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THE NATURE AND NECESSITY OF RESTITUTION.
And if I have taken any thing from any man by false accusation, I restore him fourfold. And Jesus said unto him, This day is salvation come to this house.—Luke xix. 8, 9.
ONE particular and eminent fruit of true repentance, is the making of restitution and satisfaction to those whom we have injured. As for God, we can make no satisfaction and compensation to him, for the injuries we have done him by our sins; all that we can do in respect of God, is to confess our sins to him, to make acknowledgment of our miscarriages, to be heartily troubled for what we have done, and not to do the like for the future. But for injuries done to men, we may, in many cases, make reparation and satisfaction. And this, as it is one of the best signs and evidences of a true repentance; so it is one of the most proper and genuine effects of it: for this is as much as in us lies to undo what we have done, and to unsin our sins.
But, because the practice of this duty doth so interfere with the interest of men, and consequently it will be very difficult to convince men of their duty in this particular, and to persuade them to it; therefore I design to handle this particular fruit and effect of a true repentance by itself, from these words, which contain in them,
I. The fruit and effect of Zaccheus’s conversion 448and repentance; “If I have taken any thing from any man, I restore him fourfold.”
II. The declaration which our Saviour makes hereupon, of the truth of his repentance and conversion, and the happy state he was thereby put into. “And Jesus said unto him, This day is salvation come to this house, forasmuch as he also is the son of Abraham;” as if he had said, By these fruits and effects it appears, that this is a repentance to salvation; and this man whom you look upon as a sinner and a heathen, may, by better right, call Abraham father, than any of you formal pharisees and Jews, who glory so much in being the “children of Abraham.”
I. The fruit and effect of Zaccheus’s conversion and repentance; “And if,” &c.
This Zaccheus, as you find at the 2d verse, was chief of the publicans, which was an office of great odium and infamy among the Jews, they being the collectors of the tribute which the Roman emperor, under whose power the Jews then were, did exact from them. And because these publicans farmed this tribute of the emperor at a certain rent, they made a gain out of it themselves, by exacting and requiring more of the people than was due upon that account; so that their calling was very infamous upon three accounts.
1. Because they were the instruments of oppressing their countrymen; for so they looked upon the tax they paid to the Romans, as a great oppression.
2. Because they were forced by the necessity of their calling to have familiar conversation with heathens, whom they looked upon as sinners. Hence the phrase used by the apostle, of “sinners of the gentiles.” And hence, likewise, probably it is, 449that publicans and sinners, publicans and heathens, are joined several times together, because of the occasions of frequent converse which the publicans had with the heathens.
3. But, principally, they were odious because of the common injustice and oppression which they used in the management of their calling, by fraud and violence extorting more than was due, to enhance the profit of their places. Hence it is, that this sort of officers have been generally branded, and reckoned among the worst sort of men. So he in the comedy, Πάντες τελῶναι, πάντες εἰσὶν ἅρπαγες, “all publicans are rapacious or robbers.” And this is most probably the sin which Zaccheus here repents of, and in regard to which he promises restitution, καὶ εἴ τινός τι ἐσυκοφάντησα, “And if I have taken any thing from any man by false accusation;” so we render the words in our translation: but the word ἐσυκοφάντησα signifies more generally, “If I have been injurious to any one, if I have wronged any man,” as appears by the constant use of this word by the LXX. who by this word do translate the most general Hebrew words which signify any kind of injury or oppression, either by fraud, or violence, or calumny. So that there is no reason here to restrain it, “wronging men by false accusation:” for Zaccheus’s sin being in all probability extorting more than was due, this might as easily be done many other ways, as “by false accusation.” And that this was the common sin of the publicans, appears by the counsel which John the Baptist gives them: (Luke iii. 12, 13.) “Then came also the publicans to be baptized, and said unto him, Master, what shall we do? And he said unto them, Exact no more than that which is appointed you;” that 450is, do not, by fraud or violence, extort from any man more than the tribute which is laid upon him.
So that Zaccheus here promiseth, that if he had been injurious to any man in his office, by extorting more than was due, he would restore to him fourfold. And if Zaccheus calculated his estate right, and intended to reserve any part of it to himself, which is but reasonable to suppose, it could be no very great part of his estate which was so injuriously got: and I am afraid a far smaller proportion than many are guilty of, who yet pass for very honest men in comparison of the publicans. The text saith, he was “a rich man.” Suppose he was worth ten or twelve thousand pounds; half he gives to the poor, that was well got, or else his whole estate could not have made a fourfold restitution for it. Suppose he reserved a thousand or two to himself; then, at the rate of restoring fourfold, not above a thousand can be injuriously got; that is, about a penny in the shilling. I am afraid that now-a-days there are few such moderate oppressors: nay, it is possible that the proportion of his estate injuriously got might be much less; more it could not easily be. But whatever it was, he does not plead that by way of excuse for himself; he freely confesseth he had sinned in this kind, and offers restitution to the utmost, much more than the law did require in such cases.
II. You have the declaration our Saviour makes hereupon, of the truth of his repentance and conversion, and the happy state he was thereby put into, “This day is salvation come to this house.”
The observation I shall make from hence is this, that restitution and satisfaction for the injuries we have done to others, is a proper and genuine effect 451of true repentance. I know the text only speaks of restitution in case of oppression and exaction: but, because there is the same reason why restitution should be made for all other injuries, I think I may, without any force or violence to my text, very well make it the foundation of a more general discourse concerning restitution.
In handling of this, I shall,
First, Open to you the nature of this duty.
Secondly, Confirm the truth of the proposition, by shewing the necessity of it.
Thirdly, Endeavour to persuade men to the discharge of this necessary duty.
First, For the opening the nature of this duty, I will consider,
I. The act.
II. The latitude or extent of the object, as I may call it, or the matter about which it is conversant.
III. The manner how it is to be done.
IV. The measure of it.
V. The persons who are bound to make restitution, and to whom it is to be made.
VI. The time in which it is to be done.
VII. The order of doing it, where more are injured, and restitution cannot be made at once to all.
I. For the act. Restitution is nothing else but the making reparation or satisfaction to another for the injuries we have done him. It is to restore a man to the good condition from which, contrary to right and to our duty, we have removed him. Restitution is only done in case of injury. Another man may be damaged and prejudiced by us many ways, and we not be bound to make restitution: because there are many cases wherein a man deserves the prejudice we do to him: as, when we are 452instruments of inflicting upon a man the punishment which the law doth sentence him to. And there are many cases wherein we may be prejudicial to others, and cannot help it: as a man that is sick of a contagious disease, may infect others that are about him: but he is not injurious to them; because it is not his fault but his infelicity.
II. For the latitude and extent of the object, as I may call it, or the matter about which it is conversant. It extends to all kind of injuries, which may be reduced to these two heads; either we injure a person with or without his consent.
1. Some injuries are done to persons with their consent. Such are most of those injuries which are done to the souls of men, when we command, or counsel, or encourage them to sin, or draw them in by our example. For the maxim, Volenti non fit injuria, “There is no injury done to a man that is willing,” is not so to be understood, as that a man may not in some sort consent to his own wrong: for absolute freedom and willingness supposeth that a man is wholly left to himself, and that he under stands fully what he does. And in this sense no man sins willingly; that is, perfectly knowing and actually considering what he does; and commands, and persuasion, and example, are a kind of violence; yet none of these hinder, but that a man in these cases may sufficiently consent to what he does. But yet he is not so perfectly free, as to excuse him that draws him into sin by these ways. So likewise when a man refuseth to do that which is his duty without a reward; for instance, to do justice to another; he is injurious in so doing: but yet not altogether without the consent of him whom he injures.453
2. Injuries are done to persons without their consent. And these, though they are not always the greatest mischiefs, yet they are the greatest injuries. And these injuries are done either by fraud and cunning, or by violence and oppression: either by overreaching another man in wit, or overbearing him by power. And these usually either respect the bodies of men, or their estates, or their good name. The bodies of men: he that maims another, or does him any other injury in his limbs or health, either by fraud or by force, is bound, so far as he is able, to make reparation for the injury. Or they respect the estates of men: if by cunning, or by violence, or by false testimony, or accusation, thou hast hindered a man of any benefit, which otherwise would have come to him, thou art bound to restitution. If by thy power or interest, by thy knowledge in the law, or skill in business, thou hast directly and avowedly helped and assisted another to do injustice to his neighbour, thou art bound to restitution; though not as the principal, yet as the accessory. If thou hast overreached thy brother in any contract, making advantage of his ignorance or unskilfulness; if thou hast made again of his necessity; if thou hast by thy power and interest, or by any more violent and forcible way detained his right, or taken away that which was his, thou art bound to make reparation for these injuries, to restore that which thou hast borrowed, to return the pledge which thou hast wrongfully kept, to release unconscionable forfeitures, to pay debts, to make satisfaction for frauds and cheats, to take off all unjust invasions and surprisals of estates: yea, though the fraud be such that thou art not liable to make satisfaction by any human law; yet thou art as much bound to it 454in conscience to God and thy duty, as if thou hadst stolen or taken it by violence from thy neighbour. For in truth and reality, fraud is as great an injury as violence, although human laws cannot take cognizance of it, so as to relieve every man that is over reached in a bargain: nay, of the two, it is worse; for whenever thou deceivest a man in this kind, thou dost not only wrong him in point of estate, but thou abusest his understanding.
And so likewise in respect of a man’s fame and reputation. If thou hast hurt any man’s good name by slander or calumny, by false witness, by rendering him ridiculous, or any other way, thou art bound to give such satisfaction as the thing is capable of; or if there be any other injury which I have not mentioned, thou art obliged to make reparation for it.
III. As to the manner how restitution is to be made,
1. Thou art bound to do it voluntarily, and of thy own accord, though the person injured do not know who it was that did him the injury, though he do not seek reparation by law. When a man is forced by law to make restitution, it is not a virtue, but necessity; this is not a fruit of repentance and a good mind, but of good law. And that thou dost not do it, unless the law compel thee to it, is an argument thou wouldest not have done it, if thou couldest have avoided it. And though the thing be done, yet thou hast not done it, but the law; and unless thou heartily repent of thy crime, the injury still lies at thy door, and in God’s account thou art as guilty as if no restitution had been made. Not that thou art bound, in this case, to make new restitution over again; but thou art bound to bewail 455thy neglect, that thou didst not do it voluntarily, and without the compulsion of the law.
2. Thou must do it in kind, if the thing be capable of it, and the injured party demand it. Thou must restore the very thing which thou hadst deprived thy neighbour of, if it be such a thing as can be restored, and be still in thy power, unless he voluntarily accept of some other thing in exchange.
3. If thou canst not restore it in kind, thou art bound to restore it in value, in something that is as good. As for spiritual injuries done to the souls of men, we are bound to make such reparation and compensation as we can. Those whom we have drawn into sin, and engaged in wicked courses, by our influence and example, or by neglect of our duty towards them, we are, so far as becomes the relation we stand in to them, to make acknowledgment of our fault, to endeavour by our instruction and counsel to reclaim them from those sins we led them into, and “to recover them out of the snare of the devil;” and should never be at rest till we have done as much, or more, for the furtherance of their salvation, and helping them forwards towards heaven, as we did contribute before to their ruin and destruction. If we have violated any one’s chastity, we are bound to marry them, if it was done upon that condition, and if they require it; thou art bound to keep and maintain those children which are the fruit of thy lust, and to make reparation to the person whom thou hast injured, by dowry or otherwise.
