S. S. C.
A Paper read before
THE SOCIETY OF THE HOLY CROSS,
At the May Synod, 1875.
BR. J. W. HORSLEY, M.A.
Printed by desire of the Synod.
PRINTED FOR THE SOCIETY BY W. KNOTT, BROOKE ST.
No one can have had the least experience in the Confessional, in parochial Missions, or in any form of spiritual intercourse with penitent souls, without having met the question of Restitution in its practical aspect. If no other point of Moral Theology were studied, this at least is an absolute necessity. Offences against the eighth commandment are not only as numerous, but perhaps more difficult to deal with than those against the seventh; they require, moreover, a knowledge not only of law, but of the principles of equity, and a grappling with the most difficult of moral problems in the present day—the habits and sins of trade.
What then is Restitution?
The definition of S. Thomas Aquinas is “Iterato aliquem constituere in possessionem vel dominum rei sum,” a definition which seems open to the objection of covering also the act of returning a loan or deposit, and not presupposing the existence of a sinful or unrighteous act. Preferable therefore is the definition given in the Salamancan Course of Theology, which is practically the same as that of Dens, namely, “Actus justitim commutativae, quo damnum proximo irrogatum separatur.”
With regard to its necessity as a part of Repentance, it is sufficient to observe that by all law, whether natural; divine, or human, it is regarded as a precept of [3/4] necessity, as being another form of the eighth commandment, which exists in all law. A certain knowledge of the law of the land on the questions of fraud and adulteration will often be useful in resolving doubts; for if a penitent be obnoxious to the law of the land, he need not doubt whether he be obnoxious to Restitution in foro conscientiae.
With regard to its connection with law, we may notice that the obligation to Restitution arises merely from faults against justice, and not from those against mercy. If a doctor, for example, neglects his patient, who therefore dies, he is obnoxious to Restitution; while if he neglects some one he might have helped from mere compassion, he is not liable, for the sin is against mercy, and not against justice. Again, we must notice that Restitution arises often from what is a sin but no legal crime, and therefore, as unnoticed by Law, has to be especially noticed by Theology.
Neither Theology nor Law will require Restitution for an injury which resulted from what was neither a sin nor a crime; as for example, an accident arising from an open well to a person who was plainly wrong in being in its vicinity.
And fourthly, some Restitution may be enjoined by both when one has personally committed neither fault nor crime, e.g. if your bull has gored one of your neighbour’s herd; or even in the case of purely accidental damage.
And if enjoined by Law, it is a fortiori subject matter for Theology, as being (to use the words of Lord Clarendon) “an inseparable ingredient and effect of Repentance.” For as S. Augustine observes, in his Epistle to the Macedonians, “Quamdiu res, propter quam peccatum est, non redditur, si reddi potest; non agitur poenitentia sed fingitur.” Or, to quote the HOLY SPIRIT speaking by the mouth of Ezekiel (xxxiii. 1.5), “If the wicked restore the pledge, give again that he had robbed, walk in the statutes of life without committing [4/5] iniquity; he shall surely live.” If, mark you, if the wicked restore; for retention is not merely a continuance of the old iniquity, but a new iniquity in itself, and to profess repentance and yet retain, is a greater sin than the original iniquity, in which there was no pretence of thinking of God. “To confess,” says Lord Clarendon again, “so much weakness as to beg and sue for a pardon, and to have so much impudence and folly as not to perform the condition without which the pardon is void and of no effect; to ride upon. the same horse to the man from whom it was stolen and desire his release, without so much as offering to restore it, is such a circle of brutish madness, that it cannot fall into the mind of man endowed with reason though devoid of religion.” Rightly therefore does S. Thomas Aquinas describe Restitution as “necessarium ad salutem”
Perhaps here may be quoted two testimonies from sources external to Catholicity, illustrating how Restitution is felt to be a necessity by mere reason. The first is from the Constitution of the Shakers, which enacts that before reception of a candidate, “he who has in any way morally wronged a fellow-creature shall make restitution to the satisfaction of the person injured: and again, in one of their curious hymns we find this couplet,
“Well, is it now your full intent all damage to restore?
If any man I’ve wronged a cent, I’ll freely give him four.”
