Third Question.

Next, thirdly, inquiry is made concerning the various species of restitutions, corresponding to the various species of alienation of goods. And first, concerning the restitution of goods whose alienation does not transfer ownership, as in goods secretly or violently taken from the owner without the owner’s consent, as occurs in theft and rapine. Then, concerning the restitutions of goods transferred with the owner’s consent.

Regarding the first, it is asked whether all thieves and robbers, and their accomplices, are bound to restitution of the individual goods alienated.

The question will be treated in three articles. Having set out preliminary notes, the terms are described. Second, the question will be examined through conclusions pertaining to the title. Third, doubts will be resolved.

Article One.

First Note.

Regarding the first: theft is to be noted. According to blessed Thomas, Secunda Secundae, q. 66, art. 3, it is described [as follows]: it is the secret taking of another’s property. But because this description is too general if theft is taken in the strict sense---for it applies equally to simony, usury, and fraudulent or unjust commerce---and too narrow if theft is taken broadly for any unjust handling of another’s property, in which sense it is used in the seventh commandment, “Thou shalt not steal.” Hence Augustinus, in his book of Questions on Exodus, says: by the name of theft is rightly understood every illicit usurpation of another’s property. For he who forbade theft did not thereby permit rapine; rather, in the law of the Old Testament he wished rapine to be understood under the name of theft. For he signified the whole by the part: whatever is illicitly taken from one’s neighbor belongs [to theft]. 14 q. 5 Penale.

Taking theft in this way, then, the definition does not apply to every form of theft, for it does not apply to rapine if the latter is not thereby distinguished from theft. Therefore Raymundus, whom the doctor commonly follows, defines it differently: theft, taken in the strict sense, is the fraudulent handling of another’s movable corporeal property, without the owner’s consent, for the sake of gaining the thing itself, or its use, or its actual possession.

It says first “handling,” which is put as the genus: this is the real and external apprehension of the thing. Theft is not committed by will or words alone; although the will to steal is a sin, it is not yet called theft. By will alone one transgresses another precept, namely: “Thou shalt not covet thy neighbor’s property.”

It says “of another’s property,” because theft is not committed in one’s own property---which is true, unless another had some right in that thing, for instance if it had been pledged or loaned to another. [If] Pacenianus receives it fraudulently and secretly, theft is committed. For the thing is another’s to him with respect to use, because it has been pledged or loaned to another. Similarly, if someone finds his own property in another’s possession (who has no right to it) and takes it, theft is not committed; but he loses his legal right to it, inasmuch as he takes it by his own authority and adjudicates the matter himself. And this is according to the law of the forum, not the law of heaven. Therefore he is not bound to restitution. But of this in the doubts. Similarly, if in extreme necessity one were to handle the property of a neigh[bor]

[bor], he would not commit theft, because in that case the thing is not another’s.

It says “movable,” because in immovable property, such as a field or a house, theft is not committed, but rather despoilment or rapine.

It says “corporeal,” because in an incorporeal thing, such as an action or a servitude, theft is not committed, since such things cannot be handled.

It says “fraudulent,” because if someone believed that a thing was his own when it was not, or even if he knew it was not his, yet believed the owner would not be unwilling and had reasonable grounds for so believing, he does not commit theft. For in case of doubt, the owner is presumed to be unwilling.

It says “without the owner’s consent,” which is to be understood both of the proximate owner, that is the immediate superior, and of the remote owner; for if the superior owner were not unwilling, there would be neither theft nor rapine. This is evident in the despoiling of the Egyptians by the children of Israel, Exodus [12]. It is therefore required that both be unwilling. For if either one consents, there is no theft. Hence simony or usury is not properly called theft, because when the owner of the thing is willing and his will is known, the one receiving the thing does not commit theft. If, however, he believed the owner to be unwilling, he does commit theft in this manner with respect to intention, though he is not thereby bound to restitution. And the owner is said to be unwilling even when he sees the thing being taken and does not object, out of fear or shame. Otherwise, by not objecting when he could have, he is deemed to consent.

It says “for the sake of gaining,” because if one were to take a thing not with the intention of gaining it, but with the intention of safeguarding it, or of making the owner more cautious, or for some similar reason, it would not be theft.

It says “the thing itself, its use, or its possession,” because it makes no difference whether the one taking another’s thing intends to appropriate the thing itself, or only the use of the thing, or its possession. For whatever of these he intends, he commits theft. And if one wishes to distinguish theft more clearly from rapine, “secretly” should be added, as Saint Thomas adds---though the word “fraudulently” already sufficiently distinguishes them, if less explicitly. This will be discussed immediately below. It is also said “without the owner’s consent”: this is to be understood as referring not to an illicit act but to a lawful act, as was touched upon in the preceding question.

Second Note

[It is to be noted] that in general there are two kinds of theft: manifest and non-manifest. Manifest theft is when the thief is caught before he arrives at his intended destination. Non-manifest theft is when the thief is not caught. There are also certain thefts that receive special names, such as sacrilege, which is the theft of a sacred thing, or of a non-sacred thing from a sacred place. Hence “sacrilege” is said to be quasi “sacri laedium,” or quasi the violation of the sacred law. Sacrilege is committed either against a person, as when an ecclesiastical person is harmed; or against a place, as when the immunity of a church or cemetery is violated; or against a thing, as when some sacred thing is taken from a sacred place, or a sacred thing from a non-sacred place, or a non-sacred thing from a sacred place; as is held in the Gloss on “sacrilegium,” 14 q. 4; and in the chapter Si quis contumax, in the third causa, q. [2]. Likewise, theft committed against a reli[gious]

[gious] thing and [theft] of public property is called peculatus. Likewise, the dispersal of a herd and theft therefrom is called abigeatus. Similarly, the knowing sale or purchase of a free person is called plagiatus; and in the same way, the enticement, carrying off, or clandestine transportation of another’s slave to another region. The remaining thefts retain the general name of theft.

Third Note

[It is to be noted] that rapine is understood in multiple senses. In one way, in the broadest and most improper sense, for any undue usurpation of a thing, whether temporal or spiritual. It is taken in this sense in Philippians 2, where the Apostle says of Christ: “He did not think it robbery to be equal to God,” because he did not attribute to himself an equality with God that was undue---for he was and is equal to the Father according to his divinity, and true God of true God. But the first parent wished to seize this, as Augustinus says: “They wished to seize divinity and lost happiness.” And Christ paid the penalty for this rapine, as he says in the Psalm: “I restored that which I took not away.”

In a second way, rapine is understood broadly, yet less broadly than the first, for any unjust usurpation or retention of another’s temporal property by any means whatsoever, whether manifest or concealed---and in this sense it comprehends under itself theft, rapine in the strict sense, usury, and the like. Hence Ambrose: “If anyone accepts usury, he commits rapine; he does not live life,” in the book De bono mortis. And Augustinus, 14 q. 5 Si quid: “If you have found something and have not returned it, you have committed rapine.” And blessed Piero, [as] found in dist. 42 § ordinandus: “He is convicted of seizing another’s goods who strives to retain for himself more than is necessary.” This is to be understood of what is superfluous to one’s nature and station. And in that sense rapine is not distinguished from theft even in the broad sense.

In a third way, rapine is understood in the proper and strict sense, as it is distinguished from theft in the strict sense. Thus rapine is described as: the illicit usurpation of another’s property effected by violence for the sake of gain.

