Damage to life and limb

There is a controversy among theologians as to whether there is an obligation apart from the just sentence of a judge for one who has injured another in one species of goods, as, for example, in his reputation, to make restitution to him in goods of another order, as, for example, in money. A competent judge may, of course, impose such an obligation according to the rules of equity; but apart from positive law the opinion which denies any strict obligation to do this seems the more probable. For if justice imposed such an obligation, equality would have to be secured between the injury inflicted and the compensation paid. This however, seems impossible in such a case, for there is no common measure of reputation and money. Moreover, however large a sum of money were paid in compensation for detraction, the reputation which had suffered would not thereby be restored. Justice, however, requires that what has been taken away should be restored, not something else.

One who has unjustly wounded another, according to the more probable opinion, as we have seen, is not bound to make compensation in money for the wounding or mutilation.

He is, however, bound to make restitution for all expenses to which his action has subjected the injured man, and for all other money losses which followed in consequence of loss of work, position, etc., and which were in some way foreseen by the wrongdoer. If the injured man dies, restitution must be made to his heirs or legatees for all the expenses he was put to or the losses he suffered on account of the unjust action, If, in consequence of the injury inflicted, the injured man cannot provide for wife, children, or parents, or if death ensued, the wrongdoer will be obliged to provide at least what is necessary for their support. For these had a right not to be deprived of their support by the unjust action of the wrongdoer. There are no necessary heirs according to English law, and it is a controverted point whether restitution is due to other heirs, relatives, or creditors who have suffered damage from the injury inflicted. It is probable that inasmuch as injury to such people is not necessarily connected with unjust wounding or homicide, and only follows from it in a remote and accidental manner, there is no obligation to make compensation to others besides the above-mentioned.¹

Whether the injured man can release the wrongdoer from the obligation of providing for his family who are dependent on him is a disputed point among divines. Many approved theologians hold the affirmative on the ground that the family acquire their right to compensation through the injured man, who therefore can release the wrongdoer from all obligation to make restitution. This opinion is certainly probable, and so in case of a duel where both parties have freely consented to fight, and therefore freely accept the consequences of their action, there will be no strict obligation for the victor to make any compensation for wounding or killing his adversary.

¹ Lugo, disp. 11, n. 77.

Goods of the body are injured through homicide and mutilation. But damages that will follow from these can be distinguished into spiritual, corporal, and temporal damages. Each must be discussed.

I. Spiritual damages consist in this: that the one killed is deprived of the last sacraments, of time for meriting, etc. Moreover, they must be restored only if both the damage that followed is certain and the damage can truly be compensated; for example, if the killer prevented Masses from being celebrated which the one killed certainly would have taken care to have celebrated for his soul.

II. Corporal damages consist in deprivation of life, of a member, of health, and in the endurance of pain. There is no obligation of restoring these through goods of fortune (n. 980). Nevertheless, there is an obligation, not indeed by way of restitution for the lost member, but for the expenses that followed from it, of assigning goods of fortune to the injured person insofar as he wishes to substitute an artificial member for the member taken away.

III. Temporal damages are distinguished into damages inflicted on the injured person himself and damages inflicted on third parties.

1. Damages inflicted on the injured person himself consist in the expenses of treatment, yet with those things deducted which he, if healthy, would have had to spend on food; likewise in emergent damage or ceasing profit for the time in which the injured person still lived and had to cease from labor. Restitution must be made according to the valuation of the hope of obtaining the goods, and indeed to the injured person himself or, if he has died, to his heirs. But if the killer does not restore these things, his heirs are held to restitution, unless the injured person has condoned them. "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630, 631).

Question 1. Whether something can be deducted from restitution of ceasing profit for the labor which the injured person would have had to spend in order to obtain the profit.

Response. Some affirm it; others seem rightly to deny it, for by his unjust action the killer caused the deprivation of the whole profit; hence he is also held to restore the whole profit. Yet in practice "Bonacina reasonably reconciles the opinions, saying that only that should be subtracted which the one killed is presumed to have been willing to give for the redemption of the labor" (St. Alphonsus, III, 639).

Question 2. Whether the heirs of the killer are freed from the obligation of restoring if the killer is punished with death.

Response. It seems this must be denied, because the penalty is judged to have been imposed only to satisfy vindicative justice, not commutative justice. Nevertheless, the heirs are excused from restitution if compensation for damages is not sought, because then the parties are presumed to condone, unless the thing still existed, or unless the damage was very grave (St. Alphonsus, III, 705).

2. Damages inflicted on third parties can chiefly regard the family, that is, parents, wife, and children; other blood-relatives; those to whom the one killed was doing good; and the creditors of the one killed. Now:

a) Damages inflicted on the family consist in deprivation of the support which the one killed was procuring for it, and likewise of the profit which he would still have procured for it. By the consent of all, these must be restored. The reason is deduced from the fact that the killer injured not merely a physical person, but, as it were, a moral person; a moral person, I say, which the others constituted with the person killed. Hence restitution is to be made to them (St. Alphonsus, III, 631). Nevertheless, "nothing is restored for funeral expenses, because those eventually would have had to be made at some time; unless perhaps, on the occasion of the death inflicted, for example outside the homeland, it was necessary for greater expenses to be made" (St. Alphonsus, III, 631). For the rest, restitution again must be made according to the valuation of the hope of obtaining those goods (St. Alphonsus, III, 631, question 2). A right norm will be the one which insurance societies follow on the occasion of an adverse event.

Question 1. Whether restitution is to be made to the family if it can conveniently provide for itself.

Response. Affirmatively; since the fact that the family can provide for itself does not prevent its right from having been injured; but from an injured right there arises the obligation of restoring. Yet the killer is not held to restore if the family receives from another what it would have received from the injured person, for example, "if the wife (and the same would have to be said of children and parents) afterward has married equally conveniently, nothing is to be restored to her; because then in reality she does not suffer damage" (St. Alphonsus, III, 631, question 1).

Question 2. Whether the injured person can remit the restitution owed to the family.

