Palladium theologicum, Tomus quintus: De virtutibus

AMONG the species of Justice enumerated above, none is graver, or more pressing, than Restitution; which therefore suffers grave difficulties: for to steal another's goods, a greed conscious of its own need does not disdain; but to restore, for the most part, recoils rather from disdain than from want; since it is not so much the return of what was taken away, as a kind of public confession of the crime committed. Yet nevertheless there is an obligation of compensating the injury inflicted, or the thing taken away; so that D. Augustine could say with the greatest confidence, epist. 54 ad Macedonium, that even one who persuades a man not to restore, or even does not compel him (provided the task of compelling is in his own hands), is a partner in the crime and the fraud, and will be bound by an equal bond both of punishment and of fault; and however much he be absolved from the fault by touching penitence, nothing will ever exempt him from the penalty of paying, except an impossibility of paying. For as St. Augustine says a little further on in the same place: No one is to be interceded for, that what he took away by crime he may possess with impunity for the crime; but, the injury being forgiven, let him render what he took away unjustly, provided he has what he took away, or something else from which he may restore it. Concerning this restitution, therefore, we must here treat with the usual brevity.

What RESTITUTION is.

RESTITUTION, as is gathered from D. Bonaventure in 4. dist. 15. quaest. ultima, is an act of Commutative Justice, by which, according to the equality of thing to thing, what has been taken from another, whether willingly or unwillingly, is given back to him. So also D. Thomas here, and others in Valencia disp. 5. quaest. 6. puncto 1; Caspensis diff. 1. sectione 1. de Restit. More properly, however, it is when what has been unjustly taken away is given back, as Tanner notes disp. 4. quaest. 6. dub. 1, with Bannes quaest. 62. art. 1 and others.

CASPENSIS, however, OBSERVES, from D. Bonaventure loc. cit. and Lib. 6. Compend. Theol. cap. 29, that Restitution differs from Satisfaction, as the inferior from the superior, because every restitution is a satisfaction, yet not every satisfaction is a restitution; for he who satisfies for himself is not said to restore. And so Restitution is the giving back of what was received, and pertains to Commutative justice: but Satisfaction is the taking on of some burden because of an offense inflicted on another, and pertains to Vindictive justice.

MOREOVER, Satisfaction for sins, if it is made ex opere operantis, must be by a man existing in grace: but Restitution can be fulfilled by a man existing in mortal sin. Satisfaction, too, can be a part of the Sacrament of Penance: but Restitution by no means. Finally, Satisfaction is at the discretion of a good man: but Restitution of itself must be made according to equality. Moreover, all say that Restitution is an act of Commutative Justice.

Whether RESTITUTION is necessary for salvation.

IT IS A COMMONPLACE, that saying of D. Augustine epist. 44: The sin is not forgiven unless what was taken away is restored. And cap. ult. de Iniustitiis: If damage has been given by your fault, you are bound in justice to make satisfaction. From which you have that to restore is a precept, as the Holy Doctor teaches in 4. dist. 15. quaest. ultima. But it is not necessary as a means, for we are often excused from restitution on account of incapacity, and yet we can still be saved, as I shall show from D. Augustine; but means, even when omitted without fault, impede salvation.

THERE IS, however, a difficulty: Whether this precept is negative.

OBSERVE, for distinguishing, that to recognize whether a Precept is affirmative or negative, one must attend to the matter which is commanded, not to the manner in which it is enunciated; for if the matter, or object, is something forbidden, it will be negative; but if something commanded, it will be positive.

I ASSERT it is negative in substance, although in the form of words it is affirmative: Restore what is not thine, that is, do not retain what is another's: So the Doctors who seem contrary are reconciled, in Tanner disp. 4. quaest. 6. num. 8; Bassaeus num. 4.

FOR IT IS PROVED that this grave precept is expressed positively by Matthew 22: Render therefore to Caesar the things that are Caesar's. And Romans 13: Render to all men their dues: tribute, to whom tribute; custom, to whom custom. Which the Holy Doctor pursues in Confessionali, cap. 4. partic. 2.

IT IS PROVED, secondly, by the Holy Doctor loc. cit. and in Speculo, cap. 2, toward the end, with a splendid testimony of St. Augustine, epist. 54. ad Macedonium, which is cited in Regula Peccatum, de regulis Iuris, in 6, and in cap. cum tua, extra de usuris, and in Decretis 14. quaest. 6. can. 1. For when Macedonius had written in the letter, the preceding 53rd, which is to Augustine, that some even desired the penalty of their crime to be relaxed for them, while they possessed that for which the crime had been committed. St. Augustine answering says: You mention that worst kind of men, upon whom every medicine of penance is of no profit. For if the thing of another, on account of which the sin was committed, is not restored when it can be restored, penance is not done, but feigned: but if it is done truthfully, the sin will not be forgiven unless what was taken away is restored — but, as I said, when it can be restored. For often he who takes away loses, either by suffering evil men, or by living badly himself; and he has nothing else from which he may restore. To such a one, certainly, we cannot say: Restore what you took away, except when we believe him to have it, and he denies it. From this testimony of St. Augustine, D. Thom. loc. cit. and the Disciple collect, especially Tanner disp. 4. quaest. 6. num. 7, that restitution is not necessary by a necessity of means, because the condition is added: if he can.

BUT THAT the Precept is negative is proved by Valencia with the argument of St. Bonaventure in the place cited, because it obliges forever not to retain the thing of another to the injury of its Owner, and the unjust detainer is always in unjust delay, sinning actually, as the Holy Doctor says in the place cited, and as I showed in the first part of the Summa.

BASSAEUS ANSWERS that it does not oblige forever, e.g. in necessity. But then things are common; therefore he is not an unjust detainer, and so is not subject to restitution.

YOU WILL OBJECT. If the debtor sins by not restoring, the creditor ought to give way, lest the debtor be damned; for the salvation of the soul is to be preferred to riches.

ADRIANUS de restit., Sotus Lib. 4. de Iustitia, quaest. 6. art. 2, and Valencia disp. 5. quaest. 6. puncto 2, struggle with this. But I answer easily from D. Bonaventure in 3. dist. 29. quaest. ultima, that the Order of Charity between my goods and my neighbor's requires necessity in the neighbor — a necessity, surely, which is not found in him who can, and wills not, to restore. But I am not bound to give support to his evil will; for Charity does not act perversely.

Who is bound to RESTORE.

CERTAIN rules are handed down by the Doctors, that what is sought may be recognized. The obligation of restoring arises from a threefold source. First, by reason of the mere acceptance of another's thing, even if perhaps you no longer have that thing. Secondly, by reason of another's thing alone, which you have in your keeping, even if perhaps you have not received it from its Owner. Thirdly, by reason of both, namely the acceptance and the thing. By the name of thing is understood the thing, either in itself, or as it remains in some fruit, or in the price, or in effect, e.g. the gain by which you have been made richer.

BY acceptance I understand, not that which is gratuitous, but that which has been made in commercial dealings, e.g. of sale, purchase, etc. related above in disp. priori quaest. 10.

IT IS PROVED. He is bound to restore who is the true cause that someone have less than he ought of his goods: Such a one is he: Therefore. So Caietanus under the word Restitutio, Valencia disp. 5. quaest. 6. puncto 3. Tannerus in the quaest. cited, Caspensis disp. 1. sect. 4, who distinguishes these roots of Restitution as arising from the thing, from the delict, and from the contract, and adds two others, which are reduced to these. The first is from a statute of law. The second from the will, e.g. from a testament. For if someone has bequeathed to me a thousand gold pieces, the heir is bound to render them to me. So also D. Bonavent. in confessionali, cap. 2. particula 6. et 15, and cap. 3. part. 44, and cap. 4. particula 2, where with other Doctors he includes under the title of unjust acceptance injuries, as burnings, devastations, etc.; so also in speculo animae, cap. 2, and de decem praeceptis, 7, and in Diaeta, tit. 3. cap. 6.

BEYOND the executor, the causes of acceptance of another's thing are commonly reckoned as nine with D. Thom. here, and D. Bonav. in confessionali, cap. 2. particula 19, in these verses.

