THE HAND-MAID OF REPEN∣TANCE. OR, A SHORT TREATISE OF RESTITVTION.
Written by ARTH: DENT, Minister of Gods word at Southshoobery in ESSEX.
As a necessary Appendix to his Sermon of Repentance.
Printed for Thomas Thorp. 1614.
TO THE CHRI∣stian Reader.
THE zealous care of that religious and learned Tea∣cher Mr. Dent, to∣wardes the edifi∣cation of Gods house, in the ex∣hortation of his people vnto ho∣linesse of life; as it hath suffici∣ently approued it selfe to the ge∣nerall view of the World in di∣uers worthy workes of his now extant: so by the consent of ma∣ny Page [unnumbered] deuout and iudicious Christi∣ans, it hath not in any one peece or other of his doing, more fully aud truly expressed it selfe; than in that Sermon which himselfe first preached, and afterwardes caused to be published, vpon Re∣pentance. It might haue been sup∣posed, that this delicate Age of ours would scarcely haue put on so rough a garment. But the ver∣tuous cunning of that excellent Artist, had so thicke ouerlaced the same with heauenly promi∣ses and comfortable perswasi∣ons: that although at the first as∣saying thereof, it found it selfe inwardly prickt and perturbed; yet after a little wearing, and by Page [unnumbered] daily vse, the straightnesse there∣of became both profitable and pleasing, and it reioyced not a little to be so happily deceiued. Behold heere another peece of Worke, made by the same hand, A short Treatise of Restitution: Array thy selfe likewise (good Christian) with this Vesture; be∣ing indeed an Ornament, which will make the rest of thy cloa∣thing appeare more gracious. This is the true Touch-stone which tries thy repentance; and giues thee to God and the world either a true Christian, or a coun∣feit. Be not afraid to vse it: but as thou hast vouchsafed the for∣mer, of Repentance, to weare in Page [unnumbered] thine heart, and hast thereby no doubt (if thou be a Christian) re∣ceiued great consolation; so let this latter, of Restitution, be as a Posie in thine hand, to thy more assured & greater comfort. This is the furniture which renders the guest acceptable at the hea∣uenly marriage. If then thou desirest to bee welcome to that Feast, enter thus suited. Now for∣asmuch as this so necessary and Christianlike a worke, penned by so singuler a Minister of the Gos∣pell, and so much conducting to eternall blisse, hath by Gods goodnes come vnto my hands: and considering that Repentance is of small force where Restituti∣onPage [unnumbered] is wanting, as being the one∣ly Key which openeth the way vnto Remission; I held my selfe bound in Christian Charity, to communicate the same vnto my Brethren. Such Talents must not be hid, but put to vsury, that they may be increast with profit. Praise God for the Author of so good a worke; and vse it to the rectifying of thine owne consci∣ence, that God may be glorified; which is the accomplishment of my desire. Farewell in the Lord.
A TREATISE OF RESTITVTION.
THe matter subiect of Restitution is thrée∣fold: the first, satisfa∣ction for things taken from the Owner: the second, of damage su∣stained; the third, of iniuries offered. In all these Cases, a carefull Christian ought to make Restitu∣tion, in manner and forme as héereafter followeth: these circumstances conside∣red.
Touching the first part of matter ta∣ken, we must vnderstand, That thinges be taken from the owner two wayes: viz. either violently, or voluntarily: as by ra∣pine, 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 mat∣ter, wherein Restitution is to be made: let vs now procéede to entreat of the cir∣cumstances, Page [unnumbered] and that most bréefely, in or∣der, thus.
Euery one is bound to make Restituti∣on, 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.
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 Ec∣clesiasticall, 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.
Page [unnumbered] 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 con∣curre; vniust taking, and dammage en∣suing thervpon. In so much that he which stealeth a pawne from a Marchant-man, ought to restore it to the Marchant: not∣withstanding, in the Court of Conscience he might restore it to the owner; so as the Marchant were not thereby damnified.
If the person, to whom Restitution ought to be made be dead: it shall be giuen to his heires.
If the person, from whom any thing hath béene stolne, bee not knowne, after that a man hath done his endeuour by di∣ligent inquiry: then the thing shall be gi∣uen to Christ in his poore members,* as Lord of the whole world.
If the owner be farre distant, and the Page [unnumbered] thing with-holden, may easily and faith∣fully 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 ac∣count, it may be giuen to his Kinsfolke, or to the vse of some Hospitall, at the dis∣cretion of some honest person; with this Prouiso, that when the owner commeth, it shall be restored vnto him.
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 char∣ges; * but if the Vsurer remooue, then at his charges.
The owners ought not alwaies to haue their owne restored: namely, when it Page [unnumbered] might turne to their owne harme; as a a sword taken from a mad man: but it may be reserued for his heires.
Things taken vpon vnhonest conditi∣ons, neede not to be restored, vnlesse they bee gotten by craft or violence; or taken from him, that hath no right to alienate them.
Thinges gotten by Game, are of like nature: yet in both, the parties may bee counsailed to giue them to the poore.
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.
