II. To the Initial Arguments

195. To the initial arguments:

To the first [n.66] the answer is plain from the first part of the last article [nn.171-172], as to what the reason is that one is not bound to restitution as to satisfaction properly speaking (which is the third part of penitence [d.16 n.18]); but one is bound to restitution as to cessation from sin, and this in act and in effect, with the due and opportune circumstances.

196. To the second and third [nn.67-68] the answer is plain from what was said in the fourth article, that he who does not know is bound to make return to the poor [nn.184-185]. But as to what is said there about not knowing the owner of a thing that has been found [n.68], I say that a thing found should be handed over to a public person to look after, and proclamation should be made in public places so that the owner who has lost it can thus get hold of it. But if, after such proclamation no owner appear, one must do as one does about unfixed restitution [sc. give to the poor].

197. To the next [n.69], it is plain that a greater sum is not to be laid out in sending than what the thing sent is worth, but one must wait for the person to be present, if this may be credited to be the case at some point. But if it not be credited, and if a messenger not go between save at extreme expense, the thing is to be handed over to the parents and, if they not be there, it is to be given to the poor. For, universally, bestowing alms on the poor on someone’s behalf is to give him a spiritual good; and hereby, when a temporal good cannot be returned to him, does restitution to him become possible.

198. To the fifth [n.70], if the person holding another’s property is very necessary to the republic, and if he were in pressing necessity, and likewise the person to whom he was in debt, the argument would have some evidence on its side; but this matter will be spoken of at once in the response to the argument that follows [n.199]. But if that which is unjustly detained by a person very necessary for the republic is not necessary for him simply, but only for preserving his dignified status, I say that it is not licit for someone to hold a dignified status on the basis of another’s goods, and his dignified status (which he has through non-restitution) is not worth as much to the republic as his justice and fidelity and common justice.

199. To the sixth [n.71]: or the one detaining [the other’s property] is in extreme necessity and he whose is the property is not, but has something less than extreme necessity - and then I say that this property belongs to the detainer by the “right of heaven,Literally the ‘right of the pole [of the heavens]’, or ‘ius poli’, which was natural or divine right, and was distinguished from the ‘right of the forum’, or ‘ius fori’, which was civil or human right. The two together form a sort of jingle in Latin and are found as such in Augustine, Sermon 335, On the Life and Morals of his Clerics, “The bishop has it in his power not to make return, but iure fori not iure poli.” The phrase appears in Gratian, Decretum, e.g. p.2 cause 17 q.4 ch.42, and several other sources. ³² by which right a way to provide for the support of nature in a time of extreme necessity is conceded to everyone detained by the extreme necessity;” and it is today in Boniface VIII, Sixth Book of Decretals, V tit. 12 ch.3. But if both, namely detainer and he whose property is detained, are in extreme necessity, then if the owner comes to this necessity before the detainer does, the property must be returned to the owner by a double right: both because it is his first, and because it is now made his by this necessity. But if the detainer comes first to this extreme necessity, it is made his, and then it should not be returned to the owner who comes to this necessity afterwards, because his ownership over the thing has ceased, and has become the other’s by the ‘right of the pole’. But if both come together to extreme necessity, I say that it should be returned to the owner, because it never fell away from his ownership.

200. And if you argue that each should love himself more than his neighbor, and consequently love his own bodily life more than that of his neighbor, and consequently love to retain this thing, which is simply necessary for himself, more than to give it to his neighbor - I reply: one ought to love one’s own life in an ordered way more, as it is lovable for eternal life, and so ought to love the just conservation of one’s life more than the conservation of the life of one’s neighbor, but not the unjust conservation of one’s life more than the just conservation of the life of one’s neighbor. For thus should a thief undergo hanging more than kill the hangman so as to escape. The reason for this is that the love of bodily life unjustly kept is not an ordered love, because it is not for the love of one’s soul nor of God. Now, in the case last mentioned, this detainer’s protecting of his life by another’s property is unjust; and along with this it is also homicide, because he who takes from another the necessary thing owed to him unjustly kills him.

201. But surely if, after extreme necessity, the detainer in the first or second case come to a fuller fortune, is he not then bound to make return? It seems that he is, [n.194] because the detaining came from impossibility, as was mentioned above [n.194] from Gregory IX, Decretals.

202. On the contrary: the property was made to belong to the detainer by the fact he was in extreme necessity, and consequently it ceased to belong to the first owner.

203. It could be said that such a simply necessary thing could only be something pertaining to sustenance, and then it would be consumed, and justly, because the consumer was owner; however he is bound to return the equivalent afterwards, when he comes to a fuller fortune, because the obligation to an equivalence seems to have had its rise by reference to the first taking of the other’s property which, before the extreme necessity, was unjust; and therefore the obligation was not extinguished by the extreme necessity but slept. But if he never had taken it before the extreme necessity, then he would justly have taken it as his own, nor is he bound to any restitution.

