Rules of making Restitution.

1. Whosoever is an effective real cause of doing his neighbour wrong, by what instrument soever he does it, (whether by commanding or encouraging it, by counselling or commending it,¹⁸²¹⁸²Goth. 3. Qui laudat servum fugitivum, tenetur. Non enim oportet laudando augeri maium. — Ulpian. in lib. i. cap. de servo corrupto. by acting it, or not hindering it, when he might, and ought, by concealing it, or receiving it,) is bound to make restitution to his neighbour; if, without him, the injury had not been done, but, by him or his assistance, it was. For, by the same reason that every one of these is guilty of the sin, and is cause of the injury, by the same they are bound to make reparation; because by him his neighbour is made worse, and therefore is to be put into that state from whence he was forced. And suppose that thou hast persuaded an injury to be done to thy neighbour, which, others would have persuaded if thou hadst not, yet thou art still obliged, because thou really didst cause the injury, just as they had been obliged, if they had done it; and thou art not at all the less bound, by having persons as ill-inclined as thou wert.

2. He that commanded the injury to be done is first bound; then he that did it; and, after these they also are obliged who did so assist, as without them the thing would not have been done. If satisfaction be made by any of the former, the latter is tied to repentance, but no restitution; but if the injured person be not righted, every one of them is wholly guilty of the injustice, and therefore bound to restitution, singly and entirely.

3. Whosoever intends a little injury to his neighbour, and acts it, and by a greater evil accidentally comes, he is obliged to make an entire reparation of all the injury of that which he intended, and of that which he intended not, but yet acted by his own instrument going further than he at first purposed it.¹⁸³¹⁸³Etiamsi partem damni dare noluisti, in totum quasi prudens dederis, tenendus es. Fx toto enim nolaisse debet qui imprudentia defenditur. Sen. Contr. Involuntarium ortum ex voluntario censetur pro voluntario.—Strabo. He that set fire on a plane-tree to spite his neighbour, and the plane-tree set fire on his neighbour’s house, is bound to pay for all the loss, because it did all rise from his own ill-intention. It is like murder committed by a drunken person, involuntary in some of the effect, but voluntary in the other parts of it, and in all the cause; and therefore the guilty person is answerable for all of it. And when Ariarathes, the Cappadocian king, had but in wantonness stopped the mouth of the river Melanus, although he intended no evil, yet Euphrates being swelled by that means, and bearing away some of the strand of Cappadocia, did great spoil to the Phrygians and Galatians; he, therefore, by the Roman senate, was condemned in three hundred talents, towards the reparation of the damage. Much rather, therefore, when the lesser part of the evil was directly intended.

4. He that hinders a charitable person from giving alms to a poor man is tied to restitution if he hindered him by fraud or violence, because it was a right which the poor man had, when the good man had designed and resolved it, and the fraud or violence hinders the effect but not the purpose; and therefore he who used the deceit or the force is injurious, and did damage to the poor man. But if the alms were hindered only by entreaty the hinderer is not tied to restitution, because entreaty took not liberty away from the giver, but left him still master of his own act, and he had power to alter his purpose, and so long there was no injustice done.¹⁸⁴¹⁸⁴Πλεονεκτει ονσεν ο ου βοηζησας χρηβασι οι ανελενξεριαν.—Eth. 1. v. c. 4. The same is the case of a testator giving a legacy, either by kindness, or by promise, and common right. He that hinders the charitable legacy by fraud or violence, or the due legacy by entreaty, is equally obliged to restitution. The reason of the latter part of this case is because he that entreats or persuades to a sin, is as guilty as he that acts it; and if, without his persuasion, the sin and the injury would not be acted, he is in his kind the entire cause, and therefore obliged to repair the injury as much as the person that does the wrong immediately.

5. He that refuses to do any part of his duty (to which he is otherwise obliged) without a bribe, is bound to restore that money, because he took it in his neighbour’s wrong, and not as a salary for his labour, or a reward for his wisdom, (for his stipend hath paid all that,) or he hath obliged himself to do it by his voluntary undertaking.

6. He that takes anything from his neighbour which was justly forfeited, but yet takes it not as a minister of justice, but to satisfy his own revenge or avarice, is tied to repentance, but not to restitution. For my neighbour is not the worse for my act, for thither the law and his own demerits bore him; but because I took the forfeiture indirectly I am answerable to God for my unhandsome, unjust, or uncharitable circumstances. Thus Philip of Macedon was reproved by Aristides for destroying the Phoeenses, because, although they deserved it, yet he did it not in prosecution of the law of nations, but to enlarge his own dominions.

7. The heir of an obliged person is not bound to make restitution if the obligation passed only by a personal act; but if it passed from his person to his estate, then the estate passes with all its burden. If the father, by persuading his neighbour to do injustice, be bound to restore, the action is extinguished by the death of the father, because it was only the father’s sin that bound him, which cannot directly bind the son; therefore the son is free. And this is so in all personal actions, unless where the civil law interposes and alters the case.

*These rules concern the persons that are obliged to make restitution; the other circumstances of it are thus described.

