80. Restitution from Unjust Acceptance and from a Thing Received

1. Gervasius, supreme Minister of the interior order in a kingdom, knows well that from his weak and negligent manner of acting many damages have come to private persons on account of public robbers and highwaymen, and likewise many damages have come to the Society itself and to several civil Communities, on account of the unjust administration of public affairs, and especially on account of unjust taxes, by which certain particular Communities were overburdened.

Nevertheless he himself thinks that in truth he is not bound to any restitution, because, he says, with my conscience as witness, I have killed no one, and I have stolen nothing, nor have I unjustly received anything from anyone, or even from the Government.

Q. 1. Whence does the obligation of restitution arise? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1319 seqq. — To the 2nd. Gervasius, on account of grave negligence in preventing delicts, in punishing crimes, in watching and prescribing the due ordinances to be observed, certainly was the cause why private persons and Communities suffered grave damages. Wherefore he is certainly held to restitution. For he is guilty of neglected office and of a violated contract, by which he implicitly obligated himself to prevent damages to his subjects. As to damage inflicted on private persons, restitution must be made to those private persons themselves. As to damage inflicted on Communities, restitution must be made to the Communities themselves.

Gervasius is likewise guilty by reason of unjust cooperation toward injurious acceptance. For someone is held to restitution not only by reason of the alien thing which he accepted, but also by reason of the injurious acceptance. And therefore whoever is the cause of an unjust acceptance is held to restitution. Now Gervasius was the cause of that acceptance, both directly, by the iniquitous and unjust administration of public affairs, and indirectly, by not impeding it when he could and ought to have done so. And thus St. Thomas, 2.2. q. 62. a. 7, says: To restitution “he is held who does not oppose when he is bound to oppose; as princes, who are bound to keep justice in the land, if through their defect robbers increase, are held to restitution, because the revenues which they have are, as it were, stipends instituted for this, that they preserve justice in the land.”

Gervasius is besides guilty of rapine, which to the malice of theft adds the malice of violence and of personal injury. S. Thom. 2.2. q. 66. a. 5.9. Rapine indeed is had by coercion brought to bear for paying unjust taxes, and for carrying out other unjust laws, e.g., usurping ecclesiastical goods, etc. Appositely the same Angelic Doctor, in the cited place, a. 8: “It must be said that rapine imports a certain violence and coercion, by which, contrary to justice, that which is his own is taken away from someone. But in the society of men no one has coercion except through public power; and therefore whoever by violence takes something away from another, if he is a private person, not using public power, acts illicitly and commits rapine, as is plain in robbers. But to princes public power is committed for this, that they be guardians of justice; and therefore it is not lawful for them to use violence and coercion except according to the tenor of justice: and this either by fighting against enemies, or by punishing citizens who are evildoers; and that which is taken away by such violence does not have the character of rapine, since it is not contrary to justice. But if, contrary to justice, some persons through public power violently take away the things of others, they act illicitly, and commit rapine, and are held to restitution.... If Princes exact from subjects that which is owed them according to justice for preserving the common good, even if violence is employed, it is not rapine. But if Princes unduly extort something by violence, it is rapine, just as also robbery.... Whence they are held to restitution, just as robbers are; and they sin so much more gravely than robbers, as they act more dangerously and more commonly against public justice, whose guardians they have been placed.” — I. M. 1320, 1323.

2. Caietanus, the servant of a priest, steals from his master one hundred lire, enclosed in a certain schedule, upon which was written: alms for 50 Masses, which in the months of November and December must be celebrated for the deceased Lord Eligius. Caietanus hid the aforesaid sum in a certain secret place. Then, seeking it, he no longer found it.

Q. 1. Must restitution be made from unjust acceptance? — 2. Must Caietanus restore the one hundred lire to his master, or is it enough that he have 50 Masses celebrated by some priest in the aforesaid months, with an alms of 100 lire given?

R. To the 1st. Affirmatively. “The very acceptance of another’s thing can stand in three ways. For sometimes it is injurious, namely existing against the will of him who is the owner of the thing, as is plain in theft and rapine; and then he is held to restitution, not only by reason of the thing, but also by reason of the injurious action, even if the thing does not remain with him. For just as he who strikes someone is held to recompense the injury to the one who suffered it, although nothing remains with him, so also he who steals or plunders is held to recompense the damage inflicted, even if he has nothing from it; and further he ought to be punished for the injury inflicted. — In another way someone accepts the thing of another for his own utility, without injury, namely with the will of him whose thing it is, as is plain in loans for consumption; and then he who has accepted is held to restitution of that which he accepted, not only by reason of the thing, but also by reason of the acceptance, even if he has lost the thing; for he is held to recompense him who did a favor, which will not be done if by this he incurs damage. — In a third way someone accepts the thing of another without injury, not for his own utility, as is plain in deposits, and therefore he who has so accepted is held in nothing by reason of the acceptance; indeed, rather, by accepting he renders service. But he is held by reason of the thing. And on account of this, if the thing is taken away from him without his fault, he is not held to restitution; but it would be otherwise if through his great fault he lost the thing deposited.” S. Th. 2.2. q. 62. a. 6; I. M. 1327.