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 o∣ther 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 trea∣sure, against the will, or without the li∣cence of him that owes the ground: it wholy belongs to the owner of the ground.
If a man know there is treasure in an∣other mans ground, and buy the ground: it séemeth, that the treasure is the buyers. As for those Customes and lawes, wher∣by treasure found belongeth to the Prince;* I purpose not to meddle, neither doe I speake any thing in this whole discourse that is preiudiciall to the Lawes. Let the Page [unnumbered] 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:* then may the worth thereof be re∣stored, at the discre∣tion of some honest person. If the thing it selfe cānot be had, or bee made worse, the like may bee re∣stored.
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,* and is not: if he shal afterward sell the Horse to another; he is bound to restore the gaine, & no more.
If a stolne Horse be giuen a man, and he afterwards sell him:* 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 a∣gainst the seller howsoeuer.
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 va∣lew, if he haue it not, together with the gaines he hath got thereby. And although Page [unnumbered] it be stolne from him; yet is he not frée frō Restitution.
A man, taking the goods of another, on∣ly with intent to saue it from spoile or pe∣rishing; may lawfully demaund his ex∣pences.
If one violently or vnlawfully stay or hinder another from obtaining of any com∣modity, he is chargeable with the dam∣mage.
A man, letting another from the lawfull dispatch of his honest businesse, or duty; is bound to make amends, at the discreti∣on of some honest person.
He that hindreth a Creditor by vnlaw∣full 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 Page [unnumbered] 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 re∣maining with the owner had not perished: or if the owner was about to sell them be∣fore; 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 sa∣tisfie Page [unnumbered] for his debts, when he comes to bet∣ter state, and shall be able.
Life, Limbes, &c.
In those damages that ensue vpon a mans death, wounding, hurting, impri∣soning, 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 vn∣willing; 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 Page [unnumbered] 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 ano∣thers, 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.
The reason of him that payeth not Le∣gacies due many yeares before: who ought to make restitution for the commo∣dities detained.
Where Restitution is to be made.
If Restitution bee necessary for ought vnlawfully taken from another: restitu∣tion must be made, where the owner may be kept indemnified; if otherwise, where Page [unnumbered] the thing was had.
Of the time of Restitution.
A man hauing ought that is anothers,* is bound forthwith to make Restitution. Touching this word (forthwith) vnder∣stand it thus, That a man be fully resol∣ued, and purpose, to restore as soone as conueniently he can. As concerning the performance of his purpose, and the effec∣ting of his intent, Hee ought to doe it in time conuenient; due circumstances con∣sidered.
Thrée things may excuse a man, from making present restitution.
First, the will of the owner granting delay.
Secondly, ignorance of the reasonable∣nesse of right, or of the fact.
Thirdly, want of ability. Touching which point, the opinion of the learned ri∣seth vpon sixe conclusions.
The first is, That a man may in ex∣treame necessity, not hauing any thing, but only things necessary for his own life, and his, is not bound to make present re∣stitution: because at that time all things are common.
The second is; He that by making Re∣stitution could not liue, according as be∣commeth 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. Notwith∣standing, 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 re∣spect 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 there∣upon should follow some grieuous sinne: present restitution ought not to be made, because these are greater damages.
The sixt is, if present restitution should Page [unnumbered] more hurt the debtor, than profit the Cre∣ditor. 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 other∣wise if the Creditor were in like state:* be∣cause 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 Cre∣ditor: although a man should auoide the great•r losse in his proper goods; yet at the least, the Debtor must kéepe him losse∣lesse.
What order and manner is to be kept in making Restitution.
He that is able, ought to make restitu∣tion to all, without respect of order, or de∣lay of time.
Hee that cannot restore to all, let him first restore things certaine before vncer∣taine.
Page [unnumbered] 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 a∣gainst 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 Vsu∣rer too; is bound first to satisfie for his lawfull Contracts, with these two condi∣tions: the first, That the things taken to vse, be not in their proper kind, as pawns (for these ought to be restored to the ow∣ners paying the Money;) the second, if by such Contracts the party was not made poorer, to pay his former vsury: as in the promise of a dowry it might befall, whereby hs might become poorer. In this and the like cases, lawful Contracts must giue place.
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.
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 acknowledge¦ment.
Page [unnumbered] If a mans good name cannot bee re∣couered, 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 ho∣nest 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 resti∣tution thereof vnto him: the very with∣holding is meere rapine. For herein thou hast performed thy vttermost; and hast not done more, because thou coul∣dest 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 offen∣der, in taking and detaining an other mans goods, and thereof outwardly re∣pent 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 Page [unnumbered] fained. But without true repentance there is no remission: and his repen∣tance is good indeede, which restores the cause therof to the right owners; al∣waies 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 hin∣der 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 be∣fore other mens, be the cause of his omissi∣on. But he that hereunto is not tyed by his office, is free from such obligation.
A witnes being lawfully examined, and Page [unnumbered] concealing the truth, or not speaking the whole truth, is bound to satisfie the da∣mage sustained by reason of such his con∣cealement or silence.
