Chapter II — On those who either hinder others from obtaining some good, or cooperate in the loss of others

I. Theologians reckon nine kinds of persons who concur, either positively or negatively, in the loss of others, and who are comprehended in these verses:

Command, counsel, consent, flattery, harbouring, Partaking, silence, not opposing, not disclosing.

II. He who inwardly assents to a man already wholly prepared to inflict an evil, no counsel or persuasion being added, sins indeed against charity, but not against justice: therefore he is free from restitution, because he does not flow into another's loss. But before discourse be instituted concerning causes cooperating to evil, a few things are to be premised concerning those who hinder the obtaining of a good.

III. QUESTION I. Whether one who applies an efficacious impediment, that a man may not obtain a benefice to which he has a right, whether in the thing or to the thing, is liable to restitution? ANSWER. The common opinion affirms it, whether this impediment be applied by fraud, guile, or force, or by entreaties, persuasion, and gifts. It is to be observed nevertheless that if the collator had constantly decreed to confer the benefice, the whole loss is to be made good. If the collator was doubtful, the loss is to be compensated according to the degree of hope. That the impediment may bring in the debt of restitution, it must be efficacious, that is, that on account of such impediment the effect should follow. The reason is obvious. He who by force, guile, or fraud hinders a man from obtaining a benefice to which he has a right, whether inchoate or consummated, inflicts an injury upon him: he who by counsel and persuasion hinders the obtaining injures both distributive and commutative justice. Therefore he who hinders is bound to make good the loss, either wholly or in part, according to the quality of the greater or lesser right which the candidate had to the benefice. But if you turn away the candidate himself by entreaties, persuasion, or counsel, you are held to nothing; because to one willing and consenting no injury is done. And if you should secretly disclose to the collator a hidden but true crime, on account of which the candidate would be deprived of the benefice, you would owe to restore nothing, since that would turn to the public good, provided the offence rendered the candidate unworthy or less worthy.

IV. QUESTION II. To what is he held who hinders a promise made from being fulfilled? ANSWER. If the promise be accepted, the loss is to be made good, because the promisee had a right to the thing promised him. If the promise be not accepted, and by counsel or persuasion you draw back the collator, you are held to nothing. He who by guile or fraud draws back a rich man from bestowing an alms upon a poor man is bound to make good the loss inflicted upon the poor man. If you should persuade a testator lying sick, who had destined a legacy to Sempronius, to institute him his heir, or rather to leave the legacy to yourself or to a friend, Sempronius being neglected, authors commonly teach that you neither sin nor are held to restitution; but I assert that you should never do it. An exception is the case in the Clementine On Privileges, where it is severely commanded to religious that they draw not testators back from bequeathing goods to mother churches. Let all who assist testators counsel them to distribute their legacies justly and prudently, the order of charity and of justice being preserved. He who without fraud or guile persuades someone not to confer an undue good upon Peter out of vehement hatred, is to me more probably bound to restitution. Since although inward hatred does not bring in this debt, it is nevertheless conjoined with an outward persuasion, which, though absolutely regarded it be innocent, in these circumstances becomes evil. This opinion nevertheless I submit to the judgment of others.

V. He who hinders goods from being applied to the treasury, which on account of some crime are wont to be applied after the judge's sentence, is held to restitution; but not before the sentence pronounced: since before the sentence is passed no one has a right to goods of this kind. He who hinders legacies left by a testator, that they should be distributed among the maidens of this or that city adorned with such prerogatives, from being distributed to them, and takes care that they be conferred upon others, sins and is held to restitution: because the maidens of such a city have a right to goods of this kind. What if a dispensation be obtained from a superior? Dispensations of this kind are commonly without just cause. In which case both he who asks and he who grants sin, and are liable to restitution. But if the cause of dispensing be just, there is no debt of restitution.

VI. He who hinders a collator from conferring an ecclesiastical benefice upon the worthier, is held to restitution, both he who hinders and the collator who knowingly deprives the worthier of the benefice. Which restitution is to be made both to the worthier man excluded and to the Church, as will be said more fully when the discourse shall be of benefices.

