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and so also the oath annexed, which follows the nature of the act whereto it appends: chiefly upon this ground, that both these are done without consent, mere involuntary acts ; since nothing can be so contrary to consent as force and fear.
But I dare not go along with them: for that I apprehend there is not an absolute involuntariness in this engagement, but a mixed one; such as the Philosopher * determines in the Mariner, that cast his goods overboard to saye his life : in itself, he hath no will to do it; but, here and now, upon this danger imminent, he hath a halfwill to perform it.
Secondly, I build upon their own ground. There is the same reason, they say, of force and of fraud :
Now, that a promise and oath drawn from us by fraud binds strongly, we need no other instance than that of Joshua, made to the Gibeonites. There could not be a greater fraud, than lay hid in the old shoes, thread-bare garments, rent bottles, and mouldy provisions of those borderers; who, under the pretence of a remote nation, put themselves under the interest and protection of Israel ; Josh. ix. 12, 13. &c. The guile soon proved apparent: yet durst not Joshua, though he found himself cheated into this covenant, fall off from the league made with them; which when, after many ages, Saul out of politic ends went about to have broken, we see how fearfully it was avenged with a grievous plague of famine upon Israel, even in David's days ; 2 Sam. xxi. 1. who was no way accessary to the oppression : neither could be otherwise expiated, than by the bleeding of Saul's bloody house,
When once we have interested God in the business, it is dangerous not to be punctual in the performance. If, therefore, a bold thief, taking you at an advantage, have set his dagger to your breast; and, with big oaths, threatened to stab you, unless you promise and swear to give him a hundred pounds, to be left on such a day in such a place for him.; I see not how, if you be able, you can dispense with the performance : the only help is, (which is well suggested by Lessius t, that nothing hinders why you may not, when you have done, call for it back again, as unjustly extored: and, truly, we are beholden to the Jesuit, for so much of a real equivocation : why should you not thus right yourself, since you have only tied yourself to a mere payment of the sum upoa staking it down for him, you are free. But, if he have forced you to promise and swear not to make him known, you are bound to be silent in this act, concerning yourself: but, withal, if you find that your silence may be prejudicial to the public good; for that you perceive the licentiousness of the offender proceeds, and is like so to do, to the like mischief unto others; you ought, though not to accuse him for the fact done unto you, yet to give warning to some in authority to have a vigilant eye upon so lewd a person, for the prevention of any further villainy.
But, if it be in a business, whose peril rests only in yourself, the
* Arist. Eih. I, ji. c. 2.
+ Lessius de Jure, &c. l. . c. 42. dub. 6.
matter being lawful to be done, your promise and oath, though forced from you, must hold you close to performance, notwithstanding the inconveniencies that attend. If, therefore, you are dismissed upon your parole, for a certain time, to return home, and dispose of your affairs, and then to yield yourself again prisoner to an enemy; the obligation is so strict and firm, that no private respects may take it off: and it should be a just shame to you, that a Pagan * should, out of common honesty, hold himself bound to his word; not without the danger of torment and death: when you, that are a Christian, slip away from your oath.
CASE IX. Whether those monies or goods, which I have found, may be safely
taken and kept by me to my own use. It is well distinguished, by Sotus, out of Aquinas *, That those things, which may be found, are either such, as call no man master, as some pearl, or precious stone, or ambergris lying upon the shore; or, such, as have an owner, but unknown to us; or, as we may add, to make
the number complete, such, as whose owner we know. Where the true owner is known, speedy restitution must follow : otherwise, the detention is in the next door to theft.
Where the commodity found hath no owner, it justly falls to the right of the first finder: for both the place and the thing are masterless (adespota) and common; offering themselves to the next comer.
The only difficulty is, in those things, which have an unknown owner. And, certainly, common justice, and honesty, suggests to
may not seize on commodities of this kind, as absolutely our own. The casualty of their mis-laying, doth not alter their propriety: they are still his, that lost them; though out of his sight, yet not out of his right: and even natural justice would give every man his own.
The Laws both Civil, and Canon, and Municipal do sufficiently guide our practice, in many particular cases of this nature ; and our Conscience must lead us to follow them.
If they be quick commodities; as horses, sheep, kine, and the like, which we call Waifs and Strays; every one knows they are to be publicly impounded, that, upon search, the owner may be the surer to find them : and if he come not in, the sooner, to be openly cried in several markets, that the noise of his own neglected goods may come to his ear: and if, upon a continuing silence, they he put into the custody of the Lord of the Manor, who is most likely to be responsible, and he shall make use of them before his year and day be expired, he shall not do it without some mark of
* Attilius Regulus.