The second testimony was gathered from the lips of the American Revivalist, Moody, who said a propos of Zacchaeus, “I would not give much for a man’s conversion, if he does not make Restitution. Make your friends have confidence in your religion by seeing this. If you have defrauded any, go and confess, and make. Restitution like a man.”
Of what then must Restitution be made? To answer this question we must ask another: In what things can a man wrong his neighbour?
 Firstly, in things spiritual. The slothful or careless Clergy are bound to repair the wrong they have done, by giving instruction more frequently, ministering the Sacraments more diligently, and, by a better example, striving to undo somewhat of the ancient wrong. Let them remember, too, that Restitutio ei a quo ablatum est, is a primary rule, and therefore, an atoning visit to the scene of former sloth or vice is more real Restitution than an increased zeal in another sphere. When S. Ignatius Loyola preached publicly in Spain for the first time after his return from France, he told the people that one of his reasons for returning to his own country, was to appease his troubled conscience, which never ceased to reproach him with the examples he had given in his youth.
Heresiarchs, again, make Restitution by combatting their former errors, and that as far as possible with their former hearers or readers. On this principle S. Augustine’s Confessions, Retractations, and Mistakes are published with his works. Let us remember this in the reception of heretics and schismatics into the Church; and, in equity, let us not rail against those mistaken ones who, having left the Church of their Baptism, spend their time in what we call proselytizing, but might be more kindly viewed from their standpoint as an act of Restitution.
A striking example is given by Tertullian (de præscript. Hæret. c. 30) of the case of Marcion, Postmodum idem Marcion poenitentiam confessus, cum conditioni datæ sibi occurrit, ita pacem recepturus, si ceteros quos perditioni erudisset, Ecclesiam restitueret, morte præventus est.”
Masters again must be urged to Restitution with regard to things spiritual in the case of their servants whose soul-welfare they have neglected; and, generally, all soul-murderers must strive to undo the evil they have committed, by personal effort, if possible, with those whom they have led into sin, or by earnest: prayer if they be out of reach, or dead.
 Secondly, we may wrong our neighbour in things natural: such as of body, life, use of reason, of senses, of liberty. Restitution should in all cases be primarily equivalens, and failing that (which will generally be the case with regard to things natural) quod potest. Thus, says S. Thomas, “pro membro ablate pecunia vel honor.” And similarly, in Exodus xxi. 26, we read “If a man smite the eye of his servant, that it perish; he shall let him go free for his eye’s sake.” And the defraying the expense of cure is an obvious requirement of equity.
Thirdly, Restitution must be made of things civil, such as good character, public or private esteem, friendship, honour, and respect. Those who wrong others in this way are bound to unsay what has been said, to reconcile the disunited, and do all they can to give back the esteem which has been taken away by their fault. Especially will Restitution be due for the five verbal injuries of Contumelia, lletractio, Irrisio, Susurratio, and Maledictio; and, we may add, revelation of secrets, rash judgment, doubt and suspicion.
And let the Restitution herein be æquivalens, and the reparation co-extensive, as far as may be, with the fault. For mere omission of honour, better behaviour will suffice, for a light offence, an apology; but in many cases mere confession to the tongue-injured man is not enough—a fear of damage, or of legal penalties may produce this; but the confession or retractation should be made, where possible, at least to all who heard the original evil utterance. If the libel be written or printed, so should be the retractation, until the recognition be as public and notorious as was the defamation.
Fourthly, there is restitution of things possessive, that is, of real or personal property. And herein, before men can be guiltless of theft, fraud, or injustice, they must examine themselves by the light of the nine ways of sharing in another’s sin:
 Jussio, consilium, consensus, palpo, recursus,
Participans, mutus, non obstans, non manifestans;
which subject is treated at great length by Dens.
Inasmuch as Restitution of things possessive is the commonest case presented to the notice of the confessor, let us here consider the extent of the obligation.
