Question Three. Whether he who Causes a Loss to Another in the Goods of his Person, as Body or Soul, is Bound to Make Restitution so he Can be Truly Penitent

213. Third I ask whether he who causes a loss to another in the goods of his person, as body or soul, is bound to make restitution so he can be truly penitent.

214. It seems that he is not:

Because no one is bound to what is impossible; but in this sort of loss restitution is sometimes impossible;     therefore etc     . The minor is plain, for he who causes a loss cannot return an equivalent spiritual good to him whom he harms in goods of the soul; likewise, if he has caused a loss by taking away a limb or by killing, he cannot return either it or its equivalent, because no exterior good, which is a least good because a good of fortune, can be equivalent to a good of nature, which is an intermediate good, according to Augustine, Retractions I ch.9 n.4.

215. Again, someone who draws a man back, who wants to enter Religion, from entry into Religion causes him a loss in the goods of the soul that he would be going to have in Religion, and causes a loss to Religion by drawing such a person out of it. And he is not bound to restitution of those goods to him (because he is unable), nor to restitution of the person or the equivalent of the person, because he would be bound himself to enter Religion in his place if he could not induce another equivalent person.

216. To the contrary:

Gratian, Decretum p.2 cause 6 q.1 ch.13, “Those who corrupt with depraved morals the life and morals of the good are worse than those who ravage others’ substance and estates.”

217. Again, Exodus 22.16-17, “He who seduces a virgin and sleeps with her will give her a dowry and have her as wife, or he will return money according to the manner of the dowry that virgins are wont to receive.” Therefore, this loss inflicted on a virgin against chastity requires restitution of the conjugal chastity that should be given back for it.

218. Again, about loss inflicted on the body, there is contained in Gregory IX Decretals V tit.36 ch.1, ‘About injuries and loss inflicted’, and it is taken from Exodus 21.18, “If another has struck his neighbor and the neighbor has not died but has been lain on a bed, let him who struck him repay to doctors their labors and expenses.”

I. To the Question

A. About Losses Inflicted

219. I reply: here one must look first at loss inflicted on another in goods of the soul, second in goods of the body.

1. About Losses in Goods of the Soul

220. On the first point [n.219], the understanding is not about the natural goods of the soul, because no one can in this way inflict loss on another, since the natural goods are incorruptible goods. But the understanding is about the goods of morals, either the acquired ones that are corrupted or the ones that should be acquired whose acquisition is impeded - as namely it is about the sins and vices by which acquired virtues are corrupted (and vices at length generated), and by which virtues that ought to be generated by good acts are impeded.

221. In these things too no one can directly inflict loss on another, because sin and every vicious act is to such an extent voluntary that, if it not be voluntary, it is not a sin, from Augustine, On True Religion ch.14 n.27;     therefore , by one’s own will alone can one thus suffer loss.

22. But someone can inflict loss on another in these things indirectly, by inducing him to sin and to vicious acts, by which virtues are corrupted and vices and sins generated. And this inducing can be multiple, namely by counsel, persuasion, request etc     .

223. About this first case, then, I say that the one who inflicts the loss is bound, in the way it is possible for him, to restore the loss to him, namely by efficaciously inducing him to penitence and to virtuous acts. And if inducement alone not suffice (because it is easier to persevere than to convert), he is bound both by his own prayers and by prayers procured of others to obtain conversion for him; also through other efficacious persuaders, provided however he not betray to them the other’s hidden sin.

224. And from this is plain how great a danger it is to solicit another or to compel or induce him to sin, because scarcely is one able to make restitution worthily, since a will now attracted to sin one could scarcely by persuasions and many other ways bring back to virtue.

225. The reason for this is sufficiently plain, because since “the goods of virtue are the greatest goods,” according to Augustine, Retractions 1 ch.9 n.4, he who causes harm in these things causes more harm than he who does so in all other things whatever; and consequently, he is the more bound, according to justice, to restore such good to his neighbor, to the extent it is possible for him

2. About Losses in Goods of the Body

226. About the second [n.219], he who causes loss in the body, or inflicts the ultimate loss, namely death, or some other loss less than death. And this is double: either irremediable (as is mutilation), or remediable (as is wounding, or some other curable injury). And if the loss is in mutilation, it is double, for either it is extreme, which impedes in its totality some human act that would be a man’s in respect of the amputated part (as in amputation of the right hand, when a human act is altogether taken away that, as to that hand, is of a nature to belong to him); or it is not extreme, that is, not preventing a human act (as amputation of a finger or some part of a finger).

B. About the Goods to be Restored

227. About all these losses one must look first at what could justly be established about them all, second at what has been established.

1. What Could be Established by Statute

228. About the first [n.227] I say that if the law of ‘an eye for an eye’ were established in all these cases, it would be just, because it is not easy for an equal recompense for such a loss inflicted on a man to be made by goods of fortune, because they are not equivalent.

