Of Restitution.
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.
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;
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.’
The practice of this part of justice is to be directed by the following
rules:--
Rules of making Restitution.
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,
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. 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.
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,
that is, the same at last as I was at first. But if I have used fraud, and made
her to believe a lie,
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.
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.
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. 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.