Response. Many deny it, because no one can remit restitution owed to another; but with St. Alphonsus and others it seems this must be affirmed, because the right of the family is entirely subordinated to the right of the father. Hence just as the father can validly transfer goods into another's ownership, so too he can validly remit restitution for them. But here again note: "When remission of the injury has been made, remission of the damages is not understood to have been made" (St. Alphonsus, III, 630).

b) Damages inflicted on other blood-relatives do not have to be restored: neither by reason of the good from the obtaining of which he impeded them, because they did not have a strict right to it; nor by reason of the means employed, since it would be unjust only with respect to the one killed. For the same reason the same must be said about the poor to whom the one killed was doing good, and about others who would have received certain things from the testament (St. Alphonsus, III, 632).

c) Damages inflicted on creditors likewise do not seem to have to be restored. It is indeed true that they are impeded, as we suppose, from obtaining a good in which they had a strict right; but they are not impeded by the killer, but by the heirs or by the law exempting the heirs, while the killer is only an occasional cause (St. Alphonsus, III, 634).

Nevertheless, St. Alphonsus and others judge that the enumerated damages must be restored if the killer acted with the intention of harming the enumerated persons (n. 996).

Corollary I. He who provokes another to a duel and kills or wounds the provoked man, who freely accepts the contest, is not held to restitution, neither toward the injured person, because he consented to the damage in fortune that would follow, nor toward the family, because the injured person, from whom the family would have received goods, by his own consent prevented him from acting unjustly toward it, since it had only a consequent right in the goods (St. Alphonsus, III, 638).

Corollary II. The one attacked, who deliberately exceeded the measure of blameless defense, seems to be held to restitution for the damages that followed from the excess, because the excess was truly unjust (St. Alphonsus, III, 637).

Objection. The attacker knowingly and willingly exposed himself to the danger that the one attacked would exceed the measure of blameless defense; but no injury is done to one who knows and wills.

Response. He who knowingly and willingly exposes himself to the danger that his right be injured is not therefore judged to yield his right.

Corollary III. What has been said about damages following from homicide is also to be applied to damages arising from wounding and other injuries of the body.

725. 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.

726. 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?

Resp. It is controverted. First Sentence, the more common, affirms, because the damager must repair the whole damage inflicted by himself. - Lugo, D. 11, n. 87.

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.

727. • 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.

564. State of the question. (A) The obligation of restoring arises from homicide and wounding committed unjustly, efficaciously, and culpably. Hence he who kills or mutilates another for the sake of just defense, and with the moderation of blameless defense, is held to no restitution. But he who, in a case of legitimate defense, notably exceeded just moderation, according to some, is bound to restitution; according to others, probably he is not bound, because the unjust aggressor knowingly and willingly exposed himself to the danger of death, and ought to impute to himself his own death or wounding; for he who is unjustly attacked can scarcely think of the moderation of blameless defense, and almost always is in good faith.

(B) Damage from homicide or mutilation can be threefold: natural, namely the loss of life or members; spiritual, insofar as the one killed is deprived of the opportunity of doing penance and of the suffrages which by testament he could have procured for himself; temporal, which happens either to the one killed or mutilated himself, or to his family, e.g., expenses for treating the wound, ceasing profit on account of the death, illness, or mutilation of the injured person.

565. Now (a) natural damage cannot properly and directly be compensated in the same genus; and it is controverted whether indirectly and equivalently it must be compensated through a payment of money. Many modern authors probably say that no compensation is owed unless it is imposed by the judge, because none is possible, since life, integrity of members, and bodily health exceed every price. Yet we judge it more probable, with St. Thomas¹ and many other older theologians, that some compensation is owed even for natural damage to the injured person, but not to his family. "When that which has been taken away is not restorable through something equal, compensation such as is possible ought to be made, as when someone has taken a member from another, he ought to compensate him either in money or in some honor, the condition of each person being considered, according to the judgment of a good man." For although justice intends perfect equality, yet if this cannot be obtained, we ought to approach it insofar as can be done. Yet according to all, care must be taken lest such compensation be an incitement to crime, e.g., to fornication. - The same diversity of opinions prevails as often as restitution in the same genus of goods cannot be made.

¹ St. Thomas, 2. 2., q. 62, a. 2, ad 1.

(b) Spiritual damage can and must be compensated in the same genus, through prayers, Masses, and other spiritual works. According to not a few, this obligation arises from justice; according to others, from charity; let the confessor warn homicides about this matter.

(c) Therefore it remains to speak of temporal damage.

566. Principle: A homicide or mutilator is bound to repair all temporal damages which he at least confusedly foresaw as going to follow from his action. - For he truly is the unjust, efficacious, and culpable cause of these damages.

567. Corollaries. (A) This obligation is real, and therefore passes to the heirs, who nevertheless are not held beyond the forces of the inheritance.

(B) The principal damages are: expenses for the treatment of the wounded or killed person, - or for the funeral, namely insofar as they are greater than if the injured person had died at home; ceasing profit on account of the wound or death of the injured person, which must be estimated by the judgment of a prudent man, with all circumstances of person, age, office, labor, etc., considered.

But because it is difficult to define these altogether accurately, it is very expedient that a friendly composition or transaction be made.

(C) Restitution must be made primarily to the injured person himself, and, after his death, to his nearest heirs, namely parents, children, and wife, because, on account of the very strict bond by which they are united to him, they form one moral person with him. The obligation of restoring to these nearest heirs is certain if they were receiving support from him and do not otherwise have that by which they may sustain themselves. More probably and more commonly the same is said, against Lacroix¹ and a few others, in the case in which parents, wife, and children can easily provide for themselves; for even in this case they have suffered unjust damage.

¹ Lacroix, lib. III, P. II, de Restitutione, n. 309; St. Alphonsus, n. 631.

568. (D) It is controverted whether restitution must be made to the remaining heirs, even blood-relatives, and to creditors of the deceased, who incur damage from this. These are the things which seem more probable to us:

(a) It is not clearly established, and therefore the obligation of restoring is not to be urged for non-necessary heirs, whom namely the deceased was not bound to provide for; for it is uncertain whether the deceased had the will of enriching them, and therefore if they suffer damage, it is caused by accident, and moreover such damage is partly compensated by the fact that they approach the inheritance sooner. - Yet the case is excepted in which one of them had been received into the family of the deceased, and held as a son; for then the deceased at least implicitly promised to have care of him, and obligated himself to this.

569. (b) Nor is the obligation of restoring to creditors of the deceased established, unless the homicide in a particular case foresaw and, according to some, intended the damage of creditors of this kind. Otherwise, damage inflicted upon creditors follows by accident, so that the homicide is not truly the efficacious cause of the same (n. 472); but with foresight, and according to some with intention, added, now nothing is lacking that the homicide should be the efficacious, culpable, and unjust cause of the damage.

To be noted. If one lethally wounded spontaneously and freely before death remits all debts to the homicide, the latter more probably is not bound from strict justice to restitution: for by condonation the debt is extinguished, from what will be said below. - Yet the wounded person, by acting thus, injures charity, if his relatives need support.