204. To the other argument about the sword [n.72], the answer is plain from ‘when’ in the fifth argument of the fourth article [nn.190-192].

205. To the next about the adulteress, the answer is multiple:

In one way [Richard of Middleton, Sent. IV d.15 princ.5 q.4 ad 9], that she ought to reveal her fall or sin to her illegitimate son and induce him to let the inheritance go to the true heir, by reason of the fact he is unjustly holding it, because it is not his.

206. In another way is it said [Henry of Susa, Summa of the Titles of the Decretals V], and it is less strong, that she should reveal her fault to her husband so that he may assign the inheritance to the true heir, and this is licit according to imperial laws, after the testator has first instituted an heir in his testament.

207. Against the first response [n.205]: because either the son would believe his mother or he would not. If he believed her, it is not likely that he would for this reason let the inheritance go, because few are found so perfect that, for keeping justice in the forum of God, they would let great possessions go that they can hold by exterior right. Nor can even the mother presume this, unless she had much experience before of her son’s will; and she should not, because of uncertain correction of her son, expose herself to certain danger of dishonor with her son. But if her son not believe her, there would then be two evils, because she would be dishonored and he would hold the inheritance as before.

208. Against the second response [n.206] the argument is that the woman defames herself, and exposes herself to danger of death, and her husband to danger of wife-killing, because such a husband could be a zealot (as many are), who would kill her, or at least hold her in hatred, and would expel her from himself and from act of marriage. And to these evils of disgrace, of death, or of hatred at least or discord, which are very likely and seem they will for the most part happen, the woman should not expose herself for the uncertain good of restoring the inheritance. And in addition to this, in lands where the first born is universally the heir, the father, were he to believe his wife, could not take the inheritance from the illegitimate son unless he proved her such in a public forum, and then the woman would need to be defamed not only before her husband but before the whole country.

209. I say, therefore, that the woman should, as much as she can, work to get the inheritance returned to the true heir. I say, ‘to the extent it is in her’, because she should not expose herself to disgrace, but induce the illegitimate son, as far as she can, to let the inheritance go for other honest causes. One honest way is to enter religious life; another is to become a cleric and receive an ecclesiastical benefice and, being as it were content with these sufficiencies, let the inheritance go to the other brother as to the remaining layman.

210. But if by no honest persuasion can the mother sway the illegitimate son’s heart to let the inheritance go, it does not seem that she should betray herself to her illegitimate son, because she is not certain that such a son, being thus unpersuadable by her in other things that are honest, would be swayed because of this; rather perhaps he would hold on more tenaciously, conceiving his dismissal to be to his own disgrace, because he would thereby be known to be illegitimate, and those ill born take much care against such notoriety. And then should the mother in another way work for the inheritance to be made to the true heir - as much as she can and according to what corresponds to justice. Because I do not say that she is bound to restore the equivalent of the whole inheritance, for there is a great distance between ‘to have’ and ‘to be close’; but he, the true heir, never had the inheritance, though he was, according to justice, close to it. And therefore something less than the equivalent suffices him for restitution; and let that less be determined by the decision of a good man. However, it does seem that at least provision of honest sustenance and vesture is owed him, were the inheritance so full that it could suffice for the heir at double or triple that of his. But if this is not possible, the answer is as above [n.194].

211. Likewise to the last argument [n.74] I say that he is bound to restore the benefice, not in totality, because there is a great difference between ‘to have’ and ‘to be close’, but a portion corresponding to some part of the value of the benefice. And this if he directly took away the benefice from him with the intention of causing him loss; but if indirectly, namely by looking after it for himself and intending, together with this, to cause the other loss, and he did not otherwise sin, he is bound, as I said before. But if he only intended to provide for his own proper utility and thus look after it for himself and as a result another, contrary to his intention, suffers loss, he is not at all bound to him, because it is licit to provide for oneself to the neglect of another.

212. There is a confirmation of this in Justinian Digest XXXIX ch.3 [taken by Scotus word for word from Richard of Middleton, Sent.IV d.15 princ.5 q.4 ad 7]. If I cut off the streams on my farm, which water to another’s well flows through, with the intention of harming him, I am bound to him for restitution of the loss. But if I do this without deceit, intending to consult my own utility and necessity, as that it is useful for me to make a wall which cannot conveniently be built without cutting off those streams, I do not harm him, because I have the right to do what is for my own utility on my own farm. And the Digest says [ibid. ch.17 n.151], “No one causes loss save he who does what he does not have the right to do.” But this person has the right to care for his benefice, with just and honest circumstances preserved.