§ 1. On Necessity Excusing from Theft

Necessity is one kind extreme, another grave, and another common. That is called extreme in which life itself is endangered, or a most grave evil is imminent; but grave necessity is that in which life is led with great hardship; common necessity is that in which begging poor persons are commonly found.

616. • Principles. I. Man can in extreme necessity use another's goods, as much as is enough for freeing himself from such necessity. The reason is that the division of goods, however it has come about, cannot derogate from natural right, which belongs to each one, that he provide for himself when he labors under extreme necessity. Therefore in such a case all things become common; and therefore he who accepts another's thing for helping himself accepts a truly common thing, which he makes his own, just as happened before the division of goods. Therefore he does not commit theft. - St. Thom., 2. 2, q. 66, art. 7. - St. Lig., n. 520.

II. In order that someone can steal another's goods, grave necessity does not suffice, nor a fortiori common necessity; for in these circumstances owners are reasonably unwilling, and otherwise an easy approach would lie open to plunderings ¹.

¹ Some confirm this doctrine by the condemnation of proposition 36 among those proscribed by Innocent XI: It is permitted to steal not only in extreme necessity, but also in grave necessity. But it is not sufficiently certain that the reason of the condemnation looks here. For since to steal signifies of itself an unjust taking away, this surely is not lawful even in extreme necessity, although then it is lawful to provide for oneself from another's goods.

Although indeed Dominic Viva (ad h. Prop., n. 1) says that he does not subscribe to those contending that in this proposition theft formally taken is condemned, nevertheless, among others, John de Cardenas (Dissert. 23, cap. 1, art. 1) went into the plainly opposite sentence. For, he says (n. 4), the Pontiff chiefly intends to condemn that which is more shameful in the proposition: but in this proposition 36 it is more shameful to say that theft is lawful in some case than to say that in grave necessity it is lawful to take away superfluous goods from a rich man, while at the same time asserting that one has a right to them, and therefore that it is not theft... Therefore the principal intention of the condemnation is to condemn that assertion, that in some case theft is lawful.

But this very thing he confirms thus (n. 6) from history. For, as Fagnanus reports in lib. 1 Decret., in c. Ne innitaris, De Constit., n. 339, the Bishop of Ghent in the year 1657, on the fourth day of May, consulted the Doctors of Louvain so that they might bring forth their censure concerning this same proposition: It is permitted to steal not only in extreme necessity, but also in grave necessity. But they set forth their judgment in these words: To steal is permitted in no case, because it is intrinsically evil; that is, it is not only not lawful to steal in grave necessity, but not even in extreme. But afterwards those Doctors of Louvain denounced this same proposition among several others to His Holiness Lord Innocent XI, that he might brand it with the censure of which it was worthy, as is evident from the petition which they offered to the Roman Pontiff, of which I have a transcribed copy with me. Since, therefore, the Pontiff condemned the proposition in the same way in which the Louvain Doctors proposed it, it must be held as certain that this was the intention of the Roman Pontiff, namely of condemning in this sense, that not even in extreme necessity is it lawful to steal.

Then indeed as regards the present question concerning grave necessity he thus concludes (n. 7): From what has been said it is inferred that this proposition, It is permitted to steal in grave necessity, remains condemned; and this even if the opinion teaching that in grave necessity it is lawful to take secretly from a rich man the things necessary for alleviating it were probable: because according to this condemnation it must never be conceded that in some case theft is lawful; and although it were probable that then it is lawful to take secretly, nevertheless it would not then be probable that it would be lawful to steal, on account of what has been said.

Nor did Duarte think otherwise in the Exposition of the Condemned Propositions, dedicated to Cardinal Paolucci the Major Penitentiary and published at Rome in the year 1712. For thus he says briefly (n. 289): The decree of Innocent XI condemning proposition 36 chiefly intends to condemn that in some case it is lawful to steal, because it is intrinsically evil. Nevertheless it must be admitted that in extreme necessity it is lawful to take secretly from a rich man the necessities for alleviating it, whether manifestly or secretly, nor does this have the character of theft or robbery.

Thus also Peter Catalani (Th. Mor., part 2, q. 19, cap. 3, n. 2), after he establishes that he who, placed in extreme necessity, steals as much as suffices, etc., does not sin, then adds: Nor from the common sentence brought forward is it inferred that theft is lawful in extreme necessity, since theft from its intrinsic character is incapable of being made honorable, as is a lie...; but only it is asserted that to steal another's thing in extreme necessity is not theft. And therefore Innocent XI rightly condemned that 36th proposition asserting: It is permitted to steal not only in extreme necessity, but also in grave; since theft cannot be committed in extreme necessity, not only in grave.

And let these things be enough, so that it may be plain that the opinion which in grave necessity attributes leave of providing for oneself from another's goods can indeed be attacked by other reasons; but the argument which is sought for that end from the condemnation of proposition 36 cannot be held as altogether efficacious.

617. • Resolutions. 1. It is not lawful for a poor man placed in extreme necessity to take away more than is necessary for himself. Whence if the mere use of the thing suffices, for example of a horse, once the necessity ceases, the obligation of restoring remains. - St. Lig., Hom. apost., n. 15.

2. If one extremely in need has elsewhere, in reality or in probable hope, whence he can pay, he cannot take away another's thing except with the burden of restitution; because necessity does not demand that the property of the thing accede, when he can be sufficiently relieved by the thing accepted as a loan or lent for use. - Hom. apost., n. 19.

