Doubt IV: When a thing acquired as wages for discharging an office is to be restored

FIRST, indeed, he is held to restore, when he has not earned it by negligent operating, or omitting, the things that are his duty. Thus Clerics, by omitting the office to which they are bound by some benefice, are held, in proportion to the omission, to restore, as was proved tom. 4. disp. 17. quaest. 10. ad prop. 10.

SECOND, if he had a fee from elsewhere, as a Judge who receives a new fee in order to render a just sentence. Thus commonly, with Adrian, §. restat inquirere, and Valencia.

THIRD, one who receives a fee for an office to which he is otherwise bound, as for bearing true testimony, cap. Non sane 14. quaest. 5. and the Doctors teach in Valencia.

MOREOVER, that which is received as a fee for a wicked action against Justice, and brings no other benefit to the other party besides that which is done against Justice, as for killing a man, for rendering an unjust sentence, etc.

From this burden certain Judges indeed wished to vindicate themselves when rendering an unjust sentence; but not, if they judged justly; chiefly for this reason, that a judge owes a just sentence; but by no means an unjust one; whence if he sells Justice, owed of itself, through the intervention of gifts, he lies subject to restitution: But since he does not owe injustice, they hold that if the Judge received something for it, he can retain it for himself.

MOREOVER, they strive to fortify this by another reason, because, namely, against a Judge remunerated by one of the litigants for a just judgment, an action is granted; and he who had bestowed the gifts can bring suit, since by another title that right will have to be adjudged to him: but the action of him who carved out for himself, by suborning the judge, a judgment favorable to himself for an unjust sentence, perishes entirely, and is proscribed.

I GRANT indeed that the former reason, as utterly inept, was deservedly turned into a mockery of its authors by a certain Theologian of Salzburg, who assails them with a pen sharp enough; For if therefore the price of a just judgment must be restored, because a right that is owed cannot be sold, therefore neither can a right not owed be sold: And, if therefore I cannot sell a righteous Judgment, because I already owe it to the one who would buy it, therefore I can also expose an iniquitous one for sale, because I do not owe it; since, however, what is at issue here is the moral, or legal can or cannot, it would be the same as if I said: therefore I do not owe the selling of a righteous judgment, because I owe it; and therefore I owe the illicit, or it is licit, because I do not owe it.

Another reason for this disparity I brought forward tom. praecedente disp. 17. de conscient. quaest. 10. ad proposit. 26. because, namely, the Judge's service is sufficiently compensated by a public stipend, wherefore he cannot demand payment twice for the same thing; nevertheless I did not exempt the one judging unjustly from the burden of restitution, nor yet did I judge that anything must be restored to the prior lord; since Justice has been violated equally by both, whence the one is unworthy to receive it, the other to retain it; but I brought forward that the whole must be spent on the poor, and other pious uses, with the entire class of Theologians and Jurists; whence the force of the second reason is enervated, which contends that the judge can retain whatever he received for an unjust sentence.

INDEED, under the title of a donation, not of a fee, that which is given spontaneously for any base action whatsoever can by natural law be accepted, not as on a principal cause, but on a certain condition. So Navarrus, cap. 17. Valencia, loco citato. Except, however, the donations of a soldier, made to a prostitute, Leg. Affectionis, ff. de donat. Et Leg. Miles ita, §. Miles, ff. de test. Militari.