Palladium theologicum, Tomus quintus: De virtutibus

Whether winnings from illicit games are to be restored.

I do not speak of gains made through games of lawful industry, which one may use moderately for refreshment; for this is the virtue of Eutrapelia, as Aristotle teaches in book 4 of the Ethics, chapter 8, and St. Thomas in question 168, article 2, and commonly others. What is acquired in this way is not to be restored.

The question therefore concerns games that depend wholly, or for the greater part, on chance; and thus the game of dice is forbidden to all, both Clerics and Laics, C. Episcopus 35, distinction; and C. Clerici 2, extra, de vita et honestate clericorum, and l. solent ff. de aleae usu et aleatoribus. And Auth. alearum usus, C. de religiosis et sumptibus fund. Under this game, too, all similar games of chance are forbidden, as Navarra observes, chapter 20, number 6, Valencia question 6, point 5, with St. Bonaventure in the place cited.

The question is: whether dominion is acquired by such games.

The FIRST opinion is that dominion is acquired, if there be no fraud or deceit, and the player may alienate what he wins, and no law exists forbidding the transfer of such dominion. So Alensis, book 4, question 86, member 3, article 6; Adrianus de Restit.; Ioan. Maior in 4, distinction 15, question 13; Gabriel, same distinction, question 13, articles 1 and 2; Couar. in Reg. Peccatum, part 2, § 4; Caiet. 2. 2, question 32, article 7, and in the Summa, v. Ludus; Ioan. Medina de rebus restituendis; Sotus, book 4, de Iustitia, question 5, article 2; Navar. in Manuale, chapters 20 and 29; Valencia, disp. 5, question 6, point 5; Fagundez in octavum Praeceptum, chapter 17, number 11; Molina, Tract. 1, de Iustitia, disp. 99; Syluest. v. Lex, question 18; Castro, question 41; Salon. question 5, de dominio, article 6; Lessius, book 2, chapter 16, dub. 3; Tannerus, dub. 8. And much more strongly do those hold this who say that he is not bound to restitution who, having lost much money at dice, compelled the player to persist in the game and redeemed all the losses and others besides, as Lessius, book 2, chapter 26, dub. 1; Gerfias de contractibus, part 2, chapter 19; Diana, part 1, Tract. 17, resol. 27; and those who compel payment of the money lost at dice: Azor. part 3, book 5, chapter 24, question 7; Bannes 2. 2, question 32, article 7; Rebell. part 2, book 12, question 8, number 6; Salon. 2. 2, question 62, article 6, question 5.

The SECOND opinion is that winnings from such games are subject to restitution. So Palud, book 4, distinction 15, question 3, article 5; Rich. article 5, question 8; Panorm. on cap. Clerici 2, de vita et honestate clericorum, and on cap. Quia plerique, de Immunitate Ecclesiae; and certain other Canonists whom Gabriel cites, book 4, distinction 15, question 13, article 1. St. Bonaventure in 4, distinction 15, part 2, article 2, question 1, is also alleged by Valencia and others.

BUT let us hear the Saintly Doctor in his reply to the fourth objection. For when he had said that a possessor in bad faith cannot spend in alms the things he possesses in bad faith, such as stolen goods, he adds: If, however, the question concerns a gambler, it must be said generally that he is a possessor in bad faith and possesses under an unjust title; and therefore he must in no way keep for himself what he has won, since such a game is base and reprobate, against God and against all the laws. Whether, however, he is bound to restore, some distinguish: for either the one from whom he won is such a person as cannot govern his own affairs, as for instance a Minor, or a Pupillus, a Deaf man, a Mute, or one languishing with perpetual disease; and thus he is bound to restore. But if he is such a person as could lose; or whether he was dragged into it and induced by him, or not: if he was dragged in by him, he is not bound to restore to him, because to him no repetition belongs in vindication of sin, but he may make alms of it. But if he himself dragged him in, he cannot make alms of it, but is bound to restore, at least in the forum of conscience; because, although no one wishes to lose, nevertheless he who does not wish to lose, nor to play, but is induced, seems less culpable; and the other who induces, more so; and therefore the former ought not to be damaged, nor ought the author or the inducer to be in any way bettered: yet no one may on that account convert any of the acquired gain to his own uses. The same judgment must be made concerning Tournaments; and it must be said that in those pacts which they make among themselves, goods are not transferred between them, but are turned to the uses of the poor on account of the dishonesty of the game and the interdiction of the law. Thus St. Bonaventure.

