Chapter IV — On dominion, and its division, and the partition of goods

I. QUESTION I. What is dominion, and of how many kinds is it? ANSWER. Dominion admits of very many significations. Here it is taken for the dominion of ownership, which is properly dominion, and is defined as the faculty of using a thing as one's own in all the uses permitted by law, to one's own advantage. That dominion is of two kinds: one perfect and full, the other imperfect and half-full. The former was once called mancipium, because it was taken with the hand; and it is dominion over the substance of the thing and its advantages, and therefore it is also called dominion in solidum; because it has not only the ownership, by force of which it is called direct dominion, but also the advantages and uses of the thing, on which account it is called useful dominion. Imperfect dominion separates these two, namely the ownership of the thing from the use of the thing. For Titius often has the ownership of the thing without the use, and is called the proprietary or direct lord. Sempronius often has the use of the thing, or the usufruct, without the ownership; and is called usufructuary, emphyteuta, vassal, or feudatory.

II. From this, however, it by no means follows that direct dominion lacks all utility. It lacks indeed directly the fruits which are wont to be produced by the thing, and therefore it is distinguished from the useful; but it has many other advantages. For the proprietary lord is able to alienate the thing; besides which he receives the canones, or pension, from the usufructuary or emphyteuta; and finally the useful dominion often returns to the proprietor. And when with the proprietor's licence an alienation is made by means of a new contract, a laudemium is to be paid to him. Lastly, one dominion is high, which belongs to princes; another low, which subjects possess over their own goods.

III. Dominion is transferred either by title or by delivery of the thing. For he who furnishes another with the title or right of a thing intends to transfer dominion. Here the transfer of dominion is wont to be described as the transmission of a thing from him who lawfully possesses it to another who begins to be its lord. The principle of such transfer is threefold: God, man, the prince. The root of the transfer of dominion proceeds from the division of things. The division of things was introduced by the law of nations. Not all things, however, are divided by the law of nations: for many remain common, such as roads, squares, cities, rivers, the sea, wild beasts, and the like.

IV. Useful dominion is the right of using and enjoying another's thing, the substance of the same being preserved. One right is called the use of right, another the use of fact. But the use of fact is not a right, but the execution of a right. The proper right is the right of using, which is distinguished from other rights which afford no use, such as is the right of a depositary in the thing deposited, or of a creditor in a pledge. There is added and enjoying, which particle distinguishes usufruct from bare use: for a user is able only to use the thing to his own advantage; whereas a usufructuary can both use the thing and sell, alienate, or let out the fruits of the same, the substance of that thing being preserved. But the proprietary lord is able to alienate the thing itself. Usufruct is of two kinds, legal and conventional: the former is effected by law, the latter by agreement.

V. QUESTION II. What are the fruits which a usufructuary may enjoy, and what ought he to furnish? ANSWER. Whatever bears fruit, and can be perceived from it, is comprehended under the name of fruit. The usufructuary does not acquire dominion of the fruits unless they be gathered: wherefore if he die before the gathering, they belong to the lord. The usufructuary, as a good father of a family, ought to preserve the substance of the thing. If any head of the flock die or be rendered useless, if the plants of the vineyards wither, he is bound to substitute other fruitful head or plants. If without his negligence the things, or parts of the things, perish, whether by frost, hail, or invasion, he is held to nothing. The usufructuary may, with the proprietary lord consenting, but not if he refuse, cede his right to another.

VI. QUESTION III. What is the contract of emphyteusis, and of fief? ANSWER. Emphyteusis is a contract by which in perpetuity, or for a time not shorter than ten years, an estate is handed over to someone to be enjoyed, with the burden of a pension to be paid to the direct lord in recognition of the dominion. The emphyteuta may, without the lord's knowledge, let out the emphyteusis to another for ten years. A fief is defined as a grant of an immovable thing, the useful dominion being transferred, the direct remaining with the proprietor, with the burden of fidelity and of personal service to be exhibited. A fief differs from emphyteusis in this, that the emphyteuta pays a real pension to the direct lord; whereas the feudatory or vassal is bound to render personal service at a fixed time to the infeudator, whether at court or in war.

VII. QUESTION IV. What is possession, and the manner of acquiring or losing it? ANSWER. It is the detention of a thing by the support of body, of mind, and of right. For true possession it is required that a man take possession of the thing in mind and in body, in the manner prescribed by law, namely with hands, with feet, or by another formula defined in the law. Possession is twofold. One is just, that is, of right together with fact. The other is unjust, and of fact alone. The former is called the detention of one's own thing with the right of detaining. The latter, on the contrary, is the detention of a thing as one's own without the right of detaining.

