The Handmaid of Repentance, Treatise – Conclusion
A TREATISE OF RESTITVTION.
Matter.
THe matter ſubiect of Reſtitution is thréefold: the firſt, ſatiſfaction for things taken from the Owner: the ſecond, of damage ſuſtained; the third, of iniuries offered. In all theſe Caſes, a carefull Chriſtian ought to make Reſtitution, in manner and forme as héereafter followeth: theſe circumſtances conſidered.
Circumſtances.
Who, and to whom,
what, and how much,
Where, when, and how,
thou ſhould'ſt reſtore,
Conſider well:
this will thee teach
A Leſſon good,
for rich and poore.
Manner.
Touching the firſt part of matter taken, we muſt vnderſtand, That thinges be taken from the owner two wayes: viz. either violently, or voluntarily: as by rapine, theft, &c. voluntarily, as when a man borrowing any thing, receiueth it at the owners hands. As the taking the one, is iniurious: ſo the detaining of the other, is malicious.
Hauing thus bréefely ſpoken of the matter, wherein Reſtitution is to be made: let vsus now procéede to entreat of the circumſtances, and that moſt bréefely, in order, thus.
Perſons who.
EueryEvery one is bound to make Reſtitution, who hath béene the cauſe of wrongfull taking: and where the perſons are many, eueryevery one ought to reſtore.
Ten waies may a man be the cauſe of wrongfull taking another mans goods, for which he is to make reſtitution.
1
He muſt reſtore
that others goods doth take;
As he alſo
that ſubſtitute doth make.
The Vſurer,
his Seruant ſends for bands,
To wound a man,
another he commands.
The Maiſters heere
the Seruants doe compell,
Not to obey,
as much as to rebell.
Therefore in theſe,
the Maiſter is to blame
For Seruants faults;
amends then make for ſhame.
2
Or doth approue
what in his name was done,
He muſt reſtore;
and not the time prolong:
Of raſh attempts,
Repentance followes ſoone.
3
Ill counſell oft
moues many one to ill:
Therefore beware;
to counſaile is to kill.
4
Conſent, as cauſe,
in miſchiefe muſt be taken:
Therefore 'tis good,
ill counſaile were forſaken.
5
Beware of praiſe:
commend not one in ſinne▪
One miſcheefe done,
another doth begin.
6
Hee that in ill
with others hath a ſhare;
To make amends,
in conſcience muſt prepare.
7
He that receiues,
from theft will not refraine,
8
Stolne goods conceal'd,
embolden Theeues againe.
9
Not to reſiſt,
or ſtay a bad intent
10
Is iudg'd as much,
as for to giuegive conſent.
Perſons to whom Reſtitution is to be made.
If the thing taken or with-holden, bée any mans proper goods only; then it muſt bee reſtored to the right owner. But in caſe a publike perſon, either Ciuill or Eccleſiaſticall, waſt or make ſpoile of things belonging to their place: Reſtitution muſt bee made vntounto the place, whereunto the matter belongeth.
If the owner be not knowne, or if one cannot hauehave frée and ſafe acceſſe vntounto him: then it ought to bee giuen vntounto the poore.
If a man be bound to make reſtitution for thinges vniuſtly taken, as in vſury: Reſtitution ought to be made to the party damnified. So that theſe two thinges concurre; vniuſt taking, and dammage enſuing thervpon. In ſo much that he which ſtealeth a pawne from a Marchant-man, ought to reſtore it to the Marchant: notwithſtanding, in the Court of Conſcience he might reſtore it to the owner; ſo as the Marchant were not thereby damnified.
Owners dead.
If the perſon, to whom Reſtitution ought to be made be dead: it ſhall be giuen to his heires.
Vnknowne.
If the perſon, from whom any thing hath béene ſtolne, bee not knowne, after that a man hath done his endeuour by diligent inquiry: then the thing ſhall be giuen to Chriſt in his poore members,Our times cannot like ſuch curioſity. as Lord of the whole world.
If the owner be farre diſtant, and the thing with-holden, may eaſily and faithfully be ſent vntounto him: if the matter be of great valew, it ought to be ſent vntounto the owner, at the coſts and charges of the wrongfull detainer: if it cannot bee ſent vntounto him, and the matter be of ſmall account, it may be giuen to his Kinsfolke, or to the vſe of ſome Hoſpitall, at the diſcretion of ſome honeſt perſon; with this Prouiſo, that when the owner commeth, it ſhall be reſtored vntounto him.