If possible, the whole is to be restored intact. On this principle, even Judas and the slothful possessor of the one talent act. So, “If a man (Exod. xxii. 5, 6, 12) shall cause a field or vineyard to be eaten, and shall put in his own beast, and shall feed in another man’s field; of the best of his own field, and of, the best of his own vineyard, shall he make Restitution. If fire break out, and catch in thorns, so that the stacks of corn, or the standing corn, or the field, be consumed therewith; he that kindled the fire shall surely make Restitution.” And again (Levit. vi. 2-5) “If a soul sin, and commit a trespass against the Lord, and lie unto his neighbour in that which was delivered him to keep, or in fellowship, or in a thing taken away by violence, or hath deceived his neighbour; or have found that which was lost, and lieth concerning it, and sweareth falsely; in any of all these that a man doeth, sinning therein: then it shall be that he shall restore that which he took violently away, or the thing which he hath deceitfully gotten, or that which was delivered him to keep, or the lost thing which he hath found, or all that about which he hath sworn falsely; he shall even restore it in the principal, and shall add the fifth part more thereto, and he shall bring a trespass-offering.” Note how boldly the Law declares, “Restore the whole, add a fifth, and add to that a trespass-offering,” while we are seeking for exemptions from the duty of total Restitution, which is the Divine aspect of the lex talionis, and even S. Thomas can only say, ‘atiquando et restituere et pro acceptione puniri debetur.”
 Baxter, in his Explanation of the Decalogue, states well certain objections and exemptions from the law of total, personal, and present Restitution, as follows:
What if a man cannot restore the whole? Let him get the assistance of his friends, or confess and pledge himself to payment when it shall be possible.
Must he confess the wrong if his disgrace or ruin is thereby probable? Few creditors would be so inhuman receivers, and if they were, fiat justitia ruat coelum. The bearing of the ease of Constance Kent on this point will be clear to all.
Practice however, administering rather equity than summum jus, allows Restitution to be made per sacerdotem vel per alium, though concerning this two points should be noted. The first is stated in the Salamancan Course of Moral Theology:—When money or other matter of value is restored by A per alium, and he loses it or fraudulently applies it to his own purposes, is A bound to a second Restitution? Yes, is the answer given; for, firstly, Restitution is not made till the injured person has been recompensed, which has not been the case; and secondly, qui facit per alium facit per se, and therefore, as your representative has failed in his duty, you have failed. It is no legal discharge of a debt to say, I gave the money to a servant to pay—the receipt must be shewn.
The second point is a monitum of S. Charles Borromeo, “Let not the confessor be the vehicle of Restitution without good cause; and in any case let him obtain a receipt from the receiver, and transmit this to the penitent; ac planè eo modo procedat, ut omnem speciem ac signum avariti subterfugiat.”
To return to the questions of Baxter.
What if Restitution will wrong my family? Your family, he answers, can have no right in what is not your own.
But if the offence is long past? Yet the debt [9/10] remains. There is no Statute of Limitations with God.
Next we inquire, who are bound to restore?
Stewards, guardians, servants, are bound to restore when the injury or loss arose from their negligence. And when many concur in the crime or fault we may note four rules:
1. If one makes full Restitution, the ethers are thereby freed.
2. The possessor or consumer of the thing stolen is primarily bound.
3. He that was the chief cause is primarily bound.
4. If the lesser culprits restore, the chief cause must make Restitution to them.
Again, if one receives by a bona fide gift, but were morally incapable of receiving, as in the case of simony or a bribe, he is bound to restore either to the giver, the Church, or the State. And bribed voters must make Restitution, whether they voted according to their consciences or not.
Am I bound to restore what my father owed when alive? He can give you no right to what was not his own. Sinful keeping is as evil as sinful getting.
Am I bound to restore what another took? Yes, if you were to him an Ahitophel by evil counsel, a Rebekah by commanding the sin, an Eli by not restraining, an Eve by temptation, a Leah by concealment, a Sapphira by sharing in the profits of sin.
And when must Restitution be made? The rule is “statim ac commodè,” but this is to be construed rather morally than mathematically by the confessor. He cannot give absolution to one who
1. Has no firm purpose of Restitution,
2. Postpones it to his death.
 3. When he could make full Restitution, will only do so by instalments, to the notable discomfort, or with the expressed resistance of the creditor.
Delay is only allowable when there is no reasonable doubt but that Restitution will be made, or when no great harm arises to the creditor by reason of such delay.