Likewise in the Speculum animae, chapter 2, he says: The fifth fruit of rapine is the game of dice, or of dice-boards, which is forbidden both by Canonical and by Civil law. Hence some say of it that it is mortal sin, in that it is against Canonical and Civil law; and that what is gotten from play is possessed under no good title, nor can it be retained, but ought to be distributed to the poor. For he who gains in play gains unjustly, and he who loses loses justly; therefore he who gains is not bound to restore to him from whom he gained, unless perhaps he induced him to play. But since play seems to have from its root the character of mortal sin, because it evidently proceeds from avarice, and because many sins are communicated in play, namely fraud, lying, perjury, blasphemy, scandal, and frequently the loss of time, therefore this seems to be the cause of the prohibition of play. When one plays for the sake of recreation, with the aforesaid sins excluded, it does not seem to have the character of mortal sin. Thus the Saintly Doctor.

From all this you have that St. Bonaventure spoke as reporting the opinion of others, and is not to be reprehended by Valencia and others in anything.

First, indeed, he says that the game of dice is forbidden by both Laws; and this I showed above, with the laws adduced.

Next he teaches that playing at dice and dice-boards seems on this account to be mortal sin.

As for Clerics and Religious, they sin mortally by transgressing these laws, where the contrary has not been abrogated by custom, if they play for a notable sum, and especially from the fruits of benefices, as Navar. chapter 20, number 9 and Sotus, book 4, de Iustitia, question 5, article 2 assert, although Cajetan sometimes hesitates in doubt concerning Clerics who are prelates. The same he asserts in the Summa, verb. Ludus; concerning these Sotus asserts the same less doubtfully, and it is proved from C. Episcopus 35, distinction, and C. Inter dilectos, extra, de excessibus praelatorum, where a cleric is ordered to be deposed for the use of dice, a penalty that is not inflicted except for mortal fault, as is gathered from C. Non affirmamus, 24, question 1 — Valencia subscribes.

¶ As for Laics, however, Navarra, Sotus, Cajetan, and Valencia himself judge that they do not sin mortally, the other few circumstances against the natural law being excluded, of which mention was made above. The reason is that either those laws do not bind Laics so severely, and are derogated by custom, at least as regards mortal sin. The Saintly Doctor speaks almost in the same way and to the same effect.

He adds, that these games are not forbidden by these laws and Decrees if they are instituted principally for recreation: and this the Doctors gather, and among them Valencia from l. Quod in convivio, ff. de Aleae usu; but if it is exercised principally for gain, as Navarra notes, number 6, and Valencia in the place cited from the cause.

He teaches, therefore, that he who dragged another in, and efficaciously induced him to play, if he prevails, is bound to restitution; the same St. Thomas asserted, question 32, article 7, ad 2; and Valencia teaches this to be clear even before the sentence of the Judge; and he alleges the Doctors related above for his opinion; for this St. Thomas signified by the same words concerning him who dragged another to play; but Valencia says that traction is understood not as any kind of attraction whatever, for this does not suffice to impede the translation of dominion — in which Adrianus, deceived, expounds St. Thomas badly, as Valencia, Couar., and Medina, adduced above, noted — but it is understood of violence, with manifest force, or with most importunate prayers, which suffuse with shame, for instance if he object that he is a poor man, as the same Doctors above expound, and with them Valencia.

Furthermore, that he is bound to restitution — besides those alleged by Valencia — hold Clavis reg. l. 11. cap. 15; Malderus 2. 2, Tract. 1, chapter 12, dub. 3; Fernandez in suo examine Theologiae moralis, part 1, chapter 15, § 6; Molfesius Tom. 2, tract. 12, chapter 21, number 59. Add Toletus book 5, chapter 27; Megalam 2. 2, book 2, chapter 19, question 2, number 16, speaking of him who knows and compels his companion to persist in the game, and recovers what was lost, and besides gains other things besides: they say he is bound to restore at least these super-gains, as Diana relates, part 1, resol. 27, adding it for the opinion of St. Bonaventure; Alphonso de Vega in summa, part 2, chapter 13, case 12; Rebellius de obligatione iustitiae, part 2, book 12, question 3; Azorius part 3, chapter 29, book 5, question 1; Valencia loc. cit.; Comitolus in resolutionibus Moralibus, book 3, question 9; Salam Tract. de Ludo, disp. 6; Bannes, and Aragon. 2. 2, question 32, article 7, ad 7.