It says “of another’s property,” because if someone were to take by violence his own property from one who had taken it from him, while that person was still carrying it away, or after the thief or robber had reached his destination and settled there, it would not be rapine, as will be said.

It says “by violence,” to distinguish it from theft, in which another’s property is taken by fraud.

It says “for the sake of gain,” for the same reason as in the definition of theft; because if someone were violently to wrest a sword from the hand of a madman in order to prevent homicide, it would not be rapine. Similarly, if someone takes another’s maidservant in order to fornicate with her, it is not rapine, though it may be called rape, which is a species of lust.

It says “illicit,” because when things are violently taken from enemies in a just war, or similarly when a debt owed by someone is collected from an unwilling person by public authority, rapine is not committed.

And from this the twofold difference between theft and rapine is clear. First, because theft is committed secretly, rapine openly. This is indicated in Book 5 of the Ethics, ch. 4. Second, because theft is done by deceit, but rapine, as has been said, by violence. Rapine is also taken in the strictest sense, as distinguished from predation: in that case rapine concerns immovable property, while predation concerns movable property. But commonly they are used interchangeably and without distinction. And

thus [rapine] has been defined, and it is so taken in the present discussion. Fourth, it is to be noted that since rapine, like theft, denotes the taking of another’s property against the will of its owner---that is, with the owner unwilling---the species or modes of rapine may be distinguished according to the modes of the involuntary, as set out in Book 3 of the Ethics. For the voluntary is either simply voluntary or, in a qualified sense, voluntary by addition, as is clear there. And correspondingly with the involuntary. Hence the taking of a thing is simply involuntary when it is done by an elicited act of will; and such a taking, insofar as it is open and unjust, is manifest rapine, because it is effected through manifest violence. Sometimes, however, the taking is involuntary only conditionally, because the one suffering it would not wish it to occur if he could prevent it without greater harm---as when subjects endure unjust oppressions from their lords. And this kind of extortion does not escape the character of rapine. And in accordance with this, rapine is committed in various ways: manifestly, as by brigands and public robbers and highway ambushers who wander about and seize whatever they can; it occurs in shipwrecks; it occurs in tolls; it occurs in levies, tallages, and similar impositions; it occurs in wars and battles; it occurs in the various extortions of both lords and officials---concerning the restitutions for which we must now examine.

Fifth Note

[It is to be noted] that all rapine, and likewise theft, is a sin, because they include injustice in their very definitions. For, as has been said, if something is justly taken, whether the owner is ignorant of it or knows of it and is unwilling, it is called neither theft nor rapine. Hence, as blessed Thomas says, Secunda Secundae, q. 66, art. 8: rapine denotes a certain violence and coercion by which what is one’s own is taken away contrary to justice. Now, no one has a just [power of] coercion in human society except public authority. Therefore a private person not exercising public authority, if he takes anything by coercion or violence, acts unjustly and commits rapine. To princes and rulers of communities, however, public authority is entrusted for this purpose: that they be guardians of justice. Therefore it is not lawful for them to use violence and coercion except according to the tenor of justice, and this either by fighting against enemies or by punishing wicked citizens. What is taken away by such violence has not the character of rapine, since it is not done contrary to justice. But if any persons unjustly take the goods of others by public authority and by force, they act unlawfully and commit rapine. But if you proceed to ask whether all rapine and theft are mortal sins, the answer is yes, by their very genus. This is evident, because they are contrary to an express negative precept of the Decalogue: “Thou shalt not steal,” where theft is taken broadly for every unjust taking of a thing, whether by fraud secretly or by violence openly, as has been said. And thus by that precept all theft and all rapine are forbidden, and consequently it is mortal---according to the definition of mortal sin given by blessed Augustinus, as is found in [Causa] 2. Nevertheless, if something very small were to be handled by stealth and not out of malice, one would be excused from mortal sin, as Saint Thomas says.

It is said “not out of malice” because, however small the thing taken may be, if the taking nonetheless proceeds from an intention to harm one’s neighbor or from a desire to possess another’s property, and one presumes that the removal of even so slight a thing is against the owner’s will, one is not excused from mortal sin. For even the mere will and coveting of a neighbor’s goods is a mortal sin and is contrary to the tenth commandment: “You shall not covet,” etc. Yet rapine and theft differ in the nature of their sinfulness, since all else being equal rapine is a graver sin than theft. Hence Augustinus, in his Questions on Exodus: “It is punishable to take something secretly, but far more severely punishable to seize it openly” (Decretum C.14, q.5, c.Penale). The gloss there [says]: “punishable, that is, worthy of punishment.” For the robber offends more than the thief, for two reasons. According to blessed Thomas, Summa II–II, q. 66, art. 9. First: since both theft and rapine are sins insofar as by them another’s property is taken against the owner’s will, the more unwilling the owner, the more grave the sin of taking. Now violence, which constitutes rapine, is more directly opposed to the [owner’s] will than ignorance, which is the basis of theft. Second: because through rapine not only is material harm done to someone, but it also tends toward a kind of disgrace and injury — that is, contempt of the person harmed — which outweighs the fraud and deceit that are present in theft. And a third reason may be added: because there is greater audacity and obstinacy in rapine than in theft, and thus a more intense will to take another’s property, and consequently a graver sin in rapine. For the intensification of an evil will aggravates sin, just as, on the other side, the intensification of a good will increases merit. For there is greater audacity and more intense will in a public sin than in a hidden one. He who is less deterred from the will [to take] wills it more forcefully, clinging to it more firmly, ready to defend that will against all opposition — and this is the nature of rapine. For the robber is not held back by shame, because he steals openly; he is ready to defend himself, because he steals by force; and he has taken on a harlot’s brow, incapable of blushing, which aggravates the sin. Nor does it hinder [this conclusion] that the robber is more ashamed of theft than of rapine. We are more ashamed of greater disgrace; and so disgrace seems greater in theft than in rapine, and therefore theft seems the greater sin. But as Thomas says: since people, being attached to outward things, take more pride in the external virtue that is displayed in rapine than in the interior virtue that is destroyed by sin, they are therefore less ashamed of rapine than of theft — because theft is attended by a kind of fear and pusillanimity, which they detest more than audacity. A fourth reason is also added: rapine is more severely punished than theft, both by civil laws and by canon law. For by canon law one is excommunicated by the bishop in whose diocese one committed the rapine (De rapto, cap. 1, q. 2), nor is one absolved unless one first makes amends by restoring what was taken, if one is able. But if one refuses to make satisfaction or to give full security for making satisfaction, the benefit

of penance is to be denied to him. And if he persists in obstinacy until death, even if he offers amendment or security for amendment, he shall have penance but [be denied] the viaticum and burial. But if he is unable to make satisfaction at the point of death, being contrite he shall receive the viaticum but be denied ecclesiastical burial, as in the chapter Super eo de rapto. And this is done to strike fear into others, or to confound sinners, so that by such means they may be moved to make satisfaction. The [canon] adds in the cited chapter that if any priests or clerics presume, whether during life or at death, to give [such a robber burial rites] or to attend his burial, or attempt to receive his alms, and are found to be participants in this rapine, they are to suffer the loss of their order and be irrecoverably deprived of any ecclesiastical benefit. Hostiensis understands this to apply when the person has been repeatedly admonished, or when the disturbance was brief; having been absolved by his own priest he is to be buried; the heirs are to be compelled by ecclesiastical censure to make satisfaction according to the deceased’s resources, under the same title (In lfis.). And the same applies if, when at the point of death, he promised to make satisfaction should he recover but died before satisfying. Likewise, nonetheless, he would not deny penance to one who held some temporal property, even if he could not make satisfaction during life, provided he promised to make amends and to give [satisfaction] should he come into better circumstances. And all these things are to be understood of notorious robbers, not of concealed ones.