And to whom should it be made? In almost every case, ei a quo ablatum, with some rare exceptions. For example, the receiver of stolen goods must restore not ei a quo receptum, but to the real owner.
But what if the wronged be dead? Then, says S. Thomas, “detur heredibus,” as was the custom among the Jews according to Maimonides. The wrong-doer went with ten witnesses to the sepulchre of the dead, and there confessed, “I have sinned against the Lord God of Israel, and against this man, to whom.I have done such or such injury; “and if money were due, he then restored it to the heirs of the deceased. If he have no heirs? Then hear the Law (Numb. v. 8), “But if the man have no kinsman to recompense the trespass unto, let the trespass be recompensed unto the LORD, even unto the priest.” Should it be restored to the creditor of the deceased? No, says Dens, unless neither heir nor administrator appear: the creditor takes precedence of works of piety, but of nothing else.
And here comes in another of the valuable monita of S. Charles Borromeo, “Let not the confessor apply this conscience-money to his own church or monastery; let him see that neither he nor his gain any temporal advantage from what arose through a confession.”
But if the wronged person be unknown? Be very sure he and his representatives are unknown, and then give the value or amount in alms by the above-mentioned rule.
If the wronged be far off? Then, says S. Thomas, “Debet transmitti, vel poni et significari.”
 If you steal from a trustee, Restitution should be made to the immediate owner, and, carrying out the same principle, to the legal, not the actual owner, in the case of a wife, a minor, or a religious.
Exemptions from the duty of Restitution may arise from moral inability; either on the part of the payer, as when more harm would result to the payer than loss to the payee, as for example, selling all one’s tools to pay a slight debt.
But if not to restore will do as much harm to the creditor as to restore would to the debtor, Restitution must be made. For example, you must restore another’s good name at the loss of your own. In pari causa melior est conditio innocentis. Liguori seems to take a dangerous line in allowing what is due to the poor to be retained by yourself if you can plead poverty, and further denying your obligation to Restitution if you thereafter become richer.
Again, moral inability may arise on the part of the receiver; as, when money is due to a debauchee, arms to one mad or in a fury, Restitution may and should be delayed. Restitution always supposes the good of the receiver. Wait for a harmless opportunity. Or if a gift has been received for an illicit purpose, for instance simony, the receiver can neither retain nor restore it to the giver, but must give it to pious uses.
Other causes of exemption will be found in Cicero de Officiis, e.g. “Quid si is, qui apud to pecuniam deposuit, bellum inferat patriae, reddasne depositum? Non, credo. Sic multa, qua honesta naturâ videntur esse, temporibus fiunt non honesta.”
But if you only fear his spiritual harm, you must not retain while if he wishes to harm spiritually another, you may delay Restitution.
Another exemption might occur when it cost more to restore than the thing were worth. It is presumably unnecessary to expend, a penny to restore by post a halfpenny stamp. The debtor in such cases is only [12/13] obliged to keep it till an opportunity of Restitution occurs. Cajetan and others, however, quoted by Salmasius, take a more rigorist view.
So again we may notice that if a person have stolen in company with others, the amount of his liability will be determined by the fact whether he were drawn into the theft, which would have been committed without him, or whether he concerted with or instigated others to commit it.
In the latter case he would be bound to restore the whole, in the former only his quota.
And one more cause of exemption arises, when the creditor or injured person condones the offence, for scienti et volenti non fit injuria. This remission however must be free, voluntary, not contrary to law, nor void or voidable, as would be the remissions of a madman or a minor.
Does a composition with creditors free from Restitution? Yes, if the composition be not fraudulent, for composition is a virtual receipt in full.
Also a tacit consent to remission frees from the duty of Restitution; and lastly, if Restitution is due from many, and the principalis causa is forgiven, all are free. But here note, “Si damnum passus condonet Restitutionem principali damnificanti, etiam minus principales liberantur, non autem vice versa; quia ruente principali, ruit accessorium, non contra” (Laym. lib 3. t. 2. cap. 6).
The great practical question that presents itself to the minds of those who have to exercise the ministry of Reconciliation is this: When that is confessed for which Restitution is due, should absolution be given on a mere promise of Restitution, or be withheld till it is an accomplished fact?
