Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. On Restitution on Account of Homicide
- Principles. - I. Homicides or mutilators, and their heirs, are held to compensate all temporal damages, if any have followed from homicide or mutilation 1. But more probably they must restore nothing precisely for life, a member, etc. 2, because these are not estimable by a price. - St. Lig., Hom. apost., n. 82-83.
1 Understand damages which have followed directly. See below, q. 2.
2 Understand this, as the Doctors commonly say, according to rigor. For, as St. Alphonsus has it (Lib. 3, n. 627), the Authors commonly warn that it is fitting for the Confessor to impose upon the penitent, for penance or from equity, that he give something to the injured person. To this debt of equity can be referred the words of St. Thomas (2. 2, q. 62, art. 2, ad 1): When that which has been taken away is not restorable by something equal, compensation ought to be made such as is possible; for instance, when someone has taken away a member, he ought to recompense either in money or in honor, the condition of each person being considered according to the judgment of a good man.
II. Every and only voluntary and unjust homicide begets this obligation, because only unjust and voluntary damaging is the root of the obligation. Hence he is held to nothing who killed another merely for the sake of defense, etc.
III. Restitution, if the injured person has died, is to be made to those who are most nearly joined to the deceased, namely to his sons, father, mother, and other ascendants or descendants in the straight line, and to his wife, because these are judged to be one and the same person with the deceased. - St. Lig., n. 631. - But more probably not to the remaining natural heirs; because if damage comes to these, homicide must be held as only a remote cause, and as it were by accident, of that damage 3. - St. Lig., n. 636. - Lugo. - Salmant., etc.
3 This third principle remains very obscure unless a threefold kind of damages, which the killer is held to repair, is accurately distinguished. For 1. some are damages which are inflicted on the injured person before his death, concerning which see the note to the following q. 5; these indeed are called real debts contracted with the injured person himself, and unless they are condoned by him, they are to be paid to his heirs, whoever they may be, to whom the rights of the slain pass. 2. Other damages are not indeed inflicted on the slain person, but necessarily befall the wife, sons, or parents of the slain, concerning which see q. 1 immediately following, and the note to q. 5. But reparation of these damages is owed to the aforesaid persons not indeed by the title of inheritance, by which they would succeed to the rights of the slain - for a wife is not a necessary heir of her husband - but by the title of damaging, by which their own right was injured, and which not even the slain himself could cede or remit. 3. Finally there are any damages whatever, and of whatever persons, which the killer by means of that death specifically wished to inflict; concerning these you have some things in the following q. 2. But these debts are to be paid by the killer to those who underwent the damages; nor could the slain condone them, because he had no power of disposing concerning the rights of others.
- Questions. - Q. 1. Whether a homicide is held to restitution toward the wife and children of the slain also for future damages, if they can easily come to their own aid?
Second Sentence, sufficiently probable, denies, because the near kin have no right except to those things which the slain person, from strict piety, ought to have expended upon them 4. - Reuter, n. 384. - Elbel, n. 215. - Lacroix, n. 309. - St. Lig., Hom. apost., n. 87.
4 Compare Card. De Lugo (Disp. 11, from n. 84), who shows that this opinion rests upon a false principle, namely, as if the killer contracted the obligation of repairing damages of this kind for this reason, that the slain person owed something to another by the title of piety or justice; which reason indeed would induce the obligation of restoring indiscriminately even to the creditors of the slain. But he himself assigns the true reason for this obligation, ibid., n. 79-84, namely that connection of the action with the damage, such that this follows from that not by accident, but of itself and necessarily.
And as regards the practice of this restitution, that must be noted which St. Alph. warns according to the common sentence of the Doctors (Lib. 3, n. 631): not the entire profit which before death was accustomed to be received from the injured person, but according to a certain hope, must be restored. But what things ought to be kept before the eyes so that an equitable estimation of this hope may be had, see carefully in Card. De Lugo (Disp. 11, n. 42-47).
Q. 2. Whether anything must be restored to the creditors of the slain?
Resp. More probably negatively, even if the homicide foresaw it, provided he did not directly intend their damage 5, because such damage follows only by accident. - St. Lig., n. 634. - Lugo. - Salm.
5 You have here a manifest example of an action which is judged, and truly is, an injury or not an injury against another solely from the intention of the agent. Therefore deservedly elsewhere we have observed that the Authors who, against Cardinal De Lugo, deny that the intention alone of the agent can effect that an action becomes unjust, and nevertheless in this place contend that he who kills with the intention of harming the creditors of the slain sins against justice and is held to restitution toward them, these Authors, I say, do not cohere with themselves, and by the fact itself show that their own opinion is not in every respect true. See these Authors in St. Alph., Lib. 3, n. 633, and Hom. ap., Tract. 10, n. 87.
- Q. 3. Whether the obligation of justice remains in the heirs, if the homicide is punished with death before he has repaired the damages?
Resp. Affirmatively. For the penalty satisfies vindicative justice, but not commutative justice. Therefore the heirs must pay debts from commutative justice, unless the injured parties do not complain; for then these are judged to cede their right. - Hom. apost., n. 90.
Q. 4. Whether he is held to restitution who killed another by exceeding the manner of just defense, or the MODERATION OF BLAMELESS PROTECTION?
Resp. Affirmatively, if he exceeded deliberately, because the aggressor has a right not to be killed unjustly; therefore the killer, by knowingly exceeding the limits of just defense, commits a grave injury. - Thus more commonly. St. Lig., n. 637, with Lugo, disp. 11, n. 54, against some older authors apud the same Lugo, ibid., n. 51.
Q. 5. Whether he is held to anything who killed another in a duel?
Resp. More probably negatively, whether he was the one provoking or the one provoked. For injury is not done to one knowing and willing, when a right can be remitted; but one accepting combat also wished and was able to remit temporal damage 6. Therefore... - St. Lig., n. 638. - Lugo, n. 66, etc.
6 One must distinguish, as we intimated in the note to n. 726, a twofold kind of damages which follow from killing. For some damages are inflicted on the injured or slain person, of which kind are expenses incurred in curing illness, and if he lost anything through that time and on that account, either from interruption of labor, or from omitted business, or from impeded profit, etc. Since restitution of these is owed to the injured person himself, but to others only insofar as they succeed to the rights of the injured, the injured person can renounce his own right, unless perhaps he is so poor that he cannot pay the expenses from his own goods, and thus does injury to others, who perhaps are compelled to pay them. And to this pertains what the Doctors commonly hand down, that these debts, as they call them, real debts, can be condoned to the killer by the injured person who cedes his own right.
But there are other damages which are inflicted not upon the slain person himself, but upon others through his death, and which therefore, since they violate not the right of the slain but the right of others, cannot in any way be remitted by the slain. He who by force, as Lugo has it (Disp. 11, n. 63), impedes a father from being able any longer to furnish support to his children, cannot obtain remission of that debt from the father alone, but from the children, who had a right that you should not impede by force or fraud him from whom they ought to receive support.
Nevertheless, since in the case of a duel the killer has not by force impeded the support or emoluments of wife and children, the reason ceases why he should be held to repairing that damage. Thus Lugo (ibid., from n. 70).
Others say that the one provoking is indeed held to restitution if he killed the adversary, but not the one provoked. Others, however, oblige both. But these sentences do not appear sufficiently probable.