The hand-maid of repentance. Or, A short treatise of restitution. Written by Arth: Dent, Minister of Gods word at Southshoobery in Essex. As a necessary appendix to his Sermon of Repentance

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 vs now procéede to entreat of the circumstances , and that most bréefely , in order , thus .

Persons who .

Euery one is bound to make Restitution , who hath béene the cause of wrongfull taking : and where the persons are many , euery 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 't is 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 giue 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 vnto the place , whereunto the matter belongeth .

If the owner be not knowne , or if one cannot haue frée and safe accesse vnto him : then it ought to bee giuen vnto 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 vnto him : if the matter be of great valew , it ought to be sent vnto the owner , at the costs and charges of the wrongfull detainer : if it cannot bee sent vnto 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 vnto 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 haue 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 vpon 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 giue 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 vpon 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 haue 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 cannot be had , or bee made worse , the like may bee restored .

Whosoeuer hath another mans good , is bound to restore it ; whether he haue 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 haue action against the seller howsoeuer .

Malâ fide .

If a man buy ought by euill meanes , vpon a gréedy intent of gaine : he is bound to giue the thing , if hee haue it ; or the valew , if he haue it not , together with the gaines he hath got thereby . And although it be stolne from him ; yet is he not frée from 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 haue 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 vpon 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 .

First , the will of the owner granting delay .

Secondly , ignorance of the reasonablenesse of right , or of the fact .

Thirdly , want of ability . Touching which point , the opinion of the learned riseth vpon sixe conclusions .

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 .

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 .

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 .

The fourth is , if the same should tend to a publike danger , or were against a publike commoditie .

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 .

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 haue 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 , onely for lucre sake , and not vpon necessity . Note also , that if delay should be hurtfull to the Creditor : although a man should auoide the greater 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 vpon vse .

He that hath taken Mony vpon Vsury , if hee haue 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 his might become poorer . In this and the like cases , lawful Contracts must giue 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 vpon 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 vnto 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 haue the abilitie to performe it .

Many account it no sinne at all , to detaine an other mans goods if they chance to finde them : vpon 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 haue gathered , deducting onely his necessarie expences , and consideration of his paines , taken , and bestowed vpon 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 haue gotten so much by it .

He that makes a lawfull promise , and doth not performe it ; ought to satisfie for Damage , following vpon the breach of it .

He that taketh any reward to doe euill , if he haue 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 haue hurt one another alike : where two parties haue 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 vnto the Prodigal . Some there are notwithstanding of a contrarie opinion , that positiuely hold , That it ought to be restored vnto 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 vnto 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 mercie , and obtaine it , by rendring to euery 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 .