8. He that by fact, or word, or sign, either fraudulently or violently, does hurt to his neighbour’s body, life, goods, good name, friends, or soul, is bound to make restitution in the several instances, according as they are capable to be made. In all these instances we must separate entreaty and enticements from deceit or violence. If I persuade my neighbour to commit adultery, I still leave him or her in their own power, and though I am answerable to God for my sin, yet not to my neighbour. For I made her to be willing, yet she was willing,¹⁸⁵¹⁸⁵Δι αλλοροιον εργον πταιει ονξεις,—Epict. that is, the same at last as I was at first. But if I have used fraud, and made her to believe a lie,¹⁸⁶¹⁸⁶Non licet suffurari mentem vel Samaritani.—R. Maimon. Can. Eth. upon which confidence she did the act, and without she would not, (as if I tell a woman her husband id dead, or intended to kill her, or is himself an adulterous man,) or if I use violence, that is, either force her or threaten her with death or a grievous wound, or anything that takes her from the liberty of her choice, I am bound to restitution; that is, to restore her to a right understanding of things and to a full liberty, by taking from her the deceit or the violence.

9. An adulterous person is tied to restitution of the injury, so far as it is reparable, and can be made to the wronged person; that is, to make provision for the children begotten in unlawful embraces, that they may do no injury to the legitimate by receiving a common portion; and if the injured person do account of it, he must satisfy him with money for the wrong done to his bed. He is not tied to offer this, because it is no proper exchange, but he is bound to pay it if it be reasonably demanded; for every man hath justice done when himself is satisfied, though by a word, or an action, or a penny.

10. He that hath killed a man is bound to restitution, by allowing such a maintenance to the children and near relatives of the deceased as they have lost by his death, considering and allowing for all circumstances of the man’s age, and health, and probability of living. And thus Hercules is said to have made expiation for the death of Iphitus, whom he slew, by paying a lulct to his children.

11. He that hath really lessened the fame of his neighbour by fraud or violence is bound to restore it by its proper instruments; such as are confession of his fault, giving testimony of his innocence or worth, doing him honour, or (if that will do it, and both parties agree) by money, which answers all things.¹⁸⁷¹⁸⁷Sic Vivianus resipuit de injusta accusatione: apud Cassiodo. 4.41.

12. He that hath wounded his neighbour is tied to the expenses of the surgeon and other incidences, and to repair whatever loss he sustains by his disability to work or trade; and the same is in the case of false imprisonment, in which cases only the real effect and remaining detriment are to be mended and repaired, for the action itself is to be punished or repented of, and enters not into the question of restitution. But in these and all other cases, the injured person is to be restored to that perfect and good condition from which he was removed by my fraud or violence, so far as is possible. Thus a ravisher must repair the temporal detriment or injury done to the maid, and give her a dowry, or marry her if she desire it. For this restores her into that capacity of being a good wife, which by the injury was lost, as far as it can be done.

13. He that robbeth his neighbour of his goods, or detains anything violently or fraudulently, is bound not only to restore the principal, but all its fruits and emoluments, which would have accrued to the right owner during the time of their being detained. By proportion to these rules we may judge of the obligation that lies upon all sorts of injurious persons; the sacrilegious, the detainers of tithes, cheaters of men’s inheritances, unjust judges, false witnesses, and accusers; those that do fraudulently or violently bring men to sin, that force men to drink, that laugh at and disgrace virtue, that persuade servants to run away or commend such purposes; violent persecutors of religion in any instance; and all of the same nature.

14. He that hath wronged so many, or in that manner (as in the way of daily trade) that he knows not in what measure he hath done it, or who they are, must redeem his fault by alms and dargesses to the poor, according to the value of his wrongful dealing, as near as he can proportion it. Better it is to go begging to heaven, than to go to hell laden with the spoils of rapine and injustice.

15. The order of paying the debts of contract or restitution is, in some instances, set down by the civil laws of a kingdom, in which cases their rule is to be observed. In destitution, or want of such rules, we are, 1. to observe the necessity of the creditor; 2. then the time of the delay; and, 3. the special obligations of friendship or kindness; and, according to these, in their several degrees, make our restitution, if we be not able to do all that we should; but, if we be, the best rule is to do it so soon as we can, taking our accounts in this, as in our human actions, according to prudence, and civil or natural conveniences or possibilities, only securing these two things; 1. that the duty be not wholly omitted; and, 2. that it be not deferred at all out of covetousness, or any other principle that is vicious. Remember that the same day in which Zaccheus made restitution to all whom he had injured, the same day Christ himself, pronounced that salvation was come to his house.¹⁸⁸¹⁸⁸Luke, xix. 9.

16. But besides the obligation arising from contract or default, there is one of another sort which comes from kindness, and the acts of charity and friendship.¹⁸⁹¹⁸⁹Gratitude. He that does me a favour hath bound me to make him a return of thankfulness. The obligation comes not by covenant, not by his own express intention, but by the nature of the thing, and is a duty springing up within the spirit of the obliged person, to whom it is more natural to love his friend, and to do good for good, than to return evil for evil, because a man may forgive an injury, but he must never forget a good turn. For everything that is excellent, and everything that is profitable, whatsoever is good in itself, or good to me, cannot but be beloved; and what we love we naturally cherish and do good to. He, therefore, that refuses to do good to them whom he is bound to love, or to love that which did him good, is unnatural and monstrous in his affections, and thinks all the world born to minister to him with a greediness worse than that of the sea, which, although it receives all rivers into itself, yet it furnishes the clouds and springs with a return of all they need.

Our duty to benefactors is to esteem and love their persons, to make them proportionable returns of service, or duty, or profit, according as we can, or as they need, or as opportunity presents itself, and according to the greatness of their kindness, and to pray to God to make them recompense for all the good they have done to us; which last office is also requisite to be done for our creditors, who, in charity, have relieved our wants.