Command, Counsel, Consent, Flattery, Recourse, The Mute, The Participant, The Not-hindering, The Not-revealing.

Of these the first six are positive, direct causes; the last three indirect, as Tannerus disput. 6. quaest. 4. dub. 14. num. 392 says, with the Holy Doctors.

THE ONE COMMANDING, or ordering, tacitly or expressly, is a true cause of the damage; if, however, he revoked the command before the damage, with the knowledge of the Mandatary, the latter is not bound to restore. So commonly in Bassaeus, V. Restitutio, 5. §. 1.

THE ONE GIVING counsel, or urging, asking, instructing. If he revoke his Counsel, etc., he does not seem to be bound to restitution any longer; although others say it is not enough merely to urge, but he must efficaciously withdraw it, as Bassaeus §. 2 relates.

HERE is reduced the one giving consent, if he is a cause of the damage, e.g. by giving a vote for an unjust war and other iniquities.

THE PALPO is one praising the crime and moving to it, or mocking, as if the one to be judged were sluggish, whence he is moved to vengeance like a buffalo. See Lessius lib. II. c. 13. num. 15; Regin. lib. X. num. 85; Petr. Nau. lib. III. cap. 4. num. 37; Azor 3. part. lib. IV. cap. 13; Filliucius tract. 32. num. 64; Sylvius cap. de Palpone; Bassaeus §. 4.

RECURSUS signifies the Receiver of stolen goods, etc., by fostering, protecting unto the damage, or retention, of another's thing. Thus Innkeepers receiving money stolen by sons of families, or servants; yet if they do not receive it as from a thief, but as from a friend, etc., then the Innkeeper is not bound to restore. See Bonacinus de restit. disput. 1. quaest. 2. punct. 2; Filliucius cit. num. 66. et 67; Bassaeus §. 5. Here the Holy Doctor includes those who foster brothels in their places of business, harlots and gamers in houses to which unwary youths fly as to snares, robbing those whom they have made steal, and bringing thence moneys and many precious things. These bloodsuckers will drink up the better portion of the blood of the innocent.

THE PARTICIPANT forthwith judges those plundered, and all cooperating in inflicting the damage; if, however, he is constrained by fear of the rope, by giving keys, holding the ladder, he seems immune from the debt of restitution; so also the Ergastula slaves of the Turks seem immune, forced to inflict damages upon us; but I do not agree that they are excused as to killings. See Suarez tract. 5. disp. 21. sect. 2.

THOSE who are co-causes of the same damage, e.g. a fire, are bound in solidum, l. Ita vulneratus, ff. ad Legem Aquiliam.

MANY assert that only he who is the true Cause of the Damage is subject to restitution, without whom the damage would not have been. Innoc. cap. sicut dignum, extra de homic.; Hostiensis there; Altissiodorensis lib. IV. tract. de Poenit. cap. de Restit. quaest. 3; Rich. 4. dist. 15. art. 5. quaest. 4; Sylvest. V. Restit. 3. quaest. 6; Adrian. 4. quaest. 4. de Restit. §. De concurrentibus cum fure; Nau. man. cap. 7. num. 20; Caspensis disp. 1. sect. 9. §. 2; Bassaeus V. Restit. 3. num. 3. §. 2. Because otherwise the causes would be inefficacious.

THE OPPOSITE is held by Caietanus here, art. 7; Ioan. Medin. quaest. 7. de Restit.; Sotus lib. IV. de iustit. quaest. 7. art. 3; Valencia disp. 5. quaest. 6. puncto 3. The reason is, because they operate efficaciously. This was the view of D. Bonavent. in spec. animae, cap. 2, and Clatius cap. 1. §. Damnificatio. Therefore the Advocate who unjustly defends a Client is bound to Restitution — otherwise, one who would still unjustly covet the inheritance, which he would invade by others if he did not otherwise obtain it.

IT IS PROVED from the Holy Doctor. That is a true cause, posited, the effect is posited, as the Holy Doctor and others say. For if many wished to kill Peter, would not one who alone killed him be guilty of injustice, even if he would have to be killed by the others? See Valencia, and Caietan.

THERE FOLLOW three others, namely the Silent one. He is called silent who ought to have spoken in order to prevent the damage. He can be bound either by office, as a Prelate, or by contract. I shall treat of these in the doubts below.

The SECOND is the Non-obstructor, when he ought to have obstructed, as Prince, Magistrate, and the like.

The THIRD is the Non-discloser of the one causing damage, when he was bound, as a witness in court, keepers of vineyards, woods, etc. Many doubts are raised about these.

TANNERUS disp. 4. quaest. 6. dub. 2. num. 72. requires three conditions for these persons to be bound to restitution. The first is that he was bound to procure such a good, or ward off such an evil, by a debt of Commutative or Distributive Justice. The second is that he was bound to procure it for that very person who has been damaged, whose cause he ought to have pleaded. The third is that the procuring of such a good was deliberately omitted, or omitted with proportionate fault. From this doctrine innumerable cases are resolved. See also Vasquez prim. 2. disp. 175. Lessius Lib. II. cap. 12. disput. 10. et 18.

WHETHER, THEREFORE, he who is the indirect cause of damage by not obstructing it, when he can and ought, is bound to restitution; many assert universally. So Angelus, and Cajetan in the summa, under the word Restitutio, Richard in 4. dist. 15. art. 5. quaest. 4. Valencia also, at the place cited, judges it probable.

OTHERS, however, as reported by Valencia, say he is bound only when he could and ought to have obstructed it out of justice; for instance, because he was Praetor, etc. So it seems D. Bonaventure holds in the Speculum, cap. 1. under the word Damnificatio, Sylvester V. Restitutio 3. Adrian IV, quaest. de Restitut. Soto Lib. 4. de Iustitia, quaest. 7. art. 3. Medina quaest. 9. de rebus restitutis. Alensis 4. part. quaest. 86. num 3. art. 4 §. 7. Altissiodor lib. 4. summae, tract. de poenitent. cap. de Restit. and almost Valencia; Bassaeus num. 15. citing Peter of Navarre lib. 3. cap. 4. numero 130. Lessius lib. 2. cap. 13. dub. 10. Bonacina disput. 1. quaest. 2. punct. 11. Azor 3. part. lib. 4. cap. 17. Fillucius tract. 32. num. 75. Sylvius 2. 2. quaest. 62. art. 4. quaestio 4. and art. 7.

As to the keeper of the gates of woods who connives at the carrying-off of timber, many, as reported by Diana part. 2. tract. 5. resol. 54, deny that they are bound to make good the losses inflicted.

THERE ARISES another question: Whether a Confessor, and others on whom the office of prohibiting unjust detentions rests, are bound to Restitution if they omit to admonish, etc. As to the Confessor, they affirm it: Summa Rosella, V. Restitutio 2. §. 5. Summa Angel. V. Restitutio, ultim. §. 5. Navarre in the Manuale, cap. 17. num. 22. and others as reported by Valencia disput. 5. quaest. 6. puncto 3. and Bonacina de restitut. disput. 1. quaest. 2. punct. 11. The same view is followed by Nunges in addit. ad 3. part. Tom. 2. quaest. 8. art. 4. dub. 5. Zanchus in the directorium confess. part. 2. praecepto 7. cap. 26. dub. 3. Gabriel in 4. dist. 15. quaest. 2. art. 3. Sylvester V. usura, 7. quaestio 2. and other Neoterics as reported by Diana Tom. 1. Tract. 16. resol. 1. Bassaeus num. 8.