Although Theft and Rapine Differ in Species, in the Moral Order or in Terms of Sin There Is Little Difference for Present Purposes; It Is Certain They Are Prohibited by the Same Commandment. Yet They Designate Diverse Species That Differ Accidentally, and to Set Out Such Redundant Legal Distinctions Here I Judge Superfluous.

Last Note.

Last to be noted: there are two kinds of participants with thieves and robbers. Some participate in the act of stealing or despoiling; some participate in the property taken by theft or rapine. The former are those who provided the occasion by commanding, counseling, etc., without which the act of theft or rapine would not have been committed. The latter are those who did not provide the occasion by their act, but participate in the stolen goods — receiving them from the robbers, buying, using, consuming them, and the like. And this may happen knowingly or unknowingly. So much for Article 1.

As to the Second Article, the First Conclusion.

Article 2.

Conclusion 1. Every thief and robber is bound to restore to the owner of the property each and every thing taken by theft or rapine, if restitution lies within his power.

Proof: whatever anyone has acquired unjustly, by fraud, or by violence, against the owner’s will, he is bound to restore to the owner, if possible. But every thief and robber is of this description; therefore he is bound. The first principle is evident from what was noted first. The major premise was proved in the preceding question; the minor is also evident from the definitions of theft and rapine given in the preceding article. The phrase “to the owner of the property” and “if restitution lies within his power” was clarified in the preceding question, where it was shown what must be restored and to whom; and the present conclusion is to be understood subject to the qualifications noted there.

Conclusion 2. One who participates, whether in the act or in the stolen property, with a thief or robber, is bound to restitution — yet in different ways according to the different modes of participation.

The conclusion is evident, because one who participates in the act is bound to restitution of the whole, if without his cooperation the act would not have been committed, as was said

in the preceding question. But one who participates in the stolen goods themselves is bound to restore that portion in which he participated, as will be stated more specifically below. For in the other portion of what was taken that did not reach him, he is not culpable — provided he did not participate in the act.

As to the Third Article, the First Doubt Against the First Conclusion.

Article 3.

Doubt 1.

Against the first conclusion: one who steals out of piety in order to give alms is not bound to restitution. Therefore the conclusion is false. The antecedent is proved thus: no one is bound to restore a thing he holds without sin. But one who steals in this way does not sin, which is proved as follows: he would sin especially against the precepts of the second table — “You shall not steal” — not in this case, because all sins against the precepts of the second table are against charity toward one’s neighbor, just as sins against the precepts of the first table are against charity toward God. But theft, especially in the case under argument, is not against charity toward one’s neighbor, for it is consistent with it. For charity toward one’s neighbor is to will for him the love of God, eternal goods, and whatever else promotes beatitude, as was established in Book 3, dist. 28. But one could will this even while taking something from him — especially what is not necessary for his salvation, and especially if it is an obstacle to him, as are superfluous exterior goods, which he is bound to distribute to the needy, as Luke 11 says: “Give what remains as alms.” Those things, then, I can be unwilling to [allow him to keep] precisely out of charity. To this objection the reply is that it is wrong to steal from a neighbor, even one who is abundantly wealthy, in order to give alms, except in a case of extreme necessity on the part of the neighbor. But in that case the rationale of theft ceases. For in such a case one may relieve the neighbor’s necessity from the rich man’s goods when one cannot do so from one’s own — as [Thomas] himself [says] in that place. And for this Augustinus in a homily [says]: “Perhaps someone thinks and says: ‘There are many rich, greedy, covetous Christians; I shall not sin if I take from them and give to the poor. For they do no good; they will receive [their] reward.’ But a thought of this kind is suggested by the cunning of the devil. For even if one distributes to the poor everything one has stolen, one adds to sin rather than diminishes it.” So Augustinus, 14, q. 5, c. forte. For we must not do evil that good may come of it (Rom. 3). To steal is evil, because it is forbidden.

To the argument it is replied that every sin is a sin insofar as it is against charity toward God — as it were a [kind of] sin, according to Augustinus; Ambrosius holds that [sin] consists in the transgression of the divine law and is contrary to God’s charity, whence what is committed is in the first place a sin because it is forbidden by God, and charitable love of neighbor includes love of God, whence a neighbor cannot be loved charitably without loving God. Nor does anyone who does not keep God’s commandments love God. It is therefore conceded that one who sins against the precepts of the second table sins against charity toward one’s neighbor, but nonetheless even more against charity toward God. And when it is argued that theft is consistent with charity toward one’s neighbor, this is denied. Consequently it is said that to love a neighbor charitably is to will for him God’s love and beatitude. Certain goods God first wills us to will, and all evil God first wills us to refuse. And through this, whoever wills temporal evils for his neighbor, even those not contrary to salvation, does not love the neighbor. So it does not hold

Doubt 2.

that theft is consistent with charity toward the neighbor in the case under argument. Secondly, doubt arises whether a wife who secretly withholds,

reserves, expends, or disposes of [certain goods] without her husband’s knowledge, is bound to make restitution to the husband. And likewise, whether a husband [is bound] to his wife, and children to a parent.

For the Resolution of These Matters, Note First

There are three kinds of goods among those in matrimony. Some are the husband’s own. Some are the wife’s own. Some are common to both. Common to both are those which they earn by shared labor, such as the fruits of the dowry and the donatio propter nuptias [“gift on account of marriage”]. The dos [“dowry”] is that which is given to the husband by the parents of the wife, or by the wife herself, or by others, for the bearing of the burdens of matrimony. But the donatio propter nuptias is what the bridegroom gives to the bride when he receives her vow, and similarly if he did not receive a dowry, as in Sext., illud de dona. inter virum et uxorem, c. nup. The husband’s own goods are all other goods which the husband has or acquires by his own industry and labor, or otherwise, without the wife’s collaborative effort, such as also paternal goods or hereditary [goods], apart from the dowry and the donatio propter nuptias. The wife’s own goods are the paraphernalia — that is, whatever a woman holds apart from the dowry (from para, meaning “beside,” and ferna meaning “dos,” hence “beside the dowry”) — such as hereditary successions, bequests or gifts made to her. Likewise, if a woman beyond the management of the household practices some lucrative trade, such as weaving, working in wool, spinning, or