570. (A) He who provokes another to a duel, and by force, fear, or grave threats morally compels him to accept, and at last kills or wounds him, is bound to restitution like a homicide or one who wounds; for he uses unjust means for extorting consent; he who is provoked is truly unwilling, and injury is done to the unwilling.

(B) But if the one provoked spontaneously accepts, and is killed or wounded, or a fortiori if the one provoked kills the one provoking, no place is given to restitution by natural law; for each, by freely accepting the duel, freely exposes himself to the danger of incurring damage: but injury is not done to one knowing and willing.

Yet, if the civil judge has enjoined reparation of damage, his sentence obliges in conscience, since it was passed on account of the public good, to keep others away from duel.

Injury done to the life or health of another entails the duty of restitution if the injured party, or in case of death his heirs, have sustained a definite and provable material loss. The wrong- doer is liable for all the damage done by his criminal act, whether mediately or immediately, if it was expressly intended, or was or could have been foreseen, including physicians’ fees, hospital expenses, wages or salary lost, a certain amount of smart-money if such is provided for by the civil law, the expenses caused to others by the support of an incapacitated person, and the loss suffered by husband, wife, parents, children, or heirs (lucrum cessans, damnum emergens). The heirs of the victim, if he has been killed, have a just claim to be indemnified for whatever he would have been strictly obliged to furnish according to law and what he could have done at the time of his death.¹ Extraordinary funeral expenses must be compensated, for instance, if the slain person was killed away from home and the corpse has to be sent a long distance to be buried in the family tomb. Restitution must also be made to the creditors whom the dead man left unsatisfied, if the killing was the immediate cause of his inability to pay them.²

¹ Gury, Vol. I, n. 695–698.

² Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 2, dub. 6, a. 3, n. 7: “Nothing is restored for funeral expenses, because they would at some time eventually have had to be incurred, unless perhaps they had to be greater on account of the killing inflicted, e. g., outside one’s native country.”—Ibid., n. 12: “Although it is probable that restitution is also owed to the creditors of the slain person if some damage came to them from that killing, nevertheless the contrary is also probable . . . since the killing is not directly causative of that damage.”

The duty of restitution binds the slayer even if he was in error concerning the identity of the person slain,³ but does not extend to unforeseeable consequences of his act.

³ Idem, ibid., n. 2: “He who kills Caius thinking him to be Titus is bound to restitution, because that action is injurious to Caius.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 628: “Others deny it, because the homicide in relation to Caius is merely accidental and involuntary.” (Ed. Gaudé, II, 106).

Injury inflicted in a duel does not entail restitution because there is implied no violation of commutative justice, unless one party was either by force or grave threats compelled by the other to fight, and hence deprived of his liberty.⁴

⁴ Cfr. Lehmkuhl, Theol. Mor., Vol. I, pp. 677 sq.

The judicial condemnation of an innocent man entails restitution on the part of the real culprit only if the latter was the efficient cause in directing suspicion to the former.⁵

⁵ Schwane, Die Gerechtigkeit, p. 113, note 2: “Caius is planning to kill his friend Titus and while waiting for a favorable opportunity, hears of a public quarrel between Titus and Sempronius, in the course of which the latter declared that he would take the former’s life. Thereupon he (Caius) kills Titus secretly. The suspicion falls on Sempronius, who is arrested and executed for the crime. Caius is obliged to make restitution to the wife and children of Titus as well as to those of Sempronius.”

To make compensation for industrial accidents in dangerous occupations (e. g., in mines or factories, or on railroads) is not a strict duty of justice, but merely one of equity, unless real guilt has been incurred.

The development of modern machinery has created new problems. In most cases of industrial accidents no single individual can be definitely blamed. The cause lies rather in the manner in which modern industry is organized and the danger involved in tending to machines. This danger can be reduced by caution on the part of the worker, by various safety appliances, legal precautions, and technical improvements, but it can never be wholly eliminated on account of the imperfection of human nature and especially because of the occasional interference of a higher power (vis maior) and accidents (casus). In indemnifying the victims of accidents, therefore, it is not enough to look to personal guilt (culpa), but a higher principle must be invoked, namely, causal connection. Now since industry as a whole, because of its peculiar character, is the ultimate cause of all industrial accidents, it is bound to make restitution to the injured in solidum. In consequence of the new social and political views, which are in conformity with social justice, provision against industrial accidents is now commonly made by accident insurance, either public or private,—if private, at the expense of the employer.⁶

⁶ Msgr. H. Parkinson, A Primer of Social Science, p. 250; J. Biederlack, S. J., Die soziale Frage, 7th ed., pp. 237 sqq.

Bodily mistreatment or injury which involve loss of the reproductive power are punished with special severity by the civil law, and in many cases are very serious indeed because they affect several persons.

Reading.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 889 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 626–639. (ed. Gaudé, II, 105 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. II, pp. 148 sqq.—Idem, Kath. Moraltheologie, Vol. I, 3rd ed., pp. 538 sqq.—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 490 sqq.—A. Tanquerey, S. S., Synopsis Theol. Mor. et Past., Vol. III, pp. 239 sqq.—A. Lehmkuhl, S. J., Theol. Mor., Vol. I, pp. 675 sqq.

111. Preliminary Note. Since we have spoken of damaging in general, now one must deal in particular with some damagings in which a special difficulty is found. Following the footsteps of the Angelic Doctor,⁷⁴ we shall first treat of injuries committed by deeds, and then of injuries committed by words. By deeds injury can occur in three ways: 1. by directly injuring the very person of the neighbor; 2. by indirectly injuring the neighbor, namely in another person intimately joined to him; 3. by injuring the proper things of the neighbor. Enough has already been said above concerning this third injury, under damaging in general. Injury of the very person of the neighbor is prohibited by the fifth precept of the Decalogue: "You shall not kill"; by these words there is forbidden primarily every unjust homicide, that is, suicide and the unjust killing of the neighbor, and secondarily whatever injures one's own or another's body in an undue mode. But the neighbor is injured indirectly in a person intimately joined with him through adultery and deflowering. Therefore the order of things to be said is the following: 1. on injury against one's own body; 2. on injuries against the body of the neighbor; 3. on injury arisen from deflowering and adultery.

⁷⁴ Cf. S. theol. 2, 2, q. 64 sqq.

In order that it may be known what and to whom a homicide must restore, a threefold genus of damages must be distinguished, which can be inflicted in goods of fortune through homicide, namely damages which are inflicted: 1. on the one killed himself before his death; - 2. on his family, that is, on his children, parents, and wife; - 3. on his creditors.