He that fraudulently occupieth another mans ground, is bound to satisfie for the fruits receiued, which otherwise the Ow∣ner himselfe might haue gathered, deduc∣ting onely his necessarie expences, and consideration of his paines, taken, and be∣stowed 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 Ow∣ner 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 Resti∣tution; but if it be committed, hee is at li∣berty: howbeit S. Augustine be of opinion in his 54. Epistle: That an Aduocate is Page [unnumbered] bound to restore his Fee taken, for the de∣fence of a bad matter.
He that hindreth another in the frée do∣nation 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: Like∣wise he that procureth a will to be altered, and that with a crafty intention; yet be∣cause there is no setled right thereof, as be∣ing 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, be∣cause they offend against the rule of Iu∣stice.
Things committed contrarie to Chari∣tie, yet according to Iustice; require nei∣ther Restitution nor Satisfaction.
Where two men haue hurt one another alike: where two parties haue defamed Page [unnumbered] each other: there is no satisfaction to bee awarded.
The sea-faring man is not bound to re∣store 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 Restituti∣on; who after long and diligent search for his Creditor, and not finding him, distri∣buteth 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 extremi∣tie, or to the vse of his heires, is not of ne∣cessitie 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 Page [unnumbered] case to any other, howsoeuer they abuse their owne: as long as his or their neigh∣bour 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 recei∣ued. For Restitution maketh an euen∣nesse.
Stolne goods bought with an euill con∣science, 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 obtai∣neth the highest place. And this dig∣nitie is principally attributed vnto them Page [unnumbered] aboue the rest of their associates, in respect of the end.
For as Faith without Charitie is dead: so Repentance without Restitu∣tion is a vapour; neither of them con∣ducing 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 du∣tie. For indeede, as Charitie demon∣strates 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 of∣fence, made it (collaterally) his request, That no man might kill him. This cor∣porall death is it which they feare: the spirituall death they respect not. Ve∣rily 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 opi∣nion was, that by denying God and his Page [unnumbered] 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 repro∣bate sense, that they may cry God mer∣cie, 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 dis∣course, so I will make a short end.
GEnerally in all cases, where the state, per∣son or fame of any man suffereth detri∣ment or losse, there ought the partie delinquent to make Resti∣tution. But in these daies, De∣tention of other mens goods hath got such an habit amongst the most sort of people, through the long vse and practise of it: that it is not onely reputed no sinne at all; but euen those few, whom Gods holy Spirit touch∣eth Page 2 with a true feeling of their offences in this kinde, and there∣by moueth them to make this ho∣ly and religious satisfaction, are by those that would seeme wise in this point, accounted meere fooles and of too scrupulous a conscience. Hence oftentimes it commeth to passe, that not onely themselues runne headlong on in their wicked courses; but others also by their meanes are drawne to the same vngodlinesse. A∣mongst the rest of many friuo∣lous excuses, which carnall men are wont to alleadge against this spirituall counsell of Restitution; there is a politicke shame or dis∣grace pretended, which of neces∣sitie Page 3 must light vpon the partie restoring.
Now to auoide this shame, which puts sinne to flight, and a∣uaileth greatly to the perfecting of the new Man within vs: they stop their eares at all godly ad∣monition and heape one sinne vpon another; first, doing wic∣kedly, and afterwards taking de∣light therein. Restitution therefore to these kinde of people, is a most vnwelcome guest: they may ill abide to see her in the companie of others; and therefore by no meanes will entertaine her them∣selues. But let them sooth their owne opinions, and set light by Gods iudgements as long as plea∣seth Page 4 them: the lesse shame they haue in this world before men, of their close and vniust gettings, and the lesse account they make of Re∣stitution or making amends here; the greater wil be their horror and confusion in the next, & the stric∣ter reckoning will God exact at their hands. For such persons this Treatise was not framed, as being a Pearle not to be cast before such Swine. To the children of God in Christ Iesu, it is directed, that are capable of goodnes through him, and enabled to bring forth fruits worthy of amendment of life; that walke not after the flesh, but after the spirit. To them it is giuen to know the mysteries of the King∣dome Page 5 of God, and to walke in his wayes. In briefe therefore I addresse my selfe to you my deare brethren: exhorting you to seale vp vnto your soules and conscien∣ces the assurance of the hope that is in you, by putting off the Old Man, and putting on the New; walking before God in holinesse and vprightnes of liuing, as be∣commeth his children: For the attaining whereof, to the glorie of God, and the good of his Church; I thought it very behouefull to write this short Discourse vppon Restitution; which is so especiall a part of Christian dutie, and yet in these times so little regarded. Thus wishing from my very heart. That Page 6 all men would beware how they offer wrong, and after offences past to make satisfaction: likewise that those which suffer wrong, would not be carried headlong to seeke reuenge, but alwaies ende∣uour to preserue vnity in the bond of peace; I commend these my la∣bors, such as they be, to your Chri∣stian considerations: desiring God, so to imprint the meditation hereof in your mindes, that if you haue gotten any thing wrongful∣ly, you may bee moued with Za∣cheus to make Restitution: