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.

SECTION IV.

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. 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 remis sion of our sins. "If the wicked restore the pledge, give

again that he had robbed, &c. he shall surely live, he shall not die."* The practice of this part of justice is to be directed by the following rules.

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 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 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 proposed it. He that set fire on a planetree 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,

* Ezek. xxxiii. 15.

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.

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. 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 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 indi

rectly, 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 lie, upon which confidence she did the act, and, without, she would not (as if I tell a woman, her husband is 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 any thing, 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 chil

dren 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, if it be reasonably demanded: for every man hath justice done him, 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 mulct 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.

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 any thing 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,