We are not speaking of compensation to be given on account of bodily torments, or the other damages which bring no loss in goods. For from these there does not arise an obligation of restoring except after the sentence of a judge, if namely positive laws grant the damaged parties the right of exacting reparation. Cf. German Law, 847.

952. PRINCIPLES. I. A homicide or mutilator is held to compensate all temporal damages which, from his crime, have been inflicted on the one killed or wounded. The reason is clear from the things said above (n. 948); for killing is of itself the cause of damage. - The one attacked himself who, with true deliberation exceeding the moderation of inculpable defense, kills the attacker, is held to compensation of damage. For the enemy, on account of his unjust aggression, does not altogether lose the right which he has to life. St. Alphonsus, III, 637, with Lugo and others. Cf. the things said in n. 734.

The homicide is held to compensate all damages, and indeed: a) damage emerging, or the expenses of treatment, etc.; b) profit ceasing, that is, the profit of which the one struck has been deprived during the time of his infirmity because of the interruption of labor, and which he had in hope; yet with the expenses which would have had to be made to obtain the profit deducted according to prudent estimation; likewise with funeral expenses deducted, unless perhaps on the occasion of the death inflicted, for example outside the fatherland, greater expenses had to be made, or unless he is bound by the judge to refund them.³ In Germany he is held to pay them (§ 844).

Compensation must be given not only to the wounded man himself, but these debts, as real, are to be paid to the heirs of the slain person, whoever they are; because all heirs succeed to all the real rights of the deceased. Except if the deceased before death validly remitted these things to the killer. We say validly; for he would remit them invalidly if he were so poor that he could not have made the necessary expenses from his own goods, or if from such remission others, for example physicians or benefactors, would be unjustly burdened (III, 630; H. Ap., X, 86).

953. II. A homicide is held to repair for the family of the one struck the profit ceasing for them and the damage emerging on account of the wounding or death of the one killed. The reason is that all the aforesaid persons, but not brothers or sisters, are judged morally one person with the one killed as regards sustenance; hence even after his death the damage is continued in them (III, 631; H. Ap., X, 87; German Code, 844).

Let it be noticed: 1. The reparation of damage must be made according to the value of the hope which each one had, considering the age, health, etc., of the one killed or wounded, of receiving goods or advantages from him if he had not been killed or wounded. 2. Compensation to be made to the aforesaid persons is not from the title of inheritance of the one killed, but from the title of damaging inflicted on them, and therefore it could not be condoned by the one killed. 3. If there is no damage, either because those persons receive sustenance equally from elsewhere, or because the deceased was bringing no utility to them, there is no obligation of compensating. 4. The best mode of compensating is a peaceful settlement with the persons mentioned (III, 631).

954. III. A homicide is held to restore, in proportion to hope, to all those whom he directly intended to harm. Thus, for example, he is held to compensate damages to consanguineous creditors, or to the poor, whom he wished to frustrate of the hope of payment, inheritance, or alms; because each one has a right not to be directly and by force impeded from obtaining a just good.

It was said: whom he directly intended to harm; because if damages of this kind were only foreseen and not intended, a certain nexus is lacking between the homicide and the damages that followed; those are judged to have happened by accident, and it is more probable that the killer, in this case, is held to nothing by reason of justice (cf. 921, 949, Condition 2). St. Alph., III, 632, 633.⁴ See nevertheless the things said in n. 727, II, v. fin.

IV. In defect of the homicide, his heirs are held to compensate the aforesaid damages, even if the killer is punished with death. The reason: punishment satisfies vindicative justice, and therefore legal justice, but not commutative justice. Heirs succeed to all the strict burdens of the killer. Except if the injured parties are judged to yield their right, from the fact that they do not seek restitution (III, 631, 705).

955. Questions. QUAER. 1. To what is one provoking to a fight held, if he kills the one accepting, for example in a duel?

Resp. According to the opinion of Suarez, he is held to restore the damage, because the provocation was a true cause of the damage. - But Lugo (disp. 11, n. 66), with Vasquez and others, more probably contradicts; because although the one provoking sins against charity, nevertheless the other, since he freely accepts the fight, renounces his right to the reparation of damage (III, 638).

Note. Another question is related to this question: whether there is an obligation of restoring if one provoking to a duel is the cause why the one provoked, refusing the contest, is expelled from the army, or undergoes other damages.

Resp. It is not established that the provocation is the cause of itself of the damages which the one provoked suffers; rather it itself is their occasional cause; hence restitution is not to be imposed. Cf. the things already said in n. 949, Condition 2 and the added note.

QUAER. 2. To what are administrators of railways or ships held, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are held to pay as much as the judge by equitable judgment decrees must be paid; and they sin and are held to restore if by fraud, deceit, or bribes they induce the judge to render an unjust sentence (Konings, n. 808, q. 4).

Note. It is counsel that the confessor impose alms and Masses for the benefit of the one killed, for the killing itself (III, 631, 5). Cf. the things said in n. 928. If the homicide is imputed to an innocent third party, see n. 2302, q. 1 and 2306 seqq.

Namely 1° on account of homicide, 2° defloration, 3° adultery.

807. • From homicide and mutilation a threefold damage can arise: spiritual, when the victim is deprived of the sacraments or of time for due preparation; natural, from life or members lost; temporal. From the first there exists an obligation of charity, as far as one can, of helping the soul of the killed person; indeed, according to distinguished theologians,¹ also of justice, if that damage was foreseen in confused manner, for it is a question of a good from whose obtaining the killed person was impeded by an unjust means. Cf. n. 805. 1°. - For natural damage, since it cannot be estimated by price, more probably nothing is owed; nevertheless the confessor fittingly imposes something for penance or from equity. - Temporal damage is either of the injured person himself or of others.

Damage exists for the injured person himself: 1 on account of expenses for the healing of the wound; 2 on account of damage emerging and profit (pure, namely "clear gain") ceasing for the time during which the wounded man could not attend to his accustomed work or business. Both this (if it was foreseen) and that (unless they have been condoned by the dead person²) must be furnished: a. by any heirs whatever of the dead person; b. by the heirs of the killer or wounder; for the former succeed into the rights of the dead person, the latter into the burdens also of the killer or wounder. - On account of funeral expenses, since they would have had to be made at some time, nothing is owed, unless perhaps, on account of a killing inflicted outside the homeland, they had to be greater.