VII. QUESTION III. What is to be said of those who cooperate in another's loss? ANSWER. He who assents to a man already prepared to inflict an evil, all counsel and persuasion being removed, sins against charity, but not against justice: therefore he is immune from restitution, because in no way does he flow into the injury of another. That a cooperator therefore may be subject to restitution, his cooperation must flow in and be a cause. But if you should by counsel persuade one not prepared to steal or to injure another's right, then you are held to restitution. Nor does it matter that the executor would have been persuaded by another: because this does not take away that you are the cause of the loss. The same seems to be said of him who persuades one prepared to steal that he should execute the theft more quickly, when between the counsel and the execution there flows so much time that the executor could change his will. Read Vol. VII, Book I, dissertation 2, chapter 4, § 1.

VIII. QUESTION IV. When you doubt whether by any of the cooperations recounted in the two verses you have been the efficacious cause of the loss, are you held to restitution? ANSWER. You can doubt whether you have counselled, commanded, and so forth; or, being certain of the counsel, the command, and so forth, you doubt whether the evil followed; or you doubt whether your counsel, persuasion, and the like was the efficacious cause of the loss. The Salmanticenses, no distinction being made, absolutely deny that this doubter is liable to restitution, resting upon the axiom: the condition of the possessor is the better.

IX. But the question needs explication. If you doubt in the first way, whether you gave counsel, you are held to nothing: because no one is presumed evil unless it be proved. When, being certain of the counsel, command, mandate, and so forth, you doubt of the loss thence following, then in the degree of the doubt you are bound to compensate the loss. Since indeed, while it is certain that a cause of its own nature bringing loss has been posited, and it is doubtful whether the loss followed, then there is danger lest the loss have in fact followed. There is danger therefore that you have injured justice. Therefore you ought to withdraw yourself from this danger. When finally, being certain of the depraved counsel, mandate, and the like, and of the loss that followed, you doubt whether your counsel, mandate, and so forth was the efficacious cause of the loss, Molina, Bonacina, Lessius, Sánchez, and others assert that you are liable to restitution — some of the whole loss, others in proportion to the doubt. To this second opinion I incline. Since it does not seem equitable that he who doubts should be bound by the same burden as he who is certain of the loss inflicted. The circumstances nevertheless are to be regarded. Hence gather that I do not incline to the severer opinions, but to those which are plain by solid reason.

X. QUESTION V. He who by his own depraved example is the cause that others perpetrate evil, is he held to restitution? ANSWER. Many, seeing Sempronius stealing, laying waste another's vineyard, committing adultery, and the like, are moved by this example to commit similar evils: is Sempronius held to restitution? The common and true opinion denies it, because although the depraved example be an occasion to them, it is nevertheless not an inflowing cause. Further, only an evil cause flowing into the loss inflicted brings forth the debt of restitution. Sempronius alone sins, as regards this, against charity.

XI. QUESTION VI. What of those who by command, counsel, or consent flow into a neighbour's loss? ANSWER. Under command are comprehended all those who order an injustice to be done, for the executing of which another was not prepared. This command can be imposed tacitly or expressly. When by force of that mandate the loss follows, he who commands is always held to restitution. Tacitly this command can be imposed in various ways. What! says a master to his servants, or a friend to his friends: does none of you avenge my injury? He would do me the greatest favour who should kill my enemy. By these and like expressions a tacit mandate can be made. All the circumstances nevertheless are to be regarded before it be determined that anyone is liable to restitution by force of a tacit mandate.

XII. If the mandate, before the execution follows, has been retracted, and this has become known to the mandatary, the debt of restitution fails. But if it be revoked either in mind only or outwardly, when it does not reach the ears of the mandatary, he who commands is not freed from restitution. If the mandatary exceed the limits of the one commanding, in practice the one commanding is with difficulty freed from the compensation of the whole loss. Wherefore in the chapter He who commands concerning homicide, in the Sixth, it is decreed that he who commands a beating from which homicide follows is subject to irregularity, even though the one commanding did not intend the homicide. For in practice mandataries scarcely ever contain themselves within the prescribed limits. Wherefore those who command freely cast themselves into these iniquitous consequences. Therefore they are bound to make good all the evils which in fact follow from the mandate. If nevertheless one commanding should enjoin something lawful, from which no evil to follow can prudently be foreseen, then he would be free from restitution, even if an evil should follow.