The CONTRARY opinion is that of Bonacina and others as reported by him, Filliucius tom. 1. tract. 7. cap. 12. quaest. 7. num; 37. Lessius Lib. 2. cap. 10. dub. 6. Malderus 2. 2. tract. 5. cap. 3. dub. 24. Bartholomew of Saint Faustus in spec. confess. disp. 4. quaest. 121. num. 7. Aegid. Coninch. de Sacram. disp. 8. dub. 17. num. 144. Rebellius de oblig. iust. part. 2. lib. 17. quaest. ult. num. 12. and part. 1. Lib. 2. quaest. 14. sect. 8. num. 63. Diana limits this, provided the Confessor does not persuade the penitent not to make restitution. But the obligation to join restitution with not dissuading is one and the same. This indeed is taught also by Suarez tom. 4. in 3. part. disput. 32. sect. 6. and Rebellius at the place cited, Caspensis disp. 5. sect. 9. §. 1. num. 86. Sanchez Lib. 7. Decalogi, cap. 6. Tanner. disp. 4. quaest. 6. num. 75. referring to others, Bassaeus, V. Restit. 3. §. 7. num. 16. Crousers ad cap. 7. Reg. Min. lib. 31.

The opinion of D. Bonaventure, as I see, is this second one; for in the Confessionale, cap. 4, where he professes to teach confessors what they are bound to do, and what penalties they incur by omitting it, he says: Attendendum igitur, quod cum sint tria genera poenitentium, primis nulla potest iniungi poenitentia utilis ad salutem. Horum autem sunt sex genera. Primi raptores, Secundi usurarii, Tertii incendiarii, Quarti fures, Quinti Simoniaci, Sexti dolosi circumventores, ut sunt perversi Iudices, advocati iniqui, testes falsi, negotiatores fraudulenti, et alii huiusmodi, quibus omnibus non potest alia iniungi poenitentia, nisi illa Evangelica, Matth. 18. Redde quod debes, et illa Apostolica, Rom. 13. Reddite omnibus debita. Et illud Ecclesiastici 4. Redde debitum tuum. Quod si hanc acceptare noluerit confitens, nulla alia iniungi potest, quae valeat ad salutem; quia, ut dicit Augustinus epist. 54. ad Macedonium 14. quaest. 6. Si res aliena, propter quam peccatum est, possit reddi, et non redditur, poenitentia non agitur; non remittitur peccatum, nisi restituatur ablatum. He then enumerates the rest shortly after in part. 7. He indeed condemns confessors who omit the debt; but he imposes nothing about Restitution upon them.

IT IS PROVED, because the obligation of restitution arises from the virtue of Justice alone; but the Confessor is bound to admonish not from his own justice, but from religion.

From the conditions adduced above other decisions are had. The first is that a Defendant who unjustly denies the crime in court is not bound to pay the monetary penalty due to the judge before the sentence. So Tanner. num. 76. with Adrian quodlib. 6. Navarre in the manuali, cap. 18. num. 49. Couarv. in Epitome 124. part. 2. cap. 6. §. 8. num. 10. Azor. Lib. 5. cap. 8. quaestio 5. Vasquez prim. 2. disput. 175. cap. 5. against Soto Lib. 4. quaest. 6. art. 6. Molina Tract. primo, tract. 2. disp. 95. The same seems to hold of witnesses, if they testify falsely. So Tanner. with Sà V. Restitutio, and Azor. at the place cited. The reason is that they are not bound out of justice to procure the good of the Judge or of the Treasury; nor has the Treasury acquired any right, under Commutative Justice, to the money before the sentence.

IT IS GATHERED secondly that both the Defendant and the witnesses, unjustly denying the truth, are bound to restore to the damaged party the expenses and other losses inflicted by the denial of the truth. So from the common teaching Carbo quaest. 31. Sà at the place cited, Soto Lib. 4. quaest. 7. art. 3. Medina Cod. de restit. quaest. 9. Tanner. num. 77. For they were bound out of justice not to damage the innocent party; yet they can be excused if grave losses to themselves threaten from the confession. So Tanner. with Lessius, and Sà. They judge it probable, indeed, that Molina holds they are never bound, disput. 83. Sylvester V. Testis, Lessius Lib. 2. cap. 30. dub. 8. Vasquez speaking of the Defendant in the chapter above cap. 2. Tanner. num. 79. Because it does not so plainly appear that these are bound to it out of justice.

IT IS GATHERED thirdly that a Judge negligent in delivering sentence is bound to restore the losses to the Republic and to the parties, but also the penalty which he would have paid to the Treasury for the Defendant had he proceeded rightly. The same they assert likewise of the fiscal officer: Sylvester V. Poena, quaest. 28. Salon art. 7. controv. 5. Carbo quaest. 31. who says it is the common opinion, and Vasquez agrees as to the fiscal officer. The reason is that out of justice these are bound to it by their office.

The CONTRARY, however, as to the Judge, regarding the monetary penalty to be paid to the Treasury, is held by Azor. at the place cited, ad 4. Sà V. Restitutio; Vasquez at the place cited. Lessius Lib. 2. cap. 3. dub. 10. as to the fiscal officer, whom others reported by Salonius follow.

IT IS GATHERED fourthly that toll-collectors are bound to restitution for the neglect of a just toll; but say otherwise of the monetary penalty which would come to the Treasury if they neglected to procure it. Say the same with Bassaeus of the keepers of things and fruits, from which something is given to the Prince.

IT IS GATHERED fifthly that Keepers of forests, rivers, etc. are not bound to pay the penalty which would have come to the Treasury had they reported the transgressors to the Magistrate. So Sylvester V. Restit. 3. quaest. 5. §. 7. Bassaeus num. 17. Lessius lib. 2. cap. 13. dub. 10. Tanner. num. 83. against Cato and Salonius. The reason is that their office out of justice regards not the good of the Treasury, but the security and defense of the public good. Except the tributes, as I said, excerpted from these.

Whether he who has promised three or four times to make restitution, and has not restored, is to be absolved before restitution.

The answer is with D. Bonaventure at the place cited, whom Fagundez follows on the seventh precept of the Decalogue, cap. 14. num 17. if the debt be public, such as is seen in usurers and the ravishers of churches, he is never to be absolved, nor even the first time, before he pays and gives security; and this on account of the scandal of the people.

The Sainted Doctor adduces cap. 3. particula 54. the Decree of Eugenius III. against the ravishers of churches, which is found in extra de raptoribus, where he decrees this, saying:

Statuimus, ut quicumque ex his, qui violenter surrexerint in rapinam, sive in Ecclesiarum violatione manifeste deprehensus fuerit, nisi prius ablata restituit si poterit; vel emendandi firmam, et plenam fecerit securitatem, poenitentiae beneficium ei penitus denegetur. Si vero usque ad obitum in contumacia sua duraverit, et in extremis positus, remedium poenitentiae humiliter postulaverit, si emendationem, vel emendandi securitatem praestiterit, ei poenitentia, et Ecclesiastica sepultura concedatur. Qui autem in sanitate obstinata mente non poenituerit; vel emendaverit; et in morte securitatem praestare nequiverit, solemnitas poenitentiae parum prodesse videtur, sicut credimus, sed de peccato contrito viaticum non denegetur, ita tamen, ut nullus clericorum sepulturae illius intersit, nec eius eleemosynam recipere praesumat. Quod si quis presbyterorum, vel clericorum contra haec in vita, vel in morte poenitentias dare, aut sepulturae interesse, vel eorum eleemosynas accipere attentaverint, seu huiusmodi rapinae participes inventi fuerint; ordinis sui damnum irrecuperabiliter patiantur, et Ecclesiastico beneficio careant. Haec Canon.

But the Sainted Doctor notes, from Raymond, that this decretal is local in scope; nor are public suffrages to be denied to the penitent; yet his heirs, to whom his goods have passed, are to be compelled to satisfaction, extra de sepulturis, §. Parum prodesse, as far as the temporal punishment is concerned.

Then, if Excommunication has been imposed upon the non-payer, as it is said to be imposed in the Tridentine, sess. 25. cap. 22. upon those who do not pay Tithes, he is not to be absolved even the first time, unless he pays, or, if he cannot, gives a pledge of security.

He adds thirdly that in the ordinary cases he who has three times failed to carry out the promise is considered to be trifling; yet there may be some circumstance of person, place, etc. such that it can seem to the Confessor, who needs prudence, that he should be absolved. So also Sayrus in clav. reg. lib. 10. tract. 5. cap. 5. num. 26. and others as reported by him.

