I. On Justice Considered Generally

What are the seventh and tenth precepts of the Decalogue? - "You shall not steal... You shall not covet your neighbor's house, nor his servant, nor his maidservant, nor his ox, nor his ass, nor anything that is his." Exod. 20:15, 17. By the seventh precept, formally negative, under the name of theft taken broadly, every injury, or unjust lesion or damaging of one's neighbor in the temporal goods of fortune, is prohibited; and consequently, by the same precept, insofar as it is virtually and implicitly affirmative, it is commanded that to each one his own right with respect to temporal goods must be rendered. Certainly it pertains to the same precept and to the same virtue both to prohibit another's right from being injured through injustice, and especially to oblige that to each other person his own right be rendered through restitution and other modes.

But as by the seventh precept the external act is prohibited, so by the tenth the internal act injurious to one's neighbor in the goods of fortune is prohibited. For by it every inordinate and unjust appetite for the goods of fortune of one's neighbor is prohibited. Therefore against this tenth precept sin not only the envious, but also the avaricious, who seek riches with excessive eagerness, and desire to increase wealth by unjust modes. Both these precepts regard the virtue of justice.

What is justice? - Justice is so called from iustari, or from two things being made equal to each other. Justice taken broadly imports all virtues; hence a man is customarily called simply just if he preserves every honesty in every matter. Taken strictly, insofar as it is the special virtue with which we are here dealing, it is defined: the constant and perpetual will of rendering to each one his own right. Inst. 1. 1. t. 1. "Constant and perpetual will," because there must be a firm disposition not only for one or another day, but always, of rendering to each one his own right; for otherwise it is not a perfect virtue, just as penance is not a perfect virtue unless it includes the firm purpose of never sinning. The virtue is defined from the act. Therefore it can be said otherwise that "justice is a habit according to which someone, by a constant and perpetual will, renders to each one his own right." S. Th. 2. 2. q. 58. a. 1. "Right" here is not understood as right broadly so called, which is the exigency of right reason toward something as honorable, that is, toward something to be done because of its honesty, or omitted because of its dishonesty; but right strictly so called is understood, which is a moral power toward something as one's own, that is, toward something to be done, omitted, had, retained, demanded as one's own, that is, as subject to one's own liberty, with others excluded, namely so that it may fall to one's own advantage and utility. This right is founded in the very nature of man, who by reason of his liberty must move himself toward the end and apply the means necessary for obtaining that end. C. L. 359 ff., 2167 ff., 2287, 2339, 2354; C. He. 641; C. I. 438; C. A. 362, 366; C. B. 903; Lugo d. 1. n. 6.

This right, however, is one thing as right of jurisdiction, another as right of property. The first is the legitimate power of a superior to command or prohibit something to subjects for their own good, or for the good of the whole community. The necessity and utility of administering the community is the measure of this right as to its acts. The other is the legitimate power of any private person to dispose of some thing for the advantage of his own liberty, or as his own. Hence in the right of property the thing exists for the proprietor; in the right of jurisdiction neither the Prince exists for the people, nor the people for the Prince, but each exists for the common good.

The right of property is one thing in the thing, another to the thing. The first is that by which someone has the thing itself immediately bound and juridically obligated to himself as his own. Hence a thing obligated to someone by such a right carries its obligation with it, and wherever it may come, it can be sought back by its owner and juridically claimed. The second, however, is that by which someone does not have the thing itself immediately bound and juridically obligated to himself, but rather has another person bound to hand over some thing to him. Therefore a right in the thing makes the thing already his own; a right to the thing makes the thing become his own. A right in the thing gives an immediate real action against the thing itself, so that you may take it to yourself. A right to the thing gives an immediate personal action against the person himself, so that you may compel him to hand the thing over to you, for example by the sentence of a judge. By a right to the thing someone has a just title to having it, for example by title of legacy, but he does not yet have possession of the thing. By a right in the thing someone has possession of the thing itself. For a right in the thing, therefore, there is required a title transferring ownership, of a thing determined in the individual, and its possession, at least regularly. For a right to the thing a just title for having it suffices. And thus the owner of a farm has a right in the thing as regards the existing fruits of that farm; he has a right to the thing as regards the rent of a leased farm. C. A. 307, 308; Inst. 1. 4. t. 6. Whenever a thing is sought by force of an obligation by which someone has not yet acquired ownership of the thing, the action is personal; but if a thing is sought of which he has full ownership, the action is real. Finally, an action is mixed, personal and real, and, as is said, the action is personal written upon the thing, if by the petition of the thing someone acquires ownership of the thing, and then the lawsuit instituted over it begins with a personal action and is concluded by a real action, as in the case in which, by the office of the judge, the sale made of a thing is dissolved, and the thing returns to the seller as his own. A personal action is from some personal fact, that is, from contract or from delict. A real action is from the defect of another's right. Inst. 1. 4. t. 6. section 1. Cf. Troplong, On Sale, article 1654, nn. 624-630; on article 1659, n. 698; on article 1664, nn. 728, 729; on article 1674, nn. 806, 807. "His own"; a thing can be one's own in three ways, if the person is considered in society as its member. Hence right also is distinguished in three ways: into high right, low right, and right of property. High right is that which the Prince, the republic, or the community has over the goods of the members, which it can demand as its own for the common good, by the "ownness" of the community, since whatever the part is belongs to the whole and exists for the whole. S. Th. 2. 2. q. 64. a. 2; q. 65. a. 1. Low right is in the member of the community, as such, to common goods, which the member can demand in their distribution as his own by the "ownness" of a member. The right of property, however, is in the member of the community, as such, to proper goods, which one member can demand from another as his own, by the "ownness" of property. "Of rendering to each one his own right," that is, of equating the right of another by the rendering of what is owed; for to right, as to a certain moral exigency, debt correspondingly responds. Therefore, as is clear, justice is not a virtue toward oneself, but toward another. And as charity has its foundation in the conjunction of men among themselves, so justice rests upon the distinction of one man from another. S. Th. 2. 2. q. 57, 58; Gousset 670, 674.

You will resolve: The Prince can indeed, if at some time this is required for the common good, take a thing from a subject, because right to the end necessarily imports right to the means without which the end cannot be obtained. But the public good sometimes requires that someone be deprived of his own thing, for example of a field for the construction of a public road, etc. But then the Prince, in so far as can be done, is bound to just compensation, because it is not equitable that one person be despoiled while others remain untouched, as is clear from natural and positive law. C. I. 438; C. G. 545; C. H. 349; C. A. 365; C. L. 2360.

But in no way can he, without a grave cause of the public good, but for his own convenience, take away by law from a subject some notable thing of his, or an acquired right, because he has no power over the goods of private persons unless the reason of the common good altogether demands it. Therefore he is then bound to restitution. S. Th. 2. 2. q. 66. a. 8.

Equity is distinguished from justice. First, equity is justice itself. And thus in L. 14. de Condict. indeb. it is said: "It is equitable by nature that no one be enriched with the loss of another." But equity proceeds further, by constituting a certain fitting measure in justice itself, and generally in all laws, namely by tempering according to various circumstances the rigor and subtlety of right and laws. Rigor, for example: "It is of the highest equity that one who has promised money, or something else, by reason of donation, should not owe interest because of delay in payment of the money." L. 22. de Donat. Subtlety, for example: "If a surety, though freed by lapse of time alone, nevertheless pays the creditor, he will rightly have an action of mandate against the principal debtor; for although he paid when already freed, nevertheless he fulfilled his pledge and freed the debtor. Therefore, if he is prepared to defend the principal debtor against the creditor, it is most equitable that by the judgment of mandate he recover what he paid." L. 29. section 6. Mandati. Cf. also L. 17. de Iniu. rupto irr. f. testam.; L. 85. de R. I.

Equity, taken in this way, is the same as epicheia, which is a part of justice commonly so called, and is a subjective part of justice; and justice is said of it prior to legal justice, for legal justice is directed according to epicheia. For legal justice follows the words of the law; equity or epicheia follows the intention of the legislator. S. Th. 2. 2. q. 120. a. 2. Equity is to be observed in interpreting laws and acts, and also in onerous contracts.

It is altogether unlawful to exercise one's right when an exercise of this sort has no other end than to inflict damage on another. Likewise it is unlawful to exercise that right against the prescription of the laws. C. B. 226, 826, 907, 908, 909, 912. Likewise it is unlawful to exercise one's right excessively, with damage to others. C. He. 679, 684. But it is not unlawful to violate the property of another in order to avoid one's own greater damage, compensation afterward being made to the other for the damage inflicted on him. C. He. 701.

How many kinds of justice are there? - Justice is threefold, namely general or legal, distributive, and commutative. For since justice is wholly situated in this, that it render to another his own right, it is specified and divided according to right. But right, as was just said, is threefold, namely high, low, and of property. Hence there are three species of justice, each of which renders what is owed according to equality.

Legal justice equates high right through the actions and goods which are owed to the Prince or to the republic for promoting the common good; and this is justice of the part toward the whole, or of the members toward the head and the community. It is called legal because it has for its object that which is owed to the community by reason and force of the laws, "because by it man agrees with the law ordering the acts of all virtues to the common good." S. Th. 2. 2. q. 58. a. 5.

Therefore this justice is a general and special virtue at the same time. General, insofar as it orders the acts of all virtues to the common good; special, insofar as it regards the common good as its proper object. "And thus it is in the Prince principally and as it were architectonically; but in subjects secondarily and as it were administratively." S. Th. 2. 2. q. 58. a. 6. Legal justice, insofar as it is in the Prince, inclines him to procuring the common good, for example by establishing laws necessary for it. Insofar as it is in private citizens, it inclines them to the obedience owed to the laws by reason of the common good. Illegal injustice is opposed to this legal justice, which "is a special vice insofar as it regards a special object, namely the common good, which it contemns"; and general, insofar as "through contempt of the common good man can be led to all sins," and insofar as "all vices are repugnant to the common good." S. Th. 2. 2. q. 59. a. 1.

Distributive justice equates low right through the distribution of common goods, public functions, offices, rewards, namely the right which a member of the community, as such, has to these; and this is justice of the whole toward the part, or of the head or community toward the members. "When something from common goods is distributed to individuals, each one in some way receives what is his own." S. Th. 2. 2. q. 61. a. 1 ad 2. Distributive justice is in the Prince as distributing common goods according to the dignity of persons; but in the particular persons themselves it is present insofar as they are content with what is owed to them.

Acceptance of persons is opposed to distributive justice; for in distributive justice those conditions of persons are considered which make for the cause of dignity or debt; but in acceptance of persons other conditions are considered, which do not make for the cause of dignity or debt. For whatever condition does not make for the cause on account of which someone is worthy of such a thing is referred to the person. S. Th. 2. 2. q. 63. a. 1.

Commutative justice, however, equates the right of property, or the low right of one member against another member, through the exchange of things and prices; and this is justice of part toward part. Therefore, as legal justice orders man immediately to the common good, so commutative justice orders man concerning those things which are directed to another singular person, namely concerning external actions and things by which men can communicate with one another. S. Th. 2. 2. q. 58. aa. 7, 8.

Hence special injustice is opposed to commutative justice insofar as it imports "a certain inequality toward another," according to the aforesaid actions and things owed to another. S. Th. 2. 2. q. 59. a. 1. Therefore theft and robbery are opposed to commutative justice, through which harm is inflicted on one's neighbor in exterior goods by secretly or violently taking them away. And since harm of this sort can also be inflicted in the goods of the body and of the soul, and also of the whole person, hence by reduction many other sins are opposed to the same justice: homicide, mutilation, damaging, etc.; calumny, detraction, insult, etc., whether outside judgment or in judgment through an unjust sentence, false testimony, etc.

Now if justice is not taken generally, namely insofar as it is also a certain general justice, but insofar as it is particular justice ordered to some private person, then there are only two species of justice, commutative and distributive. For there is only a twofold ordering to a private person, namely of part to part, which commutative justice directs, and of whole to parts, which distributive justice directs. The former directs the exchanges of private persons among themselves. The latter directs the distributions of the Prince to particular persons. But in them the notion of what is owed is diverse. For what is proper is owed to someone in one way, and what is common in another way.

These two kinds of justice are particular justices, while legal justice is general justice; for motion receives species from the terminus, and it pertains to legal justice to order those things which belong to private persons to the common good; but, on the contrary, to order the common good to particular persons, and those things which are done mutually between two particular persons to one another, belongs to particular justice. Therefore justice can well be divided into general and particular; and the latter into distributive and commutative. S. Th. 2. 2. q. 61. a. 1.

But in the strict sense, by the name justice, only commutative justice is meant. For general or legal justice does not regard entirely distinct persons; for each citizen is part of the community, and what is contributed to the community is contributed also to that same citizen. But distributive justice by no means includes right strictly so called, or right of property. For it supposes only dignity and aptitude in the person for receiving such common goods.

Vindictive justice, which is customarily added to the three prior species of justice, is not properly a fourth species of justice, because justice, taken generally, is specified and divided according to the diversity of the right which it regards; and this is only that threefold right just mentioned. For it would be incongruous to say that a guilty person has a right to punishment. It is a potential part of justice itself. Nevertheless, under a diverse respect it can be reduced to all those three species. Insofar as a superior provides for the common happiness of citizens by punishments, it pertains to legal justice; insofar as he decrees the punishments themselves proportioned to the gravity of crimes, it pertains to distributive justice; finally, insofar as a superior carries out the offices of vindictive justice from a certain quasi-contract entered into with the republic concerning the right administration of public affairs, it pertains to commutative justice. L. 486; S. Th. 2. 2. q. 58, q. 61, q. 80, q. 108. a. 2 ad 1.

Whether the mean of the thing, or equality, must be observed in the same way in commutative and distributive justice? - In commutative justice arithmetical equality must be observed; in distributive justice geometrical proportion. Commutative justice is exercised by citizen toward citizen, by private person toward private person, and has place in contracts and in other affairs pertaining to social commerce; in this only the things themselves are considered, which are the object of contracts and of the exchanges by which commerce is exercised. Therefore in it there must be preserved equality of the things themselves, namely equality of thing to thing, as if, for example, you owe one hundred, you render one hundred, considering only what is owed, so that, except in cases in which regard for persons is prescribed by the law itself, for example when minors are involved, in all other cases no respect is had for the condition or merits of the person. And this is that equality which they call arithmetical.

But distributive justice is exercised by a superior toward a subject, and has place in distributing common goods, dignities, offices, honors, burdens, rewards and punishments; and therefore it must not have regard of thing to thing, but of condignity, merits, and condition of persons, for example their capacity or need, with respect to imposing taxes, or granting subsidies to a person, whether physical or moral. For so much more of common goods is owed to someone, the greater principality he has in the community. And likewise so much more is owed, for example, to some community from common goods, the greater its need may be, for example for hospitals to be erected, schools, etc. From this arises and is constituted what is called geometrical proportion, which namely is not equality of thing to thing, but proportion of thing to person, that is, to the merits and quality of persons, so that just as one person exceeds another, so also the thing which is given to one person exceeds the thing which is given to another. Hence equality is considered not according to quantity, but according to proportion; or, what is the same, equality not of things but of ratios is considered. Therefore if to him who has merits as five there are given, for example, ten coins, to him whose merits are as ten, twenty must be given. S. Th. 2. 2. q. 58. a. 10; q. 61. a. 2; Inst. 1. 4. t. 4. sections 7, 8; Gousset 670.

What is the obligation of justice? - Both commutative justice and also distributive, vindictive, and legal justice oblige per se under grave sin. For the violation of commutative justice, as is clear from several places of Sacred Scripture, is to be punished with eternal punishment, 1 Cor. 6:10. Besides, it is per se, or from its nature, repugnant to charity, which moves one to will the good of another; for it itself consists essentially in inflicting harm on another. Therefore per se and from its genus it is a mortal sin. But a lesion of distributive, vindictive, and legal justice induces per se a grave disorder, since it gravely harms the necessary order of society. Per se, because in this matter smallness of matter is admitted. S. Th. 2. 2. q. 59. a. 4.

What is ownership? - Among the three species of justice, as has already been said, commutative justice alone is strictly and properly justice altogether. For in legal justice there is lacking distinction toward another; for every citizen is part of the community. But in distributive justice there is lacking right strictly so called; for in the distribution of common goods, toward obtaining a part of them, there is given only mere dignity, and in no way property. But since commutative justice is exercised only between private persons, and renders to each one what is his own proper thing, hence it alone is strictly and properly justice altogether, and it is chiefly treated in this treatise. But since commutative justice regards equality of thing to thing, it is concerned only with the right of property, which is customarily called property and ownership.

Ownership is: the moral power of disposing at will of some corporeal thing as one's own, unless nevertheless it is prohibited by law, agreement, or the will of a testator. "Moral power," and thus it is distinguished from physical power; moral power, and therefore legitimate. "Of disposing of a thing," and thus it is distinguished from jurisdiction, which is also called ownership of jurisdiction, so that it may be distinguished from ownership of property: for jurisdiction is the moral power of governing; nor is it exercised immediately over a thing, but over a subject person. "Corporeal," because of incorporeal things one does not have ownership, but rather a right. "At will," that is, by selling, donating, or even destroying without cause, which although otherwise prohibited, because God permits ownership to each one only for this purpose, that it may serve his own necessity and utility and that of his own people, nevertheless does not violate the right of another and is not against commutative justice. "As one's own," for ownership properly is a right in the thing, and not precisely a right to the thing, which tends to that right and is perfected and completed by it. Much less is ownership mere possession of a thing. "Unless prohibited by law": by natural law, if one cannot dispose of his own thing without injury to anyone; by positive law, and thus alienation of their things is not permitted to minors except from a just cause and with certain solemnities observed, though in this case ownership is not taken away, but only its use is impeded. "By agreement": this would be, for example, if it were agreed between seller and buyer that the buyer is not to use the thing bought except after a certain day. "By the will of a testator": this would be, for example, if the testator had bequeathed a farm to someone on this condition, that he not use it except after a year. C. I. 436; C. G. 544; C. H. 348; C. A. 353, 354; C. B. 903; C. He. 641; C. L. 2167 ff.; S. Th. 2. 2. q. 66; Gousset 673; E. M.

How many kinds of ownership are there? - Ownership of property is immediately divided into perfect ownership and imperfect ownership. Perfect ownership of property, or full ownership, is the legitimate power of receiving in one's own name every advantage of one's liberty from some thing, by disposing of it and using it. Imperfect ownership, however, is the legitimate power of receiving from a thing some advantage, yet not every advantage, of one's liberty.

Imperfect ownership is immediately subdivided into direct ownership and useful ownership. The former is the legitimate power over the substance of a thing without the fruits. The latter is the legitimate power of receiving fruits and emoluments from another's thing, while its substance remains intact. Useful ownership, according to the various advantages of things to be received, is divided into various species, principally into use, habitation, surface right, usufruct, servitude, possession, emphyteusis, fief, and census. Each ownership, however, is either perpetual or revocable. By its nature ownership is full and perpetual. Here it will be necessary to speak of the first six species; of the last three it will be necessary to speak below, when there will be discussion of contracts. C. G. 543; C. He. 641 ff.; C. L. 2187-2189; L. 487.

What is use? Use is defined: The right of using another's things, their substance being preserved both as to matter and also as to form. "Right" signifies the faculty which belongs to a competent user, for thus the one to whom use belongs is called; but the one to whom the property or ownership of the thing belongs is called the proprietor. Therefore use here is not taken generally for the actual exercise of any ownership whatever, but specially for a certain special power. "Right," and therefore there is question of use of right, not of use in fact, which is the actual use of another's thing, revocable at the will of the one granting it. "Of using" signifies that the faculty belonging to the user extends only to those things which are necessary. C. I. 521; C. G. 630; C. H. 524; C. A. 504; C. L. 2254. This necessity, however, is to be measured according to the condition, state, and dignity of the user himself and of his family, with servants included, and with children born after the exercise of use not excluded. C. I. 521, 523; C. G. 630; C. H. 524, 526; C. A. 505, 506. Yet use of a thing can be granted to a person for daily personal necessities, C. L. 2254, and from mere agreement altogether limited to some act, for example if someone grants to a friend that he may walk through his forest, hold a banquet in his house, or pluck apples from the trees of his field. "Another's things" indicates that use cannot consist in one's own things; for each one is said to have in his own things not use only, but also ownership. "Their substance being preserved"; otherwise it would not be use but abuse. From this it follows that the user cannot change the thing whose use he has obtained even into a better form; and therefore those words are also added: "both as to matter and also as to form." C. A. 507. And this is the principal obligation of the user; hence he is also bound to ordinary repairs and taxes, yet in proportion to the fruits, so that the thing may be preserved whole for its owner. C. I. 537; C. G. 635; C. L. 2259, 2260. Cf. C. A. 508; C. H. 527.

Use is acquired and ceases in the same modes by which usufruct is acquired and ceases. C. I. 529; C. G. 625; C. H. 529; C. L. 2255; Inst. 1. 2. t. 5. sections 1, 3, 4; L. 487. Cf. here 848, 849.

Hence it is clear: that under use, as also under usufruct, there do not come things consumable by one act, such as wine, oil, bread, etc., because through such use the substance of the thing does not remain preserved. In the case of destruction of the thing, one is bound to repay an equivalent price. Therefore prior security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 525; C. G. 626; C. L. 2256. Cf. C. A. 520.

Considering the nature of use itself, the user cannot lease, sell, or donate his right to another. For use consists in this, that someone uses a thing according to the measure of his necessity. C. I. 528; C. G. 631, 634; C. H. 525; C. A. 507; C. L. 2258. Make exception, unless it clearly appears that this faculty also was granted to them by a special agreement, or if the use would be altogether useless unless it could be alienated. A user of a fruitful thing, such as a garden, fields, vineyards, etc., cannot justly collect more from the fruits than is required for necessary support; hence if he collects more fruits, he is bound to restore them to the direct owner. C. I. 821; C. G. 630; C. A. 505, 506; C. L. 2257.

What is habitation? Habitation is: The right of inhabiting another's buildings, their substance being preserved. And thus to noble widows there is often granted by husbands the right of dwelling for the days of life in the house of the heir. He to whom habitation of a house has been granted can dwell in it with his family, although at the time when he acquired the habitation of the building he was not married, and can receive guests in it; nevertheless he cannot transfer his right to another by selling it, or by leasing the building and acquiring for himself the price of the lease. One who inhabits the whole house is bound to all necessary and ordinary expenses and taxes; one who inhabits only part is bound only according to the proportion of the thing.

Habitation begins and ceases as use, with which it is almost confused according to more recent laws. C. I. 521 ff.; C. G. 625 ff.; C. A. 521-522; C. H. 524, 525, 529; C. He. 776, 777; C. L. 2254, 2259, 2260. Cf. C. A. 508; C. H. 527; C. B. 1093. C. I. 1415; C. G. 1570: besides clothing, habitation is owed to a widow from the inheritance of her husband for the year of mourning. C. B. 1969: the heir is bound for one month to permit use of the house to members of the family of the deceased, from the inheritance devolved to him. Inst. 1. 2. t. 5. sections 2, 5.

842bis. What is surface right? - With use, surface right also is almost confused. Surface is said to be whatever has been placed upon the soil and stands above the ground, such as a building, tree, plant, vine, etc. Hence there is right of surface; and the one having it is called the superficiary, and the thing itself is called superficiary. Dig. title 18, book 43. The surface yields to the soil. The right of surface can be limited only to occupation of the surface, and only to ownership of the superficiary thing, whether it be above the soil or beneath the soil. C. He. 675, 779.

What is usufruct? - Usufruct is: The right of using and enjoying another's thing, by receiving fruits from it in that very mode by which the proprietor himself would receive them, while nevertheless its substance is preserved, both as to matter and also as to form, as in use. C. I. 447; C. G. 578; C. H. 467; C. A. 509; C. B. 1030; C. He. 745; C. L. 2197, 2202; L. 487.

