ing in the recovery of what is due by invasion of another person's property. The Father replies that speaking generally, such a proceeding cannot be approved; but, he adds quickly, ‘I say, speaking generally, for there are not a few exceptions,' which he enumerates; amongst these being the case of servants who have contracted for inadequate wages, under physical constraint or moral fear or the strain of necessity, or who are conscious of being overweighted with labour; all such being declared entitled to help themselves to what they deem their rightful due, for, says the Divine law, 'the labourer is worthy of his hire.' With perfect consistency, the lawfulness of this operation is extended to all cases in which any wrong charge has been made. Should a judge, by error of judgment, sentence a man to payment of moneys never received or already paid, the suffering party would be justified, says Gury, in recouping himself by an exercise of clandestine compensation, though we are puzzled to understand against whom in particular the letter of licence is to hold good, if no moneys had been received. Is there to be a fight of general raid on society? It is, however, right to note how our Jesuit is at pains to impress that appropriations of other people's property are not tolerated to an indefinite extent. Father Gury admits the difficulty in fixing a figure, which could be a hard-and-fast point to mark off in all cases grave from trivial thefts, but he gives the best sliding-scale he has been able to calculate, according to the rank in fortune of the parties mulcted, for distinguishing between the two degrees of offence, and the figures range from one to twelve francs. In connection with this tabular estimate, there arises, however, a very nice question how far can a person consummating thefts, that amount in the aggregate to what is grave,' still permanently enjoy the privileges of merely' venial' offence, by guardedly apportioning the heavy total into successive pilferings, each kept within the limit of triviality? If practised on the same party, Father Gury is clear that these acts must roll up into 'gravity;' and he is disposed to think this might also happen though several persons were victimised, unless an adequate interval be allowed to elapse between each act of pilfering. What period must elapse for a protection against this inconvenient aggregation of peccadilloes, has been matter of not little controversy, but Gury considers two months amply sufficient, even though the matter might verge on something grave.'§ The Father's thoughtfulness in devising exculpatory pleas *Recuperatio debiti per rei alien invasionem.' Gury, vol. i. p. 376. +See Gury, vol. i. p. 378. Quæst. 4. This opinion is given as general. Gury, vol. i. p. 369. De Naturâ Furti.' § Gury, vol. i. p. 371. for for thieves extends even to unnatural complications. He discusses the case of a son who has robbed his father of eight francs at one time, and then of ten francs on successive occasions, pronouncing him not guilty of a grave offence, because as regards the first theft, according to general opinion, a grave matter for the son of a well-to-do family should amount to at least ten francs'; and as regards the second, because if about ten francs are needed, though the money be taken at one time, the value of fifteen francs will be necessary in thefts that are in driblets.' Gury also puts the case of a woman, with a son by her first marriage, for whose benefit she robs the second husband (on whom this son can have no claim), and this proceeding Gury is prepared to justify, if only the wife be moderate in her abstractions, and will profess an inward disposition at some future time to make them good. It follows* that 'he who has caused grave injury through various deliberately perpetrated venial offences,' is held free from all obligation to make good that injury in the total,' if he has been only shrewd enough to scatter the injury over various victims; or, in the case of its perpetration on one, if he has been careful to leave the proper interval between the stages of the operation,† while an incendiary who has burned down a stranger's house, in the mistaken belief that it belonged to one he hated, is free from obligation of compensation because such action was unintentional towards the sufferer. Can it then create surprise to hear it emphatically affirmed, that everyone is justified in helping himself to what he considers his rights, rather than have recourse to legal procedure, whenever this might be attended with difficulties, or the prospect of scandal, or even merely heavy cost? § Such maxims must gravely modify the best established rules of life. An insolvent, who secretes any portion of his assets, is, by civil law, guilty of fraud. Father Gury holds it distinctly lawful for an insolvent to guard himself from great poverty-manifestly something short of extreme necessity' by clandestine abstraction of such an amount of property as he may deem needful for his maintenance, the fact of such great poverty' being, as usual, determined by the insolvent himself. The same process of abstraction is held justifiable in the case of one satisfied *See Gury, 'Casus Conscientiæ,' 'De Furtis Filiorum et De Furtis Uxorum' (the particular case is headed Uxor Provida '), pp. 172–3. † Gury, vol. i. p. 402. Gury, Idem. Gury, vol. i. p. 378. 'An graviter, et contra justitiam peccet qui se compensat, quin prius ad judicem recurrere possit? Nullo modo peccat, si valde difficilis sit recursus ad judicem, ob scandali periculum, sumptus extraordinarios, etc.; quia tunc recursus est moraliter impossibilis.' | Gury, vol. i. p. 471. 'De Obligatione Contractûs.' in his own mind of a legacy having been mentally intended for him, but which has not been bequeathed in a due legal conveyance. Informal deathbed gifts-donatio manualis ab ægroto facta -are also declared strictly valid, as are likewise testamentary deeds in favour of pious bequests, though defective in legal form,' while absolute power is allowed to the Pope to alter at discretion the special application of such last wishes.* Indeed it would appear that every priest is empowered to divert at discretion the application of a pious legacy. Gury puts the case of an individual who bequeathed a sum for endowing with a wedding portion some orphan girl to be designated by the parish priest. The latter sees fit to select a girl who is not an orphan, no ground except his pleasure being assigned for this manifest departure from an explicit condition, and yet the priest is summarily declared liable to no blame. Elsewhere Gury, in concurrence with St. Liguori, pronounces 'a donation affirmed by oath, but not executed, to have no binding force.'† It will be observed here that the repudiation is general, so that it would appear to be inculcated that, whereas a sacred obligation of fulfilment does attach to any verbal instruction, however informal, perhaps whispered unintelligibly into the single ear of an interested party by a dying person only half conscious, whenever a so-called pious foundation is the object to be benefited, yet no obligation is held to attach to the fulfilment of informal donations for other objects, even though the intention to make them had been affirmed by a solemn oath. Many unfounded stories have been afloat as to priestly pressure exercised on dying persons to extract bequests in favour of the Church. Nothing can be better calculated to confirm popular prejudice on this head than to find such propositions sustained as sacrosanct maxims by the most accredited organs of Church doctrine. In France a system of clandestine trusts and fictitious bequeathals has notoriously contrived to counteract the action of the law for preventing the growth of corporate properties. This practice is explicitly sanctioned by Gury, without the least attempt at reserve, in the following proposition: Are * See for all this, Gury, vol. i. pp. 486, 494, and 496, The reason alleged in the first line as decisive of the validity of informal pious bequests is that, being a matter touching the Church, it is wholly beyond the pale of the civil power: Piæ causæ ad Ecclesiam pertinent, ejusque subjacent jurisdictioni, porro Ecclesia libera et immunis est a potestate civili in omnibus quæ jurisdictioni suæ directe subsunt,' p. 485. + Gury, vol. i. p. 483. An valeant in foro conscientia testamenta ad causas profanas formis legalibus destituta? 2da Sententia docet ex lege positivâ prorsus irritari.'-Gury, vol. i. p. 485. ... clandestine clandestine trusts for pious causes valid, in foro conscientiæ, when made in the guise of simulated donation or of fictitious testament, or of legacy to some individual?'* Can there be a more open approval of a contrivance deliberately devised for driving a hole through a statute? Beyond doubt the teachings of Gury's school furnish ready justification for transactions which, by the light of ordinary insight, would be instinctively pronounced immoral. As an instance, let the following conclusion serve: 'If you threaten an individual caught in the act of theft, that you will hand him over to the injured owner or the jailor or the judge, unless he promises you a particular sum, the promise holds good, and you are not bound to return the received sum, unless, perchance, in the opinion of a man of judgment (viri prudentis) it should seem excessive. This holds true, even though you never meant to hand over but merely to frighten the individual, because you would be waiving spontaneously the power to do something which can be taxed in money value.'