229. And if the objection be made that therefore the judicial Law of Moses would remain in effect, and then it would be licit under the Law of the Gospel to Judaize in judicial matters - I reply that a law can get its force as from the legislator in the community where it is established, and then, wherever the reason for establishing it is taken from, the statute does not get its force as it is established by someone else, though it be made by someone else, but as from that legislator. And in this way could judicial elements of the Mosaic Law be established by the Pope and the Emperor for observance by Christians, and these elements would not be observed as established by the Mosaic Law or by Moses, but as by a Gospel Legislator. Nor would this be to Judaize, for the judicial law is not observed because it is Mosaic, but because the same thing is established by the prince who has power to establish laws in the Christian Church.

230. Proof of this:

First in fact, because many such things from the judicial elements of the Mosaic Law are accepted in the Decretals, as is plain from Gregory IX, Decretals V tit.36 chs.1-6, ‘Of Injuries and Loss Inflicted’, chapter 1 and the 5 chapters following, all of which are taken from Exodus 21.18-19, 33-36, 22.5-6, and they are kept today as canon laws, but not because they are in the Mosaic Law.

231. This is plain from four examples:

When a community sees another community ordered well in its laws, it can take up the laws that it judges to be reasonable and useful, so that he who has authority in making laws in this community may establish them to be here observed; and then they will be observed here, not because they are the laws of that other community, but because they are established by the legislator in this community.

232. The thing is plain also in cities where the governing is through a power presiding within it: one city accepts the laws of another and ordains them to be kept in this city.

233. The thing is also plain in kingdoms, as the laws of England could be received by another king and established by him to be kept in his kingdom.

234. The thing is also plain in religions, because when the Constitutions and Ordinances of one Religion [sc. Religious Order] are seen by another Religion to be honorable and very suited for observance of regular life, that other Religion could establish that they be observed in that Religion. Nor would they then bind the Order of Preachers because they are the ordinances of the Friars Minor, but because they are approved by the General Chapter of the Order of Preachers.

235. Thus it is in the issue at hand about the judgments of the Mosaic Law, indeed by reading the imperial laws of the Codex [of Justinian] - many things are found sufficiently consonant with many judicial elements of the Mosaic Law; and no wonder, because God was not foolish so as to give the laws against reason; and though he gave some very hard ones, which it is not necessary to observe in the Gospel, yet he gave many very reasonable ones, even for any state at all in this mortal life; and therefore if they are established by a legislator to be observed for any time at all, they are justly set up.

236. And in this way, if it were established by someone that a blasphemer, adulterer, idolater should be killed, much more justly would it be ordained than that a thief should be hung, as will be plain later [n.242]. But it is plain now what princes look to instead, that they look to temporal advantage more than God’s honor, and thereby do they punish, and want to repress, sins against one’s neighbor more than sins against God.

2. What has Been Established by Statute

237. About the second point [n.227], namely what has been established by statute: In recompense for the first and greatest loss, namely the taking away of life, the law of ‘an eye for an eye’ is regularly established in many communities, namely that the murderer die. And reasonably, namely because not only does this belong to the Mosaic Law but also to the natural law, and it is approved and confirmed in the Gospel Law of Christ, Matthew 26.52, “he who kills by the sword shall die by the sword.” And consequently wherever such a law about returning life for life has been established, justly should a man pay the penalty and justly bear it. But if anywhere it has not been established, no one ought to inflict it on himself, because no one ought to be a murderer of himself without a special command of God; rather, for making restitution to him whose life he took away, it is expedient for him to expose his life in a just cause, as against the enemies of the Church.

238. But if he not wish to make so great a restitution, he cannot be altogether immune from restitution, as some fatuous people make him, who absolve murderers by not making clear to them the restitution that necessarily falls on them - as if it could be easier to pass over a homicide than (so to say) a dogicide or an oxicide, because if someone had killed his neighbor’s ox or dog, he would not without restitution be absolved. Therefore, he is bound to do spiritual restitution, equivalent to the life that he took away, as equivalence is possible in such cases. And not this only, but if the one killed was supporting some others, as father or mother or neighbors, the killer is bound to all of them for as much restitution as he took from them by the killing of that person.

239. And because someone could scarcely recompense by his action that which the homicide took away, it would be expedient for the soul of such a one that he make payment through sufferings voluntary or patiently borne, namely so as to be ‘killed’ for the one he murdered. Therefore, the community is best provided for where the law of ‘an eye for an eye’ in a case of homicide has been established. For it is plain how much God detests homicide when David (who however had killed justly) wanted to build God a house, but because he was a shedder of much human blood, he was forbidden by God [I Chronicles 22.8, 28.2-3]. If therefore a just killer is not accepted by God for his cult, where will an unjust killer appear?