XIII. Counsel, by which the counsellor with guile, fraud, and evil mind persuades, brings in the debt of restitution. Authors dispute whether a counsellor, the counsel being revoked, is liable to restitution, when he who was counselled has in fact committed the evil. To me the more probable opinion is that a counsellor who with a sincere mind and all industry revokes his counsel is free from restitution. A mandate and a counsel differ indeed; but when a counsellor strives with true and solid reasons to dissuade his client from the evil which he had counselled, and leaves nothing untried that he may obtain his wishes, then the evil proceeds from the client's malice alone. If evils befall mandataries, or those receiving counsel, at their own asking, both the one commanding and the counsellor are free from restitution, because it was in their power to reject either the mandate or the counsel. If nevertheless the one commanding were a lord or superior, then he would be held to restitution, because a superior's command induces a certain coercion. If anyone steal or kill in your name, no counsel or mandate having been received from you, you are not bound to restore or to compensate the evil that followed without your knowledge, although you should ratify the evil committed, because ratification can afford no influx into an evil already committed. But if the executor should be moved by your complacency and ratification to omit restitution, then you would be liable to restitution.

XIV. Consent bringing in the debt of restitution is not a mere complacency in another's evil; but it is a cause efficaciously flowing into the evil to be made good. You subscribe to an unjust suit, you give your vote for an unjust war, for a theft, for a homicide to be perpetrated, for an unworthy master to be elected: you are subject to restitution of the loss that followed — when nevertheless your vote is necessary for the passing of the sentence, for the election of the unworthy man, and so forth. For if without your vote the sentence, the election, and the like was already concluded, then your vote does not flow into the effect: therefore you are free from restitution, but not from sin. If nevertheless you should give your vote first, although you foresaw that all the rest would give their votes, then you would be liable to restitution, because in truth your vote flowed into the evil. Wherefore in practice scarcely anyone is free who subscribes to an unjust sentence, or who gives his vote for an unworthy man, from restitution: because it can rarely be established whether the votes of the rest are antecedent or subsequent. Wherefore let each beware of this danger.

XV. Flattery indicates those who by praises, encomiums, and applause, or by reproaches and mockeries, provoke and impel someone to commit an evil. You reproach a husband for tolerating his wife's adultery, for suffering the injury done him: he, stirred by your mockeries, kills his wife, the reviler, the offender. You are the efficacious cause of the evil committed. Therefore you are liable to restitution. Nor is it enough that you should reply that you did not do this with an evil mind, nor intend the vengeance or the homicide: because it is enough to have brought in the outward speech to the committing of the evil. Whether ignorance, inadvertence, and other circumstances may sometimes excuse, I leave to the judgment of prudent men.

XVI. Harbouring signifies the receivers of thieves and malefactors, to whom they afford refuge, security, and opportunity for committing evil, all of whom are liable to restitution. Those who after evils committed receive malefactors under the title of mercy, that they may help them to take flight, are free from the burden of restitution.

XVII. Partaking is he who takes something of the plunder, or confers some aid to the committing of the evil. Wherefore a partaker is said to be either of the unjust action or of the thing received. Partakers of the unjust action are called all who concur to the evil: as smiths by fabricating false keys, watchers keeping guard that robbers may steal in safety, those who move ladders for entering houses, those who keep, hide, or sell things taken away by theft in the robbers' name, or themselves buy them. All these are held to restitution.

XVIII. QUESTION VII. What of those who negatively cooperate in another's evil, as are the silent, the non-opposing, the non-disclosing? ANSWER. These three indirectly cooperate in the committing of another's evil, namely by not crying out, by not hindering, by not disclosing, when they could and are bound in justice. These are held to restitution. Now they are bound in justice who are appointed to it either by office or by contract. Bound to restitution therefore are governors, public ministers, physicians, surgeons, guardians, curators, keepers, who do not hinder an evil which by their office they ought to hinder; shipmasters who do not hinder the sinking of the ship; fathers of families who do not oppose the dissoluteness of their sons; commanders of war who do not draw back their soldiers from unjust plunderings; princes who do not, so far as they can, hinder homicides, robberies, and monopolies.

XIX. Those who are bound by the title of charity alone, even if they keep silence with an evil mind, are held to nothing. Because the debt of restitution supposes an injury of justice. These are not obliged in justice. Therefore there is no debt of restitution. The Salmanticenses with others defend that these are not held to restitution, even if they should accept money from a thief for keeping silence. Since, they say, if they can be silent without money, why not also with a price accepted? Is not this an excellent reason? He who accepts your price that he may be silent flows into the theft, and enters into an iniquitous bargain with you: therefore he is held to restitution.