It is proved, because he who thus plays plays involuntarily. This is the reason of St. Bonaventure above, which opinion, because of the reasons by which it is supported, Reginald says is to be followed, Tom. 1, book 10, chapter 25, number 385; and Diana judges it not improbable, loc. cit., and Lessius book 2, chapter 26, dub. 2, number 9.

The Saintly Doctor adds that he who was dragged in and won is not bound to restore, which nearly all those alleged sustain. The reason of St. Bonaventure is that the privilege of repetition, granted by law, does not belong to the one who dragged him in, because by the dragging he renders himself unworthy of it.

He asserts also that he who won money — truly in a notable sum — from those who cannot govern their own affairs, whom he enumerates with other similar cases, is bound to restore; which Valencia also holds, loc. cit., and others with him. Nay, Molina tom. 1, disp. 142; Sanchez book 6, disp. 38; Lessius book 2, chapter 17, dub. 8, after the Gloss, Navarra, Lopez, Corduba, and others with Sanchez, teach that boys within a decade and a half year of puberty, and girls within nine years and a half, remain naturally bound by onerous contracts, yet not concerning immovables and other things that must be preserved for themselves — unless, however, they contract even with Tutors. Which doctrine relieves Confessors of the burden.

Whether, however, he who neither dragged another in, nor was dragged, but played as an equal partner, is bound to restitution, he defines nothing; he only says, If he acquired, he is a possessor in bad faith, inasmuch as he acquired against the laws, and he ought not convert those monies to his own uses, but ought to give them to the poor, because absolute dominion is not transferred peacefully, inasmuch as the laws resist and give rise to repetition, and because it is base gain, acquired against the laws. Yet he does not assert this in his own settled sense.

For therefore he who lost is not compelled to pay in court, and an action is given for recovering what was lost, if he has already paid — which the Saintly Doctor understands after the sentence of the judge, with Medina, Couar., Soto, and others who thus expound St. Thomas, with whom Valencia subscribed.

Finally, that he who lost is not bound in conscience, and played in hope and in good faith, teach Malderus 2. 2, tract. 3, chapter 12, dub. 3; Lessius book 2, chapter 26, dub. 4; Aragon. 1. 2, question 21, article 7, and question 62, article 1; Ledesma Tom. 2, tract. 31, chapter 2; Molina Tom. 2, tract. 2, disp. 515; Philiarc. T. 2, p. 2, book 5, chapter 2, number 11; Toletus book 5, chapter 27; Diana part 1, Tract. 17, resol. 8, and Tract. 5, resol. 44, and Tract. 4, resol. 169.

The same he says of him who won from one playing with false cards. The reason is that to him to whom an action for recovering is given, an exception not to pay is conceded a fortiori, according to the rules of both Laws; but in a forbidden game, as I said, an action for recovering is given. Medina subscribes, book 1, chapter 14, § 29; Couar. reg. Peccatum, part 2, § 4, number 8; and eighteen Doctors with Salam Tract. 1, de contractibus, disp. 20.

¶ Understand this standing in the common law; for if in some places repetition is not granted to the loser, nor is the exception conceded that he need not pay.

¶ This is the opinion of St. Bonaventure loc. cit., where he concedes repetition to him who lost, and consequently the exception not to pay.

Many, however, with Diana teach that he is bound to pay; Azor. part 3, book 5, chapter 24, question 7; Bannes 2. 2, question 32, article 7; Rebell. part 2, book 12, question 8, number 6; Valencia loc. cit.; Salon. 1. 2, question 62, article 6, question 5; Garzias de contractibus, book 2, chapter 29; Tanner. disp. 4, question 6, dub. 11; and others. The reason is that a promise, unless it is void by the law itself, binds: but this one in play is not void, but only an action for recovering is given, l. Alearum, C. de Religiosis et sumptibus.