From what has been said you have, also, that he who in life is unwilling to restore, but reserves the committing of it to his heirs at death, is not to be absolved. So the Sainted Doctor at the place cited, and D. Thom. quaest. 62. art. ultim. Toletanus in summa, lib. 5. cap. 24. Navarre Lib. 4. de restitut. cap. 12. num. 72. Soto lib. 4. de Iustitia, quaest. 7. art. 4. Sylvester V. restitut. 5. num. 7. and others to whom Fagundez subscribes at the place cited, num. 19.

The reason. Fagundez follows D. Bonaventure in the speculum animae, cap. 2. §. 4 and in the Confessionale, cited by name, because he who unjustly retains is always in act a debtor bound to pay, and unjust, if he does not pay.

But in no case is a Confessor who omits the admonition bound to restitution.

For you will say to Nunges: he is bound out of justice to admonish the penitent: Therefore, omitting it, he sins against justice.

Diana answers that he is bound out of Justice, a debt owed from religion by the Sacrament of penance, which regards the penitent in order to spiritual salvation; in this the confessarius who omits to admonish indeed falls short, but he does not fall short in any obligation of justice which regards the temporal good of the creditor; Valencia subscribes disput. 5. quaest. 6. puncto 3. Tannerus quaest. cit. I confess that in other cases, where there is a proper obligation of justice, the debt of restitution is found, for instance in the Praetor, Governor, in the Keepers of the chains, etc.

From the second head, namely of another's property, arises the obligation of restitution.

But Valencia at the place cited, and Cassensis disput. 1. sect. 4. note, that even goods possessed in good faith, when they are acknowledged to be another's, one is bound to restitution; for no one ought to be made richer by another's loss, according to rule 48 in 6. and the Law Nam hoc natura, ff. de conditione indeb.

But the Doctors establish this general rule: As long as the thing endures in its own species and substance, it ought to be restored as itself; but if it has been consumed, there ought to be restored that by which you have been made richer, or in which you have preserved your own property, for instance food, clothing, etc.

Yet they raise the doubt: Whether he who in good faith buys a stolen thing from a thief, and resells the same to another, is bound to give back the price to that buyer; and they answer in the negative: Lessius Lib. 2. cap. 14. dub. 5. Rebellius part. 1. lib. 2. quaest. 3. Cassensis at the place cited. num. 31. Cajetan V. Restitutio. Navarre in the manuali, cap. 17. num. 7.

The opposed opinion is that of Valencia puncto 3. Soto lib. 4. de Iustitia, quaest. 7. art. 2. that such a one is bound to restore the price to the third buyer, indeed in the case in which the buyer knows, or seems to have knowledge, that the thing is another's. For if he does not seem likely to know it, and no comparison is made, there is no need to restore anything to him, since otherwise no damage threatens him.

To my mind, following D. Bonaventure in the speculum animae, cap. 2. the former opinion seems more likely; for it seems to compel only purchases and sales of bad faith to restitution; but the obligation remains with the thief.

The reason is that the price, which alone seems subject to Restitution, has not been exchanged formally with the thing, but with the price given by me to that first seller from whom I bought; and accordingly the obligation still remains with the first seller.

I ADD indeed, with D. Bonaventure at the place cited, Caspensis, num. 61. and others, that the thing ought to be grave, for restitution to be owed. Sanchez lib. 2. cap. 23. num. 160. Azor 3. part. lib. 4. cap. 8. Filliucius tract. 32. num. 31. Lessius lib. 2. cap. 7. num. 24. Sylvius quaest. 62. art. 4.

BUT the debt of restitution can arise ex re, by the just acceptance, by contract or acceptance, of a thing owed to another, and therefore in these it seems to arise more from the thing itself; likewise ex re by an unjust acceptance, as when the thing is still in the hands of the thief, in whom the obligation is greater; for in these cases of unjust acceptance, by which ownership is not transferred, as in theft, rapine, etc. the detainer is always in mora, and sins mortally by detaining, even though he repents having accepted it; provided, however, the possibility and opportunity of restoring be present. Whence Saint Augustine, epistola 54. Non dimittitur peccatum, nisi restituatur ablatum. But in those cases in which ownership passes to the receiver, as in sale, loan, etc. no one is in mora except according to the conditions attached, as the Sainted Bonaventure disserus at the place cited of the speculum.

THERE are indeed also contracts in which ownership is not transferred, as Commodatum, Precarium, Locatum, Depositum, and Pledge, as I said in the preceding disputation, question 10.

One must know that some contracts are referred to the utility of the receiver alone, as mutuum, donation, commendatum, and precarium. Others regard the utility of the giver alone, as depositum and mandatum. Others regard the utility of both contracting parties, as sale, letting, and likewise pledge, and also depositum, when some wage is given on account of the keeping.

IT IS ASKED, then; when is anyone bound to restitution from a contract when the thing perishes; but the thing can perish by chance, by fraud, or by negligence.

IT IS CERTAIN first that from no right does an obligation to restore arise from a contract when the thing perishes by mere chance (unless that is included in the contract:) for so in Canon Law cap. ultimo de commodato, and cap. 2. de deposito, and in Civil Law L. 27. ff. de reg. iuris; and Leg. 18. ff. commodati, and Leg. 22. Cod. de negotiis gestis. The reason is that, unless otherwise provided in the contract, the contracting parties are bound only to that which is in their power, which chance happenings are not. Yet these things can be included in contracts, as the Laws cited affirm. Likewise this obligation can arise from another head, when, for instance, someone was in mora of restitution, or made illicit use, for instance, if he carries the silver lent him onto a ship, to dine on the Lake, and for these causes it perishes.

IT IS CERTAIN also that if the thing perishes through fraud, or through grave, or serious fault, he is bound to restitution: It is evident from the Canon and Civil Law cited.

SIMILARLY, when the contract can be freely revoked by him who freely hands over his own thing to another, then he who has another's thing is bound to restitution only in fraud and grave fault, which is serious. It is proved from the Law 23. ff. de reg. Iuris, where the Jurist says: Contractus quidam dolum tantum recipiunt, scilicet Depositum, et Precarium.

BUT when the contract cannot be revoked, if it regards the utility of both contracting parties, it obliges the receiver in respect of grave and light fault; but if it is for the utility of the receiver alone, it obliges him even in respect of the lightest fault. It is proved from cap. 1. de commodo, and the Civil Law Leg. 5. et 18. ff. commodati, and Leg. 1. ff. de obligationibus.

ALL agree that restitution is owed by him from whom the thing was accepted: Four conditions, however, being laid down.

The FIRST is that he from whom it was accepted have a right to the thing, either as Owner, or as steward, or keeper.

The SECOND, provided that no loss is going to accrue from it to him from whom it was accepted, nor to another, for instance, that he is going to squander the thing, or that others are going to use it for crime.

The THIRD, if the giving was not of itself unjust, as in the case of a simoniac; yet if it was joined from the origin with an external sin, for instance, because it is the price of fornication, it is no obstacle. Yet even to a simoniac restitution can be made, Caspensis says sect. 1. before a sentence is delivered against him by the judge. So also Navarre Lib. 4. de restit. cap. 2.

The FOURTH, that the restitution be made to him from whom you received it, either by yourself, or through another. See Valencia puncto 4.

HERE a question occurs: Whether another's thing, accepted from a thief, ought always to be restored to the true Owner: The reason of the doubt is that it may have been accepted from him in good faith: Therefore it is to be given back to him, and the price paid is to be recovered; and so think Alens. 4. part. quaest. 86. memb. 3. art. 5. Summa angl. V. Restitutio, Gabriel 4. dist. 15. quaest. 3. dub. 5. Navarre Manuali, cap. 17. num. 9. Valencia at the place cited, provided it be given back to him to redeem his own price, not that the thief may retain it. This seems to me true, against some as reported by Valencia at the place cited and Fagundez in septimum praeceptum, Lib. 7. cap. 20. My reason is that I am bound to look first to my own innocence, rather than to another's; and to my own family property, rather than to another's; why, therefore, should I lose my own price without profit, so that another's thing may be restored?