XX. Servants who see strangers filching their master's goods are held to restitution if they keep silence and do not oppose according to their strength. Since by reason of their service they ought in justice to guard and defend their masters' goods from foreign invaders. Servants also who see goods entrusted to their own custody filched by domestic thieves, if they keep silence, if they do not oppose, if they do not disclose, are held. But if they see common things stolen, they sin against charity if they keep silence, but they are free from the burden of restitution, since they are not bound in justice to guard the aforesaid common things against domestic thieves. The circumstances, customs, and agreements nevertheless are to be regarded.

XXI. Keepers of fields, vineyards, meadows, and woods, hired at an agreed price by the lord that they should watch and guard the aforesaid goods from any invader whatsoever, are bound to make good the losses if they keep silence and do not resist according to their strength. The same is to be said of keepers hired by a prince, that they suffer not wares to be carried out or brought in without the customs being paid.

XXII. QUESTION VIII. What order is to be observed among cooperators in an unjust action, when they are held to restitution? ANSWER. When many concur to a theft, those first of all are bound to restore … … in whose hands the goods subsist, or the price of the same. Restitution having been made by these, the rest are free. When the goods do not subsist, because nothing was filched but only an evil inflicted, it is to be made good first by those who were the principals, and by the others in default of them. Those are called the principal cause who direct, who incite, and who animate others to inflict the loss. And those who by threats, guiles, and frauds induce others to commit an evil, ought to restore as principals. After the principal cause, nevertheless, the executors themselves of the theft are bound to make good the loss. These, however, would have an action against the principal cause, which is always bound to compensate the executors, if these should restore. When many secondary or principal causes equally concur, each is held according to the advantage which they carried off. But if one neglect to restore, then each is held in solidum, and the rest are always bound to compensate him who bore the whole burden of restitution. The principal causes and the executors failing or refusing to restore, there succeed in the debt of restitution the negative causes, who ought to restore in solidum, more or less according to the greater or lesser duty of hindering, regard always being had to that cause which is more strictly bound to hinder.

XXIII. QUESTION IX. How are all the causes recounted bound to restore in solidum? ANSWER. The discourse is of many causes executing the same theft or loss, not of many partakers of the same thing taken away by theft. For it is certain that you, having been invited to a supper made of things taken away by theft, are held only to the restitution of that part alone which you ate. Similarly, when many enter to lay waste a vineyard, no conspiracy having been made among them, but each ignorant of the other's design, and each of himself bringing in the loss, then each is bound to compensate the loss inflicted by himself, since he conferred no influx into the loss inflicted by the others. These things are beyond dispute.

XXIV. When many concur to the committing of the same evil, if one be the principal mover, he ought first and in solidum to restore. Thus princes and their counsellors are bound to make good the losses of war; captains and tribunes the losses of the soldiers, because these are the principal movers. Inferior soldiers, in default of the principals, ought to compensate those losses which they themselves immediately execute; when they concur to the same individual loss — say to the burning of the same ship or house, to the killing of the same man, to the electing of the same unworthy person — all and each are bound in solidum to make good the loss which they brought in by common conspiracy, as the common and more probable opinion teaches: since although physically each executes a part of the loss, morally nevertheless each flows into the whole loss. For by reason of mutual counsel and reciprocal conspiracy all constitute one moral cause of the whole loss. Therefore each is held in solidum.

XXV. QUESTION X. Whether from a shameful promise there arises an obligation of performing the thing promised? ANSWER. Sempronius, that he might induce a maiden to fornication, a wife to adultery, an assassin to homicide, promised a fixed wage. That before the execution the promise brings in no obligation, and is to be rescinded, all confess. It is disputed whether, the promise being fulfilled, the price promised is to be paid. The Salmanticenses affirm it, tract 13, chapter 1, point 6, no. 154, and assert that this is the common opinion of the Doctors.