Second, Note

trading, and the like. Angelus says in his Summa, under the word Uxor [“wife”], that a wife sometimes works in her husband’s goods for her own use — for example, in the husband’s wool in order to make a garment, or in his linen in order to make household linens; in that case she earns [the fruit] for her husband. Nor are those things any the less his on that account, just as if she had done no work on them; nor can she claim the price of her labor from her husband. Or she labors in the husband’s goods or in some others’ [goods], not for common use but so as to make a profit for herself; in that case the profit does not accrue to the husband — it accrues to her, not to him — unless she did not bring a dowry sufficient to maintain herself and the common children along with the husband, and the husband has no other sufficient goods. But if she brought a dowry sufficient to maintain herself and the common children, or at least herself, when the husband has other sufficient goods, she is not required to surrender the profit to the husband; rather she may labor in those goods or in others so as to have the price of her labor, and she acquires it for herself. And this is evident, because a wife is not bound to labor for her husband if she has a dowry sufficient for bearing her share of the burdens, or otherwise has maintenance by right of bequest. Nor can the husband compel her by withholding maintenance, as Panormitanus [holds] in c. lfas. de resti. spolia. But if the wife did not bring a dowry sufficient to sustain the burdens of matrimony, she ought at least in part to labor for the support of those burdens. If she refuses, the husband may deny her maintenance. The civil laws appear to hold that a wife who is maintained should let [her earnings] accrue to the husband’s [estate] — those [earnings] which ought to fall within the husband’s domain — understanding this as regards the rendering of the conjugal debt, while she labors for her own use in the husband’s goods; otherwise it does not hold. So when it says she is “almost a member of the husband’s household,” this is to be understood of the husband’s dominion not in an absolute sense, but insofar as she is under his care, ought to be governed by him, and as regards the conjugal debt, because she does not pass into the husband’s legal power. Or Ico says in the same vein that the foregoing is to be understood as applying to

domestic service in the household: guarding the husband’s property, overseeing the kitchen, preparing food, washing, and organizing the household utensils, and the like. This is understood with due regard to the wife’s social standing, for if she is of noble birth, she cannot be compelled to menial tasks. If she were to desist from such domestic service of little esteem in order to practice a craft, a share of the profit from that craft ought to be communicated to the husband, according to the judgment of a good man. But what she earns beyond such domestic service she may retain for herself as her own and need not think of sharing. [This is taken] from Angelus.

Having Set Forth These Things, a Fuller Response Is Now Given

First Proposition

If a wife has taken something from the husband’s own property by dispensing it [without his knowledge], she is bound to make restitution to the husband, unless the extreme necessity of her children or household excuses her, because the wife has no faculty of dispensing with the husband’s own property. Much less does a husband [have such a faculty] with the wife’s property. From this it follows that from these goods the wife cannot give alms, nor convert them to pious uses. He says “unless extreme necessity excuses” for the same reason as was stated above concerning extreme necessity.

Second Proposition

A wife who alienates or disposes of her paraphernal goods or earnings without the husband’s knowledge, even against his prohibition, is not bound to make restitution, unless the husband’s remaining goods could not suffice for the support of the children in the marriage. This is proved because, with respect to her own goods, the wife is not subject to the husband’s authority, as has been said, and she is her own mistress in disposing of them. This accords sufficiently with S. Thomas, [Secunda] Secundae, q. 32, art. 8. Likewise, as long as the dowry suffices for sustenance, the wife is not bound to labor for profit. Therefore, if she labors of her own accord, the profit will be hers, as has been said. But she may dispose of what is her own as she wishes, unless she were prohibited by some law, which does not appear in the present case. And he says “unless the remaining, etc.,” because in this case she is bound to labor for the upbringing of the children of the marriage by natural law, and therefore she cannot expend the earnings on other uses.

Third Proposition

If a wife secretly retains or disburses something from common goods contrary to the husband’s expressed or presumed will, outside a case of necessity, she is bound to make restitution to the husband, unless she is usefully conducting the husband’s affairs. This is proved because the disposition of common goods belongs to the husband as head and principal governor of the household, and therefore she has no faculty of dispensing with them contrary to the husband’s will, outside the cases designated in the proposition. He says first “from common goods,” beyond what was said in the second proposition. He says “without the husband’s consent,” because with the husband’s consenting she may dispose of common goods. He says “or presumed [will],” because if from local custom or other signs his consent can be probably presumed, she may disburse and is not bound to make restitution. For example, if local custom holds that wives give alms of bread, wine, and the like, she may presume to give without asking the husband, because custom grants [such] jurisdiction. And although husbands sometimes forbid it, Angelus says in the Summa under the word “alms” that a wife ought to form her conscience according to Rodon., [since husbands] do this so that she not give too much, but [give] in moderation. And the same is to be understood in its manner of other things customarily done by wives. He says “unless she usefully conducts the husband’s affairs.” For a wife [whose] husband is prodigal, wasteful, managing his affairs badly or shamefully,

[who is] insufficiently providing for herself and her children as best she can, and who clearly retains and conceals something from common goods — indeed, even from the husband’s own goods, against his prohibition — so that she may provide for them from the husband’s goods in time of need: she neither sins nor is bound to restitution. Yet she is bound to obey the husband commanding her to hand over to him what she has concealed, because to do otherwise would be to give a sword to a madman. If she sees the husband’s cruelty, perversity, and wickedness, she may give moderate alms or [donate] to pious causes, so that God may suspend his wrath or illuminate and convert him — provided she does this secretly and without scandal to the husband. God was pleased by [the actions of] Nabal’s [wife], as Jerome shows on the recital of 16, q. 1, Revertimini. Thus, as Malachi [says], Abigail, the wise woman, saved her husband from death on account of the loaves and other things given to David against her husband’s will, as is found in 1 Kings 25. And just as a wife may in some necessity spend on physicians of the body even without the husband’s consent, so also in necessity of the soul. It has also been said that “outside the case of necessity” is to be understood whenever it is said — not only of the wife’s necessity, but also of the husband’s, of the children’s, of the household’s, indeed of strangers, who in extreme necessity could and ought to take — that is, to take another’s property and relieve the one in need — provided there is no other who can and will assist. So also, if the husband were bound to make restitution for wrongfully taken goods and could not be induced or compelled to make restitution, the wife could prudently and cautiously make restitution from the husband’s goods, because in this she would be usefully conducting the husband’s affairs, providing for his soul’s welfare, just as she might provide for his body in illness through physicians.

Fourth Proposition

Proposition 4. A husband who alienates the wife’s dowry or the paternal donation made on account of marriage is bound to restore whatever was alienated. Proof: because the dowry is the wife’s primary patrimony, from which the husband is bound to support the wife and the burdens of marriage. When the marriage is dissolved, the husband or his heirs are bound to restore the dowry. However, the husband gains the fruits of the dotal property on account of the burdens of marriage. Wherefore the offspring of dotal cattle belong to the husband, since they are reckoned as fruit; yet in such a way that he must replenish with the newborn offspring [the heads of cattle] that have died. But he who truly gains the fruits must sustain the burdens of marriage; otherwise not. If one asks to whom the dowry is to be restored: he answers that if the dowry was a dos profecticia — that is, given from goods provided by the father or grandfather or accepted in their name — it is returned to the father if the wife dies first and left no children; otherwise by custom it remains with the children. But if the husband dies first, it must be returned to the father of the daughter; yet the father cannot demand it without the daughter’s consent. But if the dowry was an adventicia — that is, given by the wife herself or by anyone other than the father and grandfather — if the wife dies first, the dowry belongs to her heirs. If the husband dies first, it returns to the wife. And if the dowry consists of immovable property, it must be restored immediately upon dissolution of the marriage. If it consists of movables, it must be restored within a year by the husband, to the extent he is able, having regard that he not be reduced to want. He shall nonetheless give surety [that] when his fortune improves,

he shall pay the remainder. This privilege passes to the children of the same marriage and not to outside heirs. The husband may, however, deduct necessary expenses, but not voluntary or luxurious ones. And all the husband’s goods are obligated to the wife. Nor does she lose them on account of the husband’s offense; but on account of adultery she loses [the dowry], and the husband gains it. And the foregoing concerning the restitution of the dowry holds true unless a pact or local custom otherwise intervenes, or a municipal statute that otherwise disposes the matter. For in these things one stands more by the municipal law or statute than by the common law. Thus the canonists and legists treat of dowry and the donation on account of marriage, and here [the discussion] concludes.