+ Dom. Sot, de Jure et Justit. 1. v.q.3. page 436.
distinction; that yet the true owner may know, they are not challenged by the present possessor as his own, but lie open to the just claim of their true master.
But, if they be dead commodities; as a jewel, a purse, or some ring of price, or the like; the finder may not presently smother up the propriety of it in his own coffer. His heart tells him, that the mere accident of his finding it, cannot alienate the just right of it from the true owner: he is, therefore, bound in conscience, in an honest sincerity to use all good means, for the finding out of the right proprietary; whether by secret inquiry, or open publication ; and if, after due inquisition, no claim shall be made to it for the present, he shall reserve it in his hand, in expectation of a just challenge; upon the assurance whereof, how late soever, he is bound to restore it to the proper owner : who, on the other side, shall fail in his duty of gratitude, if he return not some meet acknowledgment of that good office and fidelity.
In all which mutual carriages, we ought to be guided by those respects, which we could wish tendered to ourselves in the like occasions.
Mean while, in all the time of our custody, we are to look upon those commodities as strangers ; making account of such a potential right only in them, as we are ready and desirous to resign to the hands that purchased and lost them.
On the contrary, no words can express the horrible cruelty and injustice, that is wont to be done in this kind, not only on our shores, but in other nations also, upon the shipwrecked goods, both of strangers and our own compatriots; while, instead of compassioning and relieving the loss and miseries of our distressed bre. thren, every man is ready to run upon the spoil; and, as if it were from some plundered enemy, is eagerly busy in carrying away what riches soever come to hand; which they falsely and injuriously term “ God's grace," when as indeed it is no other than the Devil's booty. This practice can pass for no other than a mere robbery : so much more heinous, as the condition of the mis-carried owner is more miserable. What a foul inhumanity is this, to persecute him, whom God hath smitten; and, upon no other quarrel, to be cruelto our brother, than because the sea hath been merciless !
Dear Countrymen, ye especially of the West, leave these abominable pillages to savage nations, that know not God : and, putting on the bowels of tender compassion, lend your best succour, rather for the rescue of poor wrecked souls; and safely preserving that small residue of their drowned freight, which you cannot imagine that the sea hath therefore forborne to swallow, that you might.
Whether I may lawfully buy those goods, which I shall strongly sus
spect or know to be stolen or plundered ; or, if I have ignorantly bought such goods, whether I may lawfully, after knowledge of their owner, keep them as mine.
To buy those goods, which you know or have just cause to suspect to be stolen or plundered, is no better than to make yourself accessary to the theft; if you do it with an intention to possess them as your own : for, what do you else herein, but er-post-facto partake with that thief, who stole them; and encourage him in his lewd practices ? since, according to the old word, “If there were no receivers, there would be no thieves.”
Neither will it serve the turn, that, in the case of plunder, there may seem a pretence of justice; in that this is pleaded, perhaps, to be done by some colour of authority : for, certainly, where there is not law, there can be no justice; whereof law is the only rule. Whatever, then, is against an established law, in matter of right possession, can be no other than unjust. Take heed, therefore, lest that heavy challenge of the Almighty, be, upon this bargain, charged upon you; When thou sawest a thief, thou consentedst with hiin ; Ps. I. 18. These stolen waters may be sweet in the mouth, but they will be poison in the maw; and, like the water of a just jealousy, rottenness to the belly.
But if, as these ill-gotten goods are hightly cheap penny-worths, you buy them only with an intention to gratify the true owner, with an easy purchase of his own, which would perhaps else be unrecoverable; while your profession to do it for no other end takes off the scandal, I cannot but allow your act, and commend your charity
But if, making use of that rule which St. Paul gives for meat, in bargaining for any other commodities, you shall extend your liberty to whatsoever is sold in the market; and shall, in the exercise of that freedom, upon a just and valuable consideration, ignorantly buy those goods, which you afterward hear and know to be another's; the contract is, on your part, valid and faultless, since your invincible want of knowledge acquits you from any guilt of consent. But, withal, there is an after-game to be played by you: you are bound, upon just notice, to acquaint the true owner with the matter; and to proffer yourself ready to join with him, in the prosecution of law or justice upon the offender, and upon a meet satisfaction to tender him his own.
But, if the theft be only on probability, and it be doubtful whether the goods belong to the owner notified to you, your duty is to make diligent inquiry into the business; and if, upon due inquisition, you find too much likelihood of the theft, i dare pot advise you, with some Casuists, to reverse the bargain, and to return the commodity to those false hands that purloined it: but rather to call the probable owner; and, with him, to appeal unto just authority, for a more full examination of the right, and an award answerable to justice ; but, if there appear no good grounds for au impeachment, you may peaceably sit down in the possession, till further evidence may convince your judgment in the contrary.