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that is both against justice and charity too: and, by miraculous accidents, God hath declared his displeasure against such enclosure. When the kings of Naples enclosed the gardens of Enotria, where the best manna of Calabria descends, that no man might gather it without paying tribute, the manna ceased, till the tribute was taken off; and then it came again : and so, when after the third trial, the princes found, they could not have that in proper, which God made to be common, they left it as free as God gave it. The like happened in Epire; when Lysimachus laid an impost upon the Tragasæan salt, it vanished, till Lysimachus left it publice. And when the procurators of King Antigonus imposed a rate upon the sick people, that came to Edepsum to drink the waters, which were lately sprung, and were very healthful, instantly the waters dried up, and the hope of gain perished.

The sum of all is in these words of St. Paul, “ Let no man go beyond and defraud his brother, in any matter; because the Lord is the avenger of all such h.” And our blessed Saviour, in the enumerating the duties of justice, besides the commandment of “ Do not steal,” adds, “ Defraud not,” forbidding (as a distinct explication of the old law) the tacit and secret theft of abusing our brother in civil contracts. And it needs no other arguments to enforce this caution, but only, that the Lord hath undertaken to avenge all such persons. And as he always does it in the great day of recompences; so very often he does it here, by making the unclean portion of injustice to be as a canker-worm eating up all the other increase : it procures beggary, and a declining estate, or a caitiff cursed spirit, an ill name, the curse of the injured and oppressed person, and a fool or a prodigal to be his heir.


Of Restitution. RESTITUTION is that part of justice, to which a man is obliged by a precedent contract, or a foregoing fault, by his own act or another man's, either with, or without, his will. He, that borrows, is bound to pay, and much more he, that steals or cheats k. For if he that borrows, and pays not when he is able, be an unjust person and a robber, because he possesses another man's goods, to the right owner's prejudice; then he, that took them at first without leave, is the same thing in every instant of his possession, which the debtor is after the time, in which he should, and could, have made payment. For, in all sins, we are to distinguish the transient or passing act from the remaining effect or evil. The act of stealing was soon over, and cannot be undone ; and for it the sinner is only answerable to God, or his vicegerent; and he is, in a particular manner, appointed to expiate it by suffering punishment, and repenting, and asking pardon, and judging and condemning himself, doing acts of justice and charity, in opposition and contradiction to that evil action. But because, in the case of stealing, there is an injury done to our neighbour; and the evil still remains after the action is past; therefore for this we are accountable to our neighbour, and we are to take the evil off from him, which we brought upon him; or else he is an injured person, a sufferer all the while: and that any man should be the worse for me, and my direct act, and by my intention, is against the rule of equity, of justice, and of charity'; I do not that to others, which I would have done to myself; for I grow richer upon the ruins of his fortune. Upon this ground, it is a determined rule in divinity, “Our sin can never be pardoned, till we have restored what we unjustly took, or wrongfully detain :" restored it (I mean) actually, or in purpose and desire, which we must really perform, when we can. And this doctrine, besides its evident and apparent reasonableness, is derived from the express words of Scripture reckoning restitution to be a part of repentance, necessary in order to the remission of our sins. “ If the wicked restore the pledge, give again that he had robbed, &c. he shall surely live, he shall not die m.” The practice of this part of justice is to be directed by the following rules.

H 1 Thess. iv. 6.

6 Cælius Rhod. 1. ix. c. 12. Athenä. Deipnos. 1. iii. Lev. xix. 13. 1 Cor. vi. 8. Matt. x. 19.

* Chi non vuol rendere, fa mal a prendere. I Si tuâ culpâ datum est damnum, jure super his satisfacere te oportet. m Ezek. xxxiii. 15.

Rules of making Restitution. 1. Whosoever is an effective real cause of doing his neighbour wrong, by what instrument soever he does it (whether by commanding, or encouraging it, by counselling, or commending it", by acting it, or not hindering it, when he might, and ought", by concealing it, or receiving it) is bound to make restitution to his neighbour; if, without him, the injury had not been done, but, by him or his assistance, it was. For, by the same reason, that every one of these is guilty of the sin, and is cause of the injury, by the same they are bound to make reparation; because by him his neighbour is made worse, and therefore is to be put into that state from whence he was forced. And suppose that thou hast persuaded an injury to be done to thy neighbour, which others would have persuaded, if thou hadst not, yet thou art still obliged, because thou really didst cause the injury; just as they had been obliged, if they had done it: and thou art not at all the less bound, by having persons as ill-inclined as thou wert.

2. He, that commanded the injury to be done, is first bound; then he, that did it; and after these, they also are obliged, who did so assist, as without them the thing would not have been done. If sati-fuction 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 it 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 P. He, that set fire on a plane-tree to spite

η “Ο γάρ έπαινέσας τον δεδρακότα, ουδέν τι ήσσον των πιαραγμένων αυτούργος γίνεται. Totilas apud Procop. Goth. 3. Qui laudat servum fugitivum, tenetur. Non enim oportet laudando augeri malum. Ulpian. in lib. i. cap. de servo corrupto. 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 reparation of the damage. Much rather therefore, when the lesser part of the evil was directly intended.

° ο εμπρησμένος του ανάψαντος αλλά και του κατασβήσαι δυναμένου, δράσαι δε τοιούτο önws peine Bova ndevroS. Nicet. Choniat. in Michael. Comnen. Sic Syri ab Amphyctionibus judicio damnati, quia piraticam non prohibuerunt, cùm poterant.

p Etiamsi partem damni dare noluisti, in totum quasi prudens dederis, tenendus es. Ex toto enim noluisse debet qui imprudentiâ defenditur. Sen. Contr. Involuntarium ortum ex voluntario censetur pro voluntario. -- Strabo.

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 9. 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

1 Πλεονεκτεί ουδέν ο ου βοηθήσας χρήμασι δί ανελευθερίαν. - Eth. 1. ν. c. 4.

(for his stipend hath paid all that), or he hath obliged himself to do it by his voluntary undertaking.

6. He that takes any thing 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 Phocenses; because although they deserved it, yet he did it not in prosecution of the law of nations, but to enlarge his own dominions.

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

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

8. He, that by fact, or word, or sign, either fraudulently or violently, does hurt to his neighbour's body, life, goods, good name, friends, or soul, is bound to make restitution in the several instances, according as they are capable to be made. In all these instances, we must separate entreaty and enticements from deceit or violence. If I persuade my neighbour to commit adultery, I still leave him or her in their own power: and, though I am answerable to God for my sin, yet not to my neighbour. For I made her to be willing; yet she was willing", that is, the same at last, as I was at first. But if I have used fraud, and made her to believe a lies, upon

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