Palladium theologicum, Tomus quintus: De virtutibus

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.

*I ASSERT first that one who has driven a man mad by a crime or by a wicked drug is held to make restitution of the damages. This is clear from Valentia disp. 5. quaest. 6. punct 3; Tannerum disp. 4. quaest. 6. dubio 3.

I ASSERT second that one who, without guile, violence, or fraud, merely by persuasion induced another to sin is not held in justice to restore him, as far as in him lies, to his former state, but only out of Charity. Thus Soto lib. 4. de Iust. quaest. 6. art. 3; Nauar. in Manual. cap. 14. num. 45; Bass. 21; Valentia quaest. 6. punct. 5; Tanner. disp. 4. quaest. 6. num. 90; Caspens. disp. 9. sect. 1, against Scotum 4. dist. 15. quaest. 3, Richardum eadem dist. art. 5. quaest. 2, Paludanum ibi, et Adrianum de Restitutione.

The RATIONALE is that no wrong is done to the willing against Justice, and therefore, since he does not offend against Justice, he is not held to restitution, as Valentia notes. Nor let them say that the loss of the grace of God is a greater damage than that of one's whole estate; for since this damage is inflicted upon one who wills it, no wrong against Justice is inflicted.

AND further, I think, this is what the Saintly Doctor in speculo animae, cap. 1 means, where he reckons only the damaging of temporal goods under the heading of restitution, because spiritual goods are not lost except by the will of the one losing them. And of these the old saying is that no one is harmed except by himself. For no force can compel the will to sin; while deceit and guile, which place an obstacle of invincible ignorance, do not induce sin. He indeed who applies force, or brings guile or fraud, will be held to remove them out of justice, and to leave the man constituted in his liberty. Indeed he must exhort him to penance, because he is considered to take away against the man's will. But if the man, now knowingly in his own state, does not repent, he is considered to have condoned the force, as Bass. num. 21 says with Petr. Nauarro.

A difficulty, however, ARISES concerning one who turns someone away from entering Religion by dissuading him. They commonly concede that it is a grave sin to do this without just cause, as may be seen in Fagundez in septimum praeceptum, lib. 7. cap. 31. But whether he is held to restitution.

It is MORE PROBABLE that he is not held to restitution, because he violated no right of religion, since the man is still free; and accordingly he owes nothing to Religion. And for the same reason he is not held to the man dissuaded, both because the man acts freely, and because he has no right to the goods of religion. See Sayrum lib. 11. cap. 1. num. 35; Aragon. 2. 2. quaest. 62. art. 2; Nauar. summa Latina, cap. 22. num. 44 — and this even if it be done by violence or fraud.

Yet the OPPOSITE is asserted by Vasquez de restit. cap. 8. dub. 2. num. 38; Less. lib. 2. cap. 8. dub. 3; Rebell. p. 1. lib. 4. quaest. 15; Turrianus 2. 2. disp. 15. dub. 2; Molina Tom. 4. de Iustitia, tract. 4. disp. 51; Fagundez loc. cit. num. 6; Bannes quaest. 62. art. 2. disp. 3; Aragon. diffic. cit. ad 4; Tanner. disput. 4. quaest. 6. dub. 3, while Bass. num. 22 doubts if it is done by violence, fraud, etc.

WHETHER, then, one who removes a Novice, yet not by force, fear, or fraud, is held to restitution. The Doctors commonly deny it, as in Fagundez num. 15, against Rebellium p. 1. lib. 4. quaest. 15. num. 5. To remove the unfit is not an evil. For thus Christ also in Matth. 8 rejected such a man, as S. Bonau. in cap. 2. Regula Fratrum minorum notes.

But IF he extracts a professed man without force, yet with fraud: first it is certain that he owes nothing to the religious man himself, because no wrong is done to the willing. The question is whether he is held to the religion; and they define that he is held: Molina Tom. 4. tract. 4. disp. 51; Vasquez de restit. cap. 8. dub. 2; Turrianus 2. 2. disp. 15. dub. 2; Azorius Tom. 3. lib. 5. cap. 2; Valentia disp. 5. quaest. 6. punct. 5. §. 1. cap. 2; Reginald. Tom. 1. lib. 10. tract. 4. cap. 21. num. 309; Tanner. num. 99, and others. But they deny it: Sotus lib. 4. de Iust. quaest. 6. art. 3; Sayrus lib. 11. cap. 1; Bassaeus num. 22; Lessius lib. 2. cap. 8. dub. 5; Malder. tract. 8. dub. 3; Filliuc. Tom. 2. tract. 32. cap. 7. quaest. 8, and others among these. Fagundez says both are probable, but inclines to the former. See him.