It differs from use in this, that it extends more broadly; for simply to use is to receive only necessary fruits, but to enjoy is to receive them as the proprietor himself would receive them. Thus, for example, if someone has the use of some garden, he can indeed take fruits from it for himself and his own, but he cannot alienate them and bestow them on outsiders; but he can do so if he has usufruct of the same. Those words, "of using and enjoying," are not added in vain; for usufruct, insofar as it regards a fruitful thing, is the right of using; but insofar as it regards the fruits, it is the right of enjoying, or of receiving fruits from it. And thus, if the revenues of some estate are bequeathed, it is not judged to be a usufruct, but a legacy of revenues, which is a personal burden, not a burden of the estate. And therefore it is said, "the right of using and enjoying another's thing, by receiving fruits from it," etc. Hence it is a real right constituted in the thing, and thus it differs from lease. "Another's thing," because usufruct is a servitude. The owner uses his thing by right of property. The one to whom usufruct belongs is called the fructuary. Inst. 1. 2. t. 4. section 1.

What is fruit of a thing, and how many kinds are there? Fruit is what a thing bears or produces. For fruits are so called from bearing; and some are natural, which are produced from the thing itself and by the benefit of nature alone, such as grass, apples, nuts; likewise the offspring of animals and the things which come from them, since they are held as a part of the entrails. Others are industrial, which are acquired by industry alone, and it is the profit which is received from money exposed to trade, or from improvements made to a thing. Others, however, are those in which, besides nature, the labor and industry of man also has a part, such as, for example, grain and crops; theologians call these mixed, because they are produced partly by nature, partly by the benefit of human industry. Finally, others are civil, which arise only on occasion of the thing and by force of a particular obligation founded in civil law, for example the price of a leased house, rents of a farm, interest of money given as a loan, etc. C. L. 495.

But fruits are not understood except after expenses have been deducted. The natural and industrial fruits themselves are divided into those to be born and those born; these likewise are customarily divided into pending and received, and these still into existing and consumed. C. I. 444, 445, 480, 494; C. G. 547, 548, 583, 584, 585, 598; C. H. 354-357; C. A. 330, 405; C. B. 99, 100, 102; C. He. 643; L. 609, 610.

How many kinds of usufruct are there? - There is a threefold division of usufruct. The first is into proper and improper usufruct. The former is constituted in things which are by no means consumed by use, such as, for example, a house and a garden; the latter, however, is constituted in fungible things, as they are called, namely those which are consumed by use, such as linens and household furnishings. Improper usufruct is also called quasi-usufruct. C. I. 483, 484; C. G. 587, 589; C. H. 481, 482; C. A. 510; C. B. 1031, 1032, 1067.

The second division is into singular usufruct, that is, of certain things in species; particular usufruct, that is, of some part of goods; and universal usufruct, in which all goods are contained. C. G. 612; C. H. 469; C. B. 1038.

Finally, the third division is into usufruct of things and of rights, as, for example, usufruct of a life annuity, which brings a right of receiving even past and unreceived fruits. Thus from C. G. 588. Cf. C. I. 482; C. H. 469; C. A. 510; C. B. 1068 ff., 1085 ff.; C. He. 745; Inst. 1. 2. t. 4. section 2.

What are the rights of the usufructuary? - These in general are, apart from a special agreement:

1. Since the usufructuary is judged to act as the person of the proprietor with respect to useful ownership, his first right is that he can receive all fruits, whether natural, industrial, or civil, and make them his own, whether he has collected them by himself or through others. But they are understood to have been collected when they have been separated from the soil or from the thing. Hence, if the fructuary dies, fruits indeed mature but not yet separated from the soil or the thing do not belong to the heir of the fructuary, but to the proprietor of the thing, without the burden of paying for cultivation or seed, etc.; for fruits, as long as they adhere to the farm, are judged one with it. But if that heir, when the fructuary is already near death, has collected immature fruits, he is bound to restore them to the proprietor; for just as the fructuary could not collect immature fruits, so much less can his heir. On the contrary, the usufructuary receives natural and industrial fruits pending at the beginning, also without the burden of paying for cultivation or seed, etc. But civil fruits are acquired day by day, and therefore must be divided according to the proportion of the time during which the usufruct lasted. Inst. 1. 2. t. 1. section 36; C. I. 477, 479, 480, 481, 494, 496; C. G. 578, 582, 585, 586, 588, 598, 600; C. H. 471, 472, 474, 475; C. A. 509, 511. Cf. ib. art. 519; C. H. 472, 476, 477; C. B. 1039; C. He. 755, 756, 757; C. L. 2203 ff., 2252, 2253, 495.

2. In addition, he has a right to all those things without which usufruct cannot be had; therefore he has right of way to the usufructuary thing through the hereditary farm, if access does not lie open from elsewhere; likewise the right of using all servitudes adhering to the farm, because they are held as qualities of the farm itself; likewise he has a right to opened mines and to the individual instruments of the farm, unless the contrary will of the testator appears; for it is not to be presumed that the testator wished the fructuary to furnish instruments for himself for a farm which he is to use only for a time. C. I. 494; C. G. 597, 598; C. A. 511; C. H. 479. Cf. ib. arts. 476, 477; C. B. 1031; C. L. 2206, 2213, 2287.

3. Besides, he has the right that he can sell, donate, lease, lend, and subject to mortgage the fruits and the usufructuary things, and grant them to another to enjoy; indeed even hand them over as a pledge. For one who enjoys through another is seen to enjoy by himself. C. I. 492, 493, 1967; C. G. 595, 2118; C. H. 480; C. He. 758; C. B. 1059; Inst. 1. 2. t. 1. sections 36-38, t. 4. section 1.

4. As the usufructuary is not bound to make improvements, so he has no right to compensation for improvements made. For he is judged to have donated them. Nevertheless, he will be able to compensate an increase of price with losses, if any followed without grave fault of the fructuary. If this compensation cannot have place, it is lawful for the fructuary and his heirs to retake additions made, if they can be removed without detriment to the farm and with the utility of the fructuary, and the proprietor does not prefer to retain the additions made for himself after paying their valuation. But it will always be lawful for the fructuary and his heirs to recover mirrors, painted panels, and other ornaments, provided all things are restored to their former condition. C. I. 495; C. G. 599; C. H. 487, 488; C. He. 753; C. L. 2217, 2220. Cf. C. A. 514-517.

What are the obligations of the fructuary? - These in general are, apart from a special agreement:

1. The burden falls upon the fructuary both of furnishing custody and of undergoing ordinary expenses, so that the thing may be preserved in its whole condition, and also of making expenditures so that he may receive natural fruits from it. He is also bound to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things. He is likewise bound to notify the owner if anything happens which may harm his property. C. I. 477, 501, 504, 506, 509, 511; C. G. 605, 606, 608, 614; C. H. 500-502, 504, 505; C. A. 512, 513; C. B. 1036, 1037, 1041 ff.; C. He. 764, 765, 767, 769; C. L. 2228, 229, 2238, 2240.

2. The fructuary must use another's thing as a good father of a family, and must return it such as it ought to be found after good administration. But the proprietor can do nothing by which the condition of the usufructuary becomes worse, because he suffers him to enjoy. C. I. 495, 497; C. G. 599, 601; C. H. 489, 497, 503; C. A. 513; C. B. 1051 ff.; C. He. 755, 759, 768; C. L. 2223, 2227.

3. The usufructuary thing must be restored to the owner, when the usufruct has ended, such as it was with respect to its substance when it began. C. I. 477; C. He. 751 ff. Therefore security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 496, 497; C. G. 600, 601; C. H. 491; C. B. 1034 f., 1048, 1049. From C. I. 1922 either security or pledge can be given. Cf. C. G. 2041; C. He. 760 ff. But security is not to be given by a father or mother in legal usufruct, nor by one who sold or donated the thing while reserving usufruct to himself. C. I. 497; C. G. 601; C. H. 492. Nor indeed is security to be given, nor an inventory to be made, if the one who constitutes the usufruct remits all these things. C. I. 496, 497; C. H. 493. C. I. 483, 484; C. H. 481, 482; C. G. 587, 589; C. A. 518, 520; C. B. 1034, 1035, 1050, 1055; C. L. 2221, 2224.

4. Things which are consumed by use are to be restored according to their valuation made, or otherwise in the same quantity and quality, or at the current price, when the usufruct ceases. But things which deteriorate by use are restored in the condition in which they are when the usufruct ceases. C. I. 483, 484; C. G. 587, 589; C. B. 1050, 1067; C. He. 772; C. L. 2208, 2209.

From Roman Law: The usufructuary of a field has a right to hay, crops, willows, and trees to be cut, but not to large and fruit-bearing trees, to stakes, to stones, or to sand. In place of trees that have died, he is bound to substitute others, and the former belong to the fructuary; nevertheless he by no means ought to substitute trees overthrown by the force of a storm without fault on his part. And if there are bees, their usufruct also belongs to him. L. 9, 11, 18, 59 de Usufr. etc. From C. G. 594; C. I. 490: fruit-bearing trees which perish, or which are overturned by some accidental event, belong to the usufructuary with the burden of substitution. Cf. C. H. 483-485.

Usufruct of a forest. "The fructuary can cut a coppice wood and a reed-bed, as the father of a family was cutting, and sell them, even if the father of a family was not accustomed to sell but to use them himself; for it must be referred to the mode, not to the quality, of using." L. 9. section 7. de Usufructu et quemadmodum, etc. Cf. C. G. 590, 591; C. I. 485, 486; C. He. 770; C. L. 2211. "But if there were large trees, he cannot cut them." L. 11. de Usufructu, etc. Cf. C. G. 590, 592; C. I. 487, 579. "Labeo says that, when trees have been torn up or thrown down by the force of winds, the usufructuary can take them up to the measure of his own use and of the villa... He thinks that the usufructuary can cut timber as much as is necessary for the repair of the villa; just as, he says, he can burn lime or dig sand or take anything else necessary for the building." L. 12. de Usufructu, etc. Cf. C. G. 592, 593; C. I. 488, 489; C. A. 511; C. L. 2210, 2213, 2226. "I think that the fruit of a nursery belongs to the fructuary, yet in such a way that it is lawful for him to sell and to sow; nevertheless, for the sake of sowing the field, he must always renew the prepared nursery as an instrument of the field, so that, when the usufruct has ended, it may be restored to the owner." L. 9. section 6. de Usufructu, etc. Cf. C. G. 590; C. I. 485, 491; C. H. 485; C. L. 2112.

The usufructuary of a flock has a right to wool, milk, and offspring. Inst. 1. 2. t. 1. section 37, t. 5. section 4. But he is bound to substitute other heads from the offspring in place of heads that have died, unless he has the usufruct of the individual heads separately, not of all the heads collectively, or of the flock, herd, or drove, that is, of the universality. L. 68. section 2, 69, 70. section 3. de Usufructu, etc. Cf. C. G. 615, 616; C. I. 512, 513; C. H. 499; C. L. 2225.

How is usufruct acquired? - Usufruct is acquired: 1. From law, and then it is called legal; such is the usufruct of parents from the goods of children, or of a husband from the goods of his wife. 2. From agreement or contract, and therefore it is called conventional, for example by force of donation or testament. 3. By prescription. In its acquisition, the formalities of the various laws must be observed. C. He. 746.

C. I. 478, 901, 2137; C. H. 468; C. B. 1032, 1033.

How does usufruct cease? - "Lest properties be useless in general, when the usufruct has always departed, it has pleased the law that usufruct be extinguished in certain ways and return to the proprietor." Inst. 1. 2. t. 4. section 1; C. L. 2251.