Fifth Proposition

Proposition 5. A son under family authority, even while still under the father’s power, who takes something from the parents’ goods outside of extreme necessity and against their express or presumed will, commits theft and is bound to restore the same. This is evident, because he takes another’s property against the owner’s will. And he is bound to restitution: for the parents’ goods are the property of others with respect to the children, as regards ownership and administration, nor do the children have any right in them, even though they may expect a future inheritance. He says “against express or presumed will,” because the will of the parents who have administration [of the goods] is present and there is no theft. And he says “of those having administration,” because the mother’s consent does not suffice, since she herself does not have the power of dispensing with the husband’s goods or the common goods. And he says “presumed will,” when the son from certain signs and conjecture believes the parents consent — as when they know and do not object, or such is the common custom of the locality or household. The father, however, cannot take from paternal property; much less can the emancipated son. But you might ask: what if the son has a peculium? Can he not dispose of that as he pleases?

For the Solution It Is to Be Noted

that a peculium means a small sum of money or a small patrimony. And for the present purpose, it designates whatever a son under family authority acquires while living under the father’s power — whether he acquires it from the father or from elsewhere. It is fourfold: namely, profecticium, adventitium, castrense, and quasi castrense. The profecticium is what proceeds — that is, derives — from the father’s property or on occasion of it. Here [the term] “from the father” is taken broadly, so as to extend to everything that proceeds from the father as its primary or immediate cause, such as money or some property of the father conceded by him to the son, and the fruit or profit therefrom proceeding or acquired — and this without the labor and industry of the son. For instance, if he leases to a tenant farmer for a certain share of the crop a holding given to him by his father, or lends money to a merchant, and what profit he has therefrom: these things that thus proceed will be profecticia. But what the son acquires from the aforesaid goods through his own labor or industry — for instance, by personally cultivating the field or conducting trade with the said monies — the profit attributable to the property is profecticium, while the profit attributable to the labor and industry of the person earning it will be adventitium. Therefore all the profit that comes from the person

of others in that case is adventitium. In the peculium profecticium the father holds both the ownership and the usufruct, and the son under family authority has no right in it whatsoever. And it is of no benefit to the son except that it is not confiscated [by the state], in the case where the father’s other goods are confiscated.

The peculium adventitium is what comes from elsewhere: such as from a donation of the mother, of friends, or of anyone else whatsoever, not on account of the father; or what he acquires through industry, or what comes by chance or fortune — but not on the occasion of military service or public office. Excepted here is what is donated by the emperor, empress, or king. In this peculium adventitium the son under family authority acquires ownership — that is, the property — while the father holds the usufruct as long as he lives, unless he has remitted it, or unless someone gives or bequeaths it to [the son] on the condition that the usufruct does not belong to the father, or unless the son succeeds together with the father to the inheritance of a brother or sister. But when the father dies, that peculium belongs entirely to the son and he will not share it with his other brothers.

The peculium castrense is what is donated to a son under family authority by parents or others on the occasion of military service and not otherwise, or what he himself acquires in military service, which would not have been acquired had he not been a soldier — because what was given or acquired during military service [even] to one not engaged in military service does not belong to the peculium castrense.

The peculium quasi castrense is what the son under family authority receives from public office — as if he were an advocate, physician, teacher of the liberal arts, notary, official, rector, or the like, who receive public salaries or stipends. [The author] adds this note: because what common notaries acquire does not belong to the peculium quasi castrense; but notaries of lords and officials, who ought to receive a salary from public funds, [do fall under it]. It must also be added: what [is received] by donation of the emperor, empress, or king, as above. And in both the peculium castrense and the peculium quasi castrense, the son under family authority has full ownership, property, and also usufruct, and is regarded as a paterfamilias. He may make a will, give alms, and dispose of [goods] for vows. The father likewise has no right whatsoever in them. All the foregoing concerning the peculium has been established by the laws, which if you wish you may seek in the Summas or among the legists.

From these things it is evident that a son under family authority who takes something from the peculium profecticium — whether with respect to the substance of the thing or with respect to the usufruct — or from the peculium adventitium with respect to the usufruct, takes the father’s property, and consequently is bound to restitution. Not so if he takes or disburses something from the peculium castrense or quasi castrense. And this [obligation] holds with respect to the first two types when the father has not consented, tacitly or expressly. And the fifth proposition is to be limited in the same way as the third above, concerning the wife and common goods, with its corresponding declaration.

Sixth Proposition

Manservants and maidservants who take anything from the property of their masters or mistresses against their express or tacit will — whether in victuals or other things — outside a case of extreme necessity, commit theft and are bound to restitution, in all respects as in the third proposition above. He excepts, however, the case where they receive something otherwise owed to them. For though in secretly receiving [it] they would sin, they are nonetheless not bound

to restitution, as will be explained. From the foregoing it follows that a wife cannot give to the children of a prior marriage anything from her husband’s goods or from the common goods, except by way of alms, and much less to other friends. And this is true as regards the offspring of a prior marriage, according to Avilés, when such children have no legal claim against the mother. If, however, she has such an obligation -- either because she is obligated to support them while they are under age, or because both spouses hold their goods jointly, or for some other just cause -- the husband is bound to support them, since the mother with all her burdens passes to the husband, according to the custom of some. Yet since the husband holds the administration [of the common goods], the wife ought not to support them against his prohibition, except in extreme necessity. She may, however, seek to have the husband compelled to this by a judge. If nonetheless she were to support them in that case, I believe she would not be bound to restitution, because the support is owed to the children, and she is not giving them what belongs to another but what is already owed to them. If the children have no legal claim against the mother -- that is, because neither the mother nor the husband is bound to support them -- the mother ought not give them anything. And if she were to give from the common goods, she would be bound to restitution, unless it were the custom that in common goods not the husband alone but also the wife holds administration; then the wife could give just as the husband could, for in a common thing each has an equal right, as the Digest on partnership (pro socio) throughout. This is to be understood of a common thing with respect to administration. In these and other matters touching dowry and peculium, agreements, customs, statutes, and municipal ordinances have much effect, which, as has been said above, prevail over the common law in these matters. If you ask: what if a woman committed theft before marriage or after, and the husband shared in the theft -- or the husband committed theft and the wife participated? I respond, following Avilés, that where by regional custom husband and wife share debts arising from contract or wrongdoing, if the stolen thing still exists in their power, the wife may restore it even against the husband’s opposition. The same would hold even if there were no such community between them, for whoever holds stolen goods must restore them to the owner. If [the goods] have been consumed, the wife may, so long as the husband does not expressly oppose it, and by usefully managing the husband’s affairs and freeing [herself], restore the equivalent from the common goods. But if the husband prohibits it, Pisanus says he does not believe she ought to make such restitution, since she does not hold the administration of goods but the husband does. If, however, she makes restitution from the common goods in good faith, I do not believe she would sin mortally if she did so secretly and without scandal to others, since here there is no fraudulent handling nor intent to profit.