If thou hast defrauded and injured any man in his good name, thou art obliged to make him a compensation by acknowledgment of thy fault, by a studious vindication of him, and by doing him honour, 456and repairing his credit in all fitting ways. And if the injury be irreparable (as it frequently happens, that we can hardly so effectually vindicate a man, as we can defame him; and it is seldom seen that those wounds which are given to men’s reputation are perfectly healed), I say, if the injury be irreparable, especially if it prove really prejudicial to a man in his calling and civil interest; if no other satisfaction will be accepted, it is to be made in money, which, Solomon says, “answers all things;” and the rather, because the reason and equity of human laws hath thought fit to assign this way of satisfaction in many cases upon actions of scandal and defamation. And whatever the law would give, in any case, if it could be proved, that is the least we are bound in conscience to do, when we are guilty to ourselves, though the law cannot take hold of us.
So likewise, if thou hast wounded a man, thou art bound to pay the cure, to repair to him and his relations the disability for his calling, and his way of livelihood and subsistence, which he hath contracted by thy injury. And so for false imprisonment, the real detriment which comes to him by it, is to be made amends for: and so, in all other cases, the injured person is, so far as is possible, to be restored to the good condition in which he was before the injury.
IV. As to the measure and proportion of the restitution we are to make. Zaccheus here offers fourfold, which was much beyond what any law required in like cases. The measure of restitution by the judicial law of the Jews, did very much vary, according to the kind and degree of the injury. In some cases, a man was only bound to simple restitution; 457but then he was to do it to the full, (Exod. xxii. 5, 6.) And so if that which is another man’s be “delivered unto his neighbour to keep, and be stolen from him, he is to make restitution thereof,” (ver. 12.) “And so if a man borrow aught of his neighbour, and it be hurt or die, the owner thereof not being with it, he shall surely make it good,” (ver. 14.) “But for all manner of trespasses,” by way of theft, “whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, he whom the judge shall condemn, shall pay double to his neighbour;” (ver. 9.) that is, if it be of a living creature, “if the theft be found in his hands alive, whether it be ox, or ass, or sheep, he shall restore double,” (ver. 4.) But if a man did “steal an ox or a sheep, and did kill it, or sell it,” he was to restore “five oxen for an ox, and four sheep for a sheep.” And thus we find David judged upon Nathan’s parable of the rich man, who had taken the poor man’s only lamb, and killed and dressed it for a traveller that came to him, (2 Sam. xii. 6.) “He shall restore the lamb fourfold.” Now the reason of this seems to be partly because of the advantage and usefulness of those creatures above any other: and partly because when they were once killed or alienated, a man could not, without great trouble and difficulty, make discovery; which hazard of not discovering seems to be accounted for in the restitution; but if a man did voluntarily offer restitution, before he was prosecuted, for any thing that was taken by violence, or unjustly detained from his neighbour, then he was only “to restore the principal, and to add a fifth part thereto, and to offer up an offering 458to the Lord,” and so “his atonement was made,” (Levit. vi. 1, &c.)
So that the highest proportion was a fourth or fifth part, and that only in the particular case of sheep or oxen stolen away, and killed or alienated afterwards. Indeed, Solomon speaks of a sevenfold restitution, (Prov. vi. 31.) where he saith, “If a thief be found, he shall restore sevenfold, even all the substance of his house;” where seven is only a number of perfection, and the meaning is, he shall make perfect and full restitution, according to the law, so far as his substance or estate will reach.
So that it seems Zaccheus, in restoring fourfold, did outdo the utmost severity of the law; which in case of fraud and oppression was but double, if demanded; if voluntarily offered, was the principal, and a fifth part added; but to testify the truth of his repentance, and his hearty sorrow for the injuries he had done, he punisheth himself beyond what the law would have done.
