Chapter V — On restitution on account of homicide, or mutilation, or defloration, or adultery

I. Hitherto of restitution in general: now restitution in particular is to be treated; and first of all restitution on account of voluntary homicide, in which two losses can be regarded. The first is the taking away of life or of members; the other is that which follows upon the privation of life or the mutilation of members. He who voluntarily snatches away another's life injures commutative justice — for the discourse is not now of mutilation or homicide which follows upon necessary defence. But life once snatched away, or a member cut off, cannot be rendered back. What therefore is to be done, that injured justice may be repaired? If the judge punish the slayer or mutilator, no other satisfaction is required: since the judge commands that all the losses which are to be repaired in justice be repaired. It is disputed therefore concerning what is to be restored by a slayer or mutilator not punished by a just judge.

II. QUESTION I. Is a slayer or mutilator bound to compensate a personal injury with goods of fortune? ANSWER. There is a twofold opinion. One denies that anything is to be restored on account of a personal injury, that is, on account of the mere taking away of life or the mutilation of a member. The other opinion, which is the more probable, affirms it. Because he who kills, mutilates, or injures another violates commutative justice. Therefore this justice ought to be repaired by that way which is possible. But although life or a cut-off member cannot be rendered back, it can nevertheless in some manner be compensated with goods of fortune. He who owes to restore a thousand, but can only a hundred, will he be free from the restitution of a part, because he cannot render the whole? As regards practice therefore, it is the confessor's part to hand down that a homicide or mutilator, besides the compensation both of ceasing gain and of emerging loss to be made to the heirs, should bestow something for the life or member taken away, should take care that sacrifices be offered and alms laid out, and should study to console and help with all his might the whole family of the slain or mutilated man.

III. QUESTION II. What losses ought a slayer to compensate? ANSWER. All the losses which follow from the killing or mutilation are to be made good. There are to be compensated the expenses of the cure, and all the gains which the slain or mutilated man could have obtained by his art, trade, or industry, when there are sons, or sisters, a wife, and other relations who suffer such losses from the killing or mutilation. But if there be no one who suffers loss, nothing is to be restored. Authors dispute how many years of life are to be reckoned in the slain man. To settle the matter in few words, all these things are to be subjected to the judgment of prudent men. Killings among nobles are wont to be made good by no compensation. If a homicide should pay the penalty of retaliation, the heirs would be liable to no restitution, because when the penalty of death is inflicted all things are reckoned remitted: so the common custom obtains. If anywhere an opposite reasonable usage prevail, it is to be observed.

IV. If one provoked to a fight kill the provoker with the moderation of a blameless defence, he is bound to restore nothing. But if he had gravely exceeded the limits of moderation, then he would owe to restore in proportion. If they have mutually provoked one another, nothing is to be restored, because each yielded his right. If one has provoked the other by casting up the mark of cowardice, the provoked slayer is not held to restitution, say many of the younger authors: because he could not refuse the duel without disgrace. This reason seems to me to fight with the Gospel. Wherefore to me the following opinion of Fr. Viva is false, unless all things deceive me, who in Vol. III, part 3, question 7, article 1, no. 2, says: “Although he sometimes sins by not fleeing against charity, if namely he could flee without loss of honour, yet he does not sin against justice. Therefore he is not held to restitution.” What? Does a Christian sin against charity when he cannot flee without loss of worldly honour, and yet not sin against justice? But who would not disapprove this doctrine? For he is bound to take to flight, while the way lies open, with the loss of that honour which is set in the opinion of a raving world.

V. QUESTION III. Whether from casual homicide there arises a debt of restitution? ANSWER. Titius wounded Sempronius with a wound by no means mortal: by the negligence of a surgeon or physician Sempronius dies. Titius is bound to compensate the losses which follow not upon the death but upon the wound. If nevertheless Sempronius die of the wound received because a surgeon is not found, Titius the wounder is bound to compensate the losses which follow the death. From homicide following by accident nothing is to be restored. A cleric exercises forbidden hunting, uses all diligence that he may avoid a homicide: if this follow, he is bound to restore nothing. If on the contrary the homicide followed from gravely culpable negligence, then all the losses would be to be restored.