XXVI. The opposite opinion is defended by Adrian, John Medina, Navarrus, Vigerius, Paul Comitolus, Henry of St. Ignatius, and the Continuator of Tournely. Since indeed the laws, both sacred and civil, decree that stipulations, agreements, and promises entered upon for a shameful cause have no force, and are to be held as void. Gregory IX in the chapter Pactiones established these things: According to lawful sanctions, an agreement shameful, or of a shameful or impossible thing, brings in no obligation either of right or of fact. The civil laws in the law Generaliter, 26, Digest, On Verbal Obligations, title 1, decree these things: Generally we know that shameful stipulations are of no moment. Again in the law Mercedem, the same title, On Contracts, these things are added: That actions are to be denied for a shameful cause, upon a stipulation interposed against good morals, is demonstrated by the authority of law. Finally the law Pacta, Code, On Agreements: That agreements which are made against the laws and constitutions, or against good morals, have no force, is of undoubted right. Many other things from either law I pass over.

XXVII. The laws recounted, since they are absolute, urge equally before and after the crime committed: and it is proved by reasons. For if after the evil committed the price is to be paid, the stipulation has force. But the laws declare that it has no force. What of this, that the Doctors themselves, defenders of the common opinion, teach that stipulations of this kind are to be rescinded? Therefore by their own confession they are of no moment. Besides, if the stipulation here has force after the deed, as those Doctors contend, it assuredly has it not from a new agreement or convention between the contracting parties, but from the agreement which preceded the deed. It is necessary therefore that those Doctors confess one or the other: either that this stipulation is valid both before and after the deed, or that it is null both before and after the deed.

XXVIII. Finally, does an obligation once altogether extinguished revive? All deny it. Therefore far less can an obligation which was null before the deed, and by every law natural, divine, and human is held null, revive. God and all laws punish more severely the depravity of a crime committed than of one to be committed. Therefore if on account of the shamefulness of a thing not yet done they take away the force of obligation from a stipulation, much more ought they to take it away on account of the iniquity of the thing done. Again, obligations which impel to evil and foster crimes ought not to be tolerated. But if stipulations and agreements of a wage to be paid for a crime to be committed were to be observed, the licence of sinning would range more freely, and an entrance would be opened to infinite crimes. Lastly, vows and oaths concerning a sin to be committed are by the common opinion null: therefore far more are human promises null, which surely bind less than vows and oaths made to God.

XXIX. The cited Doctors object. Two things are to be distinguished in a crime: one, the depravity of the action and the offence of God; the other, the pleasure, the delight, the entity of the action, the trouble, the danger to which the shameful person is exposed. The first cannot be venal. The second by its own nature and of itself is vendible. ANSWER. This distinction being laid down, the soul, an angel, the sacraments are vendible, inasmuch as they are beings. The aforesaid crimes do not fall under contract inasmuch as they are beings of a metaphysical precision, but as involved in their own conditions. The pleasures which are in crimes are wicked. Therefore if the crimes themselves are not venal, neither can the pleasures which accompany crimes be sold. Therefore the cited opinion of the Doctors is to be reckoned false.

XXX. QUESTION XI. What is to be said of a harlot's gain? ANSWER. That a harlot's gain may be retained, and ought to be paid, all commonly confess. Therefore the opinion hitherto defended is false, and the opinion of our adversaries true. I answer that a harlot can demand back and retain the price of her whoredom, not on account of any stipulation, not on account of consent to fornication, not on account of the pleasure, not on account of any danger or trouble, not finally because she can let out the use of her own body; but because the laws, which for the avoiding of greater evils permit harlotry, punish fornicators with this mulct, that they pay a wage to the harlot in penalty of the crime committed. I add that those laws are permissive. Whether before the divine tribunal they are always just, is not established for us. This is certain, that princes can permit lesser evils, that they may avoid greater. But hence it does not follow that subjects can use those same laws. Wherefore I would urge all harlots compunct with a sincere heart to distribute the gain of harlotry among the poor, and would grant to them, as to the poor, something more or less for their sustenance according to the diversity of circumstances.