What things must be restored by reason of the manner in which they were acquired

We have TREATED of goods to be restored insofar as they are considered in themselves; now we must consider those which are unjustly acquired, or possessed under an unjust title. For some are acquired by contracts, in which forms are prescribed which no one can transgress either licitly or validly; and to these contracts persons who are suitable, or capable, are supposed, while others are declared incapable by law. Others are possessed by donation, which likewise has its own rules if it is to be valid. Many things pass into another's ownership by title of prescription, but for this the laws require various conditions, as I shall weigh below. Certain things are given by title of payment for the function of an office, or for meretricious prostitution. Some also, by fowling, hunting, fishing, the use of common things, illicit games, and lastly by unexpected discovery, are taken into the possession and ownership of one person; of these the laws make various determinations. In the following Doubts we must inquire whether, how, and when these things ought to be restored to their proper Owners.

When a thing acquired by contract is to be restored.

THREE cases are adduced in which things acquired by contract must be given back. The first, if the contract is unjust and null by the law of nature. But when this happens will be said in the Disput. de contractibus. The second case is if the contract is null by some human law, as a purchase from a minor; or if it impedes the translation of ownership, for what reason. Testators cannot be deprived of necessary heirs. The third is when the contract is rescinded by the sentence of a Judge, for a human law, founded upon the presumption of fraud. See Valentia disput. 5. quaest. 6. punct. 5, and Tanner. disp. 4. quaest. 6. dub. 13, citing others. Thus it is gathered from D. Bonaventure in speculo animae, cap. 2.

AND the rationale of this last case is that what is given through fraud is considered to have been accepted involuntarily; but for the validity of contracts a free and voluntary consent on both sides is required, which is destroyed when error intervenes, as is plausible among Theologians and Jurisconsults. Yet if the error is voluntary on the part of the giver, then it is taken for fraud, and the contract is rescinded, and the obligation of restitution follows. See the authorities cited.

When things acquired by donation are to be restored.

IT IS ANSWERED that this is so when the Donation is invalid, either by the law of nature, as when it is coerced, or if it was not absolute but conditional, and the condition is not present in fact; or it is void by human law, as that which is made by a Minor without the consent of his Tutor l. Pupillae, ff. de acquirendo rerum dominio, and that which is made between husband and wife l. si Sponsus, ff. de donat. inter virum, et uxorem, except in certain cases noted by Sylvester v. Donatio; and that which is made between a Father and a son not emancipated l. ult. C. de Impuber, except in the cases given by Sylvester loc. cit. See Tanner disput. 4. quaest. 6. dub. 11. num. 315.

From which doctrine it follows that what Adrianus de Restit. says is true — Alensis 4. p. quaest. 86. membr. 3. art. 29, Altisiodor. lib. 4. sum. quaest. 7. de Restit, and D. Bonav. Apologia de paupertate Christi, cap. 2. §. Secundus modus mendicandi, et ad 8. — namely that the poverty of those who by simulated sanctity and poverty extort alms is against justice, and accordingly that such men are thieves, which he proves from D. Ambrose lib. 1. de offic. cap. 16 and D. Augustine de operibus Monachorum, cap. 26.

When things acquired by title of prescription must be restored.

IF Prescription is legitimate, acquired things may be retained; but not, however, if the necessary conditions are lacking, as St. Bonaventure teaches in the Apology for the Poor, chapter 1 of the fourth response.