Moreover, usufruct ceases: 1. By the natural or civil death of the fructuary; for since both use and usufruct are personal rights, they ought to be extinguished by the death of the one to whom they belong. Hence usufruct, that is, the stable right itself of using and enjoying, neither passes to heirs nor can even be sold without the consent of the direct owner. C. I. 515; C. G. 617; C. H. 498, 513; C. B. 1059, 1061; C. L. 2250. A usufruct granted to a community or moral body is extinguished after the space of 30 years, C. I. 518; C. G. 619; C. H. 515; C. L. 2244; of 100 years, C. He. 749.

2. When the time has ended, if any has been established by law or constituted by agreement. C. I. 515, 517; C. G. 617, 620; C. H. 513, 516; C. A. 528; C. He. 748; C. L. 2245.

3. By every manner of change, for example if a meadow becomes a pond, or by the total destruction of the thing, if, for example, the whole building is demolished. Total destruction; for if the thing perishes only partially, usufruct is sustained in that which remains. C. I. 515, 519, 520; C. G. 617-624; C. H. 513, 514, 517. Cf. C. A. 525; C. He. 748; C. L. 2243, 2246.

4. Likewise, usufruct is extinguished when the right of the one ceding the usufruct has been resolved. For example, if Titius sells a house to Caius under a pact of redemption, and meanwhile Caius grants its usufruct to Sempronius, once the house has been redeemed by Titius, the usufruct also ceases.

5. By consolidation, namely when the fructuary obtains the property and ownership of the thing itself, or when the owner also acquires the usufruct. C. I. 515; C. G. 617; C. H. 513; C. B. 1063.

6. By renunciation of the fructuary, provided it is not done in fraud of creditors. C. H. 513.

7. By abuse, by which the thing is made worse through the fault of the fructuary. But the sentence of a judge is necessary. C. I. 516; C. G. 618. Otherwise, however, from C. L. 2249, and from C. H. 520, 529, which establishes a distinction between usufruct and use, which is extinguished by grave abuse of the thing.

8. By prescription, namely if the fructuary does not use his right for so much time that the usufructuary thing can be usucapted by another; 30 years are required so that the owner can prescribe against the fructuary. C. I. 515; C. G. 617; C. H. 513; C. L. 2241; Inst. 1. 2. t. 4. section 3; C. G. 621, 622.

What is servitude, and how many kinds are there? - Servitude, taken actively and generically, is a right which belongs to someone, so that the thing of another, or another person, serves his thing or himself, that is, is applied to its or his utility. But servitude taken passively is the obligation of another's thing, or of a person, corresponding to the aforesaid right. "The thing of another, or another person"; for one's own thing does not serve its owner. Therefore the advantages which the owner receives from it, he receives by right of ownership, not by right of servitude. The same must be said a fortiori of a person.

Hence servitude can be: 1. Personal, which is owed by a person to a person, and is proper to a slave toward a master. 2. Mixed, which is owed by a thing to a person, of which sort are use, usufruct, habitation. C. A. 521. 3. Real, which is owed to a thing by a thing, as a burden imposed on an estate for the utility of another estate. The thing bearing the burden is called serving; the thing receiving the utility is called dominant. C. I. 531; C. G. 637; C. H. 530; C. A. 473; C. B. 1018, 1019, 1090; C. L. 2267.

Real servitude is divided into continuous and discontinuous. The former is exercised without the act of man, such as servitude of prospect, of drip, of aqueduct, of sewer. The latter is exercised by the act of man, such as servitude of way, of drawing water, etc. C. I. 617; C. G. 688; C. H. 532; C. L. 2270. Besides, one is apparent, another non-apparent. The former appears outwardly by some sign, such as servitude of door, window, aqueduct; the latter lacks this outward sign, such as servitude of not raising a building higher, of pasturing a flock, of cutting wood. C. I. 618; C. G. 689; C. H. 532; C. L. 2270; Inst. 1. 2. t. 3. sections 1, 2, 3; Book 8 of the Digest.

Real servitude is divided into urban and rural, according as it is for the utility of a building or of a field. L. 1. Communia praediorum, etc. "The rights of urban estates are such: of raising higher and obstructing the lights of a neighbor, or of not raising higher; likewise of turning drip-water onto the roof or area of a neighbor, or of not turning it; likewise of inserting beams into the wall of a neighbor; and finally of projecting (that is, making a projection; a projection is a member of a building extending out, sporto) and protecting (or making a projection in the roof of buildings, namely of projecting the roof, fare uno sporto nel tetto), and other things similar to these." L. 2. de Servit. praed. urbanorum. "The servitudes of rural estates are these: path, driving-way, road, aqueduct. A path is the right of going, walking for a man, but not also of driving a beast of burden. A driving-way is the right of driving. A driving-way is the right of driving either a beast of burden or a vehicle. Therefore he who has a path does not have a driving-way; he who has a driving-way also has a path, even without a beast of burden. A road is the right of going and driving and walking; for road contains in itself both path and driving-way. Aqueduct is the right of leading water through another's farm. Among rural servitudes are to be counted drawing water, driving cattle to water, the right of pasturing, of burning lime, of digging sand." L. 1. de Servit. praed. rustic.

By what modes is servitude constituted? Real servitude can arise from a threefold source. The first is the natural position of places; thus, for example, a farm which is in a lower situation is bound to receive waters flowing down from a farm which is in a higher situation. Servitudes flowing from this source are therefore called natural. C. L. 2271. And thus owners of an estate which has no communication with public roads have a right of passage through another's estates, with damage compensated to their owners. C. L. 2309 ff.

Another source is law, under which name also comes the sentence of a judge; thus, for example, because of public or private utility, the law prescribes rules to be observed as regards the construction and repair of roads, the drawing off of waters, the building of houses, the distance of walls, passages, etc. C. He. 686, 688, 699, 702; C. L. 2325, 2338. Servitudes arising in this way are called legal. C. I. 533 ff.; C. G. 649 ff.

Besides this, a servitude can be acquired by prescription. C. I. 2137; C. A. 480, 1469, 1470. Only apparent and continuous servitudes, such as the servitude of aqueduct through another's farm, can be acquired by usucaption, and only by prescription of 30 years. C. I. 629, 630; C. G. 690, 691; but C. H. 537-539 by prescription of 20 years. Cf. C. A. 1469. But in the forum of conscience good faith is necessary, by which one namely thinks that the owner, who suffers him to use the servitude, is not unwilling. Continuous non-apparent servitudes, such as the servitude of not raising higher, and non-continuous servitudes, whether apparent or non-apparent, cannot be established except by means of title. Possession, even immemorial, does not suffice to constitute them. C. I. 630; C. G. 691; C. H. 539; C. L. 2272, 2273.

Finally, the third source is agreement: namely, the proprietors of neighboring farms can, if law or public order does not obstruct, agree among themselves that one farm serve another, and conversely, if it so pleases. These servitudes are called conventional. C. I. 532; C. G. 639. In them transcription is required. C. I. 1932; C. He. 731, 732. Likewise a servitude can be constituted by destination of the father of a family, by some act of last will, or among the living. C. I. 629, 630; C. G. 692, 693; C. A. 480; C. B. 903 ff.; Inst. 1. 2. t. 3.

But here it must be observed: 1. Servitude in the things of the Church falls under the Extravagant Ambitiosae; for it is a certain alienation of right, and therefore cannot be imposed without Apostolic beneplacit. 2. C. I. 556: the faculty of making a contiguous wall common does not extend to buildings of public use, and therefore not to churches. 3. Agreements which constitute burdensome praedial servitudes, or moderate them, must be made by public act or private writing, under penalty of nullity. C. I. 1314. But if they are constituted by gratuitous title, a public act is required, since then donation is had; and all acts of donation without a public act are null. C. I. 1056. Cf. here 1011.

By what modes is servitude ended? - Real servitude is extinguished: 1. When the established time has elapsed, or the condition has been fulfilled. 2. By express or tacit renunciation. 3. By consolidation, by which the owner of the dominant estate at the same time becomes owner of the serving estate, or vice versa. 4. If the thing is changed; if nevertheless the thing is reduced to its former state, the servitudes revive, unless prescription obstructs. 5. By prescription, or non-use of the right of servitude for 20 years from C. H., for 30 years from C. I. and C. G., if it is discontinuous, for example if someone has ceased to go through another's farm; or, if it is continuous, from the time when someone has done something contrary to the servitude, for example if someone on his own farm planted or built short of the legitimate distance, obstructed an aqueduct, etc. C. I. 662 ff.; C. G. 703 ff.; C. H. 546 ff.; C. A. 524 ff., 1488; C. B. 1028; C. He. 734 ff.; C. L. 2279, 2280.

You will resolve: Someone cannot dig a source of water on his own farm with damage to others, unless for the sake of greater public utility, and with the damage repaid, if the judge has judged this equitable. C. I. 578. Nor can he contain it on his own farm, or divert it elsewhere, if some town or suburb needs it, if another has already acquired a right to it, if it is useful to other neighboring estates and otherwise would be lost. C. I. 540, 542, 545, 578; C. G. 641, 643, 674; C. He. 709 ff.

The owner of a higher estate cannot do anything so that the flow of waters is unusually increased, with harm to the lower estate. Nor indeed can the owner of the lower estate do anything which impedes the flow of water with damage to the higher estate. C. I. 536; C. G. 640; C. H. 543, 545; C. B. 1020-1026; C. He. 689, 730, 737.

The owner of a serving estate cannot change the position of a road, of waters, or of a stream, unless the servitude has become more burdensome, or prevents repairs useful to the estate from being made; and then he is bound to bring no harm, or to compensate it for the dominant estate. C. H. 545; C. L. 2278, 2282, 2283.

No one is compelled on his own estate, whether rural or urban, to receive the dripping rainwater of a neighbor. C. I. 591; C. G. 681; C. L. 2327. All can enclose their estates, unless they are subject to a reciprocal servitude of pasturing cattle. C. I. 442, 682; C. G. 647; C. L. 2346.

If the tree of a neighbor extends roots into one's own farm, one can cut them; if its branches overhang, he can compel the owner to cut them. C. I. 582; C. A. 422; C. B. 910; C. L. 2317. But there is a question whether fruits which fall into another's field from the tree of another belong to this latter, as C. He. 687 has it; or to the owner of that field, as C. B. 911 has it. Cf. ib. 923; Gousset 983.

C. L. 2318. He is guilty of damage who prevents a neighbor from restoring on his own farm an embankment destroyed by the force of a river, C. I. 537; likewise he who digs so deeply on his own farm that the wall of the neighbor can no longer stand, C. I. 573, 575; C. He. 685. Every proprietor must permit access or passage through his farm if a neighbor's wall or another work is to be built or repaired, provided the damage inflicted is repaired. C. I. 592, 594; C. L. 2276; C. B. 867, 905 ff.; C. He. 694, 695, 700.

One who plants a hedge, vines, or shrubs is bound to leave half a meter from the neighboring estate; one who plants trees not greater, pear trees, cherry trees, etc., one and a half meters; one who plants greater trees, nut trees, elms, etc., three meters. But with a wall interposed, these spaces need not be preserved, if the trees do not rise above the wall. C. I. 579.

Flowing water belongs to those who possess estates near the banks, and they can use it. Those who possess fields at the banks of navigable rivers cannot obstruct the opening of a way necessary for the course of ships. The same must be said of those whose estates are adjacent to roads or other public works; for they are bound to suffer the servitude as long as it is necessary for the making or repair of the aforesaid works. But in each case the injured proprietors have a right to a certain indemnity, if it can be made. C. I. 534, 543; C. G. 650; Inst. 1. 2. t. 1. sections 4, 5.

To acquire by prescription the right of servitude, for example of aqueduct, that is, of leading water through another's farm, the one prescribing must exercise positive acts by which he acquires such a right, and at the same time have good faith, by which he believes that right belongs to him. Nor does the knowledge and tolerance of him against whom prescription is made suffice, if he does not have a title. But if he has a title, knowledge and tolerance of this sort are not required. C. I. 630; C. G. 691; C. A. 539; C. He. 740.

Drawing water and driving cattle to water are discontinuous rural servitudes, which cannot be constituted without title. In controversies which arise among proprietors concerning the use of waters, because this concerns the common good by reason of agriculture and industry, the judge has the right to establish between the parties what is more equitable in the case. C. I. 544; C. G. 645.