The others to whom damage can exist are understood of themselves only to be parents, wife, and children, insofar as they actually are deprived either of support or of profit to be perceived, with attention to the hope of life and the condition of the deceased. - Only, that is, not brothers, sisters, and the other blood-relatives, since not these, but only those constitute one moral person with the deceased, namely the family, so that by homicide damage is directly inflicted unjustly only upon them. Wherefore not even the one killed could condone to the killer the reparation of this damage. Nor are creditors of the deceased understood here; because if by his death they are frustrated of payment of the debt, this follows from the killing only by accident and remotely. - Of themselves, because if someone kills another, not I say foreseeing, but intending by this very murder to damage the brothers or creditors, or to impede the making of a will, the damage must be furnished. Cf. n. 692. 5° and (r) p. 475. - In reality, because if, for example, the wife has married equally advantageously, or she, the parents, children are supported by a friend of the killed man, no reparation of damage is owed to them as to support, since it was in fact not inflicted.²

Reparation of damage inflicted by homicide perpetrated without theological fault is also licitly sought from a judge. Cf. n. 747. III.

808. Questions. - Query 1° Does an obligation of justice remain in the heirs if a murderer is punished with death without having repaired the damages?

Resp. Affirmatively. For penalty satisfies vindicative justice, but not commutative justice. Therefore heirs must pay debts from commutative justice, unless the injured parties do not complain, provided nevertheless that the thing does not exist or the damage is not very grave.³

Query 2° Is he bound to restitution who kills another by exceeding the mode of just defense, or the MODERATION OF BLAMELESS DEFENSE?

Resp. Affirmatively, if he deliberately exceeded, because the invader has a right not to be unjustly killed; therefore the killer, by knowingly exceeding the limits of just defense, commits grave injury. - Thus the common opinion. S. Alph.,³ with Lugo,⁴ against some older authors cited by the same Lugo.⁵

Query 3° Is he bound to anything who kills another in a duel?

Resp. More probably negatively, whether he was the one provoking or the one provoked. For no injury is done to one knowing and willing, when the right can be remitted; but even one accepting the fight both willed and could remit temporal damage. Therefore... S. Alph.,⁶ Lugo,⁷ etc.

Others say that the one provoking is indeed bound to restitution if he killed the adversary, but not the one provoked. - But others obligate each one. But these opinions are not to be attended to in practice.

Query 4° To what are those bound who have ownership of railways and of ships which are moved by steam, if, the rules of prudence not having been observed, someone is killed or wounded in them?

Resp. They are bound to pay as much as the judge by equitable judgment decrees to be paid; and they sin and are bound to restitution if by fraud, deceit, and gifts, as often happens, they induce the judge to bring an unjust sentence.

809. Principles. - I. For merely natural damage, or for the injury of bodily integrity and the loss of virginity, nothing, at least more probably, is to be restored; because that damage cannot be compensated by money.¹ Hence, agreement being set aside and no other damage having followed, for example because the crime lies hidden, or the woman has married honorably, has professed religion, or has died at a premature age, nothing is owed.

II. Even for temporal damage which has followed from base intercourse, nothing, except the education of the offspring, must be restored when the woman consented to the solicitation; for no injury is done to one knowing and willing.²

III. If the deflowerer violated the girl by force or fraud, he is bound to repair all damages coming from it to her or her parents. Yet, if Marriage was not promised, he is not bound to marry her, unless the damage can in no other way be repaired or he has been condemned to this in penalty. But he is bound only for part of the damage who, through moral force alone, suppose threats, reverential fear or fear of infamy, very importunate prayers, touches and kisses, elicited the consent of the girl.³

810. Questions. - Query 1° Is the violator bound to marry the girl violated under promise of marriage?

Resp. The common opinion, and according to S. Alph.⁴ altogether to be held, affirms. The reason is 1) because otherwise the damage cannot be repaired adequately; 2) because the unnamed contract Do, that you may give, etc., is then perfected when the handing over of the thing or the furnishing of the work is done; and then the reason and force of laws which render base agreements void ceases. For the obligation which is then contracted by the other party is not base, nor does it drive one to a base thing. - Yet note the following.

I. If the promise was not the motive cause of the woman's consent, it, as any other gratuitous promise (n. 872 sq.), will have to be interpreted.

II. If it was the motive cause, it obliges from justice, unless excusing causes are present. Hence the obligation ceases: 1. If the outcomes of a very bad marriage are feared, for example on account of the lighter disposition of the girl, hatreds and quarrels of the families, etc., because in these cases the promise, as being concerning an illicit thing, was invalid. 2. If the man afterward discovers that the girl had already been deflowered before or had afterward fornicated with another. The reason of the former is that there is no obligation of furnishing to a corrupted woman what was promised to a virgin; of the latter, because faith is not to be kept with one breaking faith. 3. If, as is clear, the girl herself rejects marriage. 4. If an impediment of marriage is present, the obligation ceases, because it is impossible of fulfillment, if in it there is either never or rarely dispensation; because it is concerning an illicit thing, if the woman is non-Catholic (yet in this case, under the due conditions, dispensation must be sought, if the woman, otherwise honorable, suffers danger to her reputation on account of the man's delict). The obligation holds, and that even with grave inconvenience, if dispensation is usually granted in the impediment, whether an agreement of seeking dispensation is supposed or even set aside. Otherwise if (the agreement being set aside) the fornicator inculpably did not notice the impediment and cannot remove this without grave inconvenience (which nevertheless today scarcely exists). The reason of each is that one who has taken upon himself some obligation by an onerous contract is bound, even with grave inconvenience to himself, to remove impediments which he knows or culpably does not know to stand in the way of fulfilling this obligation; but not those to which (the agreement being set aside) he inculpably did not attend. 5. From a fictitious promise, as from damaging fraud, an obligation exists equally as from a true one. But it does not exist in the case in which the fiction could easily have been perceived by the woman, for example from ambiguous words or from known notable disparity of condition; for then she wished to be deceived and is to be judged to have consented freely.

Compensation made in another way than through marriage is required and suffices: a) Very probably, in the case under 5, if the woman was ignorant even of the fornicator's disparate condition, because justice obliges only to equality, and the woman was not seeking consent of so great a value; b) In the case under 3, if it does not stand through the girl that she enters into nuptials, for example the parents impeding them. Then compensation made in another way suffices, as is clear of itself; more truly, as it seems to S. Alph., it is required, because the promise was made principally for repairing damage; c) In the case under 4, if (the agreement concerning seeking dispensation being set aside) the fornicator did not inculpably notice the impediment of marriage and cannot remove the impediment without grave inconvenience. Resolve the same if dispensation is denied. The reason is that it is always true that damage was unjustly given.

