Doubt II: In what manner restitution is to be made for 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.