CASES AND DIRECTIONS ABOUT SATISFACTION AND RESTITUTION.
_Tit. 1. Cases of Conscience about Satisfaction and Restitution._
_Quest._ I. When is it that proper restitution must be made, and when
satisfaction? and what is it?
_Answ._ Restitution properly is _ejusdem_, of the same thing, which
was detained or taken away. Satisfaction is _solutio æquivalentis, vel
tantidem_, alias _indebiti_, that which is for compensation or
reparation of loss, damage, or injury; being something of equal value
or use to the receiver. Primarily _res ipsa debetur_, restitution is
first due, where it is possible; but when that is unavoidably hindered
or forbidden by some effectual restraint, satisfaction is due. Whilst
restitution of the same may be made, we cannot put off the creditor or
owner with that which is equivalent without his own consent; but by
his consent we may at any time. And to the question, What is due
satisfaction? I answer, that when restitution may be made, and he that
should restore doth rather desire the owner to accept some other thing
in compensation, there that proportion is due satisfaction which both
parties agree upon. For if it be above the value it was yet
voluntarily given, and the payer might have chosen: and if it be under
the value, it was yet voluntarily accepted, and the receiver might
have chosen. But if restitution cannot be made, or not without some
greater hurt to the payer than the value of the thing, there due
satisfaction is that which is of equal value and use to the receiver;
and if he will not be satisfied with it, he is unjust, and it is
_quoad valorem rei et debitum solventis_, full satisfaction, and he is
not (unless by some other accident) bound to give any more; because it
is not another's unrighteous will that he is obliged to fulfil, but a
debt which is to be discharged. But here you must distinguish betwixt
satisfaction in commutative justice, for a debt or injury, and
satisfaction in distributive, governing justice, for a fault or crime.
The measure of the former satisfaction, is so much as may compensate
the owner's loss; not only so much as the thing was worth to another,
but what it was worth to him: but the measure of the latter
satisfaction, is so much as may serve the ends of government instead
of actual obedience; or so much as will suffice to the ends of
government, to repair the hurts which the crime hath done, or avoid
what it would do.
[Sidenote: Why did they restore fourfold?]
And here you may see the answer to that question, Why a thief was
commanded to restore fourfold, by the law of Moses; for in that
restitution there was a conjunction of both these sorts of
satisfaction, both in point of commutative and distributive justice:
so much as repaired the owner's loss was satisfaction to the owner for
the injury: the rest was all satisfaction to God and the commonwealth
for the public injury that came by the crime or violation of the law.
Other answers are given by some, but this is the plain and certain
truth.
_Quest._ II. How far is restitution or satisfaction necessary?
_Answ._ As far as acts of obedience to God and justice to man are
necessary: that is, 1. As a man that repenteth truly of sin against
God, may be saved without external obedience, if you suppose him cut
off by death immediately upon his repenting, before he hath any
opportunity to obey; so that the _animus obediendi_ is absolutely
necessary, and the _actus obediendi_ if there be opportunity: so is it
here, the _animus restituendi_, or true resolution or willingness to
restore, is ever necessary to the sincerity of justice and repentance
in the person, as well as necessary _necessitate præcepti_; and the
act of restitution primarily, and of satisfaction secondarily, is
necessary, if; there be time and power: I say necessary always as a
duty, _necessitate præcepti_; and necessary _necessitate medii_, as a
condition of pardon and salvation, so far as they are necessary acts
of true repentance and obedience, as other duties are: that is, as a
true penitent may in a temptation omit prayer or church communion, but
yet hath always such an habitual inclination to it, as will bring him
to it when he hath opportunity by deliberation to come to himself; and
as in the same manner a true penitent may omit a work of charity or
mercy, but not give over such works; even so is it in this case of
restitution and satisfaction.
_Quest._ III. Who are they that are bound to make restitution or
satisfaction?
_Answ._ 1. Every one that possesseth and retaineth that which is
indeed another man's, and hath acquired no just title to it himself,
must make restitution. Yet so, that if he came lawfully by it (as by
finding, buying, or the like) he is answerable for it only upon the
terms in those titles before expressed. But if he came unlawfully by
it, he must restore it with all damages. The cases of borrowers and
finders are before resolved. He that keepeth a borrowed thing longer
than his day, must return it with the damage. He that loseth a thing
which he borrowed, must make satisfaction, unless in cases where the
contract, or common usage, or the quality of the thing, excuseth him.