Let this, then, be said about killing unjustly.

240. But who is a just killer?

A response is obtained from Gratian, Decretum p.2 cause 23 q.5 ch.9, and it has the title there ‘Augustine, City of God 1 [ch.2]’: “With,” says Augustine, “these exceptions (those whom a just law generally, or God specifically, commands to be killed), whoever has killed a man will bear the guilt for his crime.” And as to what is a just law,

Augustine himself determines it briefly in On Free Choice I ch.4 n.27, “No law is just save one that has come already from the Divine Law (as are practical conclusions from practical principles), or one that agrees with Divine Law, at least does not disagree with it.”

241. As to the issue at hand, the Divine Law prohibits it, “Thou shalt not kill” [Exodus, 20.13], and it is licit for no inferior to dispense from the law of a superior; therefore, no positive law, establishing for a man to be killed, is just if it establishes it in those cases where God has made no exception. But he has made exception in many cases, as is plain in Exodus 21.12-22, 29, about blasphemy, homicide, adultery, and many others. No one, therefore, justly kills according to the law unless the positive law inflict homicide and unless the case is an exception from God who prohibits homicide.

242. If you object that therefore the law is unjust that prescribes that a thief is to be killed, because God has not made this an exception, namely the sin of theft, from the negative precept ‘thou shalt not kill’. Rather he has manifestly shown that he does not want to except a thief from the precept ‘thou shalt not kill’, and that he does not to want him to be punished with death, because he inflicts another penalty on a thief - I reply: it is clear that God does not in the Mosaic or Gospel Law explicitly except the sin of theft from the precept ‘thou shalt not kill’, so that, surely, it be licit to kill a man for this sin. And therefore unless he has revoked it by some special revocation that is contained in Scripture (and we have not heard of any official decree descending from heaven), I do not see that any just law could establish that someone is to be killed for theft alone. I say ‘alone’, because if he is a thief, and along with this an intruder, he is presumed to be a murderer because he is willing to kill, and is ready for this if someone resist him. This is plain from Exodus 22.2-4 about a thief by night and by day. A thief by night is killed with impunity; but he who kills someone who enters by day to steal will be guilty of homicide. The cause of the difference is that it is presumed that he who is a thief by night would kill one who resists him if he could, but not a thief who enters by day.

243. Let it also be that it would have been in some way licit for Jews to kill for theft, it seems that by Gospel mercy is this rigor revoked more than the rigor against adultery, because the sin of theft is much less than adultery, according to Proverbs 6.30, “The fault is not great when someone is a thief, for he steals to fill his hungry soul; when caught too he will give back sevenfold.” There follows, 6.32, “But he who is an adulterer, because of his want of heart, will lose his soul.” But the punishment for adultery is revoked in John 8.10-11, “Has no one condemned you, woman?... Neither will I condemn you; go in peace and sin no more.” Much more, therefore, would the rigor against theft have been revoked if it had been established in the Mosaic Law.

244. About other losses in body, namely extreme or non-extreme mutilation [n.226], there has been established in the Church only a pecuniary penalty. And it should respond not only to the loss that someone incurs for the mutilation through the whole future time in which he was going to use the limb cut-off, but also for the expenses added in caring for it (and this is stated in the chapter cited [n.230] from Gregory IX, Decretals V tit. 36 ch.1); and further for placating the one wounded, which would be required even if there were no such mutilation; and for the consolation of the one afflicted, because of his abiding desolation over such mutilation. And the mutilation of the poor must be more weighed than that of the rich, if the poor had more need of the part cut off for necessary provisions; because he would have used that part for procuring necessities, although there may be a preponderant condition on the other side, namely the dignity of the [rich] person, but this is little compared to the former condition.

II. To the Initial Arguments

245. As to the first argument [n.214], it is plain how it is possible to restore a good of the soul in the first article, and a good of the body in the second - by making restitution with corresponding exterior goods or, for killing, with corresponding spiritual goods to the one killed.

46. To the second argument [n.215] I say that if he has drawn back someone already obligated to Religion (I mean, by obligation of profession), he is bound to restitution, namely that he go back to Religion. But if he has drawn someone back from entering, then, because there is a difference between ‘having’ and ‘being close’, he is not bound to as great a restitution to Religion as he would be if he had been in Religion; but he is bound to some sort of restitution, for example to some sort of inducement of another, who is in some sort of way equivalent, to entry into that Religion. And this is to be understood if he had drawn him back with the intention of causing loss to Religion. However, if he did so with the intention of consulting, without fraud, his own proper utility, he is not bound to Religion. But in the first case and the second he is bound to the person whom he drew back, in persuasions and other spiritual goods, to an equivalence in those goods in which, by drawing him back, he caused him loss.