Yet Peter Eligius Bassaeus says V. Restit. 4. §. 2. num. 7. if he does not find the thief, or the thief, when found, is unwilling to give back the price, the thing is to be restored to the Owner. So Peter of Navarre lib. 3. cap. 4. num. 191. Filliucius tract. 32. num. 85. Sayrus lib. 10. tract. 2. num. 17. Lessius lib. 2. cap. 14. dub 3.

But why should I without profit deprive myself of my own price, when the debt is in the thief? I know this can be done in the external forum. Let him act meanwhile; the thief can be found and compelled.

Meanwhile I am not bound to give it back in conscience, as Filliucius says tract. 32. num. 84. and others, although others disagree.

UNCERTAIN debts arising from a lawful contract, with the creditor unknown, or too remote, you may retain; for since by Canon Law alone uncertain debts, unjustly contracted and from a wicked acquisition, for instance from usury, devolve upon the poor, I do not see why these should be paid. See Peter of Navarre lib. 4. cap. 1. num. 46. Layman lib. 3. sect. 3. tract. 2. cap. 9. Lessius lib. 2. cap. 14. num. 58. Bassaeus num. 4.

THE Sainted Doctor indicates these rules in the Confessionale, cap. 4. part. 2. concluding with that epiphonema of the Apostle 13. Reddite omnibus debita, etc.

What exactly ought to be restored.

This question contains many things, and those various, to be discussed; for since the things subject to restitution are goods, and those goods are of many kinds, namely goods of fortune, as riches; of the body, as the integrity of honor and of fame, and goods of the soul; and among these goods some are of difficult restitution, as the health of the body, one must treat of all of them: Whether they are included under the debt of justice; or whether they are to be compensated by other goods.

Again, secondly, the debt of restitution can arise from the mode in which the things themselves are held, and thus the equality to be made can fall upon the mode by which the thing was acquired, as through various contracts, through donation, etc. Likewise through hunting, fowling, fishing, digging, and through some shameful action. Therefore these also must be treated of. Thirdly, from goods impeded to someone. These I shall discuss one by one.

What is to be restored, with a view to the things which are our goods.

The more excellent the goods taken away, the stricter the obligation of restitution that weighs upon one; provided those goods be of such a nature as to be capable of being restored. Among these goods, moreover, some are dearer to the possessor than others; for goods of fame usually outweigh goods of fortune in everyone's estimation, and indeed those are in themselves to be preferred. Goods of the Soul, too, as much as the soul itself surpasses the body, are deservedly considered better; from these goods, therefore, unjustly taken away, arises a varied obligation of restitution; for some there are which, when taken away, perish; others, however, remain, so that the same things can be restored. These I shall weigh one by one through the doubts.

Whether goods of fortune are to be restored as the same things.

It is certain, and beyond controversy, that goods of fortune, the same ones, if they exist, even if consumable by use, are to be restored as the same in number, unless perhaps thereby a hidden sin of the sinner would be made manifest, or some great inconvenience would follow, as Valentia quaest. 6. puncto 5. §. 1. Navarre in the Manuali, cap. 17. num. 24. notes; or unless the creditor is content with another thing, as is found in Leg. eum a quo, and Leg. manifesti, Cod. de solut.

But if the thing no longer exists, satisfaction ought to be made in equivalent. And if the thing is consumable by use, it ought to be restored as the same, if it exists; or another of the same species, and equally good; or in money. Nor is the thing only owed, but also the fruits of the thing, as the Sainted Bonaventure 3. dist. 37. dub. 7. says; and I have said enough about these also above.

In what manner RESTITUTION is to be made for the goods of the body.

All agree that one who mutilates, kills, breaks limbs, or renders a man's body useless is held to make restitution of all the damages that follow from these deeds; and if the man cannot be restored by medical treatment, the wrongdoer is held to restore an equivalent in money. Thus the Saintly Doctor in the place cited and in Spec. animae cap. 1; D. Thom. art. 2. ad 1; Richardus in 4. dist. 15. art. 5. quaest. 2; Sylvest. V. restit. 3; Soto Lib. 4. de Iustitia, quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Tanner. disp. 4. quaest. 6. dub. 4; Carbo quaest. 15, and others commonly among these.

Wherefore if the man mutilated or killed was earning by his own industry, reparation must be made out of the goods of the assailant, even if the assailant is dead; and if the slain man was bound in justice to support certain persons, the assailant will be bound to provide for them, as Sotus loco cit. and Valentia loco cit. say against Scotus 4. dist. 15. quaest. 3 and Adrianus de Restit.

Sotus adds that somewhat less must be rendered, at the judgment of a good man, to the heirs of the mutilated or killed man than he himself would have earned, in view of the fact that it is less to have something in hope than in reality; for the man who was killed might have died for another cause, and the man mutilated might have been disabled in some other way. Wherefore Valentia admonishes that diligent consideration be given to age, health, etc., as Caspensis disp. 3. sect. 6 and others also observe.

From all this it appears that what Maior 4. dist. 15. quaest. 19. dub. ult. and Valentia loco cit. say is true, namely that although one who kills a nobleman sins more than one who kills a hired laborer who would have earned nothing by his labor or industry, yet the killer of such a hired laborer is bound to more.

The Saintly Doctor in Speculo animae, cap. 1. v. Damnificatio observes that not only the slayer, but also one who commands, helps, or counsels is held to restitution; yet not one who fails to prevent when he ought out of Charity; indeed he does not even sin mortally if for some reason he desists from removing the slayer — for instance, if he fears the slayer may break in against himself. But if he permits a man to be killed out of hatred, he is not held to restitution unless he himself is bound in justice to prevent it.

Next observe that damages can be exacted in conscience immediately to the point of equality, but not yet that penalty of restitution which is prescribed by law; for by means of that law he must await the judge's sentence, as we have in Leg. ex iudiciorum, ff. de accusationibus.

They dispute, however: whether compensation must also be made in money, or the like, for the injuries of killing, mutilation, etc.

The first opinion is negative. Nauarri in manuali, cap. 15. num. 21; Azorii, Ostiensis. Thus Caspensis loco cit. num. 51; Couar. lib. 2. var. cap. 10; Petrus Nauar. lib. 4. cap. 2. num. 80; Gomez lib. 3. variarum, cap. 6; Lessius Lib. 2. cap. 9. num. 141.

The second opinion is affirmative. Thus D. Thom. art. 2. ad 1; Scotus in 4. dist. 15. quaest. 3; Richardus ibi, art. 5. quaest. 2; Adrianus 4. de restit. quaest. ultim.; Maior in 4. eadem dist. quaest. 14; Sotus Lib. 4. de Iust. quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Carbo quaest. 12; Lopez p. p. quaest. 47; Angles 4. de restit.; Salon quaest. 62. art. 2.

To me the negative opinion appears truer. It is proved by the doctrine of D. Bonaventure. Restitution is a part of satisfaction, or a species of it, as S. Bonavent. 4. dist. 15. quaest. ultim. shows, et in spec. animae. But satisfaction must hold a proportion to the offense, and no one Satisfies unless he Restitutes as much as he took away. From this it follows that Satisfaction and Restitution must be made from proportionate goods; but money cannot be made proportionate to the good of a life taken away: Therefore.

This is the doctrine of S. Bonaventure in 3. dist. 20. quaest. 6 et in 4. dist. 15. part. 2. quaest. cit. It rests, moreover, upon the Laws; for by the Lege finali, ff. de iis, qui deiecit. vel effud. and the L. Liber homo, ff. ad Legem Aquiliam, and the L. ex hac, ff. si quadrupes pauperiem fecisse dicatur, afficitur, it is laid down that a free man cannot be valued at any price; and that a free body receives no estimation, as is had in the L. citata, L. homo, et L. ex hac, where it is added that nothing can be demanded for a free man even if he is killed.

Valentia answers that the Laws conclude only that this is true from the nature of the thing; yet if the injured man for a reasonable cause is content, satisfaction can be made to his very life by money.

But it is beside the point to call that a restitution which is made with things unfit for compensation — e.g. to restore reputation with money, as Sylvester noted V. Detractio, quaest. 4.

Valentia answers with D. Thomas ad 2. that when restitution cannot be made in the same genus, it can be made in another.