THE FIRST is, that the thing be prescriptible. For there are certain things which by law cannot be prescribed, as Sylvester teaches, verb. Praescriptio, 2. Covarruvias, relect. in regul. possess. p. 2. Juan Medina quaest. 16. de rerum restit. Valencia quaest. 6. punct. 5.; for a man cannot be prescribed, l. sola C. de longi temporis praescript. Nor the right of tithes, or other sacred things by Laymen, c. Cansam, extra de Praescript. Nor a fugitive slave, §. sed aliquando, Instit. de Usucapion. Nor exemption from obedience to one's superior, c. Cum non liceat, extra de praescript. Nor things held in common and assigned to public use, that is, of the Republic, such as public roads, l. 1. Usucapionem, ff. de Usucapion. Nor the boundaries of Bishoprics, provinces, and parishes, 16. quaest. 3. cap. Licet, et cap. Inter. et cap. Super eo, extra de Paroch. Nor a Pension, or Canon, which ought to be paid to the republic for lands, 16. quaest. 4. §. Potest. Nor possessions of fields held by colonists, l. Male agitur, C. de Praescript. triginta, vel quadraginta annorum. Nor tributes owed to the Prince, l. Comperit, C. eodem titulo. Nor things which are forbidden to be alienated by Law, or Canon, or by the deceased, or by pact, as Sylvester holds, verb. Praescriptio, 2. num. 13. and Valencia quaest. 6. punct. 5. Nor things which someone possesses Precariously, and not as true Lord, l. Certe, §. Is qui rogavit, ff. de Precar. Nor things bought from a Prodigal, or a luxurious man, or a gambler. Nor things which the Lord, through probable ignorance, does not know are possessed by another, as Sylvester explains, num. 17. Nor the goods of an excommunicate, so long as he does not stand in the way of being freed from excommunication, as Sylvester notes, num. 19. and Valencia: See them on all these matters, also Covarruvias, loco citato.

THE SECOND condition is, that the thing be actually possessed by the one who is going to prescribe it, for without possession there is no prescription, as the rule of Law has it, nor is it acquired by usucaption, as is clear from l. sine possessione, ff. de Usucapion.

THE THIRD condition is, that the thing be possessed by a legitimate title, true, or probably presumed, such as a title of inheritance, purchase, donation, etc. cap. si diligenti, extra de praescript.

THE FOURTH condition is, that the thing be possessed in good faith, in conscience believing it to be one's own, cap. Possessor, de regulis iuris, et cap. Vigilanti, et cap. si diligenti, extra de Praescript. By which canons certain civil laws are considered revoked, which permitted prescription with bad faith, as the Doctors commonly hold in cap. Finali.

THE QUESTION, however, is: whether mere doubt that the thing belongs to another impedes this good faith.

SOME say that it is removed; others, however, not; see them in Valencia, who follows the negative opinion. The reason is, because, although one in doubt cannot begin to possess; yet, while he possesses, The condition of the possessor is the better one.

THE FIFTH condition is, that possession have lasted for as long a time as is necessary according to the prescription of the laws. For to prescribe movable things—which may rather be called Usucaption than Prescription—a possession of three years suffices between those present, and of four years between those absent, as is clear from l. Quas actiones, C. de Usucap. But to prescribe Ecclesiastical immovable things, a possession of the very longest time is required, namely of thirty years between those present, and forty between those absent, as is clear in l. Quas actiones, et 16. quaest. 3. Indeed, even to prescribe the goods of the Roman Church a possession of one hundred years is required, l. Quas actiones, C. de Usucap. et 16. quaest. 3. cap. ult.

LIKEWISE, to prescribe temporal immovable things: if indeed they were first acquired by theft, or by violence, there is necessary in the heirs of the thief a possession of good faith of thirty years; at least between those present, and forty between those absent, as Sylvester says, v. Praescript. with Valencia, Et l. et omnis, C. de Praescript. triginta annorum. But the other things acquired by a good title are prescribed by possession of long time, namely of ten years between those present, and twenty between those absent, l. Quas actiones, C. de Usucapion. Et l. mala fidei C. de Praescript. longi temporis.

THE SIXTH condition is, that good faith not be interrupted throughout that whole prescribed time, cap. Illud autem, et cap. Quoniam omne, de Praescript. Therefore, if any of these conditions is lacking, the prescription must be judged invalid, and restitution made. But if all these are present, the prescription will be legitimate; as the Doctors commonly teach, Ven. Bonaventure, especially St. Thomas, quodl. 12. art. 25. Scotus in 4. dist. 15. quaest. 3. Paludanus eadem dist. quaest. 2. Durandus in 4. dist. 41. quaest. 4. art. 1. ad 1. and others in Valencia. And it is clear from the laws above, and C. Nos Sanctorum, and C. Quoniam omne, de Praescript. You have nearly all this also in Ven. Bonaventure, in the Mirror of the Soul, chapter 1, and in the places cited 1. 2. disput. de Conscientia. And in 4. dist. 15. p. 2. artic. 2. quaest. 1.