I do not say that this example binds as to this measure and proportion: nay, I do not say we are bound to the proportions of the law; for that only concerned the nation of the Jews: but although we be free from the letter of the law, yet we are tied to the equity of it. As to the substance of the duty of restitution, we are bound to that by the law of nature: as to the measure and proportion, the equity of the judicial law in its proportions, and of Zaccheus’s example, ought to be considerable to us.
But to speak more particularly concerning the measures and proportions of restitution, I shall lay down these propositions:
I. Where restitution can be made in kind, or the 459injury can be certainly valued, we are to restore the tiling or the value.
2. We are bound to restore the thing, with the natural increase of it; that is, to satisfy for the loss sustained in the mean time, and the gain hindered.
3. Where the thing cannot be restored, and the value of it is not certain, we are to give reasonable satisfaction, that is, according to a middle estimation; not the highest nor the lowest of things of the kind. The injured person can demand no more, and strict justice requires no more. But it is safe for him that hath done the injury, rather to exceed than to fall short.
4. We are at least to give by way of restitution what the law would give, for that is generally equal, and in most cases rather favourable than rigorous.
5. A man is not only bound to restitution for the injury which he did, but for all that directly follows upon his injurious act, though it were beyond his intention. For the first injury being wilful, thou art presumed to will all that which directly followed upon it, according to that rule, Involuntarium ortum ex voluntaria censetur pro voluntario: “We are presumed to will that which follows upon a voluntary action, though we did not intend it.” For instance, if a man maliciously and knowingly set fire upon another man’s house, though he intended only an injury to that particular person, yet if a wind come and drive the fire to his neighbours at some distance, though he did not intend this, yet, because the first act was unlawful, he is liable to satisfy for all the direct consequences of it. If a man wound another without any intention of killing him, and the wound prove mortal, though there was no probability that death would ensue upon it, the man is bound, because the 460first act was injurious, to make reparation to his relations for the damage they sustain by his death; and if they did depend solely upon him who died by such injury, thou art bound to maintain them.
6. Because those who have lived in a trade and course of injustice can hardly remember all the particular injuries they have done, so as to make exact satisfaction! for them, it will not be amiss, over and besides, to give something to the poor. So Zaccheus does here, “Half of my estate I give to the poor, and if I have taken any thing,” &c.
V. The persons who are concerned in restitution. And here I shall consider,
First, The persons who are bound to make restitution.
Secondly, The persons to whom it is to be made.
First, The persons who are bound to make restitution. In general, they who have done the injury, or they who come into their stead, so as in law or equity the injury devolves and descends upon them. But for the clearer stating of this, I shall lay down several propositions which may serve to resolve a great many cases that may be put concerning persons obliged to make restitution.
1. If the injury be done solely by one, without accomplices and partakers in the crime, he alone is responsible, and wholly bound to make satisfaction; I mean, he only is bound so long as he lives; but if the injury descends as a burthen upon the estate, then he who enjoys the estate becomes bound to make satisfaction, as I shall shew afterwards.
2. If the injury was done by more, who did all equally concur to the doing of it, they are all equally bound to make satisfaction, and they are bound to concur together to that purpose; and in case of 461such concurrence, every one is not bound to satisfy for the whole, but pro rata parte, for his share; provided they do among them make full satisfaction.
3. If all will not concur, those that are willing are bound among them to make reparation for the injury: nay, if all the rest refuse to join with thee in it, thou art bound in solidum to make full reparation so far as thou art able; because every one was guilty of the whole injury. For instance, if four men conspire together to cheat a man, or to rob him, any one of these, if the rest refuse, is bound to make entire satisfaction; yea, though he was only partaker in the benefit; because, as I said before, he is guilty of the whole injury.
4. If the injury be done by more, who do unequally concur to the doing of it, he that is principal is chiefly and principally bound to make satisfaction; and here I do not take principal strictly in the sense of the law, but in the sense of equity; not for him always who is the more immediate cause of the injury, but for him who was the greatest cause, and by whose influence chiefly it was procured and done: but if the principal will not, the accessories and instruments are bound, at least for their share, and according to the proportion of the hand they had in it. But if the principal do satisfy in the name, and upon the account of the rest, then the accessories are free from an obligation to restitution, and are only bound to repentance.