But he does not answer the point, because although restitution could be made in diverse kinds — say, the restitution of a field through a price — still it cannot be made except according to a reasonable estimation of things, as Valentia himself says. But there are many things that cannot be estimated by other things: the soul by money, or reputation by gold; for it is of a higher order, incomparable, as it is said Proverb. 22: Melius est bonum nomen, quam divitiae multae — as I shall show in the dub. sequenti.

Valentia objects first, and Tannerus, from Exodi 21: If he who is struck rises again and walks abroad, he who struck him shall be quit, yet so that he make restitution of his charges and the physicians' fees. By this law it is enacted that if the man struck has not recovered, the assailant must make greater restitution — clearly even for death or deformity.

It is answered that the same place sets forth what penalty is owed if the man struck dies: he shall die the death. This is confirmed, for further on, when it speaks of the death imposed on a goring ox, it declares: But if a price be laid upon him, he shall give for his soul whatever is demanded. But if the owner of the ox was aware beforehand of that vice, he himself shall be killed, since according to the precept he did not confine it.

Scotus and Tannerus object second that one who kills another's Ox or Dog must make some restitution for that Ox or Dog killed. Therefore much more must one who deprives a Man of life or health make some restitution for this very thing. And not to notice this (say Scotus, Tannerus, and Adrianus) is foolish.

But the comparison is absurd to me; for an Ox and a Dog are purchasable at a price, nor will any owner of a Dog receive money for the injury of the Dog's death insofar as it was his owner's — but only for the estimation of the Dog and Ox for use. Moreover, satisfactions are exacted from the slayer because he did not fear the Lord of the animal, and the injuries of the world bring contempt upon that contemning slayer.

Whether, and how, RESTITUTION of Reputation and Honor is to be made.

That reputation is a good having marketable value, the taking away of which obliges in justice to restitution, is certain. For reputation is good estimation among others, of which Proverb. 22: Melius est nomen bonum, quam divitiae multae. From this S. Bonaventure p. p. Centil. sect. 13 deduces that the detractor is held under greater obligation to Restitution than the thief, which Valentia thereupon noted disp. 5. quaest. 6. puncto 5.

Therefore the detractor is held to restore reputation, three conditions concurring. The first is that the reputation have been taken away — for sometimes reputation is not removed by a saying, either because it is not believed, or because that sin does not blacken a person of that rank, as if you say of a knight: He wounded another man. The second condition is that the reputation have been taken away unjustly. The third, that the defamed man have not redeemed his stolen reputation. Thus they report from the common teaching: Soto Lib. 4. de Iustitia, quaest. 6. art. 3, Valentia disp. 5. quaest. 6. puncto 5, Turrianus disp. 53. dub. 3, Caspensis disp. 10. sect. 5.

I assert, therefore, first, that the unjust detractor is held to restore reputation, even with the loss of his own reputation, though not of his life, even by saying (if need be) that he lied. Thus D. Thom. 2. 2. quaest. 62. art. 2. ad 2, Caietanus ibi, Sotus Lib. 4. de Iustitia, quaest. 6. art. 3, Petrus Navar. Lib. 2. de restit. cap. 4. disput. 5. num. 375, Michael Salonius 2. 2. quaest. 62. art. 2. controu. 13, Navar. in manuali Latino, cap. 18. num. 45, Rodriquez 2. part. summae, cap. 45, Lopez prima parte, instruct. cap. 16, Sayrus Lib. 11. cap. 3. num. 21, Filliucius Tom. 2. tract. 32. cap. 9. num. 145, Malder. de Iust. tract. 7. cap. 2. dub. 9. fol. 554, et all the Doctors commonly, as in Valentia loco cit. Fagundez in octavum praeceptum Decal. cap. 15, Tannerum disp. 4. quaest. 6. dub. 4, Bassaeum V. Detractio, 2. num. 4.

Some add a little exception: unless there be great inequality — as if the defamed man be of low condition, but the defamer of great dignity, and he suffer greater detriment by saying he lied. Thus Sotus and Valentia, although Nauarrus doubts of this: for one is not held to make greater restitution than what he took away. Whence it comes about that he is not held to restore reputation with the loss of his own life; for although reputation is a kind of civil death, as Anselmo teaches Lib. de simil. cap. 147 as cited by D. Bonaventure in Pharetra Lib. 3. cap. 3. §. De Detractione, still it is not the proper taking away of life, but of a good inferior to life itself, namely reputation, which outweighs riches, according to Proverb. 22; and accordingly it binds more to restitution than the taking away of an eye, as the Saintly Doctor again enjoins in speculo animae, cap. 1. Most follow this doctrine, as in Fagundez cap. 15 et Dianam part. 2. Tract. 5. resol. 29 et 30.

There is, moreover, a question there in Diana: whether one who falsely defamed someone is held, if need be, to swear that he spoke falsely. They answer affirmatively: Caietanus and Aragon 2. 2. quaest. 62. artic. 2, where also Sylvius quaestione 22. tractat. 32. cap. 20. num. 245, Turrianus disp. 52. dub. 1, Salon de Iust. tom. 1. quaest. 62. art. 2. controv. 3, Carbo de restit. quaest. 18, Villalob. in summa, Tom. 2. tract. 11. diff. 37, Tanner. 2. 2. disp. 4. quaest. 6. dub. 6. num. 141, Diana ibi, Fagundez Lib. 8. cap. 15, Navar. cap. 18. num. 45, Pet. Navar. Lib. 2. cap. 4. num. 137, Sotos de Iust. Lib. 4. quaest. 6. art. 3, Faustus in speculo, disp. 21. quaest. 21, Bassaeus num. 9. Nay, they add — Molina tom. 5. disp. 41, Ioan. de la Cruz in Direct. pract. 1. punct. 7. art. 2. dub. 5, Soto, Aragon, and Salon — that he must, if need be, even bring witnesses.

I WONDER, however, that the Doctors so crowd headlong into binding consciences; for, as Faventinus observes in 4. dist. 15. quaest. 3. disp. 53. cap. 1. num. 32, the ancient Theologians — such as S. Bonaventure in the places adduced and elsewhere, Alensis part. 2. quaest. 129. memb. 6, D. Thom. quaest. 62. art. 2. ad 2, Scotus loco cit. — require only a simple retraction. But the modern Zealots superadd a most heavy burden, which perhaps they themselves do not touch with a finger.

The Doctors bring forward a certain SMOOTH manner of restoring reputation. For since to say one lied is an arduous act, they teach that the reputation is to be restored by praising the defamed man before those who had heard the detraction. Thus Caietanus 2. 2. quaest. 62. art. 2, Soto de Iustitia, lib. 4. quaest. 9. art. 3. ad 4, Villalob. in summa, Tom. 2. tract. 11. diff. 37. num. 4, Tannerus 2. 2. disp. 4. quaest. 6. dub. 4. num. 143, Valentia quaest. 4. puncto 5 and quaest. 17. puncto 2, Fagundez in octavum praeceptum, Lib. 8. cap. 15. num. 3, Lessius Lib. 2. cap. 11. dub. 10, Aragon. 2. 2. quaest. 62. art. 2, Faustus in speculo confess. disp. 21. quaest. 74. num. 6, Diana loco cit. Whatever they may bring to the contrary: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Navar. lib. 2. cap. 4. num. 370, Faber n. 46, Sylvius 2. 2. quaest. 62. art. 2. quaeritur 22, Fillucius Tom. 2. tract. 31. cap. 10. num. 246.

IT IS ASKED second: whether the defamer, not being able to restore the reputation, can, and ought, to make satisfaction with money.

They AFFIRM that he is held: Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 7, Filliuc. Tom. 2. tract. 32. cap. 10. n. 239, Turrianus 1. 2. tomo 2. disp. 53. dub. 7, Faber in 4. disp. 53. cap. 4. num. 122, Malderus 2. 2. tract. 7. cap. 7. dub. 8, Navarrus cap. 17. num. 19, Bannes 2. 2. quaest. 62. art. 2, Sylvest. verbo Detractio, quaest. 4, Navar. lib. 2. cap 4. num. 416, Lessius Lib. 2. cap. 11. disp. 11, and others as in Bassaeum num. 7.