XXXI. QUESTION XII. Whether maidens, wives, and honourable women receiving a price for chastity sold are bound to restore it? ANSWER. Fr. Leonard Lessius writes these things, Book II On Justice, chapter 14, doubt 8, no. 52: “And although the evil work for which he gave is not appraisable at a price inasmuch as it is evil, nevertheless inasmuch as it is delightful or useful to the one and detrimental to the other, it is appraised at a price among men. Therefore what has been received for it on this account is not to be restored, unless perhaps someone exceed the estimation; as if a harlot, who is accustomed to grant the use of herself for one gold piece, should extort fifty from some young man as the price. This, however, has no place in her who is reckoned honourable; as if some matron or daughter should accept a hundred gold pieces for the use of her body from one who was able to give: for he who was able to give could also RETAIN. SHE CAN VALUE HER OWN CHASTITY AT SO MUCH, AND AT MORE. For things which have no fixed price, and are not necessary to life, but are sought for the sake of pleasure, can be appraised at the seller's discretion, and, as Peter Navarra and others probably teach, at others' too.” Thus far he: which doctrine assuredly, like others of this kind, St. Francis de Sales did not commend, although he commended the works of the same author, which are indeed praiseworthy for many rightly handed down instructions. That women or girls of this kind can, justice alone being regarded, retain a gift spontaneously given by one who has the faculty of giving, I do not absolutely deny. Concerning these gifts, nevertheless, I inculcate that the same is to be done which St. Thomas hands down, II-II, q. 100, art. 6, reply 4, concerning a price simoniacally received: namely, that it is not to be rendered back to the guilty party himself, but to be laid out either upon the worship of God or upon the poor: both that the handle of sinning may be taken from women prone to avarice, and that no monument of past unchastity may remain, and that by the things wherein a man sins, by these he may be tormented, according to the saying of the Holy Ghost. To this so equitable an opinion no one can be repugnant, save perchance he who does not do penance, but feigns it.

XXXII. QUESTION XIII. Are harlots, whether public or secret, bound to restore the price received from a religious for a shameful union? ANSWER. I would not stir up such little questions, did I not find them agitated by others. Pellizarius, Manual of Regulars, tract 4, chapter 2, section 4; Malchardus, Vol. I, book 5, part 2, tract 1, document 1; de Lugo, disputation 3, section 3; John of the Cross, book 1, chapter 5, doubt 10, and others defend the negative opinion. When, they say, a religious obtains a faculty from his superior of disposing of the goods granted him for use, while he draws them off into shameful things, although in the mode of alienating he acts against the superior's will, nevertheless the alienation itself is valid. And to this alienation absolutely regarded the superior consents. These things are not so much to be refuted by arguments as to be lamented with bitter tears. No superiors can grant licence for paying a price for a shameful act. The alienation therefore is invalid. Therefore restitution is necessary.

XXXIII. QUESTION XIV. Whether one receiving a price for an unjust sentence to be passed ought to restore it? ANSWER. The positive laws detest and prohibit all donations to be made to judges for unjust sentences, to advocates for the unjust defence of clients, to witnesses for false testimony. The Salmanticenses, tract 13, chapter 1, point 7, no. 169, teach that donations of this kind, natural law being regarded, are valid. But this opinion is to me false, and to be rejected.

XXXIV. It is disputed whether by force of positive law prohibiting donations of this kind they ought to be restored. A twofold opinion is found, and each is reputed probable by the Salmanticenses. The former denies the debt of restitution, because the laws indicated oblige only in the exterior forum, say authors of this kind, but not in the interior forum. This opinion I reject as false and improbable. Since indeed the aforesaid laws, resting upon the law of nature, oblige in each forum. Let St. Augustine be heard upon this argument, who in Epistle 54 to Macedonius writes thus: But an advocate ought not therefore to sell a just judgment, or a witness true testimony, because an advocate sells just patronage and a jurist true counsel. For those bend themselves to the examination of either party, and these take their stand on one side. But since judgments and testimonies, which ought to be sold neither false nor true, are sold when iniquitous and false, assuredly money is much more wickedly taken, because it is also wickedly given, although by the willing. But he who gave for an unjust judgment would indeed wish to demand it back, did he not fear, or were he not ashamed, to have given it. … Nevertheless, if justice be more sincerely consulted, justice says to the advocate: Render what you received, when you stood against the truth, favoured iniquity, deceived the judge, oppressed a just cause, and conquered by falsehood.

XXXV. This testimony Fr. Leonard Lessius objects to himself, Book II On Justice, chapter 14, doubt 8, no. 55, in these words: “You will say: St. Augustine in the fifty-fourth epistle to Macedonius says that it is more wickedly that money is accepted for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored. Therefore also for an unjust one. So Soto.” But he adds: “I answer by denying the consequence. For it is not because a thing is more wicked that it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss given by the injury. But he who accepts for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence, to the passing of which he who accepts the money has already set his mind, on account of the injury which is done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust one than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work is performed, since he says it was given by the willing. For to one willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned given under compulsion, from fear of an unjust sentence.”