2. He that either by force, or fraud, or negligence, or any injustice,
doth wrong to another, is bound to make him a just compensation,
according to the proportion of the guilt and the loss compared
together; for neither of them is to be considered alone. If a servant
neglect his master's business, and it fall out that no loss followeth
it, he is bound to confess his fault, but not to pay for a loss which
might have been, but was not. And if a servant by some such small and
ordinary negligence, which the best servants are guilty of, should
bring an exceeding great damage upon his master, (as by dropping
asleep to burn his house, or by an hour's delay which seemed not very
dangerous, to frustrate some great business) he is obliged to
reparation as well as to confession; but not to make good all that is
lost, but according to the proportion of his fault. But he that by
oppression or robbery taketh that which is another's, or bringeth any
damage to him, or by slander, false-witness, or any such unrighteous
means, is bound to make a fuller satisfaction; and those that concur
in the injury, being accessories, are bound to satisfy. As, 1. Those
that teach or command another to do it. 2. Those who send a
commission, or authorize another to do it. 3. Those who counsel,
exhort, or persuade another to do it. 4. Those who by consenting are
the causes of it. 5. Those who co-operate and assist in the injury
knowingly and voluntarily. 6. Those who hinder it not when they could
and were obliged to do it. 7. Those who make the act their own, by
owning it, or consenting afterward. 8. Those who will not reveal it
afterward, that the injured party may recover his own, when they are
obliged to reveal it. But a secret consent which no way furthered the
injury, obligeth none to restitution, but only to repentance; because
it did no wrong to another, but it was a sin against God.
_Quest._ IV. To whom must restitution or satisfaction be made?
_Answ._ 1. To the true owner, if he be living and to be found,
and it can be done. 2. If that cannot be, then to his heirs, who are
the possessors of that which was his. 3. If that cannot be, then to
God himself, that is, to the poor, or unto pious uses; for the
possessor is no true owner of it; and therefore where no other owner
is found, he must discharge himself so of it, to the use of the
highest and principal Owner, as may be most agreeable to his will and
interest.[174]
_Quest._ V. What restitution should he make who hath dishonoured
his governors or parents?
_Answ._ He is bound to do all that he can to repair their honour,
by suitable means; and to confess his fault, and crave their pardon.
_Quest._ VI. How must satisfaction be made for slanders, lies,
and defaming of others?
_Answ._ By confessing the sin, and unsaying what was said, not
only as openly as it was spoken, but as far as it is since carried on
by others, and as far as the reparation of your neighbour's good name
requireth, if you are able.
_Quest._ VII. What reparation must they make who have tempted
others to sin, and hurt their souls?
_Answ._ 1. They must do all that is in their power to recover
them from sin, and to do good to their souls. They must go to them,
and confess and lament the sin, and tell them the evil and danger of
it, and incessantly strive to bring them to repentance. 2. They must
make reparation to the Lord of souls, by doing all the good they can
to others, that they may help more than they have hurt.
_Quest._ VIII. What reparation can or must be made for murder or
manslaughter?
_Answ._ By murder there is a manifold damage inferred: 1. God is
deprived of the life of his servant. 2. The person is deprived of his
life. 3. The king is deprived of a subject. 4. The commonwealth is
deprived of a member. 5. The friends and kindred of the dead are
deprived of a friend. 6. And perhaps also damnified in their estates.
All these damages cannot be fully repaired by the offender; but all
must be done that can be done. 1. Of God he can only beg pardon, upon
the account of the satisfactory sacrifice of Christ; expressing true
repentance as followeth. 2. To the person murdered no reparation can
be made. 3. To the king and commonwealth, he must patiently yield up
his life, if they sentence him to death, and without repining, and
think it not too dear to become a warning to others, that they sin not
as he did. 4. To disconsolate friends no reparation can be made; but
pardon must be asked. 5. The damage of heirs, kindred, and creditor,
must be repaired by the offender's estate, as far as he is able.
_Quest._ IX. Is a murderer bound to offer himself to death,
before he is apprehended?
_Answ._ Yes, in some cases: as, 1. When it is necessary to save
another who is falsely accused of the crime. 2. Or when the interest
of the commonwealth requireth it. But otherwise not; because an
offender may lawfully accept of mercy, and nature teacheth him to
desire his own preservation: but if the question be, When doth the
interest of the commonwealth require it? I think much oftener than it
is done: as the common interest requireth that murderers be put to
death, when apprehended; so it requireth that they may not frequently
and easily be hid, or escape by secrecy or flight; for then it would
imbolden others to murder: whereas when few escape, it will more
effectually deter men. If therefore any murderer's conscience shall
constrain him in true repentance, voluntarily to come forth and
confess his sin, and yield up himself to justice, and exhort others to
take heed of sinning as he did, I cannot say that he did any more than
his duty in so doing; and indeed I think that it is ordinarily a duty,
and that ordinarily the interest of the commonwealth requireth it;
though in some cases it may be otherwise. The execution of the laws
against murder, is so necessary to preserve men's lives, that I do not
think that self-preservation alone will allow men to defeat the
commonwealth of so necessary a means of preserving the lives of many,
to save the life of one, who hath no right to his own life, as having
forfeited it. If to shift away other murderers from the hand of
justice be a sin, I cannot see but that it is so ordinarily to do it
for oneself: only I think that if a true penitent person have just
cause to think that he may do the commonwealth more service by his
life than by his death, that then he may conceal his crime or fly; but
otherwise not.
_Quest._ X. Is a murderer bound to do execution on himself, if
the magistrate upon his confession do not?