VIII. There are four prerogatives, or privileges, of possession. First, there is good faith. Second, if a doubt arise upon the right, the condition of the possessor is the better. Third, in court the burden of proof lies upon the plaintiff, not upon the possessor. Fourth, it is granted to the possessor to defend his possession in a manner lawful and honourable. Certain moderns have asserted that not only may those things which we actually possess be lawfully defended by a defence that kills, but also those to which one has an inchoate right. Which doctrine Innocent XI condemned in two theses. The thirty-first: It is lawful not only to defend by a defence that kills the things which we actually possess, but also those to which we have an inchoate right, and which we hope we shall possess. The other, the thirty-second: It is lawful both for an heir and for a legatee so to defend himself against one who unjustly hinders either the entering upon the inheritance or the payment of the legacies; as also for one having a right to a chair or a prebend against one who unjustly hinders the possession of them.

IX. Possession is obtained in three ways. First, by true apprehension, when with the hands you obtain a movable thing, money, wares, and the like; with the feet an immovable thing, a house, a field. Second, by fictive apprehension, when a man receives the keys of a house, or a writing or instrument in which the right to an estate, a house, and so forth is contained. Third, the most civil, which is committed to execution by the sole disposition of law.

X. Movable things possessed are lost: first, by the will of a possessor who is master of himself and an absolute lord. Wherefore wards and madmen can alienate nothing without the consent of a guardian. Second, by theft and rapine. Third, by fortuitous loss, as of a coin, a ring, a gem, and the like. Animals are lost by flight, unless they be of that kind which are wont to return. But a slave is not lost by flight. Immovable things are lost: first, by the long absence of a possessor who neither by himself nor by another protests that he is unwilling to give up the thing. This absence some limit to ten years, others extend beyond. Second, when a lord knows his thing to be possessed by another, and neglects to recover it when he could. Third, when the thing is so occupied by another that there is no probable hope of recovering it. Fourth, by long forgetfulness.

XI. QUESTION V. Who are capable of dominion? ANSWER. All men — sinners, unbelievers, heretics, and the rest. Children before the use of reason are not capable of perfect dominion. Curators and guardians appointed by the commonwealth can supply the consent of children.

XII. QUESTION VI. Is it lawful for anyone to take animals tame by their own nature? ANSWER. Tame animals, such as oxen, sheep, dogs, hens, swine, and the like, if they go forth from the custody of the house and depart to a distance, always remain the lord's, and it is lawful for no one to usurp them to himself: and he who should take them would, besides a grave sin, be liable to restitution. Animals wild by their own nature, but made tame by the industry of men — such as hawks, stags, bees stored in hives, fish enclosed in the ponds of their lords — remain under the dominion of the possessor, and cannot be usurped by others. But when they flee from custody, and there is no hope of recovering them, then they acquire their pristine liberty and become common, and he becomes their lord who first takes them. Wild animals belong to the first occupant, as all teach: for these are by their own nature common. And when they are found on another's land, they belong to the taker, not to the lord; although lords may forbid anyone to enter upon their own lands. In which case those who enter are bound to compensate the damage inflicted, but the beasts taken become the man's. A wild beast mortally wounded belongs to him who wounded it; otherwise if the wound be not mortal, and there be no hope for the wounder of taking it. For then the beast belongs to the first taker.

XIII. QUESTION VII. What is to be said of fishing, fowling, and hunting? ANSWER. All these are common by the law of nature; by positive law they are in some places, and at some times, forbidden. Those who have estates and lands in which there are lakes, woods, and the like, can by right forbid that anyone hunt or fish in these places. Princes can prohibit fishing, hunting, and fowling on the lands of any city; yet cities which have the dominion of the lands are bound to compensate the princes. Similarly princes are bound to compensate the lords of lands which they lay waste by their sporting, or to whom they inflict damage. Those who hunt in forbidden places against the edict of the prince do not sin mortally, as many authors teach, because such edicts are penal, and because edicts of this kind have ceased by desuetude. The circumstances, however, are to be regarded. Clamorous hunting is forbidden to clerics and monks.

XIV. QUESTION VIII. Whose are the woods, mountains, and pastures? ANSWER. The dominion of these belongs by the law of nations to the nearer peoples; and all these are common among neighbouring and conterminous peoples, unless by some peculiar title some people has claimed them for itself. Princes and communities can by right forbid that at fixed times anyone cut wood or send animals to pasture, for the sake of the common good. This end being removed, prohibitions ought not to be made, because individual townsmen have a right to the fruits of common places of this kind.