Third doubt

Whether one who takes his own thing, or something owed to him, or its equivalent, from the one holding it -- whether violently or secretly -- commits theft or robbery and is bound to restitution. He responds by a single proposition. One who takes his own thing, or what is owed to him, from a detainer who has no right in it, commits neither theft nor robbery, nor is he bound to restitution, although in certain cases he is by no means excused from sin. Blessed Thomas agrees sufficiently in the Summa, II-II, q. 66, art. 7; Richard in art. 5, q. 7, of the present distinction; Paludes in q. 2, art. 2; Asten; and the rest

of the doctors confirms the proposition by common opinion, because in such a case one does not take another’s property but his own, or what is owed to him, and therefore such taking is neither theft nor robbery, as is sufficiently clear from the definition of each; also because he does not take with intent to profit, nor does he first inflict harm by taking. That he is also not bound to restitution is clear, because no one is bound to make restitution of a thing owed to him to one to whom he does not owe it, but is rather bound to restore it to the prior [rightful holder]. For it would be futile to restore what ought to be restored to oneself.

That he does sin in certain cases by such receiving will be explained. It is said, [taking] what is properly his own, as when he finds a thing unjustly taken from him in the possession of some detainer, whether that detainer took it or it came to him in some other way. It is said, or what is owed to him, as [goods] received through usury, extorted through fraud, received through a loan, owed for labor or service, or in some other way, such that if he had sought that thing by lawful judgment and had not been deficient in proof, it would have been adjudged to him -- of all such things the proposition speaks. It is said, he takes, which is to be understood as applying even with a doubtful mind. He says whether secretly or violently and openly.

Not bound to restitution: this is to be understood in the forum of conscience; it is otherwise in the external forum. For in that forum he would lose the thing itself unless he recovered it immediately, before the taker brought it to a safe place. For it is lawful to repel force with force. He would also be condemned for theft or robbery if the proofs by which he might establish the thing as his own were lacking. Likewise regarding usury, a loan, and wages, if he recovered what was owed by his own authority. It is said, he would not be excused from sin.

Not always is one bound to restitution on account of what one acquires with sin, as is evident. It is said, in certain cases. The first is when he could obtain what is his by means of a judge pronouncing sentence, because no one ought to be judge in his own cause. If, however, he could not obtain it juridically due to the negligence of the judge, the power of the detainer, or the lack of witnesses or proof, and could not recover it by petitioning the detainer, but it was certain that the thing was owed to him and he did not exceed what was owed him by receiving it, he would be excused from sin. From this it is evident:

Corollary

One who secretly receives a deposit, or what he had lent, without requiring it of the one with whom it was deposited or who received the loan, sins, because he burdens the depositary, who is bound to make restitution or to show that he is blameless. So also regarding the debtor. He also sins against common justice by rendering judgment for himself, and is bound to relieve the burden of the depositary -- not to restore the thing -- as Thomas says in Summa Theologiae II-II, q. 66, art. 5. And because good faith does not permit the same person to make restitution twice, it would nonetheless be safer -- as Antoninus adds -- [to consider]: What if several persons participate simultaneously in theft or robbery? In that case it must be considered that it would be right for the one who secretly recovers his own loss to declare to the one who caused the loss, the thief or robber, or to their heirs, by some honorable means, or to give him something if he owes him anything. Better yet, moved by conscience, let him first restore the wrongly taken [goods] before secretly recovering [his own]. So says Antoninus. The second case is when from such receipt scandal to oneself or one’s neighbor would follow, or grave danger to an innocent person in whose custody the goods may perhaps have been entrusted. For no one ought to enrich himself with peril to himself or loss to another. The third case is if by so receiving, one would expose oneself to the peril of bodily harm, of infamy, or of another great injury. For if apprehended, he might be branded as a thief and

judged [a criminal], the proofs being wanting that the thing taken was his own. The fourth case is when a sin of mortal peril threatens, as when one acts not according to [one’s] conscience, not believing it lawful for oneself but counting it as theft, or because one exposes oneself to the danger of perjury if, by seeking it, one would only worsen one’s situation by confirming one’s right under oath. If any of these cases intervenes, it is not lawful [to take], and one sins by taking -- yet one is nonetheless not bound to restitution. If from such taking there looms peril or temporal or spiritual harm to one’s neighbor, one is bound to restore the harm, not the thing taken. Outside these cases, one neither sins nor is bound to make restitution, even if a prelate has commanded under pain of excommunication that whoever removed anything of such goods from a detainer should make twofold restitution, because since one may lawfully retain it for oneself in recompense, it has already become one’s own and is no longer another’s. Nor if the prelate in his sentence, by which he would excommunicate receivers, were to name explicitly those who took [things] with the intent of recompense or otherwise took at all -- because then the sentence has the effect of correcting an intolerable error, and therefore one is not bound [by it]. Likewise it does not bind one who does not reveal that another has taken something for the purpose of recompense, provided it is certain that the thing is owed to him; it is otherwise if he is not certain. Likewise, if someone finds a thing stolen or unjustly taken from another in the possession of a detainer and restores it with the true intent [of returning it to the rightful owner], he is not bound to make restitution to the detainer, nor does he commit theft, because it is done neither fraudulently nor for another’s gain, provided it can be done without peril. He also usefully manages the business of the thief, who is bound to ratify [the act]. So too, one commits neither theft nor sin who steals away Christians captured by unbelievers and frees them, because the unbeliever holds them unjustly. The same is to be said of one who frees those unjustly detained by a Christian. Raymundus and Hostiensis say that in time of truce, no one in the possession of things detained by the other [party] ought to touch anything or alienate anything; one who has freed a Christian captive from an unbeliever is bound to make restitution -- not that he should restore the Christian person himself to peril of his soul, but the equivalent value [of the person]. If, however, the unbeliever compelled the Christian to circumcision or idolatry, the Christian is now wholly freed, [as in] dist. 54, nulla. And therefore one who frees him neither sins nor is bound to make restitution, but rather merits reward. So too, if someone were violently using his maidservant and would not desist, if she could not otherwise escape such evil, she could lawfully flee and leave all her goods, as Antoninus says. The goods of unbelievers, however, unless war had been formally declared against them,

Doubt four: concerning those who participate

may not be taken. And indeed, concerning participation in the act of stealing

Doubt 4

which takes place in many ways, it has been said in the preceding question: concerning those who participate in theft or robbery, where it must be considered [that] this can occur in two ways. Either some persons associate with robbers not in order to rob, but to defend the robbers or to intimidate the despoiled so that they do not defend themselves -- and without whose presence the robbers would not rob -- all such persons are bound to restitution in solidum [jointly and fully]. So also [says] Angelus in his Summa under the word furtum, §1: if such persons go along with the intent of keeping the peace, by which fear is instilled in the despoiled so that they dare not defend their goods, unless they had signified this to the same [parties], because they give an efficient cause. He cites Innocentius and Hostiensis, as in sicut digni, on homicide, and Directum, restitutio, §3. In the second way it can happen that persons associate with each other in order to rob.

And this occurs in two ways: either they go as a united band -- say, under one leader -- to commit despoiling together. Then each is bound to restitution of the whole in solidum, because each gives an efficient cause to the entire despoiling. In the other way, they do not run thus united under one lord or leader, but each seizes or steals on his own. Then, either one was at fault in the subtraction done to another by giving prior force or assistance to another. Then he is bound in solidum for that restitution [for the things] seized with his assistance or counsel. Or he was not at fault, and so is not bound to make restitution except for what he himself seized. Though Hostiensis seems to think that even such a one is bound in solidum as regards the legal penalty, but not as regards [the forum of] conscience.