Vſurers.
If an Vſurer be in conſcience mooued, to reſtore the mony taken by Vſury; and the parties, to whom Reſtitution ought to be made, bee remooued from the place where the Vſurer dwelleth: then the Mony may be returned at their own charges; Too good to be true.but if the Vſurer remooue, then at his charges.
Mad men.
The owners ought not alwaies to hauehave their owne reſtored: namely, when it might turne to their owne harme; as a a ſword taken from a mad man: but it may be reſerued for his heires.
Diſhoneſt.
Things taken vponupon vnhoneſt conditions, neede not to be reſtored, vnleſſe they bee gotten by craft or violence; or taken from him, that hath no right to alienate them.
Game.
Thinges gotten by Game, are of like nature: yet in both, the parties may bee counſailed to giuegive them to the poore.
Things found.
Things found, which neuer had owner, or who neuer was knowne in the memory of man, or that eares not for them; are his that findes them.
Treaſure.
Concerning Treaſure, the right owner whereof is not knowne: if a man finde it in his owne ground, it is the finders: if it bee found in another mans ground, halfe of it is the owners of the ground; the other halfe is his that found it.
If treaſure bee found in another mans ground, by diligent ſearch, with conſent or licence of him that owes the ground; it is his that findes it, becauſe the other will not ſeeke it. If a man ſeeke for treaſure, againſt the will, or without the licence of him that owes the ground: it wholy belongs to the owner of the ground.
If a man know there is treaſure in another mans ground, and buy the ground: it ſéemeth, that the treaſure is the buyers. As for thoſe Cuſtomes and lawes, wherby treaſure found belongeth to the Prince;Note. I purpoſe not to meddle, neither doe I ſpeake any thing in this whole diſcourſe that is preiudiciall to the Lawes. Let the learned Lawyers diſcuſſe ſuch caſes. Yet Lawes grounded vponupon reaſon, ought in conſcience to be regarded.
What a man muſt reſtore.
Thinges in their property and kind, as alſo damages, are to be reſtored.
If the thing it ſelfe be to be had, let it be reſtored, vnleſſe the feare of ſcandall or other danger ſhould enſue:In this caſe men muſt beware, that they become not Fellons of their own goods; eſpecially, if after his goods bee taken hee hauehave made any purſuit, by raiſing hue & cry: otherwiſe, the matter being ſecret betwixt the taker and the owner; a man may without danger receiue his own againe, as ſome think. Lamb. then may the worth thereof be reſtored, at the diſcretion of ſome honeſt perſon. If the thing it ſelfe cānot be had, or bee made worſe, the like may bee reſtored.
Whoſoeuer hath another mans good, is bound to reſtore it; whether he hauehave it by good meanes or otherwiſe.
Things bought bonâ fide.
If a man buy an Horſe, thinking it to be his that ſels him,Our lawes are otherwiſe, grounded on this: Rather a miſcheeſe, than an inconuenience. and is not: if he ſhal afterward ſell the Horſe to another; he is bound to reſtore the gaine, & no more.
Giuen.
If a ſtolne Horſe be giuen a man, and he afterwards ſell him:Note. he ought to reſtore the price fully: if he kéepe him, hee is bound to reſtore him without any price to the owner. Yet hee may hauehave action againſt the ſeller howſoeuer.
Malâ fide.
If a man buy ought by euill meanes, vponupon a gréedy intent of gaine: he is bound to giuegive the thing, if hee hauehave it; or the valew, if he hauehave it not, together with the gaines he hath got thereby. And although it be ſtolne from him; yet is he not frée frō Reſtitution.
Goods preſerued.
A man, taking the goods of another, only with intent to ſaue it from ſpoile or periſhing; may lawfully demaund his expences.
Of hindrances.
If one violently or vnlawfully ſtay or hinder another from obtaining of any commodity, he is chargeable with the dammage.
A man, letting another from the lawfull diſpatch of his honeſt buſineſſe, or duty; is bound to make amends, at the diſcretion of ſome honeſt perſon.
Creditors.