To the 2nd. From what was said in the response to the 1st, it is plain that Caietanus is altogether held to restitution, although he no longer has the one hundred stolen lire, but has lost them, or another has stolen them. “And therefore,” the Angelic Doctor proceeds in the cited place, ad 1, “although he who took the thing does not have what he accepted, but it has been transferred to another, because nevertheless the other is deprived of his thing, he is held to restitution to him, both he who took the thing by reason of the injurious action, and he who has the thing by reason of the thing itself.” But it is not enough that he himself have the aforesaid Masses celebrated, but he must restore the aforesaid stipend of the Masses to his master; otherwise there would not be restitution. “Through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made it is necessary that restitution be made to him from whom it was accepted.” S. Th. 2.2. q. 62. a. 5.

3. A certain Bonze, prepared to bid farewell to the errors of ethnic superstition and to give his name to the holy Catholic Church, asks that it be permitted to him to retain the things which he had previously received in the ethnic office which he exercised, and the things which he had acquired in the exercise of the medical art.

R. He is not to be disturbed, provided certain injustice has not intervened from elsewhere. And indeed no doubt is to be raised as to the emoluments of the medical art, since they hold the place of wages. Likewise, the things which the Bonze sought for himself from the priestly office among the pagans, although they flowed from a superstitious source, nevertheless seem to have come to him legitimately, as things which were proper to the pagan people, and by its consent attributed to its priests in place of an honorarium.” Provided certain injustice has not intervened from elsewhere; for justice, proceeding from the law of nature itself, obtains force among all peoples everywhere. Therefore if there are things which the Bonze knows certainly that he unjustly received, whether in the exercise of the medical art or of the priestly office, it is necessary that he restore them to the owner, or to his heir; or, if both are uncertain, they are to be distributed to the poor. S. O. 14 Jan. 1846; Collectan. S. C. de P. F. n. 2117.

4. Hesperus, having Elisa, a daughter of marriageable age, whom he is unable to dower, furtively stole from Heraclitus one thousand lire, with which he was easily able to join her in marriage with Gensericus. After some years from the marriage, Gensericus learns that the dowry brought to him by his wife had all been taken from Heraclitus by thefts.

Q. 1. Must restitution always be made from another’s thing? — 2. What must be done in the Case?

R. To the 1st. Affirmatively. “By reason of the thing he is held to restore it so long as he has it with him; because that which he has beyond that which is his own must be taken from him and given to him to whom it is lacking, according to the form of commutative justice.” S. Th. 2.2. q. 62. a. 6; I. M. 1331 seqq.

To the 2nd. “If the spouse still preserves the dowry distinguishable from other monies, he must restore it, unless it has been prescribed in good faith, for every thing cries out to its owner; and the spouse must be numbered among those who, thinking they were marrying a rich woman, married a poor one. But if it was in good faith mixed by him with his own goods, similar in quality and greater in quantity, so that it cannot be separated, he is held to nothing; because by Common Law the dowry is considered morally consumed, Gloss on L. 78 ff. de Solut. Nor should you object: this man is held to that in which he has become richer; for since the dowry was given to him for sustaining the burdens of marriage, and he perceived no profit for himself from it, he has been made richer in nothing. Sporer, Croix. There are nevertheless some who wish that, standing in the law of equity, something to be restored ought to be cared for by the spouses. Certainly Hesperus the father would always be held for the theft, so long as he was able; for he dowered his daughter from the goods of another. Liguori l. 3. n. 612.” Scav. l. 2. n. 751.

But in truth not only from the law of equity, but also from strict justice, the spouse is held to restitution, even if that stolen money has already been mixed by him with his own money in a greater quantity. For although by the more recent Law the whole heap is his, nevertheless he has the obligation of rendering the owner of the stolen money unharmed, by reason of his thing, which he equivalently has. I. M. 907. Nor truly can anything else be drawn from the cited place of St. Alphonsus.