What is possession, and how many kinds are there? "Possession is so called, as Labeo also says, from seats, as if position, because it is naturally held by him who stands upon it; the Greeks call it detention." L. 1. de Possessione. Possession is often confused with property. Yet it differs from it, because possession is a right by which a thing is held as one's own; but property or ownership is the very right by which a thing is one's own, and someone is its owner. Possession is rather a matter of fact than of right. Nevertheless, possession is distinguished as twofold: one of fact, the other of right. C. B. 854 ff.; Troplong, On Prescription, c. 2, On Possession.

What is possession of fact and of right? Possession of fact is: the apprehension or detention of a thing, with the support of body, mind, and right. "Of a thing"; by this name we understand not only corporeal things, but also incorporeal things, such as censuses, patronages, etc.; these are said to be quasi-possessed, to distinguish them from corporeal things, which are said to be possessed. "Apprehension or detention"; because possession is considered either in its beginning, or in its continuation; in its beginning it is apprehension of a thing; in its continuation it is detention of the same. "With the support of body"; because, for some corporeal thing to be possessed, it must be apprehended by some bodily act, for example by hands, feet, etc. If the thing belongs to no one, true and real apprehension is required for acquiring it. If the thing belongs to someone who hands it over to another, fictive apprehension suffices, as if he hands over the keys of a house to another. Finally, if the thing is acquired by the disposition of law alone, legal apprehension suffices, as if an heir, without knowing, acquires an inheritance. From C. A. 441 legal possession is had from the fact that a document proving the right of property has been inscribed in a public book. If the thing is incorporeal, apprehension and detention are had by acceptance of the right, and by the very use or exercise of the right, or with the forms prescribed by law observed. "Of mind"; because for a thing to be possessed, it must be apprehended with the intention of having it as one's own, and retained by persuasion that it is one's own. Possession indeed is not had if someone detains a thing without any intention of receiving from it advantage and emolument as from his own. Hence if someone, while he is waiting for a friend, takes in his hand that friend's book which he found in a hall, and looks at the title, he holds the book, but does not possess it. Hence also one who by right of neighborhood or familiarity or mere tolerance enters a neighbor's farm, or draws water from a neighbor's well, is not understood to quasi-possess. Error, whether of law or fact, does not obstruct the aforesaid intention and persuasion, as is openly clear from C. I. 701; C. G. 550; C. A. 326. "Of right," that is, with right not resisting nor impeding; because for possession it is required that right or the laws not impede the detention of a thing from being judged its true possession, by rendering one incapable of possession. Thus, for example, detention by a layman of a sacred thing which belongs to a church, or detention by a private person of a public thing, cannot even be called possession of fact; because right, by rendering these persons incapable of such possession, impedes such possession. On the contrary, detention of a stolen profane thing by a thief is true possession of fact, although unjust, because right does not impede detention of such a thing from sufficing for possession. L. Qui universos de acquir. vel amitt. possess.; Inst. 1. 2. t. 1. sections 1, 3, 4; C. I. 685, 687, 688, 690; C. G. 2134, 2228, 2230-2232; C. H. 430-432, 437-440; C. A. 309-315; C. L. 474.

Possession of right is defined: the right of standing upon a thing as one's own, which is not prohibited to be possessed. "Right," by which it differs from possession of fact, which is the very occupation of a thing or its detention, by which either there is had a right, namely the right of standing upon a thing as one's own, if it is just; or it is not had, if it is unjust. Just, unjust: therefore the right itself of ownership and property does not arise and cannot arise from detention or possession; but on the contrary, just detention or possession arises from the aforesaid right. Hence in judgments there is given a twofold action: action in a possessory cause, and action in a petitory cause; in the former there is question of the right of possession; in the latter of the very ownership of the thing. Possession nevertheless carries with itself a presumption of property in favor of the possessor. C. L. 477. "Of standing upon a thing," that is, of peacefully detaining the thing against disturbers. "As one's own"; for if someone stands upon a thing in the name of another, there will not be true possession. Thus, for example, a tutor cannot be said to possess the goods of a minor, but the minor himself possesses through the tutor, because the tutor does not retain those goods as his own, but in the name of the minor. "Which is not prohibited to be possessed," that is, with no law resisting and impeding, as was said above concerning possession of fact. But for possession to be legitimate, besides this, the formalities prescribed by law must be observed. C. I. 686, 701; C. G. 540, 550, 2229, 2268; C. H. 430-432, 437-441; C. A. 316, 329.

From C. He. 919, 922; C. B. 854-857, possession is acquired by the fact of obtained power over a thing; this power, for retaining possession, can also be exercised through another. But when power over the thing has ended, possession ends; nevertheless it passes over to heirs and successors, and can be continued in them.

If a possessor has handed over a thing to another, so that the latter may exercise some limited real right, or a personal right, both are possessors. The one who possesses as proprietor has original possession; the other has derived possession. C. He. 920.

Acts of mere tolerance and facultative acts, as also violent and clandestine acts, cannot constitute the beginning of legitimate possession. C. I. 688, 689; C. L. 474. Only those things can be possessed which can be the object of property. C. L. 479. Or at least possession of things whose property cannot be acquired has no juridical effect. C. I. 690. Troplong, On Prescription, c. 2, On Possession, n. 253 ff.

What is natural and civil possession? Possession is divided into natural, civil, and most civil. Natural possession is that by which the thing possessed is retained by body and mind as one's own, namely when someone bodily stands upon the detention of a thing as his own; this is done by one who is so near to a thing placed within sight that he can be present to it immediately. Civil possession is that by which a thing apprehended by body and mind is retained by mind alone; thus he possesses his own house who is absent from the house, as long as he has the intention of retaining it for himself. Likewise the owner of a thing possesses civilly what a thief retains with himself. Finally, most civil possession is that which is retained by the disposition of law alone, without any support of mind and body; this happens, for example, in a little child to whom some inheritance has come; he possesses the inheritance of the deceased without any act of apprehension, indeed even without any cognition of intellect. C. L. 483.

Natural and civil possession are also distinguished insofar as merely natural possession is called the mere detention of some thing, or the mere use of some right, such as is the possession of one who detains a thing in another's name; but civil possession is called this same detention of a thing, or use of a right, but together with the intention of having the thing or right as one's own. Therefore someone possesses not in another's name, but in his own name, namely with the mind of an owner, whether indeed he detains the thing, or uses the right, by himself or through another, through a farmer, tenant, fructuary, etc. And thus a borrower for use, depositary, and lessee possess naturally; the owner possesses civilly. C. I. 685, 687, 688; C. G. 2134, 2228, 2232; C. H. 430-432, 438, 441; C. A. 309, 310, 313, 352; Inst. 1. 4. t. 15.

From C. B. 868 ff., if someone possesses a thing as usufructuary, lessee, depositary, or in another similar way, by force of which he himself has a right or obligation of possession with respect to another, this one also is a possessor, but by indirect possession. This indirect possession can be transferred to another by cession of the right to restitution of the thing to himself. He who possesses a thing as its proprietor is a possessor in his own name. Natural possession by body and mind altogether prevails over civil possession by mind alone. Thus, for example, Titius, lessee of a field, sells the field to Sempronius, who, buying it in good faith, cultivates the field for 10 or 20 years and receives fruits from it in good faith as his own. During that space of 10 or 20 years, Titius, from the interest of the price received, pays to Caius, the owner of the field, the rent owed for the lease. After 10 or 20 years Caius visits his field, and when he finds in it not the farmer Titius but the owner Sempronius, he claims his property, but in vain, because Sempronius opposes prescription, his natural possession in good faith prevailing. C. I. 2117; C. G. 2239.

What are the rights of a possessor? The rights and juridical privileges annexed to juridical possession are the following: 1. By taking possession of a thing belonging to no one, its ownership is acquired. C. A. 381. Likewise a possessor in good faith, after a certain time has elapsed, can prescribe against the direct owner of the thing and acquire ownership of it.

Nevertheless it always confers the right of standing upon the thing; and no one can by private authority deprive another of possession of a thing, and possession obtained in this way is defective. C. B. 858. Possession is continued by the law itself in the person of a successor by universal title. A successor by particular title can unite to his own possession the possession of his author, namely so that he may obtain the effect of it. C. I. 693; C. B. 221, 858, 943, 944; C. He. 941.

2. Possession in good faith, if it is immemorial, or if its beginning exceeds the memory of men now living, regularly supplies all defects from which otherwise legitimate ownership would not exist, as is clear from C. Quibusdam de Verb. signific. Cf. C. I. 530. From more recent laws a possessor in good faith makes his own the fruits received. Cf. here 1337. But possession itself stands in place of title as regards movable things, C. G. 2279, acquired from one who is not the owner, by onerous title, C. A. 367, because things by their nature movable, and as regards unnamed bank notes, not as regards a universality of movables, and in relation to third parties, C. I. 707. Movable things; not rights, such as credits, excepting the aforesaid unnamed bank notes from C. I. As regards found and stolen things, cf. here 893. "From one who is not the owner," as regards third parties; and therefore the owner can prove that the possessor possesses the thing in his name, for example a thing leased, deposited, given to him in pledge, etc. From C. He. 930 ff., the possessor of a movable thing is presumed to be the proprietor. But a possessor in good faith is not bound to restore bearer securities and money, although the preceding possessor had been unwillingly deprived of them.

3. A possessor who begins possession of a thing which no one possesses begins possession legitimately, although he doubts whether it belongs to another, but apprehends it with the intention of inquiring about the owner, whether he truly exists. But a possessor who begins possession of a thing which another possesses, while doubting whether it is truly his own, begins to possess illegitimately. A possessor in good faith, when doubt arises whether the thing is his own or another's, if the contrary cannot be shown certainly, can with a safe conscience retain the thing; and the judge, while such doubt stands, ought to adjudge the thing to him. In the external forum good faith is presumed. Likewise, by legitimate possession of a thing, property itself is presumed. But in whatever name, whether another's or his own, he began to possess, in that same name he is now presumed to possess. And thus one who at the beginning possesses a thing deposited with him by an unknown traveler, who left it from forgetfulness and could always return to seek it back for himself, cannot thereafter begin to possess it as though lost or abandoned. C. I. 687, 691, 694, 700, 702; C. G. 2230, 2231, 2268; C. A. 446, 459; C. A. 323, 324, 328; C. B. 1006; C. L. 477, 478.

4. A possessor in good faith can, by the sole title of possession in good faith, use the thing possessed according to his will, and he can even consume and destroy it, without responsibility. Nevertheless, no possessor of another's thing can further retain it by title of another debt. C. A. 329, 471; C. He. 938. But retention of goods belongs to him by reason of improvement made and existing in them, if indemnity is not sought in judgment without proof. C. I. 706.

5. A possessor at the time of contested litigation is to be defended by the judge in possession, unless he drew that possession to himself by force, secretly, or by sufferance; for then he would have to be deprived of possession. C. H. 446; C. I. 694; C. B. 861, 862; C. He. 933.

6. If a possessor has been driven from possession by private violence, before all things restitution of the despoiled person must be made, nor is the occupier first to be heard when he alleges title and wishes to prove the thing to be his own. C. In litteris de Restit. spoliat. Cf. C. I. 694, 695, 697, 700; C. A. 339, 346; C. He. 927; C. L. 484 ff.

7. A possessor in good faith can defend the thing possessed even with arms against an invader, provided this is done immediately and with the moderation of blameless defense, that is, defensively and not offensively. And he can immediately retake for himself a thing violently taken from him. L. 3. ff. de Vi et de vi armata; C. A. 344; C. B. 859; C. He. 926 ff.; C. L. 486.

8. If someone is successively obligated to donate or hand over the same movable thing to two persons, the one who first obtains possession of that thing also has its property, although his title is later, provided he is in good faith. C. I. 1126; C. G. 1141; C. H. 445, 1473; C. A. 322; L. 1. 3. n. 927, 1. 4. n. 210; Inst. 1. 4. t. 15.