Doubt 5.

Concerning those who participate in a stolen or despoiled thing, not in the act of despoiling. He raises the fifth doubt about those who receive such goods and whether they are bound to restitution. For the resolution of this, it must be noted that those who receive such stolen or seized [goods], or [goods] acquired unjustly in any manner whatsoever, such that those who acquired them are bound to their restitution -- whether the receivers receive them by gift or by contract, as for example by sale, by exchange, or the like -- can stand in three different situations. For either they knew at the time of reception that the thing had been unjustly acquired in the aforesaid manner, or they simply did not know, or they were in doubt. And I said advisedly, unjustly acquired such that the acquirers are bound to restitution, in order to exclude that which is unjustly acquired to whose restitution the acquirer is not bound, as in the case of base profit, for instance from prostitution, acting, and the like. For if the first receiver of what was unjustly [gained] is not bound to restitution, neither are others who received from him. This being premised, he proceeds by three propositions.

Proposition 1.

First: every person who knowingly receives a thing unjustly acquired, whether by gift or by contract, is bound to restitution of the same thing if he has it, or of its value if he does not have it -- to the owner of the thing if he knows him, or to the one from whom he received it -- notwithstanding any human statute enacted to the contrary, until the owner of the thing has been fully satisfied by the receiver himself or by another. So [says] Thomas, q. 3, art. 5; and Hostiensis in the Summa. And he proves this, because everyone who knowingly holds another’s property is bound to restore it, and such is everyone of whom the proposition speaks. The major premise was proved in the preceding question. The minor is manifest. It says in the proposition, every receiver, because it makes no difference whether the one who receives the unjustly acquired thing -- whether from the first transferor, such as a thief, robber, or usurer, or from one who bought or received from that person -- is second, third, fourth, or any number whatsoever to infinity, according to Hostiensis; because in whatever way the unjustly acquired thing comes to him, he always holds what belongs to another. Therefore he is bound to restitution. It says, a thing unjustly acquired, which is to be understood, as was said, of a thing to whose restitution the unjust acquirer was bound, because it is otherwise with base profit. It says, knowingly, because it is otherwise if he was ignorant or in doubt, as will be said below. It says, whether by gift, as if the thief gave it gratis, or by contract, whereby he renders an equivalent to the one from whom he receives, as when he buys or receives it by another exchange. It says, of the same thing if he has it, because then he is bound to restore the identical [thing] as was said above in the preceding question. It says, or its value if he does not have it, and

this [is reckoned] according to the best condition of the thing, that is, according to what it was worth at its highest value after it was received — whether purchased or exchanged. This is in accordance with the explanation given above in the first question, along with the fruits that were received. Nor is one released [from this obligation] by whatever accident caused one to lose use of the thing — whether one sold it, consumed it, alienated it, whether the thing perished, or whether one lost it — because one was in default of restitution. It would be different if one had offered it to the owner at the proper place and time, and the owner had then refused to receive it: if it had subsequently perished, one would be excused. He says “to the owner of the thing.” This is necessary when the thing was given to one gratuitously, because then one does not satisfy the obligation by restoring it to the one who gave it, since the thing was not that person’s to give. But if one received it by a contract of purchase or exchange — since, according to Alexander [of Hales] in the same passage, one may more readily look to one’s own interest than to another’s — one may restore it to the person with whom one contracted, upon receiving back the price one paid. From the owner of the thing, however, one can demand nothing, neither in the court of conscience nor in the external court, however much one paid for it in the public market. Therefore, let one learn to trade more cautiously. [This holds] notwithstanding any contrary custom or statute. And this is true if one bought it from a place of safekeeping. But if one bought it from a place where it was to be returned to its owner — because otherwise the owner of the thing could not recover it, or only at a much reduced price — one could then seek from the owner the price at which it was bought, because one has usefully managed the owner’s affairs. If, however, one derived profit from the thing thus purchased, one is then obliged to offset the fruit of the thing against the expenses and purchase price. And if the thing thus purchased were to perish without one’s fault, or if one were to lose it, one would not be bound in the court of conscience — although in the contentious court one would not be believed, unless it had been publicly established beforehand that one bought it with that intention. All these matters are in the Directorium iuris at the passage cited. He says “to the owner of the thing if one knows him”: because if one does not know who the owner of the thing is, yet knows that it was unjustly acquired, or cannot find the owner after diligent inquiry, then one is obliged to make restitution to the poor, as in the case of uncertain restitution, together with the fruits thereof. He says “notwithstanding any human statute,” as for instance if there were a statute declaring that whoever publicly purchased something in such a public market would not be obligated [to make restitution] — for such a statute is iniquitous, since the restitution of another’s property, when one knows it to be such, is a matter of natural and divine law. This is the view of Alexander of Hales, Part 4, q. 86. One who retains it sins mortally, and therefore no contrary statute avails. He says “until [satisfaction has been made] to the owner,” and so on, because one is always bound to make restitution until the owner of the thing has been satisfied — whether one sells the thing or gives it away in the former case, while in the latter the second party restores it to his vendor. But once the owner has been fully satisfied, or the owner has voluntarily remitted the debt, one is released from the obligation of making restitution to the owner — though not from the obligation of restitution in respect of the price at which one sold under compulsion, which price or profit is not to be restored to the buyer. For one’s own turpitude stands in the way, but [it must be given] to the poor, because one was a possessor in bad faith, according to Raymund. But Hostiensis understands this as a counsel: that the taint [of bad faith] is purged as regards restitution, because full satisfaction has been made.

Proposition 2.

The second proposition: one who receives another’s property in good faith, not knowing nor believing it to have been wrongly acquired — whether by gift or by contract — is not obliged to restore it, provided the ignorance was not gross. Nor [is one obliged to restore] fruits received during the period of good faith. This is the opinion of Hostiensis in the Summa, Book 4, on penance and restitution, and others. He says “in good faith,” which is to say, one who does not know nor believe the things to have been wrongly obtained, but presumes they are not another’s — as Panormitanus [says] on c. suis de rechi.

A possessor in bad faith is one who possesses knowing that the thing belongs to another. By contrast, a possessor in good faith is one who, not knowing that he possesses what belongs to another, holds it with the mind of an owner. He says “whether by gift” — that is, by free receipt — “or by purchase.” He says “provided the ignorance was not gross or affected” — as for instance because it is commonly held that all those things were plundered, or taken in an unjust war, or because the bishop excommunicated as robbers those from whom he received them, or because he bought a chalice or missal or the like from a mercenary soldier. For such a person is bound to make restitution, just as the one described in the first proposition. And note that ignorance of fact, not of law, excuses. For if the recipient knows with probability that the thing was plundered, and does not know that the law forbids buying such things from such a person — since this prohibition derives from natural law — ignorance of it does not excuse. He says “nor [is one obliged to restore] fruits received,” because fruits received during the period of good faith need not be restored, nor the price of the thing if it was sold or exchanged, nor the thing itself if it perished, or if one lost it or consumed it. Some make distinctions on these points: during the period of good faith one is not obliged to restore; but once good faith ceases — namely, from the moment one learned the things were wrongly acquired — one begins to be a possessor in bad faith, and is then obliged to restore the thing itself if it still exists, or the gain if one has been enriched by it. One may deduct the expenses incurred in the thing while improving or preserving it during the period of good faith, but not those incurred after good faith ceased, according to the rule given above in the preceding question. One may also, if one bought in good faith, seek the purchase price from the vendor in the contentious court. If the judge thus found the thing was to be restored, [the buyer] would not restore it at the sentence of an impious priest or of a judge without coercive authority, though in the court of conscience the vendor would be bound to make restitution — he would have to be induced to do so, yet could not be compelled in the contentious court, unless he had expressly warranted at the time of sale against subsequent claims. It is advisable in such a case that the buyer have himself cited in court by the owner of the thing, and when cited, inform the vendor to defend him, so that the vendor will be bound in the court of law to hold him harmless.