OTHERS, however, as in Diana resol. 50 citata, propose with probability that it can be done. Thus Villalob. Tom. 2. tract. 11. diffic. 39, Sotos de Iust. Lib. 4. quaest. 6. art. 2, Aragon 2. 2. quaest. 62. art. 2, Valentia disp. 5. quaest. 6. puncto 5, Couar. lib. 1. variar. cap. 2. num. 8, Molina tract. 4. disput. 25, Sà V. Infamia, num. 7, Sylvius 1. 2. quaestio 62. art. 2. Quaeritur 22, post Rebell. — Sotum, Richardum, Adrianum, Caietanum, and others as in Fagundez Lib 8. cap. 14. num. 11, asserting also Couar. reg. peccatum, p. p. num. 6 et Lib. 1. var. resol. cap. 2. num. 8, Cordubam quaest. 33. art. 2, Lopez p. p. Instruct. cap. 116, Salonium 2. 2. quaest. 62. art. 2. controv. 13, Rodriquez 2. part. summa, cap. 45, Rebell. Lib. 2. quaest. 10, the Gloss on cap. Ecclesia sanctae Mariae extra, ut lite pendente nihil innovetur, Malderum de Iust. tract. 7. cap. 2. de restit. famae, dub. 8, Tannerum disp. cit. num. 150, and others adduced above. Add Bassaeum num. 7, who says it can be done in equity if the defamer is poor.

The OPINION of the Seraphic Doctor, in my judgment, is that this compensation cannot be made. Thus the authorities cited, to whom add Caspensem disp. 10. sect. 5. num. 37, and Tanner judges it probable.

The rationale of D. Bonaventure, in nearly all the places cited and ad cap. 10. Ecclesiast., is this: Restitution is an act of Justice, reducing to equality according to commutation through compensation of what was taken away; but money, or other goods of fortune, are not proportionate to compensating reputation: Therefore. The minor is proved by Proverb. 22, Melius est nomen bonum, quam divitiae multae, and Ecclesiasticus 41, Curam habe de bono nomine: hoc enim tibi magis permanebit, quam mille thesauri pretiosi. The authors of our opinion use this rationale, from which it also follows that, conversely, one is not held to restore with goods of a higher order of life. Thus it is laid down in cap. offi. II., de poenit. et remiss, and the Doctors commonly cite it as in Fagundez in octavum Praeceptum Lib. 8. cap. 13 and Diana part. 2. Tract. 3. resol. 30 — even if the defamed man is a noble defamed by a VILE man. The reason has already been given. IT WILL BE ASKED third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

YOU WILL ASK third: whether one who, without just cause, makes known the hidden crime of someone to one or two prudent men whom he knows will not spread it about, sins mortally.

They answer AFFIRMATIVELY: Turrianus 2. 2. Tom. 2. disp. 53. dub. 8, Sotus de Iust. Lib. 7. quaest. 10. art. 2, Molina de Iust. tract. 4. disp. 29, Lessius Lib. 2. cap. 11. dub. 11. num. 70, Bannes 2. 2. quaest. 62. art. 2, Azor. Tom. 1. Lib. 6. cap. 9, Fillincius Tom. 2. tract. 40. cap. 4. num. 91, Suarez tom. 4. disp. 34. sect. 1, Villalob. Tom. 2. tract. 11. diffic. 36, Valentia tomo 3. disp. 5. quaest. 17. puncto 2, Malderus 2. 2. tract. 7. cap. 1. dub. 4, Layman Lib. 3. sect. 5. tract. 3. part. 2. cap. 3, Ioan. de la Cruz part. 8. quaest. 2. art. 2. dub. 3, Salonius 2. 2. quaest. 62. art. 2, who state this opinion to be common among the more recent Thomists; Fagundez also defends it in octavum praeceptum, Lib. 8. cap. 2. num. 7, and Bassaeus V. Detractio 1. num. 11.

Caietanus teaches the CONTRARY opinion, 1. 2. quaest. 62. art. 2, Navar. de restit. Lib. 2. cap. 4. num. 234, Graffius lib. 2. cap 137, and others; and many of the adversaries hold this opinion probable, as Tanner. 2. 2. disput. 4. quaest. 8 dub. 7. num. 138, Ioan. de la Cruz, and others, with whom Diana subscribes, part. 2. Tract. 5. resol. 23.

The OPINION of D. Bonaventure is that this man sins mortally. His rationale, which the Moderns use as in Diana and Fagundez, is that reputation is blackened even before one or two. Wherefore Jesus Christ in Matth. 18 grants that one or two be called to correct someone when the obstinate man refuses solitary correction; otherwise he commands it to be done inter te, et ipsum solum. For one man could be harming, even if prudent, and of the sort Christ desires to help in reproving the fallen. For he wills that suitable men be chosen to raise up the fallen; and indeed reputation is often more harmed if it is said to one weighty person than if to many of the common people; but especially if the defamed man depended upon him. Thus the Saintly Doctor defines this question at those words of Ecclesiasticus 10, Si mordeat serpens in silentio, nihil eo minus habet, qui occulte detrahit, from which he elicits a new argument; for the striking is deadly even when secret before one whom he defames, for he compares this to the striking of a venomous serpent.

They OBJECT that the prudent man would not reveal it. It is answered, as I said, that it makes no difference. Next, who made you the guarantor of this?

ANOTHER doubt arises: whether the detractor is held to restitution of damages in the goods of the man's household, and in other things, lost on account of his ruined reputation.

A DISTINCTION must be made. For if he defamed him falsely, he is held to full restitution of all damages. Thus commonly with Lessio Tom. 1. Lib. 2. cap. 12. de detract. dub. 19. numero 101.

Sayro lib. 11. cap. 3. de restit. bon. exter. num. 17, Soto lib. 4. de Iust. quaest. 6. art. 3. ad 4, Pet. Navar. lib. 2. de restit. cap. 4. disp. 4. num. 375, Navar. summa Lat. cap. 18. num. 47, Salon 2. 2. quaest. 62. art. 2. controv. 20; and it is clear from cap. si culpa, de iniur. et damn. as Fagundez notes in octavum Praeceptum, lib. 8. cap. 24. num. 5, who observes that this opinion is to be understood of goods already existing in possession; but as regards goods in hope — say, if on account of the defamation he was impeded from some dignity — he says the matter must be judged by a prudent man.

HE ADDS, moreover, that even one who defamed of a true crime is not held to restore goods in hope in full, but well those already acquired. Thus also Navar. summa, cap. 18. num. 45, Sayrus lib. 11. cap. 3. de restit. bon. exter. num. 20, Lessius Tomo 1. lib. 2. cap. 12. de detract. et contum. n. 19 et num. 109, Petrus Navar. de restit. cap. 4. dub. 6. num. 384, and Salon. supra.

The rationale of the latter is that the debt of restitution arises not from the quantity of the sin, but from the quantity of the damage inflicted; whence, although one who speaks the truth sins less, yet he inflicted the same damage unjustly. Nor say that he gave the occasion by his own sin. For it is answered that the crime would inflict no damage except through the mediation of knowledge, and the detractor has no right to set this cause in motion. But he who is the cause of an unjust damaging is immediately constituted guilty of restitution, as the Saintly Doctor argues in Speculo animae, cap. 1, and with him Bassaeus, v. Detractio 2. num. 2.

A doubt, however, OCCURS here at once: whether he is held to restore the reputation before all those to whose notice the sin came through those to whom he himself told it.

Faber answers NEGATIVELY, disp. 35. allegata, cap. 1. num. 35, adducing Alensem. See Dianam loc. cit. resol. 34, Tannerum disput. 4. quaest. 6. dub. 6. num. 146, and others as in him and in Villalob. Tom. 2. tract. 11. diffic. 37. num. 11.

I JUDGE with Villalobos loc. cit. and Caspensi Tract. 18. de Restit. disp. 10. sect. 5. num. 33, and Diana, that such a man is excused if he believed those to whom he told it would not defame him to others; but if he believed they would defame him, he is held; for what is the cause of a cause is also the cause of what is caused. But the cause of the damaging is guilty of restitution, as the Saintly Doctor says loco citato.