† Here we have an approval, in one breath, of hush-money and of its extortion under false pretences. Bribery is near akin to extortion, and Father Gury quite naively admits himself at a loss to know why so natural a proceeding should be stigmatised. Can a price be lawfully accepted for a matter of duty, not indeed on the score of justice, but of some other virtue; for instance, if you were to take money for observing your fast in Lent?' and the conclusion is, that the money can be rightfully taken, 'it being considered as a strictly gratuitous gift, bestowed out of sheer generosity.' Accordingly, it is quite lawful to accept money for the performance of a prescribed duty, only the person receiving such reward must plead that the prospect thereof was not his direct motive for acting up to his duty. It would be unfair, however, to conceal that the lawfulness of such acceptances is nicely limited to cases in which the service rewarded is of a kind that can be priced in money.' For instance, any one would be bound to make restitution who exacted money for showing the road to a passer-by, if this could be done without trouble or loss of time, as he would be bound to this act of love, and such action could not be taxed.' It is well to note the qualification smuggled in by the words put by us in italics, for it ensures the plea for payments otherwise disallowed. We are told also, it is by no means decided that a judge is bound never to accept money gifts from a party to a suit before him. If the gift were proffered with the view of influencing a prospective judgment, contrary to justice, the judge should, indeed, Gury, vol. i. p. 498. Idem, vol. i. p. 468. Gury, vol. i. p. 454. sternly sternly refuse acceptance; but, the sentence having been already pronounced, it is matter of controversy' whether he may not retain what might then seem a mere offering of gratitude from one benefited by the delivered sentence, even when this had been contrary to justice.* Decisions of this character subvert fundamental notions as to right and wrong. Let us take the case of a person knowing all about a theft, and accepting hushmoney from the guilty party. According to received ideas, the compact would be criminal. Father Gury, however, decides that, provided the person bribed be not ex officio bound to give information, the bargain would be quite lawful, as without injustice he might keep silence about the thief, in deference to his entreaties. . . therefore, e pari, without injustice, silence might be observed in deference to gifts given or promised.'† The problems raised by such maxims strike at the whole order of our ideas. Some are of a nature that will not bear discussion here, and we can but glance at one important subject in a note.‡ 6 Two grounds are distinctly recognised as valid pleas of excuse from restitution, Physical disability . . . and Moral inability, or serious difficulty in making restitution; that is, if restitution be inseparable from grave inconvenience to the debtor, for instance, that through making restitution he should be notably reduced in his fairly acquired station or fall into serious need . . . for then there is a real impossibility to make restitution, inasmuch as in morals that is termed impossible, which is very hard, and which cannot be done properly and becomingly. Thus if a nobleman cannot make restitution, without depriving himself of servants, horses, arms, or a leading citizen without embracing a mechanical art to which he is unused, or an artisan without selling the tools he lives by or encountering severe loss, then restitution may be postponed and obligations discharged by degrees.' § Gury, vol. i. p. 418. * Idem, vol. ii. p. 8. De Obligationibus Judicum. A contractus turpis' being an immoral bargain (as for murder or prostitution), Gury is distinct that viewed prospectively it never can be justified. It is by its essence null, and any benefit received in consideration of future execution must be returned. But how about a benefit received after execution? Will it be impossible to retain it? Here comes in the side plea already dwelt upon. Besides the capital subject matter, other matters may be collaterally involved in the execution of the bargain, as labour, risk, &c., which being in themselves legitimate, are assessable in money, so that after execution a gratuity can be accepted if taken as in remuneration of these secondary elements. A woman may not take money for her honour, but for risk or personal inconvenience, or loss of position, 'An semper restituenda sit res ex turpi contractu accepta? Ante positionem operis turpis, affirm. Post operis positionem acriter controv. .. Quia licet actio turpis, quasi illicita, nullo pretio digna sit, pretium tamen quatenus laboriosa, ignominiosa, periculosa agenti, vel utilis alteri, meretur.'— Gury, vol. i. pp. 455–6. § Idem, vol. i. p. 431. De Causis a Restitutione Excusantibus. |