Does man have ownership of himself? - Having explained the intrinsic nature of ownership, we now proceed to explain the object and subject of ownership. Man does not have direct ownership of his soul and its faculties, nor of his body and its members, but only useful ownership.

Proof of the first part. For ownership imports a certain superiority; but man is not superior to himself, and to his members, or to another man as regards the very nature of man. Therefore. Besides, direct ownership belongs by natural right over other sublunary creatures because these are ordered by their nature to man, that they may serve him. Therefore, since man by his nature is not ordered to serve himself nor another man, but God, direct ownership of property in man, and in his faculties and members, belongs to God alone. Hence in Wis. 16:13 it is said: You are, O Lord, who have power of life and death. And in Deut. 32:39 God says: I will kill, and I will make alive.

Proof of the second part. For man can not only freely and licitly use his body and members for very many functions, but also through these, aided by divine grace, can merit eternal life. Therefore. Lugo d. 10. nn. 9, 17; Molina t. 4. d. 1. n. 1.

You will resolve: Suicide and mutilation, speaking per se, are not only against charity, but also against justice, or against divine right of property; for a user has the obligation of preserving the substance of the thing granted to him for use. But homicide of another person is not only against charity and divine right of property, but also against human useful right. Cf. 710, 715.

Does man have ownership of another man? One man can be under the ownership of another not only by jurisdiction, but also by property, but imperfect, or useful. Imperfect, or useful; for perfect ownership of property belongs to God alone, as is clear from the preceding proposition. The reason is that every man is owner of his own labor; and therefore he can alienate it for his own utility, and hand it over into the ownership of another. For an owner can dispose at will of the object of his ownership. S. Th. 2. 2. q. 57. aa. 3, 4; E. M.

From what titles can servitude be introduced? From the four following titles:

1. From pact, or one's own renunciation. For it is not repugnant that someone renounce his liberty in order to relieve his own need, etc.

2. From the right of war. For it is not repugnant that the victor sometimes inflict this penalty. For sometimes he could kill captives for the security of the nation; therefore a fortiori he could reduce them to servitude.

3. From delict, or from condemnation. For if a guilty person can be condemned to death, a fortiori to servitude, since deprivation of life is deservedly judged the greatest of all punishments.

4. From birth in a state of servitude, since by law those are slaves who are born from slaves. Thus from the law of nations, according to the common opinion. Inst. 1. 1. t. 3. sections 3, 4; Lugo d. 6. nn. 10-17; E. M.

Is the trade in Black persons lawful? It is altogether unlawful by every law, whenever Black persons are unjustly despoiled of liberty, and in crowds are transported from their regions like cheap cattle and sold, as happens in the nefarious commerce in them. Against so savage a trade various Apostolic Constitutions have come forth, namely of Paul III, Urban VIII, Benedict XIV, Gregory XVI, In supremo apostolatus, 3 Dec. 1839. Cf. the Letter of Leo XIII to the Bishops of Brazil, In pluribus, 5 May 1888, and the Letter Catholicae Ecclesiae, 20 Nov. 1890.

Those who have perpetrated so great a crime are bound at their own expense to vindicate them into liberty; and those who have bought them for a price must, even if they cannot recover the money, freely release them, insofar as this can be done without graver danger; for by retaining them they would continue the injury. But if there is question of Black persons or others existing in legitimate servitude, per se it is not absolutely unlawful, because once servitude has been admitted as legitimate, the master has a true right over slaves, or over their works, and therefore can transfer that right to others. Per se; for circumstances can obstruct, for example if a spouse would have to be separated from a spouse, or if civil laws forbid it, just as in fact servitude is generally forbidden in Europe. But a slave could flee if the master compelled him to unlawful things or treated him cruelly. Collectan. S. C. de P. F. nn. 2103, 2104, 2105, 2107; E. M.

Note: From C. I. 1628; C. G. 1780, someone cannot obligate his own labor into the service of another except for a determinate time and a determinate object. From C. H. 1583, someone can obligate his own labor without a fixed time, for a certain time, or for a determinate thing. Lease for one's whole life is null. From C. B. 624, lease of service for one's whole life is permitted. Nevertheless it can be rescinded after five years, with notice having been given before the last six months.

The Supreme Pontiff Pius X, in the Encyclical Letter to the Archbishops and Bishops of Latin America, Lacrimabili statu, 7 Jun. 1912, exhorts them to undertake paternal care for the miserable condition of the Indians, against whom cruel crimes and evils are committed. "This first," he says, "we earnestly exhort you, that whatever things have been instituted in your dioceses for the good of the Indians you most zealously promote, and likewise that you see to the instituting of those things which seem likely to be useful for the same matter. Then you will diligently admonish your peoples concerning their own most holy duty of assisting the sacred expeditions to the indigenous people who first inhabited that American soil. Therefore let them know that they ought to benefit this matter especially in a twofold way: by contribution of money and by the suffrage of prayers.... We condemn and declare guilty of a savage crime whoever dare or presume to reduce the aforesaid Indians to servitude, sell, buy, exchange, or donate them, separate them from wives and children, despoil them of their things and goods, lead and transport them to other places, or in any way deprive them of liberty, retain them in servitude; and also those who under any pretext and sought color furnish counsel, aid, favor, and assistance to those doing the aforesaid things, or preach or teach that this is lawful, and otherwise cooperate in any way with the foregoing." Therefore we will that the power of absolving penitents from these crimes in the sacramental forum be reserved to the local Ordinaries.

What about one's own reputation? Man simply has ownership of his own reputation. For it is something really distinct from the man himself, since it comes to him from without, and man acquires it by labor altogether dependent on his own free will through the exercise of virtue, and therefore through his own acts, which reputation follows as a natural effect. Moreover, it is not necessary for its own sake, but only for the edification of one's neighbor. L. 1. 3. n. 983; Billuart d. 3. art. 2.

You will resolve: Man, from a just cause, and with scandal and the defamation of others set aside, can licitly defame himself, for example to seek counsel, to restrain his own pride, to commend divine mercy, to restore another's reputation, etc. "From a just cause"; for if someone squanders his own reputation without a just cause, he sins venially. But he would sin gravely if the infamy would obstruct the execution of his own office, for example of pastor, teacher, rector, etc. "And with scandal set aside"; for if someone, by revealing some wholly hidden crime of his own, would give scandal to others, he would sin by scandalizing others. "And with defamation of others set aside"; for otherwise man would sin by injuring the reputation of others, for example of an accomplice, family, or community. Thus a religious cannot reveal to outsiders his crimes committed in religion, because in this way he would in some measure injure the reputation of his religion and community. Struggl 9; L. 983; S. Th. Quodl. 10. a. 13.

What about things; what is their division? - R. To the first: Man can have useful and direct ownership in external goods of fortune legitimately acquired. For irrational creatures were immediately created for man, so that he might use them for his own advantage and utility, and might serve God. Nor indeed was any restriction placed by God upon this use; indeed, it was granted without limit with respect to the aforesaid end, as is clear from the words of Gen. 1:28: Have dominion over the fishes of the sea and the birds of heaven, etc.; and Ps. 8:8: You have subjected all things under his feet. Therefore God granted to man useful and direct ownership of these external things. Aristotle, Politics 1. 2. c. 2; S. Th. 2. 2. q. 66. aa. 1, 2.

But since all things of this sort necessary for human life were given by God to all in common, property and division of them in particular was made by the first occupation of them, namely of those things which men first apprehended for relieving their own necessities, with others excluded; otherwise sufficient provision would not have been made for their own necessities, and there would be continual discord and strife among men. Hence the maxim and principle of law: a thing belonging to no one becomes the property of the first occupier.

And hence it is clear why, in extreme necessity of life, notwithstanding the division and property of things, all things remain common, so that anyone can relieve his own necessity from the goods of the earth, although already occupied and acquired by another, and the owner of these goods cannot impede one who, being in extreme need, provides for himself from his goods.

Concerning the ocean and the sea, it has been disputed whether they can be subject to the ownership of someone. Moreover, the ocean and great seas are subject to the ownership of no one, since their uses are inexhaustible, by which all can enjoy them without detriment to anyone. But parts of the sea adjoining the continent, as also gulfs and straits, can well be subjected to the ownership of some nation, since this is expedient for the utility of the aforesaid nation, of which otherwise it would be deprived, both because of fishing, and because of the security of commerce, and because of the defense of the fatherland.

R. To the second: A thing, in law, is everything which is not a person, and which can be of use to man. By the name thing is signified both that thing which is in our patrimony, and that which is outside our patrimony, but can be among our goods. L. 5. de Verbor. significatione. Goods are called those things which bless or profit, L. 49. de Verbor. signific., and in law they signify things which can be the object of public or private property.

Corporeal things are those which are subject to the action of the senses, such as houses, fields; incorporeal things are those which are apprehended only by the intellect, such as all rights and all actions. Public goods are those which belong to the people or the city, L. 15. de Verbor. signific. Private goods are those which belong to a particular moral body, or moral person, or some individual person.

Goods, whether public or private, are some immovable, others movable, and these latter precious or not. Immovable goods are immovable either by nature, or by destination, or by the object to which they are referred. C. I. 407. By nature: those which cannot be moved from place to place, such as rural and urban estates, surfaces or whatever is planted or built upon the soil, mines or whatever is found beneath the soil as a part of the soil, estimable by price. By destination, namely of the owner, for example rural instruments, animals prepared for cultivating the farm, statues placed in their shrines or bases, mirrors and other things enclosed or built into walls. By object, when they are referred to immovables, as, for example, use, usufruct, and servitude of immovables. But incorporeal rights, for example mortgages, are generally reckoned sometimes among immovables, sometimes among movables, from the object; and those rights are customarily called simply rights.

Movable goods are movable either by nature or by law. By nature: those which are moved from place to place by their own force or by another's, such as animals and inanimate things which are moved by an exterior force. By law: such as ships which are not stationary, mills which are not fixed, censuses, etc. Movable things, if they are consumed by use, are called fungible, such as wheat and money; otherwise, non-fungible, such as books and clothing. Precious things are those which excel by antiquity, art, or value. C. I. 406 ff.; C. G. 516 ff., 1874; C. H. 333 ff.; C. A. 285 ff.; C. B. 90 ff.

What is the subject of ownership? - It is certain that every and only intellectual substance is capable of ownership. Ownership is the legitimate faculty of disposing according to one's will of some thing as one's own, for one's own advantage and utility. But every and only intellectual substance can have this faculty, since it alone is endowed with free will.

Indeed, to God alone belongs supreme, absolute, and independent ownership over all created things. But particular ownership, subject to the supreme ownership of God, also belongs to men, even to infidels and sinners; indeed even to little children and the insane. For the use of reason is indeed necessary for disposing of goods, but not for having possession and habitual ownership of them; otherwise those sleeping and drunk would not have true ownership, and would wholly lose it by the act by which they sleep, or by which they are overwhelmed by drunkenness. By the very necessity of natural law and by the disposition of positive law, ownership can be acquired and retained even without any positive act of one's own will. Lugo d. 3. n. 16; S. Th. 2. 2. q. 12. a. 2; q. 66. aa. 1, 2; L. 725.

Capable of ownership are individual physical persons, and also moral persons, whether these consist of several singular persons, such as Colleges, Chapters, etc., and are called moral bodies, or not, such as hospitals and ecclesiastical benefices, and are rather called moral entities. They are called moral because they are persons not in reality, but by fiction of law. But for these moral persons to acquire ownership in reality, it is necessary that they have been legitimately constituted, namely by the due authority of the Prince, civil or ecclesiastical. As regards ecclesiastical moral persons in Italy, cf. Laws 7 Jul. 1886, 15 Aug. 1887, by which some were suppressed and some preserved. To the suppressed only civil rights were taken away. The preserved cannot alienate their goods without approval of the Government, nor can they acquire other goods, C. I. 434; Law 19 Jun. 1873, arts. 27, 28, likewise by civil law.