I SUBMIT ANOTHER doubt: whether, if someone tells another of an injury secretly inflicted upon himself by someone, in order to lessen his grief, he sins mortally. Diana answers negatively loc. cit. resol. 32, with Sylvio 2. 2. quaestion. 62. art. 2. quaerit. 15, Lessio lib. 2. cap. 11. dub. 12. num. 31, Navar. lib. 1. cap. 4. num. 345, Molina tract. 4. disp. 29. num. 5, Layman lib. 3. sect. 5. tract. 3. p. 2. cap. 3. num. 6, Tannero 2. 2. disp. 4. quaest. 8. dub. 7. num. 145, and others commonly. But Ioan. de la Cruz in Direct. p. 8. quaest. 2. art. 2. dub. 3 adds more. If a person gravely injured in secret, unable to restrain himself from grief, breaks out into public complaints, he is not immediately condemned of mortal guilt if the injurer is defamed; for it seems hard to restrain so afflicted a mind from breaking into complaints, since this is most natural. He adduces for this opinion also Ludovicum Lopes.

I judge S. Bonaventure assents to these, who at those words Eccles. 10. Si mordeat serpens in silentio reduces the causes of detracting someone's reputation to three heads.

The FIRST is from necessity, when he is compelled by some legitimate precept, human or divine. Human, when he who can commands him to speak; Divine, when conscience dictates to a man that he is bound to look after his neighbor, that he may be corrected, according to that precept of the Lord concerning fraternal correction.

The SECOND head is from usefulness, when he tells the evil of someone to one who can help and not harm, as when he tells it to a man who loves and sympathizes and has the will to correct him.

The THIRD is from the lust of detracting. When, therefore, neither necessity is considered nor usefulness, even if it be the truth, he is not excused from the lust of detracting; indeed he sins the sin of detraction. Thus the Saintly Doctor.

THEREFORE he replies further, that if some usefulness intervenes, it is not a sin.

He adds in speculo animae, cap. 1. what Cruz says. Yet it matters greatly whether this vice proceeds from envy, or from an indiscreet Zeal of justice; for it sometimes happens that the evils of others, done out of a certain indignation or lightness of speech, are recited, or even aggravated, without the intention of defaming anyone as evil — which it would be hard to judge mortal. Thus the Saintly Doctor.

FINALLY many admit compensation, if the other also took away the other's reputation and is unwilling to restore it. Thus Toletus lib. 5. cap. 7, Lessius disput. 25, Molina disp. 49, Sylvius 2. 2. quaest. 62. art. 2. quaeritur 10, Malder. 2. 2. tract. 7. cap. 2. n. 14, Diana p. 2. Tract. 5. resol. 30. ante controv. 13 et 24, Aragon. 2. 2. quaest. 62. art. 2. ad 2, Petro de Navar. lib. 2. de restit. cap. 4. num. 6, Sayro lib. 11. cap. 8, and others, after D. Bonau. in 3. dist. 9. quaest. 4 et 5. Moreover honor is harmed by words, as by insults which impose faults to one's face; by insults which also oppose penal charges, such as being a bastard, etc.; by reproaches, casting up the miseries from which he has been relieved. So also by deeds one is harmed, by blows, scourges, etc., as the Doctors commonly teach with D. Bonau. in speculo animae, cap. 1; and accordingly they are held, as inflictors of damage, to restitution, as all concede. And indeed that it is a mortal sin, if they are grave.

IT IS PROVED by the Saintly Doctor loc. cit. from that of Matth. 5: Qui dixerit fratri suo, Racha: reus erit iudicio. Qui dixerit fratri suo, fatue: reus erit gehennae ignis. The Saintly Doctor expounds what Racha is in serm. 1. in Dominica 5. post Pentec.; and Racha is an interjection of one indignant, expressing a Hebrew word which signifies empty or vain; but it is worse to call one a fool, and he calls these the insulting and the revilers, and there calls strikers those who damage and are condemned. Hence the Saintly Doctor proves, in serm. 4. in Dominica 5. post Pentec., that these insulting revilers are held to satisfaction. For the Lord adds: Si ergo offers munus tuum ad altare, et ibi recordatus fueris, quia frater tuus habet aliquid adversum te, etc. vade prius reconciliari fratri tuo. On this testimony rest Fagundez in octavum praeceptum Decal. lib. 8. cap. 18. num. 9 and others.

IN MANY ways, however, this restitution of honor can be made. First, by honorable nomination; and Fagundez says this manner is enough for superiors, Lessius Tom. 1. lib. 2. cap. 11. de contum. dub. 27, Caietanus 2. 2. quaest. 72, adducing D August. de regulis superior.

SECONDLY, by asking pardon. And they say that this inferiors owe to superiors: Fagundez num. 10, Lessius loc. cit. num. 145. Nay, if the injury is atrocious, Fagundez says, it can be juridically decreed that the suppliant ask pardon with a rope about his neck; and he says that when this was done, it was decreed in the most flourishing kingdom of the Gauls, in the time of Louis XIII, who governed that most flourishing Empire most justly and most prudently, as this Spaniard exclaims.

THIRDLY, by inviting to dinner and giving a place of honor. Thus Fagundez num. 13 and Petrus Nauar. lib. 2. cap. 4. num. 63. Lessius lib. 2. cap. 11. de contum. dub. 27. Filliuc. Tom. 2. tract. 32. cap. 9.

COMMONLY, however, they assert that pardon must be asked if the injury is grave. Thus Sotus lib. 4. de Iustitia, quaest. 6. art. 3. ad 5, Mastrius, Ledesma 2. 4. quaest. 18. art. 2. dub. 8, Sylvest. verb. Contumel. quaest. 4, after Nicolao de Lyra and Abul. in id Matth. 5. Si offers munus tuum, etc., Barthol. Medina lib. 1. Instruct. Confessar. cap. 14. §. 35, Aragon. 2. 2. quaest. 62. art. 2. ad 3, Salon. ibidem, controv. 24, Valentia disp. 5. quaest. 16. punct. 1, Clauis regia lib. 11. cap. 8.

OTHERS, however, assign a milder reason. Thus Caietanus 2. 2. quaest. 72. art. 3, Couar. lib. 2. variarum, cap. 10, Corduba de detract. quaest. 3. concl. 11, Angles in floribus 4. quaest. de restit. art. 1, Petr. Nauar. lib. 2. de restit. cap. 4. p. 1. dub. 6. This, I think, is the opinion of D. Bonaventure; for in the places cited he only says one is held to restitution, but he does not lay down the manner as a precept, on which account the rest rely. They subscribe with others: Turrianus disp. 53. dub. 11, Caspens. disp. 10. sect. 5, Tanner. num. 158, adducing others.

But what turns my stomach is that some of the authorities cited compel subjects to ask pardon, but never superiors. I argue against it, thus: Restitution establishes equality and mediocrity, which consists in the thing, not in reason, as Aristot. 3. Eth. cap. 6 says — although it establishes it in reason also, as I taught in prima secundae Tract. de actibus humanis, disp. quaest. — yet it depends upon the thing; but this is not a restitution of honor, when you defamed the man by calling him by the name of Honor: Therefore. I do not see what restitution of honor this is. The natural law cannot be undermined, and so easily dispensed. Nor did D. Augustine speak in a grave matter, but in light ordinary ones. For when a superior, out of an indiscreet Zeal of justice or love, so exceeds that he thus acts inordinately, such that he would incur such contumelious defamation, then the Zeal of justice would by no means excuse him from sinning mortally. But who shall exempt such a one from restitution of the honor taken away? Truly it ought to be compensated to the Commutative according to an Arithmetic proportion: if you cried out against a man as a thief or infamous, you must bring forward that he is not infamous, and render the counterpass of the contumely received to the man offended — even if you were the Duke of Macqueda.

From these things they conclude, with D. Bonaventure in Confessionali, cap. 1, that absolution must be denied to one who is unwilling to restore the honor he took away. Thus Caspensis disp. 10. sect. 5 admonishes at the end.