He that hindreth a Creditor by vnlawfull meanes (that he cannot demaund his debt of the debter) by deliuering him out of priſon, by reſcue, or other vnlawfull meanes: and generally, hee that is cauſe of damage to another (eſpecially of ſet purpoſe) if the damage be certaine, is liable to all; if vncertaine, as an honeſt man ſhall award.
Goods periſhing in another mans hands.
If another mans goods periſh in his handes, through whoſe default they are not reſtored to the Owner, if the goods ſhould neuertheleſſe hauehave periſhed in the owners handes; in this caſe hee is not bound to make ſatiſfaction.
But it is otherwiſe, if the Goods remaining with the owner had not periſhed: or if the owner was about to ſell them before; or otherwiſe, to conuert them to his owne benefit and commodity.
A man flying from his owne goods.
If a man through pouerty depart or fly his owne houſe, and from his goods: hee is bound in conſcience to reſtore, and ſatiſfie for his debts, when he comes to better ſtate, and ſhall be able.
Life, Limbes, &c.
In thoſe damages that enſue vponupon a mans death, wounding, hurting, impriſoning, defaming, &c. Reſtitution is to be made at the diſcretion of honeſt perſons; and according to the power and ability of the party.
Who ſo defloureth a maiden, either by ſeducing or by violence, is bound either to marry her, or to make her amends at the diſcretion of ſome honeſt perſon. If hee promiſed to marry her, he is bound to doe it, vnleſſe ſome great ſcandall or ſlander ſhould follow therevpon. But in caſe ſhee will not marry him, or her Father be vnwilling; then he ſhall ſatifie her, as ſome honeſt man ſhall award: but if ſhee was willing to the fact, he is frée from both.
How much ought to be reſtored.
If the quantity of the matter taken, or of damage ſuſtained, be certain; he is bound to ſatiſfie as much: if it be vncertaine, as in iniuries and wrongs, then as much as an honeſt perſon ſhall appoint, according to the circumſtances of the offence, &c.
He that poſſeſſeth any thing that is anothers, whereby he is enriched, ought to reſtore it wholly, and the increaſe thereof: deducting out his expences, for getting, kéeping, and preſeruing the ſame, and fruits thereof.
Legacies.
The reaſon of him that payeth not Legacies due many yeares before: who ought to make reſtitution for the commodities detained.
Where Reſtitution is to be made.
If Reſtitution bee neceſſary for ought vnlawfully taken from another: reſtitution muſt be made, where the owner may be kept indemnified; if otherwiſe, where the thing was had.
Of the time of Reſtitution.
A man hauing ought that is anothers,Note … well. is bound forthwith to make Reſtitution. Touching this word (forthwith) vnderſtand it thus, That a man be fully reſolued, and purpoſe, to reſtore as ſoone as conueniently he can. As concerning the performance of his purpoſe, and the effecting of his intent, Hee ought to doe it in time conuenient; due circumſtances conſidered.
Thrée things may excuſe a man, from making preſent reſtitution.
1
Firſt, the will of the owner granting delay.
2
Secondly, ignorance of the reaſonableneſſe of right, or of the fact.
3
Thirdly, want of ability. Touching which point, the opinion of the learned riſeth vponupon ſixe concluſions.
1
The firſt is, That a man may in extreame neceſſity, not hauing any thing, but only things neceſſary for his own life, and his, is not bound to make preſent reſtitution: becauſe at that time all things are common.
2
The ſecond is; He that by making Reſtitution could not liue, according as becommeth his eſtate, although the owner not being in the like or greater neceſſity, will not grant time: yet is he not bound to make preſent Reſtitution. Notwithſtanding, hee ought to beware, that hée make no néedleſſe expences: otherwiſe in reaſon he could not be excuſed.
3
The third is, when reſtitution ſhould turne to the owners harme, either in reſpect of his body, or his ſoule, if reſtitution were made: he ought not preſently to doe it.
4
The fourth is, if the ſame ſhould tend to a publike danger, or were againſt a publike commoditie.
5
The fifth is, if it were likely to turne to the loſſe of the Reſtorers good name, the danger of his life or ſoule, or if thereupon ſhould follow ſome grieuous ſinne: preſent reſtitution ought not to be made, becauſe theſe are greater damages.