What about ownership of children under paternal power and of wives? - A child under paternal power is one who is still subject to paternal power. But although "the woman is equal to the man in the act of marriage, nevertheless in those things which pertain to the disposition of the house, the husband is the head of the woman, according to the Apostle, 1 Cor. 11." S. Th. 2. 2. q. 32. a. 8 ad 2. Moreover, "he who is constituted under the power of another, insofar as he is such, ought to be regulated according to the power of the superior. For this is the natural order, that lower things be regulated according to higher. And therefore it is necessary that in those things in which an inferior is subject to a superior, he dispense no otherwise than has been permitted to him by the superior." S. Th. ibid. c.

Hence it is clear that although children under paternal power and wives can well have ownership of things, nevertheless this ownership is not independent, speaking per se, from the power of the father of the family and of the husband; but it is subject to their power as regards administration, and also as regards usufruct, for sustaining the expenses of education and the burdens of marriage. Cf. 667 ff., 677 ff.

The ownership of children under paternal power regards things given to them by any title transferring ownership, or acquired by their own industry. For as regards paternal goods, children have no strict right to paternal goods while the father lives. Hence, if children under paternal power take anything from these goods, they are per se bound to restitution. Per se, namely unless there is question of a thing of less importance, and it is prudently presumed that the father remits that obligation.

Likewise ownership of wives is understood in their own goods, not in the goods of the husband. Hence a wife also, if she takes something from the husband from his goods, is per se bound to restitution. Again per se, namely unless there is question of a thing of less importance, and it is prudently presumed that the husband consents. Likewise a wife would be excused if, not having paraphernal goods, she took something from the common goods, or from the fruits of her dowry, to relieve the necessity of parents or children who had been received from a first marriage. For she is bound to this by the law of nature, and the husband ought to consent to it. But since the husband does not have direct ownership of the goods of the wife, if he dissipates them, he is bound to restitution. Cf. 667 ff., 677 ff.; 1 Kings 25; S. Th. 2. 2. q. 57. a. 4; L. 539, 542-544; H. A. 33.

The question is raised here only concerning common goods, whether the husband is bound to restitution if he dissipates them; and it must be affirmed if there is question of the capital and common goods themselves, since if these goods are common and consequently belong to the husband and wife in common, it is clear that the right of the wife is injured in this matter, and therefore is to be repaired. If there is question of the revenues of the same goods, when these are assigned to the husband by the laws, he is excused from restitution as regards those badly spent; but when they enter the common goods and constitute goods of the community, he is bound to restitution, as when the profits themselves enter the community and constitute common goods. And this is had indeed in C. G. 401, 1421, 1422; C. I. 1433, 1435, 1436; C. H. 1392 ff. For although the husband alone has administration of the goods of the community, nevertheless he does not have usufruct except only for the good of the family, C. G. 1409, and of the community itself, C. I. 1436; C. H. 1401, 1408, 1409, 1413, 1415.

From C. He., in the regime of union of goods, the revenues of the wife and the natural fruits of the goods brought by her are the property of the husband, 195. In the regime of communion of goods, all goods and all revenues belong undividedly to each spouse, 215. From C. B., in the regime of universal community of goods, the goods of the husband and wife are the common goods of each, and among these are also reckoned those things which the husband and wife acquire during the community, 1438. The husband administers them; but he cannot freely dispose of them, 1443 ff., especially to the detriment of the wife, 1456. From them, however, the expenses of marriage are to be made, 1458. And almost the same holds in the regime of community of acquisitions, 1519 ff., and in the regime of community of movables and acquisitions, 1549 ff. Cf. here 677, 1237; L. 539, 542; Lessius 1. 2. c. 25. d. 4. n. 37.

What about the ownership of the Church? - The Church has ownership of civil jurisdiction, such as is the temporal ownership of the Roman Pontiff. Besides, the Church has ownership of property in goods, whether movable or immovable. But the right of the Church in this matter is by its nature independent of the power of the civil State; and therefore it cannot be limited or narrowed by this. Direct ownership of these goods belongs to the universal or Catholic Church itself. Hence they are called goods of the Church, and simply ecclesiastical goods.

Hence, when the immediate subject of these goods ceases, for example a pious Institute, Monastery, etc., their goods do not become the goods of no one, but continue to belong to the Church; and consequently the Supreme Pontiff can dispose of them in favor, for example, of another pious Institute, Monastery, etc. For indeed the Supreme Pontiff has plenary and supreme administration and disposition of all ecclesiastical goods. C. Licet 2. de Praeb. et dignit. in the Sixth; S. Th. 2. 2. q. 100. a. 1 ad 7; Suarez, Def. Fid. 1. 4. c. 18. n. 8; L. 1. 3. nn. 591, 615.

But the immediate administration and usufruct of these goods per se respectively belongs, by transfer of right, to those persons, places, etc., to whom they have been donated or left by the faithful. For, since donations of this sort by the faithful are made altogether voluntarily, it must be whole and free to the offerers, just as to make them or not make them, so also, when they make them, to transfer the right of them to whomever they have preferred, while nevertheless the power of the Supreme Pontiff in this matter remains intact for the good of souls and of the Church. Per se, since the Supreme Pontiff could by his power change this administration and usufruct, as also condone due fruits, etc.

Offerings of this sort made to churches or other religious places are customarily destined for certain uses. If the will of the offerers is certain, it must altogether be obeyed. The immediate administration of these offerings belongs to the Bishop, pastor, or rector of the church, under dependence on the Bishop, but by no means to laypersons, unless the works are works of merely lay beneficence. Nevertheless laypersons can be employed in the administration of ecclesiastical goods as pure ministers. For since the right of administration of this sort is something spiritual, laypersons cannot possess it. Clem. Quia contingit de Religios. dom.; Trid. sess. 25. C. 8. de R.; Ithur. Cas. 45. n. 47; A. S. S. v. 8. p. 174. "Administrators, both ecclesiastical and lay, of the fabric of any church, even a cathedral, of a hospital, confraternity, alms, mount of piety, and of whatever pious places, are bound each year to render an account of administration to the Ordinary, with any customs and privileges whatsoever to the contrary removed, unless perhaps otherwise had been expressly provided in the institution and ordering of such church or fabric." Council of Trent, sess. 22. C. 9. de R.

Hence it is easily understood why ecclesiastical goods cannot be alienated without Apostolic beneplacit. Extravagant Ambitiosae de Reb. Eccl. non alienand.; S. Th. 2. 2. q. 86; Collectan. S. C. de P. F. nn. 1622-1626; E. M.

What about the ownership of clerics? The goods of clerics are distinguished into four kinds:

1. Patrimonial goods, which come from paternal inheritance, or from any other profane cause, for example from donation, succession, etc. To these patrimonial goods are to be equated pensions which are allotted by the Government to infirm priests, or to religious formerly ejected from monasteries, as aids given for their support and in compensation.

2. Quasi-patrimonial goods, which are acquired on the occasion and in view of sacred functions, for example by celebrating Mass, preaching, etc. They are also called quasi-ecclesiastical, or casual. To this class also belong the uncertain revenues of pastors, which are called stole-fees, and the daily distributions of canons because of service of choir, as though a stipend of the person.

3. Ecclesiastical goods, which are received from benefices of the Church, that is, from the revenues of benefices. To this class also belong goods which are paid by the Government to pastors and canons by title of supplement, S. Poenit., 19 Jan. 1819, and also tithes. Therefore, by the name ecclesiastical goods, there are not understood here farms, which clerics certainly cannot alienate, since ownership of them is with the Church and clerics are simple usufructuaries, but only the revenues proceeding from them are understood.

4. Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably. L. 490, 491.

A cleric has perfect ownership of patrimonial goods. The reason is that a cleric is per se truly capable of ownership, nor is he prohibited by any law from freely disposing of the aforesaid goods. Indeed that right is supposed in six hundred places of canon and civil law. L. 491.

A cleric has perfect ownership of quasi-patrimonial goods, or quasi-ecclesiastical or casual goods. The reason is that these goods are not fruits of a benefice, nor the price of a sacred office, but a certain stipend, as it were, of his own labor, to which the cleric is not bound, or also a certain largess given by the faithful for the support of the cleric. It is also clear from the response of the Sacred Penitentiary, 9 Aug. 1824, by which it declared offerings of the faithful not to be ecclesiastical goods. L. 491; Lugo d. 4. n. 23; Gousset 694.

A cleric can use the fruits of a benefice for honorable support; but he is bound to expend all that is superfluous on the poor, or on other pious works. The first reason is because one ministering to the church can live honorably from the goods of the church, since benefices were established especially for this end. The second reason is drawn from the precept of the Church, which is manifest from innumerable decrees of Councils and Sacred Canons. For the canons of the Church impose this obligation upon clerics, or suppose it imposed, says Benedict XIV, de Syn. 1. 7. c. 2. n. 4. Trent, sess. 25. C. 1. de R.; L. 491.

Under the name of pious use comes whatever pertains to divine worship. Under the name of the poor, however, come not only those begging door to door, but also those who otherwise cannot preserve their own state. Blood relatives also come under this name, if they are truly poor, so that otherwise they cannot sustain their own state. And this is clear from Trent, sess. 25. C. 1. de R. But a cleric can prefer these needy blood relatives to other poor persons, even those more gravely in need, because assistance of needy relatives also pertains to preserving the proper state of the cleric, since their poverty redounds to his disgrace. Although it is more fitting, nevertheless it is not necessary in an equal case that the poor who are in the place of the benefice be assisted, because the canons indistinctly prescribe that alms be given whether to citizens or to outsiders. L. 491.

Although this special and grave obligation radically and occasionally proceeds from the virtue of charity and religion, nevertheless formally it arises only from the precept of the Church, and from positive law and the virtue of obedience, with every obligation from justice excluded. Thus with Lessius 1. 2. c. 4. dub. 6, commonly others. The reason as to the first part is: because nowhere is a special precept imposed on clerics from charity of expending superfluous revenues on the poor; but they are bound only by the general precept of giving alms, although somewhat more strictly than laypersons. Nor likewise is a special precept imposed on clerics from religion of expending the superfluous on pious causes. But the reason as to the second part is: because founders did not assign ample revenues to clerics under this formal obligation, but only by hope and intention. But the Church simply commands that the superfluous from the fruits which they make simply their own be expended on pious causes or for relieving the poor. Therefore. Thus Struggl 27. St. Alphonsus 491, 492, although he admits at least probably that this obligation does not arise from justice, nevertheless admits that it arises from a precept of the Church from the motive of the virtue of religion, but more probably from justice. Schmalz. 1. 3. t. 25. n. 35. "It has been dispensed with clerics living in the City and its district to 10 miles, that they might dispose freely of benefice goods, just as of their own and patrimonial goods, as is had in the Constitution of Sixtus IV, Etsi diversis, Kal. Jan. 1474, the Constitution of Julius III, Capientes, Ides of May 1549, and the Constitution of Paul V, In eminenti, 18 Apr. 1608." Schmalz. l. c. n. 36. The privilege, besides clerics of the City, was also granted to conclavists from the Constitution of Gregory XV, Romanus Pontifex, 15 Mar. 1621, section 14.

A cleric enjoys perfect ownership of parcimonial goods, and therefore can dispose of them as a true owner. The reason is that a cleric has a strict right to honorable support; therefore whatever he takes from it by living more sparingly belongs to him, and remains in his free power, since that right is altogether absolute. Trent, sess. 24. C. 12. de R.; C. Consuetudinem de Cler. non resid. in the Sixth; L. 491; S. Th. 2. 2. q. 185. a. 7; Quodl. 6. a. 12 ad 3; Lessius c. 4; Benedict XIV, de Syn. 1. 7. c. 2. n. 12.

It is lawful for secular clerics to make a testament concerning their patrimonial, quasi-patrimonial, and parcimonial goods; but concerning superfluous benefice goods they themselves cannot by common law make any testament, even for pious causes. C. Ut unusquisque 3. de Pec. cler.; C. Si quis 5. ib.; C. 7, 8, 9, 12 de Testam. By common law; for a special case of privilege or custom must be excepted. Struggl 28; Schmalz. l. c. n. 33; S. Th. Quodl. 6. a. 12; Kenrick tr. 10. n. 35 ff.; E. M.