XXXVI. If in explaining some article of faith a man should with this liberty, and with a most vain wrapping of distinctions, entangle and elude the opinions of the holy Fathers, it would be all over with the articles of faith. And because in explaining the commandments of morals the opinions of the Fathers are in fact adulterated with various cavils, therefore Christian theology has been in a deplorable manner relaxed and obscured by not a few casuists. The doctrine of St. Augustine is unshaken. Wherefore Vásquez and de Lugo, disputation 18, section 5, no. 57, confess that St. Augustine stands on our side; nor nevertheless do they themselves fear to defend an opinion disapproved by Augustine. The reason of our opinion is evident. A judge by force of his office is bound to pass sentence. Therefore he cannot receive a price. For a just sentence, someone will say, I grant. For an unjust one, I deny. Since he is compelled by force of his office to pass a just sentence, therefore he cannot receive a price for a just sentence to be passed, and if he receives it, he is bound to restore it. But he is not obliged to pronounce an unjust sentence, and therefore he can receive and retain a price for an unjust sentence to be passed. Would you have things yet more absurd? Because we set forth such paradoxes, which strike common sense, to be derided, some refute us. But we entreat them to prove that these are not paradoxes worthy of severe confutation. But let Marcus Tullius come forth into the midst, who in Book II of the Offices, chapter 21, wrote these things against the reproved opinion: But the chief point in the whole management of business and of a public office is that even the least suspicion of avarice be driven away. "Would that," said Gaius Pontius the Samnite, "fortune had kept me for those times, and that I had been born then, when the Romans began to accept gifts: I would not have suffered them to rule longer." Truly he would have had to wait many generations. For this evil has but lately invaded this commonwealth. And so I the more gladly suffer that Pontius lived rather then. … There is therefore no viler vice … than avarice, especially in princes and in those who govern the commonwealth. For to make merchandise of the commonwealth is not only shameful, but wicked and abominable.

XXXVII. QUESTION XV. When that which is restored does not reach the creditor's hands, is the debtor bound to restore anew? ANSWER. Many things hinder immediate restitution, which therefore must be made either through a confessor or through another person. If the intermediary person be designated by the creditor, or if he grant the debtor the faculty of choosing him, and the debtor in good faith choose a person reckoned worthy, it is certain that the thing perishes to the creditor, and that the debtor is immune from a new restitution. The same is to be said when the person is designated by the judge. It is disputed only when the debtor of himself chooses this person. Many defend that the thief is not liable to a new restitution after he has consigned the thing to be restored to a faithful and honest man, even if it perish.

XXXVIII. The opposite opinion is to me the more probable. Since indeed the nature and essence of restitution is to constitute the equality injured by unjust acceptance; and the creditor is always unwilling so long as he does not obtain his own thing or dispose of it, and the equality is restored. But here the equality is not restored unless the thing taken away return into the creditor's hand. The thief is the cause of the unhappy outcome. He, by taking away another's thing, exposed himself to these dangers.

XXXIX. If a possessor of good faith send a thing found by an honest man to its lord, and it perish, he is not liable to a new restitution. Since he is held neither from unjust acceptance nor from the thing received. But if the thing be owed from a contract of loan, of deposit, of pledge, and the like, authors distinguish. If the thing to be restored be the same in kind — as this garment, this horse, which you received on loan for use — and it be sent by an honest man, the thing perishes to the creditor, because it was his, and therefore it perishes to the lord. On the contrary, if the thing be not the same in kind, but in genus — as moneys, wheat, wine, which you received on loan — they perish to you, not to the creditor, because those things were yours. These things are common ground.

XL. QUESTION XVI. In what place, and at whose expense, ought restitution to be made? ANSWER. A possessor of good faith ought to restore in the place where the thing subsists. If the lord be absent, he is to be admonished, and at his expense the thing ought to be carried to him. But if this possessor of good faith has transferred the thing elsewhere, then he ought to send the thing to the lord at his own expense. On the contrary, a possessor of bad faith is bound to restore the thing in that place where the thing would have been, had it not been taken away, and at his own inconvenience. Restitution owed from a contract ought to be made where the contract was celebrated, unless it be otherwise appointed by the contracting parties. A loan is to be restored at the borrower's expense, since it turns to his advantage. On the contrary, a deposit, since it turns to the depositor's advantage, is to be demanded back at his expense.