811. • Query 2° Is the violator bound to anything toward the parents of the violated woman, if she freely consented to the sin, for example because they must increase her dowry?

Resp. Most commonly negatively, since the girl is mistress of her body, not the parents. Wherefore, since she is not bound toward them concerning damage, neither can the violator be bound concerning it. Except if this man, by spreading abroad the violation, brought infamy upon the girl, in which case he is bound concerning every damage arising to the girl and the parents from the infamation.¹

Query 3° To what is the violator bound toward spurious offspring?

Resp. 1° If he oppressed the mother by force, he is bound to all expenses of nourishment and education. The reason is clear from what has been said. Yet in his default, the mother ought to undertake care of the child, although she admitted no fault, because she is the mother. But then she preserves recourse against the corrupter, who is bound to compensate to her all expenses which she made on occasion of the offspring.

Resp. 2° If the woman consented to the sin, by natural right both parents are equally and in solidum bound to those expenses. As regards the Fed. States, Smith notes:³ "The ... duties of parents of bastards are regulated to a great extent ... by local statute."

812. Principles. - I. Each adulterer is bound in solidum to repair all damages of the family, if the crime was voluntary on each side, because the whole is imputed to each. Hence 1° all expenses which the husband sustained in nourishing and educating the offspring must be restored. But if these expenses are compensated by the labor of the spurious son, damage which afterward must be repaired is not in reality given to the father. 2° If the illegitimate son with legitimate or other innocent heirs (but not those of the adulteress alone) has already received the inheritance, compensation according to proportion must be made to these.¹

II. The adulteress must restore from paraphernal goods (and, if surviving the husband, from goods coming to herself) to husband and children through donations, through contract, testament, etc. If she does not have them, let her administer the family more diligently, be more sparing in private expenses, and work more diligently insofar as state permits.

III. If the woman consented by force or fear, the adulterer alone is bound; but he who by contract took all damage upon himself is bound in the first place.

813. Questions. - Query 1° Is a woman bound to reveal her crime if she cannot repair the damage in another way?

Resp. Negatively, speaking generally. The reason is 1° because commonly this revelation cannot be made without great infamy, and often also not without danger of death, or perpetual hatred, or other grave evils; 2° because with difficulty could she repair the damage even by it, especially since the son, except in the case in which the mother as adulteress would be condemned in the external forum, is not bound to give faith to her. Except: 1) if the mother is of lost reputation; 2) if by manifesting herself to the spurious son she would probably hope that the son would believe her and would cede the goods, nor would there be feared further great infamy or vexation of the mother; 3) if she could avoid the damage by manifesting herself only to the husband. But the cases of these exceptions, especially of the second and third, are very rare, not to say metaphysical.²

814. • Query 2° What in doubt whether the offspring is of the husband or of the adulterer, or from this adulterer rather than from another?

Resp. to the 1st, more probably, adulterers are bound to nothing, because the damage is not established.³

Resp. to the 2nd. Negatively; see n. 154.

Query 3° Must those things be restored which are given or left to a spurious person because he is thought legitimate?

Resp. Negatively, unless either the spurious person knows himself to be such (n. 894), or some unjust means is used so that another be impeded from obtaining those gifts (n. 692. R. 5°), for example if the adulteress, knowing that some rich man is going to give to the children of her husband, substitutes the spurious child.¹

815. • Query 4° If wealthy adulterers or fornicators send offspring to a foundling hospital, are they bound to repay the expenses?

Resp. It is controverted. The opinion more probable to S. Alph.² denies it, because foundling hospitals have been erected for all indiscriminately abandoned infants, who are cast off by parents. Nor does it stand in the way that aids are supplied by the Government or by the Municipality for these little children, because these are assigned for abandoned children generally, without attention being paid to the parents. Moreover hospices of this kind have been instituted for this end, that illegitimate children be freed from the danger both of eternal and temporal death, to which illegitimate children of the rich are also exposed. In practice parents are to be exhorted that, at least under the title of penance, they contribute something to the foundling hospital.

375. State of the question. - The obligation of making restitution arises from homicide and wounding committed unjustly, efficaciously, and culpably against one unwilling; hence:

a) He who kills or mutilates another by mandate of public justice, or in a just war, or for the sake of just defense and with the moderation of blameless defense, is held to no restitution.

b) Likewise probably he who in legitimate defense has exceeded just moderation rather notably, because the attacker is judged to take upon himself every damage which he can suffer from it, since he knows how difficult it is to preserve moderation in defense and knowingly exposes himself to this danger. St. Alphonsus, however, affirms that restitution must be made; which is certain in the case in which the judge has condemned him to reparation.

c) He who has killed or wounded another in a duel, whether he was provoked, or himself provoked, or both provoked each other mutually, is not held to restitution, because the other freely accepted the duel¹ and thus yielded his right, for to one knowing and consenting no injury is done. Nevertheless he is held, if by force, authoritative command, or grave threats he compelled the other to accept the duel, because he used unjust means for extorting consent and the other accepted only under compulsion and unwillingly; and outside this case, if the civil judge has condemned him to reparation, but then he is held from legal justice.

¹ Not so if the other was moved merely by human respect, because the provocation is an occasion of human respect, not a cause.

But a threefold damage can arise from homicide or mutilation: 1. bodily, for example, the loss of life or members; 2. spiritual, insofar as the one killed is deprived of the opportunity of doing penance, receiving the sacraments or meriting, or of suffrages which by testament he could have procured for himself; 3. real damage in external goods, which happens either to the one killed or mutilated himself or to others, such as members of the family, as expenses for curing the wound, profit ceasing on account of the death or mutilation or infirmity of the injured person. Now the question is what damages an unjust homicide or mutilator is held to restore.

376. Principles. - I. An unjust damager, of himself, probably is not held to repair bodily damages which cannot be recompensed in an equivalent; unless it is a question of a slave who is estimable by price for the master, or unless a judge has imposed compensation. In which case restitution must be made to the injured person, not to those joined to him or to heirs, unless the judge has determined otherwise. But the obligation of itself is personal and, excepting the case of a slave, does not pass to the heirs of the one unjustly damaging.

When no compensation is imposed by a judge, it is by way of counsel for the confessor to impose some compensation, for example, in alms or Masses.