Are clerics badly spending the superfluous goods of ecclesiastical goods bound to restitution? R. Negatively, probably, because although the precept of the Church is certain, nevertheless the obligation from justice is not certain. Indeed, from Trent, sess. 24. C. 12. de R., it is gathered that they make the fruits their own, although with the obligation of expending the superfluous on alms or other pious works. For the Council says concerning non-resident clerics: Let them not make the fruits their own.

Nevertheless others probably affirm, because clerics are only administrators and stewards of ecclesiastical goods; or at least because the Church does not grant them ownership of those goods except limited, with this burden imposed from justice. The first opinion, that is, the negative, says St. Liguori in Retract. qu. X, seems no less probable in practice, notably because of the authority and reason of S. Th. 2. 2. q. 185. a. 7. But as regards the fault of violating the precept of the Church, for grave matter there is required a quantity much greater than in theft. L. 491. IV. 492; S. Th. Quodl. 6. a. 12. Since each opinion is probable, heirs also of these goods can probably retain them without injustice and sin.

But whether one who receives these goods sins by cooperating with the sin of the donor, many affirm; but it must more probably be said that "the receiver does not sin, neither against religion nor against charity, unless he asks, or induces to donating." L. 492.

What is understood by superfluous? - That is judged superfluous which remains over after honorable support. Moreover, honorable support of a cleric is that which befits a cleric by reason of his state, dignity, etc. Therefore it does not exclude honorable recreations, moderate donations, and other expenses of this kind; but these can be determined by the judgment of a prudent and timid conscience rather than by a general rule.

Honorable or congruous support cannot be defined equally with respect to all clerics; for more, as is clear in itself, is owed to a Bishop than to a canon, more to a canon in a cathedral church than to a simple priest, more in one place than in another. Therefore attention must rather be given to the practice of others of timid conscience in the same grade and in the same circumstances of places and things.

But whether account can be had of nobility, authors dispute. He who would affirm this does not seem to be condemnable; for each one can live according to his own state. Likewise someone can licitly pay from these goods debts legitimately contracted after the benefice, since this also pertains to the notion of one's own state; just as also he can exercise moderate hospitality, since this is owed by virtue; likewise support nephews in studies, if the parents are poor and other poor persons are not gravely in need, and he himself does not have other goods; for then this becomes a work of charity and mercy.

L. 491; Schmalz. l. c. nn. 24, 25.

Can clerics keep the superfluous for the future? - R. Affirmatively, because per se there is no obligation of immediately distributing the superfluous; indeed, it can laudably be kept for a pious foundation, provided that one proceeds in good faith, and that there be no danger lest afterward it be converted to profane uses. S. Th. 2. 2. q. 185. art. 7; L. 491.

Can a cleric who has enough from patrimony to live on sustain himself from the fruits of a benefice? - R. Affirmatively. The reason is that it is just that he who labors in the Church should be sustained by the same, and it is altogether accidental whether he is rich or poor. Therefore the cleric has a right to support not by reason of poverty, but by reason of labor. Hence a cleric can spare his patrimony while using the fruits of the benefice for support suited to his dignity. It is also clear from the words of the Apostle, 1 Cor. 9:7, 13: Who ever serves as a soldier at his own charges? ... Do you not know that those who work in the sanctuary eat the things that are of the sanctuary, and those who serve the altar share with the altar? L. 491; S. Th. 2. 2. q. 185. a. 7; Billuart D. 3. a. 5.

What about the ownership of authors? "It is certain," says Fr. Gury, Comp. V. 1. n. 566, "that every man by natural law has a right to the fruit of his industry and of his intellect. For if a thing bears fruit for its owner, this ought a fortiori to be true of internal faculties, since nothing can be more proper to man. Therefore anyone can use for his own advantage those things which he has devised by his intellect in the sciences. Therefore the inventor of some art has a strict right that his secret not be stolen, and that it not be divulged publicly against his will.

But if this happens, the one causing the damage is altogether bound to restitution according to the measure of the injury inflicted. - The difficulty, however, is whether an author, once his works have been issued into the light, can keep them as proper to himself and exclude others from their use." This use, of which there is question, is that by which others themselves commit to the press works once published and sell them for their own profit. If the author, in his work already issued into the public light, retains for himself a right of property absolutely and without limit, he certainly can prevent others from publishing and selling his works; or, as it is commonly said, the author can reserve for himself the right of property as to this use. But if the author no longer retains for himself any right of property in those works, he cannot reserve to himself the aforesaid use, namely, of publishing and selling the book.

What is the state of the question? This question can be treated according to natural law and according to positive law. - If first natural law is considered, there are those who hold that the aforesaid right of property, by natural law, strictly and altogether belongs to the author. The reason is that if the law of nature itself demands that each one's right to the fruit of his industry and intellect be preserved, but no fruit of industry in our matter can be obtained unless the work, as they say, is handed over to the community, then certainly the same law of nature demands that this handing over or publication of the work to the community not deprive the author of the fruit of his industry. On the contrary there are those who hold that an author does not have by natural law a right in his work once it has been published and made public, because a thing once handed over to the community thereby becomes of common right; and therefore natural law cannot require that the author be able to reserve the use of the work to himself and exclude others from publishing it.

What does natural equity require in the case? - In order that the question be rightly resolved, the strict exigency of right must be distinguished from fittingness or congruity and equity. Moreover, a book considered formally, namely, as to that sequence of doctrine and its exposition and explanation which it contains, must be distinguished from a book considered materially, that is, as to that material edition which the author has made. Now the question is not about mere congruity of right, nor about mere equity; nor is a question raised about the material edition made by the author himself. It is an evident thing that it is altogether fitting and equitable that the author be permitted to enjoy the advantage and profit which comes from the book composed by him, which advantage and profit he will perhaps be able to receive only in small part unless the right is reserved to him of excluding anyone else from the aforesaid use of his book. Therefore a positive law acceding to and defining a right of this kind is certainly an altogether just law and one binding in conscience; and, while that law stands, the author has a strict right of property in his book. Likewise it is evident that the author by natural law itself has a strict right of property in that edition of his book which he himself has taken care to have made in his own name. Gousset 835.

From C. L. 593, there is not recognized the property of writings prohibited by law or sentence. From the same C. L. 615, an invention relating to an illicit object is not capable of authentication.

What about commutative justice in the case? If there is speech about the strict exigency of commutative justice, from natural law, and about another edition of the book, to be made and sold by another in his own name, it seems far more probable that this is not opposed to natural law. And indeed a right of property is either a right in the very substance of the thing and its utility, or in only one or the other. If there is question of the very substance of the thing, since truth is the proper object of the human intellect, as soon as truth and a complex of truths has been published in the public light, it becomes the property of each one. Therefore, just as, as soon as an astronomer has manifested the existence of some star in the heavens, all can see it, nor can the astronomer retain for himself the right that he alone see the star to the exclusion of others, or at least that they pay him some tribute if others wish to see the star in the heavens with their own eyes, so the author of a book, as soon as he has publicly set forth some truth or sequence of truths, certainly cannot prevent others, with no tribute paid to him, from understanding the truth and perhaps even persuading themselves of it better than he. And this is confirmed from the very intention and end of the writer or professor: for all intend this, that readers and hearers be persuaded and make the doctrines handed down their own. And this is their greatest praise, if they attain it. Hence another thing is shown: once the work has been issued into the public light, the author does not preserve ownership in the use of his work, formally considered. Cf. 877. For indeed, if the author does not preserve ownership in the substance of the thing as soon as the work has been made public, how, when ownership in the substance has been transferred, will he himself preserve ownership in the use? If this could be done, someone could also by loan transfer to another the ownership in the substance of money, while reserving to himself ownership of the use of the money, which he would then sell.

Besides, if an author reserved to himself ownership of the use of the truths which he perhaps discovered, explained, and arranged, one could not use them by study and meditation; and from them by reasoning proceed to other truths perhaps also to be found and communicated to others, as can easily happen in the chemical, physical, mathematical arts and sciences, etc., proceeding even to the practical application of those truths, which indeed is of the greatest utility and also of the greatest profit. Likewise one could not publish another's book with notes added for explaining matters; one could not quote texts from another's book in one's own book; one could not thoroughly refute another's book and, as erroneous and scandalous, take away all authority from it, which imports ownership not only in the use, but even in the very substance of the thing, which one destroys by his own right; nor could one copy out a book by his own hand. And if he can do that, can he not do the same also by the more recent machine of writing, lithography, or type? And if afterward he sells it, does he not sell his own thing? - But does this not impede the author's profit? It certainly impedes it, but without any injustice; otherwise no merchant could sell the same wares which a neighboring merchant would sell. - Why are an author's rights not freely transmitted to heirs? S. R. C. 24 Mar. 1909; C. A. 1169; C. L. 579 ff.

Does one violate another's right who publishes in print a manuscript work without the author's consent? R. Affirmatively. The reason is that the work, as long as it has not been issued into the light, remains entirely under the ownership of the author. Therefore such a usurper is bound to restitution of the manuscript and to compensation for damages. C. L. 574, 575.

Likewise, does one violate another's right who publishes in print the lecture of some professor, or the sermon of an orator? There are those who generally affirm this, even about a public lecture or sermon. The reason is that to teach or preach publicly is not to hand one's work over to another for publishing or selling. Nevertheless a distinction seems to have to be made. For if there is question of a private lecture, of a private sermon, it is clear that the professor or preacher retains his whole right in his lecture or sermon. But if there is question of a public lecture or sermon, the argument already made holds, namely, that the thing has already been handed over to the community, and thereby has been made of common right unless it is prohibited by positive law.

And this is confirmed by the fact itself; for there is no one who condemns as injurious to others those who publish in newspapers the public speeches of Deputies or Senators in Parliaments, or of others in public assemblies. The very words of the Supreme Pontiff in public receptions of the Christian faithful are publicly published, nor is there anyone who imputes this as a grave sin against justice. C. L. 572, 573, 576. Cardinal Manning, in the letter prefixed to the Conferences of Fr. Augustine of Montefeltro, London 1890, says in substance that a sermon, once preached, becomes public property, and that those who hear it may reproduce it in translation or alteration; but they must not publish it to the world as the preacher's sermon unless they faithfully reproduce what he said.

Can a book recently published be committed to type in another place without the author's permission? If there is question of a very distant place, those very doctors who contend that by the law of nature an author retains a right of property in his book for repeated publication, so that others are excluded from such a right, concede that in such a case a right of this sort seems to be less urgently pressed; since an edition in very distant regions does not prevent the author from receiving the fitting fruit of his industry. And this reason shows still more clearly that the author in truth does not retain a right of property in his work; since if he retained that right, it would matter little whether the book were published in a neighboring or distant region without permission and contrary to the author's will. It certainly matters little, as to injustice, whether someone occupies another's house, another's field, and uses and enjoys them against the owner's will, in a neighboring or a most remote region. Nor is it valid to say that someone in such a most remote region could not defend and protect his right of property; otherwise, as the same doctors themselves skillfully observe, it would be lawful for anyone to take for himself crops or grapes at will when the owner of the fields or vines could not guard them.

But if there is question of a neighboring place, and treaties exist among various dominions, by virtue of which an author can enjoy the same right elsewhere as in his own country, commutative justice is certainly injured, and the violator of another's right is bound to compensate damages according to the norm of the laws. But if there is no convention among the various regions, since law outside the territory of the legislator has no force, although perhaps such a law exists in the author's place, nevertheless in another place the publisher of the book is not bound by it; and therefore the matter must be defined only by natural law. But by natural law a right of property of this sort does not exist, or is very uncertain. Therefore he cannot be accused as a violator of another's right and as one causing damage, who uses his own right and publishes another's book. And this holds much more if someone did not merely publish another's book, but first translated it into another language. For then his own industry and his own labor enter in still more.