FIRST, indeed, he is held to restore, when he has not earned it by negligent operating, or omitting, the things that are his duty. Thus Clerics, by omitting the office to which they are bound by some benefice, are held, in proportion to the omission, to restore, as was proved tom. 4. disp. 17. quaest. 10. ad prop. 10.

SECOND, if he had a fee from elsewhere, as a Judge who receives a new fee in order to render a just sentence. Thus commonly, with Adrian, §. restat inquirere, and Valencia.

THIRD, one who receives a fee for an office to which he is otherwise bound, as for bearing true testimony, cap. Non sane 14. quaest. 5. and the Doctors teach in Valencia.

MOREOVER, that which is received as a fee for a wicked action against Justice, and brings no other benefit to the other party besides that which is done against Justice, as for killing a man, for rendering an unjust sentence, etc.

From this burden certain Judges indeed wished to vindicate themselves when rendering an unjust sentence; but not, if they judged justly; chiefly for this reason, that a judge owes a just sentence; but by no means an unjust one; whence if he sells Justice, owed of itself, through the intervention of gifts, he lies subject to restitution: But since he does not owe injustice, they hold that if the Judge received something for it, he can retain it for himself.

MOREOVER, they strive to fortify this by another reason, because, namely, against a Judge remunerated by one of the litigants for a just judgment, an action is granted; and he who had bestowed the gifts can bring suit, since by another title that right will have to be adjudged to him: but the action of him who carved out for himself, by suborning the judge, a judgment favorable to himself for an unjust sentence, perishes entirely, and is proscribed.

I GRANT indeed that the former reason, as utterly inept, was deservedly turned into a mockery of its authors by a certain Theologian of Salzburg, who assails them with a pen sharp enough; For if therefore the price of a just judgment must be restored, because a right that is owed cannot be sold, therefore neither can a right not owed be sold: And, if therefore I cannot sell a righteous Judgment, because I already owe it to the one who would buy it, therefore I can also expose an iniquitous one for sale, because I do not owe it; since, however, what is at issue here is the moral, or legal can or cannot, it would be the same as if I said: therefore I do not owe the selling of a righteous judgment, because I owe it; and therefore I owe the illicit, or it is licit, because I do not owe it.

Another reason for this disparity I brought forward tom. praecedente disp. 17. de conscient. quaest. 10. ad proposit. 26. because, namely, the Judge's service is sufficiently compensated by a public stipend, wherefore he cannot demand payment twice for the same thing; nevertheless I did not exempt the one judging unjustly from the burden of restitution, nor yet did I judge that anything must be restored to the prior lord; since Justice has been violated equally by both, whence the one is unworthy to receive it, the other to retain it; but I brought forward that the whole must be spent on the poor, and other pious uses, with the entire class of Theologians and Jurists; whence the force of the second reason is enervated, which contends that the judge can retain whatever he received for an unjust sentence.

INDEED, under the title of a donation, not of a fee, that which is given spontaneously for any base action whatsoever can by natural law be accepted, not as on a principal cause, but on a certain condition. So Navarrus, cap. 17. Valencia, loco citato. Except, however, the donations of a soldier, made to a prostitute, Leg. Affectionis, ff. de donat. Et Leg. Miles ita, §. Miles, ff. de test. Militari.

MANY, and not undistinguished, Doctors constantly cry out that a prostitute cannot accept a fee, and that, once accepted, it cannot be retained. So Angelus, Baldus, and Jason super §. Sed et quod meretrici, l. 4. Whence they infer that one who commits fornication is not held to give the fee. So also Durandus 3. dist. 39. quaest. 4. Medina Cod. de restit. quaest. 20. Comitoli resp. moral. lib. 3. quaest. 5. Johannes Valerius in differ. utriusque fori, verbo Promissio, diff. 8. and Diana judges it probable p. 1. tract. 16. resol. 40.