6
The ſixt is, if preſent reſtitution ſhould more hurt the debtor, than profit the Creditor. As if an Artificer, beeing in debt, ſhould ſell his tooles or inſtruments of his occupation, whereby he getteth his liuing: in this caſe he ought not to make preſent reſtitution; becauſe in reaſon he ought to hauehave time giuen him. It ſhould be otherwiſe if the Creditor were in like ſtate:Note. becauſe no man ought to hurt another for his owne benefit. It is otherwiſe where a man deferreth to reſtore, onelyonly for lucre ſake, and not vponupon neceſſity. Note alſo, that if delay ſhould be hurtfull to the Creditor: although a man ſhould auoide the great…r loſſe in his proper goods; yet at the leaſt, the Debtor muſt kéepe him loſſeleſſe.
What order and manner is to be kept in making Reſtitution.
He that is able, ought to make reſtitution to all, without reſpect of order, or delay of time.
Hee that cannot reſtore to all, let him firſt reſtore things certaine before vncertaine.
Amongſt things certaine, let thoſe firſt be reſtored which are in their owne kinde, and another mans; as goods committed to kéepe, and things bought and not paid for: then, other goods in order, as the Lawes and Statutes doe appoint. If it be not againſt the Law of Nature: and in caſe there bee ſundry and manifold opinions; the ſafeſt is to be followed.
Takers of Mony vponupon vſe.
He that hath taken Mony vponupon Vſury, if hee hauehave not ſo much goods as to ſatiſfie for other lawfull contracts, and the Vſurer too; is bound firſt to ſatiſfie for his lawfull Contracts, with theſe two conditions: the firſt, That the things taken to vſe, be not in their proper kind, as pawns (for theſe ought to be reſtored to the owners paying the Money;) the ſecond, if by ſuch Contracts the party was not made poorer, to pay his former vſury: as in the promiſe of a dowry it might befall, whereby hs might become poorer. In this and the like caſes, lawful Contracts muſt giuegive place.
Vncertaine goods.
If the goods to be reſtored be vncertain: then godly counſaile and honeſt aduiſe muſt direct, euermore prouided, that men, in great diſtreſſe pitied, bee not by ſufferance emboldened to bad attemps.
Secret things.
Things ſecretly taken to vſe, ought carefully to bee reſtored, that the parties honeſt reputation and good name be not hurt: but publike vſurie ought publikely to be reſtored, for by reſtitution a good name is recouered.
Good fame and name.
If one defame another by iuſt courſe of Law, there no Reſtitution lieth: but if he doe it vniuſtly and vntruly, let him make amends, by acknowledging that he ſpake vntruly, or concealed the truth. Whe… words repeated may doe more harme then good, there ought to be none acknowledgement.
If a mans good name cannot bee recouered, reſtitution is to be made ſome other way: and the damage that hath enſued vponupon defamation, ought to bee ſatiſfied; at the diſcretion of ſome honeſt perſon. The like may bee ſaid of ſlanderous libels: and the reſtitution ought to bee made there, where the ſlander was raiſed, whether publikely or priuately, &c.
If thou findeſt any thing belonging to an other man, and makeſt not reſtitution thereof vntounto him: the very withholding is meere rapine. For herein thou haſt performed thy vttermoſt; and haſt not done more, becauſe thou couldeſt not. To deny a man that which is his owne, is all one as if thou hadſt taken it from him.
If thou confeſſe thy ſelfe an offender, in taking and detaining an other mans goods, and thereof outwardly repent thee: yet if, hauing it in thy power to make reſtitution, thou ſtill detaine them; thy repentance, howſoeuer thou makeſt ſhew thereof, is not true, but fained. But without true repentance there is no remiſſion: and his repentance is good indeede, which reſtores the cauſe therof to the right owners; alwaies prouided that the Penitent hauehave the abilitie to performe it.
Many account it no ſinne at all, to detaine an other mans goods if they chance to finde them: vponupon this ground, That GOD hath ſent them; and therefore to whome ſhould they reſtore them? But let ſuch men know, That it is a ſinne not much differing from theft, to withhold from the Owner euen that which they finde.
He is bound to reſtore the damage, that another ſuſtaineth, which being therevnto obliged by his office or place, doth not hinder the ſame; as is the caſe of a Iudge, a Father, or Tutor: except the hazard of his own affaires, which he ought to prefer before other mens, be the cauſe of his omiſſion. But he that hereunto is not tyed by his office, is free from ſuch obligation.