VI. QUESTION IV. To whom is restitution of the losses which follow from homicide to be made? ANSWER. It is to be made to the heirs — not to the free heirs, but to the necessary. Brothers and blood-relations, though they succeed ab intestato, are not necessary heirs, and consequently to them no restitution is to be made. Wives, sons, and parents are necessary heirs, to whom restitution is to be made.

VII. Moralists disagree whether a homicide is bound to pay the debts of the slain man to his creditors. The more common opinion denies it, since no action is given to the creditors against the slayer or mutilator in the exterior forum, nor even in the interior. The circumstances nevertheless are to be regarded, and the counsels of wise men to be heard, when like cases occur, that in most grave delicts that which is just may be determined.

VIII. If a wounded lord be absolved, and before he dies remit, together with the injury done him, also the losses to be made good, the slayer is free from restitution. For the rest, although a wounded man be bound to remit every injury done him and to love his wounder, he is nevertheless not obliged to remit the losses thence emerging; nay, if his wife, sons, grandsons, or parents should be gravely in need, he would sin against charity if with so great a cost and detriment to his own he condoned the losses.

IX. QUESTION V. What ought a deflowerer of a maiden to restore? ANSWER. Authors commonly absolve a deflowerer from restitution when the maiden consented spontaneously, and is her own mistress. The civil laws appoint that a ravisher either endow or marry the maiden ravished, because they always presume that she was seduced by blandishments and fraud. And indeed in practice a ravisher is scarcely to be absolved except from marrying or endowing the maiden. The circumstances nevertheless are to be regarded. If the defloration be public, accomplished by threats or fraud, then not only is the stain of corrupted virginity to be compensated, but also the mark of infamy inflicted upon her parents. A deflowerer is not bound to give a whole dowry, but to increase the dowry to be given by the parents. If nevertheless the deflowered woman be poor, then a whole dowry is to be given by the ravisher. If a doubt occur whether the maiden had been previously deflowered, the safer part is to be chosen, because no one is presumed wicked unless it be proved. Wherefore even in a doubtful case the losses are to be compensated. Nay, if in fact she was not a virgin, but was nevertheless so reputed, and the ravisher defamed her, then the losses are to be compensated. But if from such intercourse she suffered no infamy, nothing is owed to be restored. The same which has been said of a maiden is to be said of an honourable widow.

X. If by entreaties, blandishments, and little gifts alone he draw a maiden into consent, authors commonly teach that he is held to nothing, as has been said, because all these do not take away liberty. If nevertheless the entreaties were so repeated, and the blandishments so assiduous, that they were equivalent to violence, then the losses would be to be compensated. Whosoever has deflowered a maiden under hope of marriage is bound to marry her, because this contract is onerous and binds both parties, even if the promise were feigned. For although a contract concerning a shameful thing be null, the penalty of the crime committed is nevertheless to be undergone.

XI. These things are absolutely true: but for the rest, if the girls of our time be regarded, they are not seldom so shameless, so stripped of modesty, so brazen, crafty, and bold, that they themselves attack young men and men, and they themselves circumvent, bewitch, and craze them with their blandishments and tricks, either to plunder their purse or to draw them into matrimony. Wherefore, for the repressing of so great an audacity of girls, a law ought to be established that the deflowered should mourn their ravished virginity in perpetuity. This is always to be held before the eyes, that maidens modest, bashful, lovers of solitude, and fleeing the meetings and conversation of youths and men, are violated by no one. If therefore they themselves are forward, and hawkers of their own virginity, that others may learn, they ought to be punished as a public example, not endowed; especially if the deflowerers be of a nobler and higher estate. This nevertheless I submit here to the judgment and decision of prudent men, that that may be determined which is expedient for the public good.

XII. QUESTION VI. What is to be restored on account of adultery from which offspring follows? ANSWER. When from certain signs it is evidently established that the offspring was conceived from union with the adulterer — either because the husband was absent, or because he was sick, or because he was impotent — then all the losses are to be compensated which the husband has suffered from the third year of age in rearing the boy: for in the first three years the mother, but afterwards until the time at which the son can provide for himself, the father is bound to feed the son. What if a doubt occur whose the offspring is? Some, resting upon that axiom, the condition of the possessor is the better, deny the debt of restitution.

