dere.

SECT. IV.

Of Reftitution.

REftitution is that part of Juftice to which a man is obliged by a precedent Contract, or a foregoing Chi non vuoi fault, by his own act or another man's, either with, rendere, fa or without his will. He that borrows is bound to mal apren pay, and much more he that fteals or cheats. For if he that borrows, and pays not when he is able, be an unjust person and a robber, because he poffeffes another man's goods to the right owners prejudice; then he that took them at firft without leave is the fame thing in every inftant of his poffeffion, which the Debtor is after the time in which he should and could have made payment. For in all fins we are to diftinguish the tranfient or paffing act from the remaining effect or evil. The act of stealing was foon over, and cannot be undone, and for it the finner is only answerable to God, or his Vicegerent, and he is in a particular manner appointed to expiate it by fuffering punishment, and repenting, and asking pardon, and judging and condemning himself doing acts of juftice and charity, in oppofition and contradiction to that evil action. But because in the cafe of ftealing there is an injury done to our Neighbour, and the evil ftill 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 elfe he is an injured person, a fufferer all the while and that any man fhould be the worse for me, and my direct act, and by my inten datum eft tion, is against the Rule of Equity, of Juftice, and of damnum, ju- Charity; I do not that to others which I would have re fuper his done to my felf, for I grow richer upon the ruins of his fortune. Upon this ground it is a determined Rule in Divinity, Our fin can never be pardoned till we have restored what we unjustly took, or wrongfully detained: reftored it (I mean)actually or in purpose and defire, which we must really perform when we can.

Si tuâ culpâ

fatisfacere te

oportet.

And this doctrine, befides its evident and apparent reasonablenefs, is derived from the exprefs words of Scripture, reckoning Reftitution to be a part of Repentance, neceffary 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 furely live, he shall (a) Oas not die.]* The practice of this part of Justice is to be IVERS directed by the following Rules.

Rules of making Reftitution.

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1. Whosoever is an effective real caufe of doing his Neighbour wrong, by what inftrument foever he does it, whether by commanding or incouraging it, Totilas apud by counselling 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 affiftance it was. tur. Non eFor by the fame reason that every one of thefe is guil- laudando auty of the fin, and is caufe of the injury, by the fame geri malum. they are bound to make reparation'; becaufe by him Ulpian. in lib. his Neighbour is made worfe, and therefore is to be 1.cap.de Serput into that ftate from whence he was forced. And (b) suppose that thou haft perfwaded an injury to be πρησμέ done to thy Neighbour, which others would have va perfwaded if thou hadft not, yet thou art ftill obliged, valavros, becaufe thou really didft caufe the injury; just as they d d x 8 had been obliged if they had done it: and thou art aтaσßnnot at all the lefs bound by having perfons as ill in- our fundclined as thou wert.

vo corrupto.

Méve, deá στις δὲ πι στιν ὅλως

лей Воли θέντΘ,

TO,

2. He that commanded the injury to be done, is firft bound; then he that did it; and after thefe, they alfo are obliged who did fo affift, as without them the thing would not have been done. If fatis- Nicet. Choniat. faction be made by any of the former, the latter is in Michael tied to repentance, but no reftitution: But if the in- Sic Syri ab jured perfon be not righted, every one of them is Amphyctiowholly guilty of the injuftice, and therefore bound to nibus, judici reftitution fingly and intirely.

Comnen.

dannati,quia piraticam non

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

bour, cùmpoterant.

Etiamfi partem danni

in totum

bour, and acts it, and by it 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 dare noluifti which he intended not, but yet acted by his own inftrument, going farther than he at first purposed it. quafi prudens dederis He that fets fire on a Plane tree to fpite his Neigh zenendus es. bour, and the Plane-tree fet fire on his Neighbour's noluiffe de Houfe, is bound to pay for all the lofs, because it did in all arife from his own ill intention. It is like murther prudentia de- cominitted by a drunken person, involuntary in fome fenditur. 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 anfwerable for all of it. And when Ariarathes the

Ex toto en m

Contr. Invo

luntario cen.

luntario,

fetur pro vo- Cappadocian King had but in wantonness stopped the mouth of the River Metanus, although he intended no evil, yet Euphrates being fwelled by that means, and bearing away fome of the strand of Cappadocia, did great spoil to the Phrygians and Galatians: hẻ therefore by the Roman Senate was condemned in three hundred talents towards reparation of the damage. Much rather therefore when the leffer part of the evil was directly intended.

4. He that hinders a charitable perfon from giving alms to a poor man is tied to Reftitution, 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 to Reftitution, because intreaty took not liberty away from the giver, but left him till Master of his χρήμασι own act, and he had power to alter his purpote, and di avsatu. fo long there was no injuftice done. The fanie is the Jegiar. cafe of a Teftatour giving a Legacy either by kindEth. 1.5. c. 4. nefs or by promife and common right. He that hin

Πλεονεκλει 8 δὲν ὁ

βοηθήσας

ders the charitable Legacy by fraud or violence, or the due Legacy by intreaty, is equally obliged to Reftitution. The reafon of the latter part of this cafe is, becaufe he that intreats or perfuades to a fm,

is as guilty as he that acts it? and if without his perfwafion the fin and the injury would not be acted, he is in his kind the entire caufe, and therefore obliged to repair the injury as much as the person that does the wrong immediately.

5. He that refules to do any part of his duty (to which he is otherwife obliged) 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 wifdom, (for his ftipend 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 Juftice, but to fatisfie his own revenge or avarice, is tied to Repentance, but not to Reftitution. 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 Circumftances. Thus Philip of Macedon was reproved by Ariftides for destroying the Phocenfes; becaufe although they deferved it, yet he did it not in profecution of the Law of Nations, but to enlarge his own dominions.

7. The Heir of an obliged perfon is not bound to make Reftitution, if the obligation paffed only by a perfonal Act; but if it paffed from his perfon to his eftate, then the estate paffes with all its burthen. If the Father by perfuading his Neighbour to do injuftice be bound to reftore, the action is extinguifhed 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 perfonal actions, unless where the Civil-Law interpofes and alters the cafe.

Thefe Rules concern the perfons that are obliged to make Reftitution: the other circumstances of it are thus defcribed.

8. He that by fact, or word, or fign, either fraudulently or violently does hurt to his Neighbour's body, life, goods, good name, friends or Soul, is bound to make Reftitution in the feveral inftarices, 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 ftill 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 fhe was willing, (a) that is, the fame at laft as I was at first. But if I have used fraud, and made her to believe a lye, (b) upon which confidence fhe did the act, and without the 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 ufe 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 Reftitution, 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.

(α) Δι ἀλλότριον ἔργον πλαίει ἐδείς. Epit. (6) Πᾶσα ψυχὴ ἄκόσα ςερείται τῆς ἀληθείας.

Plato.

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

9. An adulterous perfon is tied to Reftitution of the injury fo far as it is reparable, and can be made to the wronged perfon; 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 perfon 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 OS-juftice done him, when bimfelf is fatisfied, though by t a word, or an action, or a peny.

शुभेक

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συγγε 165 78

10. He that hath killed a man is bound to Reftitution by allowing fuch a maintenance to the children and

near