A witnes being lawfully examined, and concealing the truth, or not ſpeaking the whole truth, is bound to ſatiſfie the damage ſuſtained by reaſon of ſuch his concealement or ſilence.
He that fraudulently occupieth another mans ground, is bound to ſatiſfie for the fruits receiued, which otherwiſe the Owner himſelfe might hauehave gathered, deducting onelyonly his neceſſarie expences, and conſideration of his paines, taken, and beſtowed vponupon it. But the caſe is otherwiſe, in profit ariſing by vſe of another mans mony: for Reſtitution thereof is not to be made, vnles it may appeare that the Owner himſelfe could hauehave gotten ſo much by it.
He that makes a lawfull promiſe, and doth not performe it; ought to ſatiſfie for Damage, following vponupon the breach of it.
He that taketh any reward to doe euill, if he hauehave not done it, ought to make Reſtitution; but if it be committed, hee is at liberty: howbeit S. Auguſtine be of opinion in his 54. Epiſtle: That an Aduocate is bound to reſtore his Fee taken, for the defence of a bad matter.
He that hindreth another in the frée donation or collation of a Benefice, ſo it bee done without violence and fraud; is not bound at all to ſatiſfie for it; becauſe as yet no right of title thereunto is gotten: Likewiſe he that procureth a will to be altered, and that with a crafty intention; yet becauſe there is no ſetled right thereof, as being in the power of the teſtator to change it; the partie ſo doing néedeth not to make any ſatiſfaction: according to ſundry mens opinions.
But others there are of a contrarie iudgement, affirming, That ſuch men are worthily bound to make Reſtitution, becauſe they offend againſt the rule of Iuſtice.
Things committed contrarie to Charitie, yet according to Iuſtice; require neither Reſtitution nor Satiſfaction.
Where two men hauehave hurt one another alike: where two parties hauehave defamed each other: there is no ſatisfaction to bee awarded.
The ſea-faring man is not bound to reſtore thoſe things, that hee caſteth into the Sea; which being kept aboord might bee loſt notwithſtanding, and bee occaſion of the loſſe both of ſhip and paſſengers.
Neither is he bound to make Reſtitution; who after long and diligent ſearch for his Creditor, and not finding him, diſtributeth his Debt among the poore: if it be done by authoritie of a Iudge, and not of too great moment.
The heire of an executed murderer, is bound to reſtore the damage ſuſtained by the heire of the murdred; yea although the partie damnified be not vrgent.
Debt kept back from a ſpend thrift, and reſerued either to help him in his extremitie, or to the vſe of his heires, is not of neceſſitie to be paid vntounto the Prodigal. Some there are notwithſtanding of a contrarie opinion, that poſitiuely hold, That it ought to be reſtored vntounto him; and in like caſe to any other, howſoeuer they abuſe their owne: as long as his or their neighbour be not wronged by it.
He that hath any thing in cuſtody which is ſtollen from a thiefe, ought to reſtore it to the right Owner; vnleſſe the feare of death reſtraine him.
So much is to be reſtored, as is receiued. For Reſtitution maketh an euenneſſe.
Stolne goods bought with an euill conſcience, ought to be reſtored: yea although by Law the ſale may be iuſtified.
It is not lawfull to detaine any thing from the Owner, any longer, than till we finde opportunitie to reſtore it.
Of three the moſt eſpeciall degrees of repentance, this of Reſtitution is the moſt ſupreme: like as in the three Theologicall vertues, Charitie obtaineth the higheſt place. And this dignitie is principally attributed vntounto them aboue the reſt of their aſſociates, in reſpect of the end.