II. An unjust damager is held, as far as he can, to compensate the spiritual damages foreseen to the injured person, and indeed in the same genus of goods. This can be done through prayers, Masses, and other spiritual works. Wherefore let the confessor warn concerning this obligation; indeed he will be able to impose some work by way of sacramental penance. The obligation is personal and does not pass to heirs.

III. An unjust damager is held to repair all real damages which he foresaw at least confusedly would follow of themselves from his action: for of these he is the unjust, efficacious, and culpable cause. And indeed:

a) As regards the injured person, there must be compensated 1. the emergent damage which he himself underwent on account of the wound, death, or mutilation, for example, by expenses made for his cure, but not for funerals, unless they were greater than if the injured person had died at home; likewise 2. profit ceasing but preceding death, namely, which would have come to the injured person for the time which preceded death, but now, for example, on account of cessation of labor or the infliction of the wound, did not come. This must be estimated with all circumstances of person, age, office, and labor considered.

b) As regards others, restitution must be made for their damage of which the killing or mutilation was the cause of itself; namely:

1. To necessary heirs, that is, parents, children, and spouse, for their suitable support or conveniences of life; but the compensation must be proportionate to status and expectation, and none is to be made if no damage has been inflicted, as if otherwise they have or receive that by which they may support themselves, for example, on account of the liberality of another or new marriages entered into. For other goods, of itself nothing is to be restored, because they did not yet have a right to them, and because the homicide is the cause of this damage per accidens; yet he is held to make restitution if a judge has condemned him to this.

2. To voluntary heirs, relatives, and friends, restitution must not be made, because the damager is only a cause per accidens of the damages which come to them; - unless perhaps some one of them had been received into the family of the deceased and held as a son, so that the deceased had strictly obligated himself from justice to taking care of him.

3. To creditors or to the society which insured life, nothing is to be restored, since the damage was inflicted on them per accidens, since it rarely and remotely follows from homicide: namely, it is per accidens that the injured man had creditors.

Restitution on account of damages directly inflicted upon the goods of the injured person must first be made to him himself, and after his death, to his heirs of whatever kind, as succeeding into the rights of the deceased; but in their defect, to the poor or to good works. As regards damages inflicted on others, restitution must be made to necessary heirs and indeed to them alone. In each case, the obligation of making restitution is real, and therefore passes to the heirs of the damager.

377. Corollaries. - 1. Greater restitution generally must be made for the life of a common craftsman than for the life of a nobleman exercising no art and applying himself more to convenience than to gain and labor. Unless, however, the nobleman, by prudence, knowledge, or the benevolence of a prince, would have gained more than a simple craftsman.

2. Nothing must be restored by the homicide, if the one killed was old or infirm, who could no longer acquire anything by his art, work, or industry, or if he was an inert and careless man, because then no damage truly followed after death.

3. In the case in which one lethally wounded, spontaneously and freely before death, remits to the homicide not only the injury itself but also all real debts, from strict justice the latter is not held to restitution, because debts are extinguished by condonation, and injury is not done to children in goods except insofar as they are injured in the father against his will. Thus, although the wounded man by condoning has injured charity, if his relatives need support.

4. Since it is often difficult to determine how much must be restored for homicide, in practice an amicable settlement is to be advised.

All agree that one who mutilates, kills, breaks limbs, or renders a man's body useless is held to make restitution of all the damages that follow from these deeds; and if the man cannot be restored by medical treatment, the wrongdoer is held to restore an equivalent in money. Thus the Saintly Doctor in the place cited and in Spec. animae cap. 1; D. Thom. art. 2. ad 1; Richardus in 4. dist. 15. art. 5. quaest. 2; Sylvest. V. restit. 3; Soto Lib. 4. de Iustitia, quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Tanner. disp. 4. quaest. 6. dub. 4; Carbo quaest. 15, and others commonly among these.

Wherefore if the man mutilated or killed was earning by his own industry, reparation must be made out of the goods of the assailant, even if the assailant is dead; and if the slain man was bound in justice to support certain persons, the assailant will be bound to provide for them, as Sotus loco cit. and Valentia loco cit. say against Scotus 4. dist. 15. quaest. 3 and Adrianus de Restit.

Sotus adds that somewhat less must be rendered, at the judgment of a good man, to the heirs of the mutilated or killed man than he himself would have earned, in view of the fact that it is less to have something in hope than in reality; for the man who was killed might have died for another cause, and the man mutilated might have been disabled in some other way. Wherefore Valentia admonishes that diligent consideration be given to age, health, etc., as Caspensis disp. 3. sect. 6 and others also observe.

From all this it appears that what Maior 4. dist. 15. quaest. 19. dub. ult. and Valentia loco cit. say is true, namely that although one who kills a nobleman sins more than one who kills a hired laborer who would have earned nothing by his labor or industry, yet the killer of such a hired laborer is bound to more.

The Saintly Doctor in Speculo animae, cap. 1. v. Damnificatio observes that not only the slayer, but also one who commands, helps, or counsels is held to restitution; yet not one who fails to prevent when he ought out of Charity; indeed he does not even sin mortally if for some reason he desists from removing the slayer — for instance, if he fears the slayer may break in against himself. But if he permits a man to be killed out of hatred, he is not held to restitution unless he himself is bound in justice to prevent it.

Next observe that damages can be exacted in conscience immediately to the point of equality, but not yet that penalty of restitution which is prescribed by law; for by means of that law he must await the judge's sentence, as we have in Leg. ex iudiciorum, ff. de accusationibus.

They dispute, however: whether compensation must also be made in money, or the like, for the injuries of killing, mutilation, etc.

The first opinion is negative. Nauarri in manuali, cap. 15. num. 21; Azorii, Ostiensis. Thus Caspensis loco cit. num. 51; Couar. lib. 2. var. cap. 10; Petrus Nauar. lib. 4. cap. 2. num. 80; Gomez lib. 3. variarum, cap. 6; Lessius Lib. 2. cap. 9. num. 141.

The second opinion is affirmative. Thus D. Thom. art. 2. ad 1; Scotus in 4. dist. 15. quaest. 3; Richardus ibi, art. 5. quaest. 2; Adrianus 4. de restit. quaest. ultim.; Maior in 4. eadem dist. quaest. 14; Sotus Lib. 4. de Iust. quaest. 6. art. 3; Valentia quaest. 6. puncto 5. §. 1; Carbo quaest. 12; Lopez p. p. quaest. 47; Angles 4. de restit.; Salon quaest. 62. art. 2.