5. If the injury devolve upon another, by descending as a burden upon the estate, he who enjoys the estate is bound to make satisfaction. And when injuries do thus descend as burdens and incumbrances upon estates, and when not, the civil laws of the place where we live must determine: 462but then where my case falls within the compass of the law, I am bound voluntarily to satisfy without the compulsion of the law. For instance, if an estate fall to me charged with a debt, which hath been unjustly detained, I am bound voluntarily to discharge the debt, so soon as it appears to me, before I am compelled thereto by the law.
6. As for personal injuries which do not lie as burdens upon the estate, nor do by the law descend upon the son or heir, though in strict justice a man be not bound to make compensation for them, for that would be endless, et infinitum in lege repudiatur, “no law can take notice of that which is in finite and endless;” for quæ exitum non habent habentur pro impossibilibus, “those things which have no end, to which no bounds can be set, are esteemed among things impossible,” to which no man can be obliged: but though in strict justice the heir be not bound to make reparation for the personal injuries of him whom he succeeds in the estate, yet in many cases it is equitable, and generous, and Christian, for such persons to make some kind of reparation for palpable and notorious injuries. For instance, if I be heir to an estate, part of which I know certainly was injuriously gotten, it is not only Christian, but prudent, to make satisfaction in the case to the party injured, if certainly known; if not, to give it to the poor; for by this means I may take out the moth which was bred by injustice in the estate, and rub off the rust that sticks to the gold and silver which was got by oppression or fraud, and so free the remaining part of the estate from that secret and Divine Nemesis which attends it and follows it. And for the same reason, it is very noble and Christian for the son and heir of an unjust 463father to make some reparation for his father’s injuries by restitution, if the thing be capable of it: if not, by doing all good offices to the injured persons, which is some kind of compensation. And in this case the obligation is greater, because by this means a man does not only do what in him lies to cutoff the curse, which, by his father’s oppression and injustice, is entailed upon the family and estate; but, likewise, because a son ought much more to be concerned for his father than any other person, and to consult the honour and reputation both of him and his own family; and the reparation which the son makes, is in some sort the father’s act, because he succeeds him, and comes in his stead.
Secondly, As to the persons to whom satisfaction is to be made. For the resolution of those cases which may fall under this head, I shall lay down these propositions:
1. If the injured person be certainly known, and be alive and extant, the satisfaction is to be made to him.
2. If he be not alive, or, which is all one, not to be found or come at, satisfaction is to be made to his nearest relations, his wife, or children, or brothers, or other nearest kindred. The reason is, because satisfaction being due, and I having no right to keep that which I have injuriously gotten, if I cannot restore it to the party himself, I ought in all reason to place it there where I may most reasonably presume the party injured would have bestowed his estate, and this part of it amongst the rest, had he been possessed of it. And by the same reason that I am bound thus to restore the part of his estate which I have injuriously taken or detained from him, I am likewise obliged to give satisfaction to 464the same person for any other injury; for to whom soever I would pay a debt due to one that is deceased, to the same person I ought to give satisfaction for the injuries by which a debt is, though not formally, yet virtually contracted.
3. If the party injured be not certainly known, or have no near relations known to me, in that case I think it very advisable to give so much to the poor, or to some charitable use; or if the party injured be not capable of proper satisfaction, as sometimes it is a community and body of men that you have injured; in this case it is proper to repair the injuries to communities or bodies of men, by equivalent good offices, or by some public good work, which may be of common benefit and advantage.—This is the fifth thing I proposed to speak to, the persons concerned in restitution; both the persons who are bound to make restitution, and the persons to whom it is to be made. Of the rest hereafter.465
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