_Answ._ No: because it is the magistrate who is the appointed
judge of the public interest, and what is necessary to its reparation,
and hath power in certain cases to pardon: and though a murderer may
not ordinarily strive to defeat God's laws and the commonwealth, yet
he may accept of mercy when it is offered him.
_Quest._ XI. What satisfaction is to be made by a fornicator or
adulterer?
_Answ._ Chastity cannot be restored, nor corrupted honour
repaired. But, 1. If it was a sin by mutual consent, the party that
you sinned with must by all importunity be solicited to repentance;
and the sin must be confessed, and pardon craved for tempting them to
sin. 2. Where it can be done without a greater evil than the benefit
will amount to, the fornicators ought to join in marriage, Exod.
xxii. 16. 3. Where that cannot be, the man is to put the woman into as
good a case for outward livelihood, as she would have been in if she
had not been corrupted by him; by allowing her a proportionable dowry,
Exod. xxii. 17; and the parents' injury to be recompensed, Deut.
xxii. 28, 29. 4. The child's maintenance also is to be provided for by
the fornicator. That is, 1. If the man by fraud or solicitation
induced the woman to the sin, he is obliged to all as aforesaid. 2. If
they sinned by mutual forwardness and consent, then they must jointly
bear the burden; yet so that the man must bear the greater part,
because he is supposed to be the stronger and wiser to have resisted
the temptation. 3. If the woman importuned the man, she must bear the
more: but yet he is responsible to parents and others for their
damages, and in part to the woman herself, because he was the stronger
vessel, and should have been more constant: and _volenti non fit
injuria_, is a rule that hath some exceptions.
_Quest._ XII. In what case is a man excused from restitution and
satisfaction?
_Answ._ 1. He that is utterly disabled cannot restore or satisfy.
2. He that is equally damnified by the person to whom he should
restore, is excused in point of real equity and conscience, so be it
that the reasons of external order and policy oblige him not. For
though it may be his sin (of which he is to repent) that he hath
equally injured the other, yet it requireth confession, rather than
restitution or satisfaction, unless he may also expect satisfaction
from the other. Therefore if you owe a man an hundred pounds, and he
owe you as much and will not pay you, you are not bound to pay him,
unless for external order sake, and the law of the land. 3. If the
debt or injury be forgiven, the person is discharged. 4. If nature or
common custom do warrant a man to believe that no restitution or
satisfaction is expected, or that the injury is forgiven, though it be
not mentioned, it will excuse him from restitution or satisfaction: as
if children or friends have taken some trifle, which they may presume
the kindness of a parent or friend will pass over, though it be not
justifiable.
_Quest._ XIII. What if the restitution will cost the restorer far
more than the thing is worth?
_Answ._ He is obliged to make satisfaction, instead of restitution.
_Quest._ XIV. What if the confessing of the fault may engage him
that I must restore to, so that he will turn it to my infamy or ruin?
_Answ._ You may then conceal the person, and send him satisfaction by
another hand; or you may also conceal the wrong itself, and cause
satisfaction to be made him, as by gift, or other way of payment.
_Tit. 2. Directions about Restitution and Satisfaction._
_Direct._ I. Foresee the trouble of restitution, and prevent it.
Take heed of covetousness, which would draw you into such a snare.
What a perplexed case are some men in, who have injured others so far
as that all they have will scarce make them due satisfaction!
Especially public oppressors, who injure whole nations, countries, or
communities: and unjust judges, who have done more wrong perhaps in
one day or week than all their estates are worth: and unjust lawyers,
who plead against a righteous cause: and false witnesses, who
contribute to the wrong: and unjust juries, or any such like: also
oppressing landlords; and soldiers that take men's goods by violence;
and deceitful tradesmen, who live by injuries. In how sad a case are
all these men!
_Direct._ II. Do nothing which is doubtful, if you can avoid it,
lest it should put you upon the trouble of restitution. As in case of
any doubtful way of usury or other gain, consider, that if it should
hereafter appear to you to be unlawful, and so you be obliged to
restitution, (though you thought it lawful at the taking of it,) what
a snare then would you be in, when all that use must be repaid! And so
in other cases.
_Direct._ III. When really you are bound to restitution or
satisfaction, stick not at the cost or suffering, be it never so
great, but be sure to deal faithfully with God and conscience. Else
you will keep a thorn in your hearts, which will smart and fester till
it be out: and the ease of your consciences will bear the charge of
your costliest restitution.
_Direct._ IV. If you be not able in your lifetime to make
restitution, leave it in your wills as a debt upon your estates; but
never take it for your own.
_Direct._ V. If you are otherwise unable to satisfy, offer your
labour as a servant to him to whom you are indebted; if at least by
your service you can make him a compensation.
_Direct._ VI. If you are that way unable also, beg of your
friends to help you, that charity may enable you to pay the debt.
_Direct._ VII. But if you have no means at all of satisfying,
confess the injury and crave forgiveness, and cast yourself on the
mercy of him whom you have injured.
[174] Heb. v. 23; 1 Sam xii. 3; Neh. v. 11; Numb. v. 8; Luke xix. 8.