Question VI: Whether in extreme, or urgent, necessity it is lawful to take what belongs to another

All concede that in extreme necessity this is lawful. So teach the Doctors cited by Fagundez in 7. praeceptum, l. 7. cap. 26. Therefore in extreme necessity, dominion is thereby transferred — so many assert: Scotus in 4. dist. 15. quaest. 2. §. ad argumenta, Salon. 2. 2. quaest. 66. art. 7. concl. 1. controv. 1., Aragon. 2. 2. quaest. 32. art. 5., Azorius Tomo 2. l. 12. cap. 8. quaestio 7. and cap. 9. quaestio 1., Sotus l. 4. de Iust. quaest. 7. art. 1. ad 4., Sayrus l. 10. tract. 5. cap. 6. num. 12., Suarez de charitate disp. 7. sect. 5., Sylvest: v. Restit. 5. num. 4., Tanner. disp. 4. quaest. 8. n. 126., citing others.

Others, however, deny that dominion is transferred to the person in extreme need. So Medina Cod. de restit. quaest. 3., Nauar. Sum. cap. 17. num. 61., Tolet. l. 5. cap. 24. num. 10., Lessius l. 2. cap. 16. disp. 1. num. 8., Bellarminus T. 3. l. 3. de bonis operibus, cap. 8., Vasquez opusc. de eleem. cap. 1. dub. 6., Malderus Tract. 4. cap. 7. dub. 7. §. respondeo, Fagundez l. 7. cap. 26. num. 7., Couar. 2. p. var. §. 1.

As regards D. Bonaventure, he certainly sides with the first opinion, in speculo animae, cap. 2., where he says: A man may take the property of another out of extreme or urgent bodily necessity, because in necessity all things are common, and then it ought not to be called theft, for what he takes in necessity is his own, or even out of the necessity of another. Hence Ambrosius, in Dom. 8. post Pentec. serm. 64: The bread of the hungry is what you keep back. Along with him, besides those already cited, are Sarmiento 1. p. ment. 4. n. 5. and Caspens. Tract. 18. disp. 5. sect. 6.

From this it is deduced, with the first opinion, that one who has taken something in extreme necessity is not bound to restore its value if he should come to better fortune.

The foundation of D. Bonaventure is most solid, because property was introduced by the law of nations, after the usurpation of things which before were common; yet on this condition, that others should not perish from poverty. Wherefore in extreme necessity all things are common, not only as regards use, and they belong to the first who takes them, unless the same necessity presses upon the possessor; nor is it absurd that the same thing should be common to the use of several, even if we concede that dominion in consumables is not separated from use, once that independence is added to use which surely in our case must be added; then dominion is transferred to the person in extreme need for the time being, and it is no longer the possessor's. I said in consumables; for as regards other things only the use is transferred, as if someone were compelled to take a horse to avoid death, so as to make a swift flight; then that horse must be restored after use. By this doctrine whatever Fagundez opposes in num. 6. is washed away — that is, that this foundation is weak; for thus it is explicit, unshaken, strengthened by the common opinion of the Doctors, and is founded also on §. cum in eadem, ff. ad Legem Rhodiam, de iactu, where he declares that in extreme necessity things are held in common.

Nor let Fagundez say that things become common as to use only, not as to dominion; for once independence is added to use, dominion is joined to it, as I showed in the first question.

The greater difficulty is: whether in necessity that is not extreme, yet nevertheless grave and urgent, it is lawful to seize the property of another by one's own authority.

The first opinion is that in grave necessity of sickness, hunger, or nakedness, such taking is licit. So Petrus Nauar. l. 3. de restit. cap. 1. dub. 5. num. 367., Angelus v. Furtum, §. 37., Sà v. Furtum., Nauar. Summae l. 1. c. f. 17. num. 118., Medina Cod. de eleem. quaest. 3. et de restit. quaest. 3. causa 1.; and Lessius indicates it is probable, T. 1. l. 2. cap. 22. dub. 12. num. 71. et cap. 16. dub. 1. num. 17. et 18., as do Vasquez de eleem. cap. 1. disp. 7. num. 60., Malderus tract. 4. cap. 7. dub. 1., Caspensis Tract. 18. disp. 5. sect. 6., Bonacina de contract. disp. 11. quaest. ult. p. 1. num. 32., Diana p. 1. tract. 17. resol. 29.

The second opinion teaches that it is not licit in urgent necessity to take the goods of another: so Sotus l. 5. de Iust. quaest. 3. art. 4., Salon. 2. 2. quaest. 66. art. 7. controv. 1., Valentia tom. 3. disp. 5. quaest. 10. punct. 5. dub. 1., Sayrus l. 9. cap. 14. num. 17., Sylvest. v. restit. 5. num. 2., Lessius r. t. de Iust. l. 2. cap. 12., Fagundez in 7. praeceptum decal. l. 7. cap. 27. num. 5., Azor. p. 2. l. 12. cap. 8. quaest. 8., Turtianus 2. 2. disp. 88. dub. 8., Reginaldus T. 1. l. 4. cap. 20. num. 267., Caiet. 2. 2. quaest. 66. art. 7., Tanner. disp. 4. quaest. 8. num. 126.; but Bassaeus, v. Furtum 1. num. 12., remains wavering, as is his custom.

The Seraphic Doctor plainly stands with the first opinion, as is clear from his words cited above.

I assert therefore that in urgent necessity it is lawful to take what is necessary.

It is proved first from D. Bonaventure, because the division of goods was ratified, yet so that others, from whom they had been wrested — naked, hungry, sick — should not lie cast off like aborted children; for this reason Christ, describing himself as King of Kings, Matth. 25., gravely threatens with his saying against those who in grave necessity had refused to clothe the naked, feed the hungry, visit and help the sick, and he protests that an injury was done to him as supreme Lord of goods, who had transferred dominion to those in grave need.

So Ezech. 16. This was the iniquity of thy sister Sodom: pride, fullness of bread, and abundance: and they did not stretch forth their hand to the needy and the poor. Therefore since the rich man is bound to give that thing (if only out of charity, if not out of justice), he is treated unjustly if it is taken from him against his will.

RESPONDET Fagundez num. 5.: he is indeed bound to give, but not to this man or to THAT man. Therefore he is unjustly deprived of this liberty, when he is compelled to leave it to this man.

This foundation, however, collapses before Vasquez. And indeed he is bound to give to the needy who present themselves, as is said in Matth. 25., nor is he free so as to be able to pass over this one and seek another in Galicia, even if he has nothing wherewith to relieve all.

OBIICIUNT. Cap. si quis de furtis, where a penalty is imposed upon one who steals in grave necessity; but a penalty presupposes guilt: therefore.

RESPONDET S. Thom. quaest. 66. art. 7. ad 1.: the Decretal speaks of a necessity that is not urgent. Caspensis subscribes. This canon D. Bonaventure cites in the Confessionale, cap. 3. particula 55.

DEINDE cap. 4. particula 2. he says that no penance is to be imposed upon thieves, because they are incapable, unless they restore. He supposes, therefore, that the Decretal does not condemn as theft the taking by one in grave, urgent necessity; but him who does not take in grave necessity so urgent that he could avoid taking the property of another; for in urgent necessity he asserts it is not theft, as I said above, citing the words of the S. Doctor.