To me the negative opinion appears truer. It is proved by the doctrine of D. Bonaventure. Restitution is a part of satisfaction, or a species of it, as S. Bonavent. 4. dist. 15. quaest. ultim. shows, et in spec. animae. But satisfaction must hold a proportion to the offense, and no one Satisfies unless he Restitutes as much as he took away. From this it follows that Satisfaction and Restitution must be made from proportionate goods; but money cannot be made proportionate to the good of a life taken away: Therefore.

This is the doctrine of S. Bonaventure in 3. dist. 20. quaest. 6 et in 4. dist. 15. part. 2. quaest. cit. It rests, moreover, upon the Laws; for by the Lege finali, ff. de iis, qui deiecit. vel effud. and the L. Liber homo, ff. ad Legem Aquiliam, and the L. ex hac, ff. si quadrupes pauperiem fecisse dicatur, afficitur, it is laid down that a free man cannot be valued at any price; and that a free body receives no estimation, as is had in the L. citata, L. homo, et L. ex hac, where it is added that nothing can be demanded for a free man even if he is killed.

Valentia answers that the Laws conclude only that this is true from the nature of the thing; yet if the injured man for a reasonable cause is content, satisfaction can be made to his very life by money.

But it is beside the point to call that a restitution which is made with things unfit for compensation — e.g. to restore reputation with money, as Sylvester noted V. Detractio, quaest. 4.

Valentia answers with D. Thomas ad 2. that when restitution cannot be made in the same genus, it can be made in another.

But he does not answer the point, because although restitution could be made in diverse kinds — say, the restitution of a field through a price — still it cannot be made except according to a reasonable estimation of things, as Valentia himself says. But there are many things that cannot be estimated by other things: the soul by money, or reputation by gold; for it is of a higher order, incomparable, as it is said Proverb. 22: Melius est bonum nomen, quam divitiae multae — as I shall show in the dub. sequenti.

Valentia objects first, and Tannerus, from Exodi 21: If he who is struck rises again and walks abroad, he who struck him shall be quit, yet so that he make restitution of his charges and the physicians' fees. By this law it is enacted that if the man struck has not recovered, the assailant must make greater restitution — clearly even for death or deformity.

It is answered that the same place sets forth what penalty is owed if the man struck dies: he shall die the death. This is confirmed, for further on, when it speaks of the death imposed on a goring ox, it declares: But if a price be laid upon him, he shall give for his soul whatever is demanded. But if the owner of the ox was aware beforehand of that vice, he himself shall be killed, since according to the precept he did not confine it.

Scotus and Tannerus object second that one who kills another's Ox or Dog must make some restitution for that Ox or Dog killed. Therefore much more must one who deprives a Man of life or health make some restitution for this very thing. And not to notice this (say Scotus, Tannerus, and Adrianus) is foolish.

But the comparison is absurd to me; for an Ox and a Dog are purchasable at a price, nor will any owner of a Dog receive money for the injury of the Dog's death insofar as it was his owner's — but only for the estimation of the Dog and Ox for use. Moreover, satisfactions are exacted from the slayer because he did not fear the Lord of the animal, and the injuries of the world bring contempt upon that contemning slayer.

It is certain, first, that a homicide is held to restitution of the expenses incurred for the cures: the Lex, Quae actione in principio, ff. ad Legem Aquiliam, and the Lex, ex hac lege, ff. si quid paup. fecisse dicatur.

In canonical law also it is plain from cap. 1. de iniuriis, et damno dato.

Second, he is bound to restore the profits which the slain, or mutilated, or wounded man would have accumulated: L. X. Quae ait, ff. ad L. Aquiliam, and the Lex ex hac Lege, and in the canon law, loco cit. Ubi Iuristae. Those profits, then, are to be restored, deducting what he himself would have spent, namely on food, clothing, etc., in the course of his life.

The course of life is computed in the Laws at 60 years: the Lex computationis, and the Lex Hereditatem, ff. ad Leg. falcidiam. Yet those laws spoke only of allowances assigned for life in the external forum.

The computation will be better made, with all things prudently considered: health, age, trade, and other circumstances. So Lessius Tom. 1. Lib. 2. cap. 9. dub. 20. num. 129. Menoch. de arb. qq. Lib. 2. casu 121. Fagundez L. 5. cap. 18. num 8. and others cited by him.

This restitution is obligatory even if the killer be beheaded. So Nauar. cap. 15. num. 22. Lessius lib. 2. cap. 9. dub. 21. Couar. lib. 1. var. cap. 10. and others, against Scotus 4. dist. 15. quaest. 3. Fagundez num. 19. and others.

The heirs of the homicide are held to the restitution, provided he left free goods in which they succeed. Bassaeus num. 10. adds, probably, that they are not held to restore to the creditors of the slain man, nor to those whom the slain man was supporting gratuitously.

Many indeed think that restitution is not owed to heirs who are not father, sons, wife, or such persons as the slain man was bound to support. So Lessius dub. 26. num. 155. Sotus Lib. 4. de Iust. quaest. 6. art. 3. ad 3. and others.

Yet the opposite is held by Farinac. Tom. 4. quaest. 119. de Homicidio, num. 127. Abbas on cap. 1. de iniuriis, et damno dato. Socinus there, num. 57. and 63. The reason is that every right of the deceased passes to the heirs, whoever they be. To this Bassaeus n. 21. assents, with both Nauarros.

Whether, however, the homicide is bound to restore money also for the injury of the murder itself, I judge, according to the mind of D. Bonaventure, that he is not bound, because it is not of the same order. So the Doctors commonly, at Fagundez cap. 20. — although Bassaeus num. 5. with others opposes this, if the heirs are in need.

They also ask: if Titius should kill Peter, and an innocent Caius be condemned for the murder, is Titius bound to make restitution to Caius?

The common answer is that he is not bound, provided Titius did not foresee the damages that could befall Caius. So Less. 2. cap. 9. dub. 16. num. 110. Sotus L. 4. de Iust. quaest. 6. art. 3. Nauar. summa Latinae, cap. 15. num. 17. Zech. de casib. reserv. casu 12. Lazarius Papensis de qq. Canon. quaest. 6. sect. 3. Fagundez cap. 17. num. 3.

But if he foresaw it, and was unwilling to take precautions: some say he is bound to restitution. So Lazar. quaest. 11. Corradus p. p. quaest. 128.

Yet the opposite is taught by Less. Lib. 2. cap. 9. dub. 16. num. 111. and others at Fagundez loco citato, num. 6. Lessius says the same, even if he had killed Peter with this very intention. Fagundez holds the same opinion.