XIII. What seem to me the more probable are the following. When the adulterer and the adulteress have perpetrated the adultery by mutual consent, both are held in proportion to feed the boy and to compensate the losses to the husband or his lawful heirs: if one fail, the other is held in solidum. On the contrary, if the adulterer provoked the adulteress, and drew her into adultery by blandishments and little gifts, then the adulterer alone, as the principal cause, is liable to compensation. The adulterer failing, nevertheless, the adulteress is held. When it is doubted whose the offspring is, then judgment is to be made in favour of the marriage. But if the doubt persist, and reasons equally probable or more probable persuade that the offspring is spurious, I should judge that compensation is to be made in proportion to the doubt.

XIV. When an adulteress admits two men, one after the other, and it is unknown whose the offspring is, who of these is held to compensation, when it is established that the offspring was conceived by the work of one or the other? De Lugo, López, Trullench, Sánchez, Soto, and others free both; this opinion the Salmanticenses and Cardinal Cozza also defend. This opinion is to me improbable. What? It is certain that one or the other is the true parent, and both shall go free! If each perpetrated adultery, each ought to undergo the penalty. If each had attempted homicide, though it were unknown which of them had in fact perpetrated the homicide, in what forum would each go free? Each perpetrated adultery, each exercised the procreative action. Therefore neither is innocent, although one begot the son. Therefore each is bound in proportion to feed the son and to compensate the losses. The arguments of the opposite opinion do not press. They would have him innocent who did not beget. But how innocent, if he committed adultery and posited the generative action? There are therefore two guilty. Therefore both are to be punished: both ought to concur in making good the losses; and one failing, the other is held in solidum.

XV. QUESTION VII. An adulterer knowing for certain that offspring was procreated from his adultery, what is he bound to render to the lawful sons? ANSWER. Diana, Henríquez, Soto, Ledesma, and others contend that an adulterer is not bound to compensate the losses which the lawful sons undergo in the portion of the inheritance or of the legacies which the spurious son receives, when he did not persuade the substitution of the spurious son. This opinion is commonly disapproved; and they teach that both the adulterer and the adulteress ought to compensate all the losses which come to the lawful sons by reason of the spurious son, even if the adulterer did not persuade the substitution. Since each was the cause why the spurious son is reputed lawful: therefore each is subject to the reparation of the losses. First therefore each ought to use all diligence that the losses of the lawful offspring be avoided, while this can be done without loss of reputation. If the wife have paraphernal goods, or others free, she ought to give these to the lawful sons. But if the adulteress possess no free goods, what then? Ought the adulteress to betray herself, that she may avoid the losses of the sons? If the adulteress conceive no morally certain hope of preventing the losses which threaten the lawful sons on account of the offspring procreated from adultery, she is not bound to disclose the crime to the spurious son, even if she cannot compensate the losses: since she would imprudently squander her reputation, while she prudently doubts that the manifestation of her crime would profit. Nor is it to the purpose that you object that a defamer ought with the loss of his own reputation to retract what he said, even when he doubts that his retraction will profit: since indeed the defamer injured his neighbour in reputation, and therefore ought in the same kind, with the loss of his own reputation, to make good the blackened reputation. But an adulterous mother inflicted losses upon her sons not in reputation, but in money. Wherefore while she cannot compensate in the kind of money, she does not seem bound to make good losses of this kind with the loss of her reputation and honour.

XVI. A son is not bound to give credence to a mother testifying, even with an oath, that he is spurious, as the common opinion holds: because the word of one witness does not bring in a necessity of believing, especially while she lays open her own shame, with detriment to him who believes. There is added that, since the son by the common persuasion and by his own is reputed lawful, he cannot by right be deprived of the inheritance unless it be established by certain witnesses and proved that he is spurious. If the woman be of a lower condition and of slight reputation, and a vast inheritance is to be taken by the spurious son, then she ought to reveal her crime, as all commonly teach: for indeed a woman of slight reputation can easily be induced to make the loss of it. On the contrary, authors commonly free an honourable woman of bright reputation from the manifestation of her crime, even if a vast inheritance were to be taken by the son. But as regards this, the circumstances are to be regarded, and, all things weighed, it is to be determined what is more expedient. For a certain rule can scarcely be assigned.