Third Proposition

One who receives another’s property under probable doubt, and does not omit diligent inquiry into the matter, is bound to make restitution of it. The summary of [Post.] at the cited passage establishes that good faith alone excuses one from restoring another’s property. But one who doubts with probability is not a possessor in good faith. Therefore [one is bound to restore]. Likewise, ignorance that does not arise from diligent inquiry — gross ignorance — does not excuse, just as it does not excuse from mortal sin, so neither does it excuse from restitution. It does not excuse from mortal sin, because in a state of probable doubt one exposes oneself to the risk of mortal sin; and one who receives another’s property [in such a state] sins mortally. According to that [text]: “He who loves danger shall perish in it” (Eccl. 5). Nor does it excuse from restitution, as has been said, because a possessor in bad faith is bound to make restitution in the manner of a possessor in bad faith [as described] above. He says “in probable doubt,” that is, when one has reason to doubt from probable signs giving rise to a probable apparent suspicion or presumption — signs from which the wise commonly judge the thing to be another’s, by a judgment not of certainty but of presumption. For in such doubt one is closer to the knowing than to the unknowing. It is otherwise if the doubt was not probable but arose from a scrupulous conscience, or from slight, uncertain, or indeterminate signs — for such doubt is to be set aside, and one must act against scru-

ples, as Gerson, Chancellor [of Paris], says. From those propositions there follows as a corollary that all who knowingly eat, consume, or convert to other uses anything taken from another’s property — such as property acquired by plunder, theft, or usury — whether they be religious or others, and likewise those who doubt with probability, are bound to make restitution, as Alexander of Hales says at the passage cited above. He adds that, to avoid doubt, lest they expose themselves to danger, they should hold as a rule that whoever has a [guilty] conscience about a thing, that it belongs to another, is bound to restore it. And this is true of the thing itself in its individual identity when it was plundered or stolen — in which case, that is, title does not pass, and therefore restitution of the identical thing is required. But if title does pass — as in loans by usurers — and the one retaining the profit, such as the usurer, has other goods justly acquired that are not subject to the obligation of restitution, then one is not obliged [to restore] from one’s own property, because by receiving it one is not rendered unable to make restitution from what is justly held. But if one has no other goods justly acquired, but all that one has is subject to the obligation of restitution — because one owes as much or more in restitution than one possesses — then, in this case, what one received from such a person renders one obligated to make restitution, because his poverty — the penalty he has received — renders him unable to make restitution. Regarding this, the question arises as to what of the wife and household who knowingly eat, are sustained by, and consume such things. To this, [Post.], Hostiensis, and others give the distinction just set out above. But suppose the husband has nothing except stolen goods. First it must be said that the wife ought not to leave her husband on account of the marriage debt to which she is bound — unless perhaps the husband were to compel his wife to steal or plunder. Second, that sometimes she ought to live from her dowry if possible, or from her paraphernal goods, or from extra earnings, or by begging from close friends and strangers, or by some other honorable means. If she cannot provide for herself by these means, or if the husband by his cruelty does not permit her to eat from other sources, then she is in a case of extreme necessity, and may then live from the plundered and wrongly acquired goods — but most sparingly, only as much as the preservation of life and bodily health requires, cutting out all excess — because in such a case even stealing would be possible without sin. And because it is most difficult in those circumstances to observe the precise measure of necessity, it is useful to take [from such goods] with fear and sorrow, to do penance, and to maintain at least some intention of making restitution at another time.

There are four cases in which one may live from such plundered goods. The first is when one usefully manages the affairs of the plunderer — namely, by inducing the robber or usurer toward restitution — and for as long as there is hope of correction, during the time when one presses him at opportune hours for amendment. And as long as a person remains in this life, one must not despair of him, because what does not happen in a year may come about in a moment. Therefore, if one has not ceased to correct the husband at opportune hours, and to pray for him, and to bring his cause before the Lord, one may with a sound conscience make use of those goods as necessity requires — not only extreme necessity, but even need short of the extreme, though not to the point of excess. So too, religious preachers, rebuking and laboring to bring such a person back — whether in public preaching or in private admonition — may, during the time of this correction and labor, be refreshed from wrongly acquired goods; yet with such moderation that by reason of this one does not become unable to make payment

in whole or in large part. The second case is when one usefully labors in connection with the plunderer’s goods or the spoils themselves — by preserving or increasing them — because this redounds to the benefit of the creditors, that is, those to whom restitution must be made, provided the benefit is equal to the expenditure.

The third case is when the plunderer has many uncertain debts to the poor, and the bishop has dispensed with him [in this regard]. One may then live from those goods as a poor person. The fourth case is the one already mentioned: when extreme necessity — which knows no law — excuses. In the first three cases, the children and household may be excused — but not in the fourth, unless the children were of minor age and incapable of acting for themselves. For the household and children may leave the plunderer and provide for themselves elsewhere, and therefore in their case the plea of necessity does not hold. It is otherwise for the wife. And more on this in the discussion of the restitution of usury.

Sixth Doubt: Whether those who seize things from a shipwreck are bound to make restitution?

He answers briefly that things thrown overboard from ships, or left aboard a wrecked vessel, are reckoned as abandoned by those who had them, and thus belong to whoever takes them — because what is abandoned is in no one’s possession, and the taker thereby acquires it. When, however, something is not reckoned as abandoned, what follows is stated in the next doubt. When it is not reckoned as abandoned: Hostiensis says, in the Summa, tract. on restitution, tit. on penance and restitution: “Whatever is found from a shipwreck itself, whether received at sea or on shore, must be restored, because it is another’s property.” It must therefore be restored to the finder. Furthermore, one who takes such things, appropriating them to oneself, sins mortally, commits theft, and acts against fraternal charity. Nor does any statute or custom enacted to the contrary excuse from restitution, because such a statute is unreasonable, contrary to divine law and fraternal charity. Moreover, those who seize such things are excommunicated by the very act, as in c. excoi. de rapto, where, from the decree of the Lateran [Council], it says: “Let those also who despoil with damnable greed the Christians suffering shipwreck — whom by the rule of faith they are bound to assist — know that they are subject to excommunication unless they restore what was taken.” The gloss there [says]: those who act against this are excommunicated by the very law, and are bound within a year to [pay] fourfold, and they commit theft. Nor shall the state claim anything for itself from another’s calamity. And some understand the excommunication to be incurred by the very act after an admonition, or if one was in default — when one is able to make restitution and does not. Those who seize and despoil Christians who are navigating at sea, compelling them under duress, are to be excommunicated. From this it is also clear that those who plunder the shipwrecked are punished more severely than those who despoil seafarers. This is against the tyranny of certain wicked rulers of the people, who, adding affliction to the afflicted,