded the injury to be done, is στις δὲ πι first bound; then he that did it; and after these, they also are obliged who did so affift, as without them the thing would not have been done. If fatis- Nicet.Chaniat. faction be made by any of the former, the latter is in Michael tied to repentance, but no restitution: But if the in- Sic Syri ab jured person be not righted, every one of them is Amphyctiowholly guilty of the injuftice, and therefore bound to nibus, judici restitution singly and intirely.

Comnen.

damnati,quia piraticam non

3. Whosoever intends a little injury to his Neigh-prohibuerunt

bour, cùmpoterant.

zem

in totum

noluiffe de

bour, and acts it, and by it a greater evil accidentally comes, he is obliged to make an entire reparation of ampai all the injury, ot that which he intended, and of that dare noluifti which he intended not, but yet acted by his own instrument, going farther than he at first purposed it. quafi prudens dederis He that sets fire on a Plane tree to spite his Neigh zenendus es. bour, and the Plane-tree set fire on his Neighbour's Ex toto enim House, is bound to pay for all the lofs, because it did bet qui im- all arife from his own ill intention. It is like murther prudentia de- comnitted by a drunken person, involuntary in some renditur. Sen. of the effect, but voluntary in the other parts of it, luntarium or- and in all the caufe; and therefore the guilty person zum ex vo is answerable for all of it. And when Ariarathes the tetur pro vo- Cappadocian King had but in wantonness stopped the mouth of the River Metanus, although he intended no evil, yet Euphrates being swelled by that means, and bearing away fome 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 reparation of the damage. Much rather therefore when the lesser part of the evil was directly intended.

Contr. Invo

luntario cen

luntario,

Πλεονεκ

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4. He that hinders a charitable person from giving alms to a poor man is tied to Restitution, if he hindred him by fraud or violence; because it was a right which the poor man had when the good man had defigned and refolved 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 hindred only by intreaty, the hinderer is not tied

δεν to Reftitution, because intreaty took not liberty aβοηθήσας way from the giver, but left him still Master of his χρήμασι own act, and he had power to alter his purpose, and δι ανελευ. 1o long there was no injustice done. The fame is the θερίαν. case of a Testatour giving a Legacy either by kindEch. 1.5. c. 4. nefs or by promise and common right. He that hinders the charitable Legacy by fraud or violence, or the due Legacy by intreaty, is equally obliged to Restitution. The reason of the latter part of this cafe is, because he that intreats or perfuades to a fm,

a m

is as guilty as he that acts it? and if without his perswafion the fin 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) wi without a bribe, is bound to restore that money, because he took it in his Neighbour's wrong, and not as a falary for his labour, or a reward of 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 any thing from his Neighbour which was justly forfeited, but yet takes it not as a Minifter of Justice, but to satisfie 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, unjuft, or uncharitable Circumstances. Thus Philip of Macedon was reproved by Aristides for destroying the Phocenses; 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 paffed from his perfon to his eftate, then the estate passes with all its burthen. If the Father by perfuading 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 fin that bound him, which cannot directly bind the Son; therefore the Son is free. And this is to in all personal actions, unless where the Civil-Law interposes and alters the cafe.

These Rules concern the persons that are obliged to make Reftitution: 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 instarıces, according as they are capable to be made. In all these instances we must separate intreaty and inticements from deceit or violence. If I periwade my Neighbour to commit adultery. I still leave him or her in their own power: and though I am answerable to God for my fin, yet not to my Neighbour. For I made her to be willing; yet she was willing, (a) that is, the same at last as I was at first. But if I have used fraud, and made her to believe a lye, (b) upon which confidence she did the act, and without she would not, (as if I tell a woman her husband is 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 any thing 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.

Δ ̓ ἀλλότριον ἔργον πλαίει ἐδείς. Epict.

(β) αλλοτριον το αληθείας. Plato.

Non licet fuffurari mentem vel Samaritani. R. Maimom. Can. Eth.

A

νὴ, ἢ παῖδες, ἢ

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 provifion 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 satisfie 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 if it be reasonably demanded: for every man hath justice done him, when himself is fatisfied, though by a word, or an action, or a peny.

10. He that hath killed a man is bound to Reftituti

οι συγκ on by allowing fuch a maintenance to the children and