The opposite opinion is that of Ven. Bonaventure in 4. dist. 15. p. 2. art. 2. quaest. 1. ad 4. St. Thomas 2. 2. quaest. 32. art. 7. and Cajetan there, Alexander of Hales 4. p. quaest. 86. membr. 3. art. 6. §. 2. Richard 4. dist. 15. art. 5. quaest. 8. Sotus l. 4. de Iust. quaest. 7. art. 1. Covarruvias relect. cited above; Valencia disp. 5. quaest. 6. punct 5. Homob. in Exam. Eccles. p. 2. tract. 9. quaest. 14. Regii in resol. casu 8. Sayrius lib. 10. tract. 5. cap. 3. num. 34 Aragon. 2. 2. quaest. 32. art. 7. Azor. p. 2. lib. 4. cap. 21. quaestu. 2. Salonii 1. 2. quaest. 62. art. 5. controu. 4. Sylu 1. 2. 2. quaest. 32. art. 1. Corduba lib. 1. quaest. 52. art. 2. Tanner. disp. 4. dub. 10. num. 300. Malderi 2. 2. tract. 1. cap. 9. d. 7. Turriani 2. 2. Tom. 2. disp. 14. dub. 1. Villalob. tom. 2. tract. 11. diffic. 16. Rebell. p. 2. lib. 18. quaest. 1. Lopez p. 1. cap. 105. Lessii lib. 2. cap. 14. dub. 8. Dianae loc. cit. These say that a fee can be accepted from a prostitute. This is common to nearly all Theologians and Jurists, as Tannerus says.

IT IS PROVED ex l. 4. §. Sed et quod meretrici, ff. de condictis ob turpem causam, where Ulpian has it expressly.

IT IS PROVED secondly by the reason of Cajetan, Valencia, and others, which they proclaim subtle. First, for every act estimable by a price, a price can be accepted; but the act of a prostitute is such: Therefore. The major is proved, because it suffices to act upon the proper object of a virtue, and to bestow an action upon it, even if, by reason of a circumstance elsewhere, that act is opposed to some virtue distinct from Justice, as Eligius Bassaeus infers, verb. Restitutio, 4. num. 3.

It is, moreover, the proper object of Justice whatever thing is estimable by a price. The major is confirmed by an example; for a thing that is sold, in a forbidden time or place, is transferred by law: The minor is proved; for the act of a prostitute offers to a man the material of a certain natural delight: Therefore it is estimable by a price, no otherwise than the act of offering foods, etc., even for procuring drunkenness. That is the reason of Ven. Bonaventure, I may say.

YOU OBJECT first. If these things can rightly be accepted: Therefore they can also be offered to God. And yet Deuteronomy 23. we read: Thou shalt not offer the hire of a prostitute in the house of the Lord.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the price of prostitution is not rejected because it be of another's, but on account of indecency, just as an offering from the price of a Dog was also rejected.

YOU OBJECT secondly the Laws, which assert generically that a fee cannot be accepted for a base thing, nor does a pact, or a claim concerning it avail, l. Generaliter, l. si flagitii, ff. de verb. oblig. l. Mercatem, C. de Condictio ob turpem causam. Et l. Iulius genitum §. si ob maleficium, ff. de pactis.

VALENCIA ANSWERS from Ven. Bonav. loc. cit. that the Laws are understood of actions which are against Justice, and are possessed in bad faith, such as deceptive pacts, pernicious to life; as those who expose prices to tormentors for torturing others. Such are usurious pacts, and others of this kind, in which dominion is not transferred upon the rendering, namely, of some thing estimable by a price, such as the offering of the body to luxury. Although that action is not estimable formally, as it is evil; yet it is estimated, as naturally delectable; and from this gather that in the Seraphic Doctor are held all the things that pertain to the decision of this matter, while he says that a translation of dominion of money takes place in prostitution. But the most pure Virgin blushed to say what a prostitute gives, but only says that that action is sufficient to transfer dominion, in which manner Casas also speaks diff. 8. sect. 1.

If, however, any arguments seem to prove that this fee is illicit; they prove it only as to baseness formally; or as to those not having dominion, such as wards.

But what I said about exposed prostitutes must be said also of private concubines, as to the internal forum, as Valencia notes, and Covarruvias loc. cit. Medina ad 5. Sotus lib. 4. quaest. 7. art. 1. and others. The reason is that brought forward above.