For as Faith without Charitie is dead: ſo Repentance without Reſtitution is a vapour; neither of them conducing to the propoſed end. Suffer not thy ſelfe therefore to bee carried away, either by thine owne frailtie, or the ſuggeſtion of Sathan, from performing this moſt neceſſarie and Chriſtian dutie. For indeede, as Charitie demonſtrates Faith: ſo Reſtitution makes Charitie perfect. And how can hee thinke to bee at peace with GOD, that makes no ſatiſfaction for wrong doing? Such mens ſorrow for their ſinne is all one with that of Cains, who in the guilt of his conſcience confeſſing his offence, made it (collaterally) his requeſt, That no man might kill him. This corporall death is it which they feare: the ſpirituall death they reſpect not. Verily I am perſwaded, That with ſuch men, the old heathen Sillius is of far more credit than any of the holy Writers either of the old or new Teſtament. His opinion was, that by denying God and his power hee thriued the better. And can we iudge otherwiſe of this generation, that make iniquitie their practiſe, and ſeate themſelues in the chaire of Scorners? God ſend them better mindes, if they be not already deliuered ouer into reprobate ſenſe, that they may cry God merciemercy, and obtaine it, by rendring to eueryevery man that which is his owne. With ſuch ſacrifice God is pleaſed, better then with the fat of bullockes. But now briefely to conclude: as I firſt intended no long diſcourſe, ſo I will make a ſhort end.
The Concluſion.
GEnerally in all caſes, where the ſtate, perſon or fame of any man ſuffereth detriment or loſſe, there ought the partie delinquent to make Reſtitution. But in theſe daies, Detention of other mens goods hath got ſuch an habit amongſt the moſt ſort of people, through the long vſe and practiſe of it: that it is not onelyonly reputed no ſinne at all; but euen thoſe few, whom Gods holy Spirit toucheth with a true feeling of their offences in this kinde, and thereby moueth them to make this holy and religious ſatisfaction, are by thoſe that would ſeeme wiſe in this point, accounted meere fooles and of too ſcrupulous a conſcience. Hence oftentimes it commeth to paſſe, that not onelyonly themſelues runne headlong on in their wicked courſes; but others alſo by their meanes are drawne to the ſame vngodlineſſe. Amongſt the reſt of many friuolous excuſes, which carnall men are wont to alleadge againſt this ſpirituall counſell of Restitution; there is a politicke ſhame or diſgrace pretended, which of neceſſitie muſt light vponupon the partie reſtoring.
Now to auoide this ſhame, which puts ſinne to flight, and auaileth greatly to the perfecting of the new Man within vsus: they ſtop their eares at all godly admonition and heape one ſinne vponupon another; firſt, doing wickedly, and afterwards taking delight therein. Reſtitution therefore to theſe kinde of people, is a moſt vnwelcome gueſt: they may ill abide to ſee her in the companie of others; and therefore by no meanes will entertaine her themſelues. But let them ſooth their owne opinions, and ſet light by Gods iudgements as long as pleaſeth them: the leſſe ſhame they hauehave in this world before men, of their cloſe and vniuſt gettings, and the leſſe account they make of Reſtitution or making amends here; the greater wil be their horror and confuſion in the next, & the ſtricter reckoning will God exact at their hands. For ſuch perſons this Treatiſe was not framed, as being a Pearle not to be caſt before ſuch Swine. To the children of God in Chriſt Ieſu, it is directed, that are capable of goodnes through him, and enabled to bring forth fruits worthy of amendment of life; that walke not after the fleſh, but after the ſpirit. To them it is giuen to know the myſteries of the Kingdome of God, and to walke in his wayes. In briefe therefore I addreſſe my ſelfe to you my deare brethren: exhorting you to ſeale vp vntounto your ſoules and conſciences the aſſurance of the hope that is in you, by putting off the Old Man, and putting on the New; walking before God in holineſſe and vprightnes of liuing, as becommeth his children: For the attaining whereof, to the glorie of God, and the good of his Church; I thought it very behouefull to write this ſhort Diſcourſe vppon Reſtitution; which is ſo eſpeciall a part of Chriſtian dutie, and yet in theſe times ſo little regarded. Thus wiſhing from my very heart. That all men would beware how they offer wrong, and after offences paſt to make ſatisfaction: likewiſe that thoſe which ſuffer wrong, would not be carried headlong to ſeeke reuenge, but alwaies endeuour to preſerue vnity in the bond of peace; I commend theſe my labors, ſuch as they be, to your Chriſtian conſiderations: deſiring God, ſo to imprint the meditation hereof in your mindes, that if you hauehave gotten any thing wrongfully, you may bee moued with Zacheus to make Reſtitution:
Laus Deo.
End of the text · Arthur Dent, The Handmaid of Repentance (1614)