We may first note the practical advice of S. Charles Borromeo, “When a point arises involving Restitution, do not wait till the end of the confession to advise thereon, lest you should forget to do so.” Also we may [13/14] say without doubt, with the Salamancan theologian—
1. That absolution should be denied to those who, when often urged to Restitution, delay without due cause;
2. That Restitution may not be deferred till death, lest the heirs should repudiate or delay;
3. (With Dens) That absolution should be denied when a promise of Restitution has been broken; and
4. In cases of culpable delay, all confessions made during such delay are sacrilegious and invalid, for “quot occasiones restitutionis tot peccata.”
Three courses are possible.
1. To absolve on a mere promise of Restitution if the penitent show contrition, and a purpose of Restitution. This is defended by Viva (de Rest. 9. 1. art. 5. n. 2), Navarra, Valentin; Ledesma, Sayrus, &c., and Salmasius allows this course, even if Restitution has been already culpably delayed. But Liguori (in most points inclining to the laxer side) says, “Mihi omnius placet secunda sententia, quam tenet P. Conc. tom. 7. p. 85, n. 25, regulariter non esse absolvendum debitorem, nisi prius restituat . . . . . experientia enim satis compertum est quod debitores post absolutionem rarissime restit iaut.” And S. Thomas de Villanova, in his Sermon for Fer. 6. Post 4 Dom Quadr., says, “Prius ergo vadat et pectimam alien m. restituat, et tunc ad confesssarium redeat ut absolvatur.” So the author of the “Priest in Absolution” lays it down that the laxer course is seldom safe, for it is as easy to get people to be let blood as to relinquish money. This is based on the advice of Gaume (Manuel des Confesseurs), L’experience ne l’apprend que trop: s’il ne restitue pas avant l’absolution, très-difficilement le fera-t-il apres.”
The case of Marcion already quoted seems entirely to support this view, as also does the dictum of S. Augustine, “Quamdiu res, propter quam peccatum est, non redditur, si reddi potest; non agitur poenitentia, sed fuigitur;” and Hooker, again says that in S. Cyprian’s judgment all absolutions are void, frustrate, and of no effect, without sufficient repentance first shewed; which cannot have been skewed if Restitution is, according to Lord Clarendon, an inseparable ingredient and effect of repentance.
2. The second course is to withhold absolution till Restitution be made (vide supra). This is no doubt the view taken by strict law; but
3. As we are rather to administer equity than law, and never to lose sight of mercy, perhaps it might be allowable to absolve on a promise of Restitution, but usually to advise abstinence from Communion till the Restitution be an accomplished fact.
The line of argument adopted throughout this Paper has by no means been that of the Rigorist school, though designedly tending more in that direction than towards the lax views of Liguori and more modem Moral Theologians, for much of the bad morals of the present day and the sins, of trade seem to be owing to the laxity of the rules of Restitution, where any exist and are advised or enforced. Let the rules of godly discipline be revived, and a greater consciousness of the sinfulness of dishonesty will assuredly ensue. Laxity of discipline is the mother of laxity of morals.Appended is a list of some books in which the subject may be studied. The letters and numbers give their position in Sion College Library.
 Aquinas, D. Thomas. Summa totius Theol. R. 15. 23.
Dens, Petr. Theol, moral et dogmat. L.l. 2. 34-41.
Gaume. Manuel des Confesseurs, G. g. 9. 28.
Laymannus, Paulus. Theol. moralis, P. 15, 10.
Ledesma, Petrus de. Theol. moralis.
Navarra, Petrus a Toletanus. De ablat restit. N. 14. 14.
Cursus Theol. moral. Salmanticencis Academ. T. 6. 8 & 9.
Salmasius (vel de Saumaise) Claudius.
Sayrus, Gregorius. Op. Theol. P. 16. 14.
Valentia, Greg. Metimn. Comment. in Summa D. Th. Aq. R. 15. 22.
Vio, Thomas de (Card. Cajetan), in prim. secundæ Thom. Aq.
Baxter, R. Catechism.
Ld. Clarendon on Sacrilege.
Wordsworth’s Christian Institutes, N. + 31.6.