IN the external forum, indeed, a fee cannot be accepted for those hidden acts which, if they were known, are punished; and consequently not in the internal forum either, after the judge's sentence has been laid down. For no one can enjoy the benefit of the law on account of an act which by law is to be punished. So Covarruvias above, Valencia loc. cit. and it is commonly gathered. ex l. Mercalem, C. de condictio ob turpitud. et l. Lucius Titius; ff. de Iure fisci. See Bassaeus loc. cit. Syluius 2. 2. quaest. 62. art. 2. Fill. tract. 31. cap. 9. quaest. 9. et 10.

MOREOVER, concerning the hidden acts of other prostitutes, estimable by a price, which by law are not usually punished; Valencia says that each part is probable. But the price given by a Religious to a prostitute must be restored to the monastery, as Casas teaches, loc. cit. Vasquez cap. 7. dub. 3. and commonly, in Fagundez lib. 7. cap. 5. num. 33.

But before the act, nothing can be accepted, because he is held to abstain from the wicked work; therefore the contract must be rescinded, as Bassaeus says with others.

I SPEAK as to Wild Beasts, Fish, and Birds, which by the law of nations can be free, and then no restitution is to be made, if they are captured, because thus they become the first occupant's.

WHEN, however, they are fed by someone in enclosed places, so that he may take them at will, or they go and return home. These, however, if they inflict damage on others, compel to restitution. And this seems true also of Doves; yet Sylvester does not compel them, verb. restit. 2. quaest 4. nor Valencia quaest. 6. punct. 5. bringing forward a witty reason, because by fertilizing the fields with their droppings, they give back as much as they damage.

FURTHERMORE, that Dovecotes are licit is commonly asserted with Navarrus num 126. See Tannerus disp. 4. quaest. 6. num. 352. Casas disp. 6. sect. 1. But if they fly often to another's Dovecote, and rest and dwell there, dominion is transferred. Instit. de rerum divisione.

THE SAME is said of Wild Beasts fleeing away, so that you can no longer pursue them, and of Bees ex Instit. cit. §. ff. lib. 3. 4. et 5. See Tannerus num. 354.

SECOND, if Beasts, fish, or birds are captured in a place reserved by the Prince, they seem to be things to be restored. Valencia, however, presupposes quaest. 6. punct. 5. Medina quaest. 12. de rebus restit. Sotus lib. 4. de Iust. quaest. 6. art. 4. Nauar. cap. 17. num. 120. and 114. that the Prince can reserve to himself certain places for hunting for his recreation from the labors and occupations which he sustains for the public good: He proves this at length, Covarruvias relect. in Reg. peccatum, p. 2. § 8. and there follow Casas disp. 6. sect. 2. Diana p. 2. Tract. 6. resol. 18. Valerus v. peccatum, differ. 16. who also extends the same to certain magnates, with Villalob. Tom. 1. Tract. 10. diffic. 16. num. 7. Wherefore Diana says that a certain Magnate defended himself in this way. So also Tannerus num. 350.

YET with this condition, that they inflict no damage on the peoples unwilling. But if they consent truly, and spontaneously, the Prince will not be held to restitution. So Cajetan opusc. 17. qq. cap. 11. Covarruvias num. 11. Navarrus num. 110. and Valencia. Ven. Bonaventure also asserts the same. Note that hunting is forbidden to clerics, clamosa cap. 1. de cler. ven. yet if it be exercised with a few dogs, Diana concedes it p. 2. Tract. 6. resol. 19. Indeed, hunting is rarely permitted, even though it be clamorous; with Valero v. Peccatum, diff. 20. and Rebellion lib. 1. quaest. 14. num. 10. and others.

When things acquired by the use of common things are to be restored.

IT happens not infrequently that wood is cut from the Community's Forests, and animals graze in its meadows.

IT IS ANSWERED that he is held to restitution of what he takes immoderately beyond what is licit to anyone as a member of the community. So Valencia quaest. 6. punct. 5. Except, if he is as it were in extreme need; for then he can even take what is necessary from the Forests of anyone whatsoever, as Sotus teaches lib. 4. de Iust. quaest. 6. art. 4. Medina quaest. 12. de restit. Valencia loc. cit. Tannerus num. 348. Molina Tom. 1. tract. 2. disp. 58. Salon. quaest. 62. art. 3. controu. 2.