3. But he who in extreme want has consumed another's thing is held to nothing after the use of the thing, if he had no probable hope that he would ever be able to restore, even if afterward he should come to a better condition. - Hom. apost., ibid.

4. The things which are said of extreme necessity can also be said of necessity quasi-extreme or most grave. But such necessity is judged to be present when someone is in probable danger of incurring death, of losing some principal member, of falling into perpetual captivity, or of undergoing the penalty of the galleys, or a most grave or perpetual disease. For in these cases extreme necessity is already morally present ². - Hom. apost., n. 15.

² Some called a necessity of this sort grave; against whom others less cautiously hurled proposition 36 condemned by Innocent XI. Less cautiously, I say: both because it is not sufficiently evident that by that condemnation the doctrine is struck which says that the taking away of another's thing is lawful in grave necessity, as was noted in the preceding note; and because grave necessity among those writers, as Viva also notes (ad Prop. XXXVI. Innoc. XI, n. 2), signifies the same as almost extreme necessity among others; wherefore they dissent from others not in sentence, but only in diversity of words.

5. A rich man hiding his goods, or using another device so as not to aid a poor man, once the necessity of the poor man ceases, is not held to restitution, because necessity, even extreme, confers on the poor man a right to the use of another's thing only so long as the necessity itself urges ³. - Hom. apost., n. 20.

³ The truer reason why in the case the rich man is not held to restitution seems rather to be this: that he sins merely against charity, but in no way against justice. But the reason brought by the Author would then be valid if the rich man by force had impeded the poor man from taking some thing for himself. In which case he would indeed have sinned against justice; but when the necessity ceased, and therefore the right of the poor man, the burden of restitution would also have ceased. See Lugo, De Iust., disp. 16, n. 143.

618. • Questions. Q. 1. Whether someone can steal another's thing not only for helping his own necessity, but also another's?

Resp. Affirmatively, with St. Thom., 2. 2, q. 66, art. 7, and others commonly. The reason is that then he in some way performs the role of the needy person, and shows that he loves his neighbor as himself ⁴.

⁴ Nay indeed charity can oblige to this, unless someone would have to undergo grave inconveniences for that reason. And since one extremely in need can provide for himself from the goods of anyone whatever (unless perhaps charity counsels that someone laboring under want should be spared), since in those circumstances all goods become common, therefore he who assumes and performs the role of that man can do the very same; nor does the law of charity seem to demand that he rather burden himself in order to spare others.

619. • Q. 2. Whether he can be said to be in extreme or quasi-extreme necessity who is to be killed by robbers unless he hands over such a sum of money, or he to whom perpetual or most grave captivity would threaten, or another similar misfortune ⁵?

⁵ The state and solution of the controversy will become clearer if the question is made, not indeed whether in these circumstances a man is in extreme or quasi-extreme necessity, for by force of the definition the matter plainly has itself thus, but whether then it is lawful to take a very precious thing or a huge amount of money when this is absolutely necessary for preserving life. Thus certainly the Author's response is easily understood.

Resp. It is disputed. Not a few affirm with St. Lig., n. 520, Lugo, disp. 16, n. 146. The reason is that that necessity consists in the most grave or extreme danger which threatens when someone has been reduced to the greatest misery, or is already about to die, not only from lack of food, but from any other cause whatever. But others deny, asserting that then only do goods become common when someone is found in extreme necessity from natural causes ⁶, but not from the wickedness of men. - Thus Concina, de Eleem., c. 9, q. 4.

⁶ As though indeed even necessity induced by natural causes could not be of such a kind that enormous expenses are required for warding it off!

The first sentence is the more common, and seems also the more probable. Hence in these cases it is lawful to provide for oneself from another's goods, at least through means not refined nor extraordinary ⁷; because since these necessities are not frequent, by that very fact abuse in them is not easy, such as can commonly be feared in the other cases.

⁷ By these words the Author, the first sentence in reality having been left behind, descends to the tempered doctrine of Lugo, which can also be called common. And St. Alphonsus indeed judged that by Lugo's vote there was supported the opinion which grants to a man in that necessity that he may usurp for his own uses even four thousand gold coins, because namely Lugo (De Iust., disp. 16, n. 146) adds only two conditions to the general doctrine: 1. that the thing be necessary to the needy person; 2. that it not be necessary to the owner of the thing himself. But indeed in the following passages Lugo circumscribes that doctrine. And although he concedes (ibid., n. 159) that in extreme necessity it can happen that someone extremely in need can, against the owner's will, take for himself that which the owner was not held from charity to give, nevertheless he immediately adds these limits: When namely this is from means not refined and extraordinary, but ordinary and common, by which that necessity is commonly accustomed to be avoided. But the reason is (as Lugo himself excellently disputes), because in order that a right be produced of taking another's goods for oneself, not only must the thing be necessary for alleviating necessity, but besides it must be necessary that this necessity be aided. But we all hold that someone is not obligated to extraordinary means, for example, to preserve life, especially if this would yield to the grave damage of his own family. A fortiori, therefore, this must be said concerning the goods of another, who for that reason would be reasonably unwilling.

But what means Lugo judged common and ordinary is plain from the following (ibid., n. 154): If someone, he says, in order to flee pursuing enemies, from whom he fears only captivity and the loss of liberty, needs another's horse, it appears very harsh and altogether incredible that he cannot use it without the owner's knowledge, even if he can never afterward restore either the horse or its price to the owner. Wherefore the same seems to have to be said if the horse were necessary to him for fleeing a most grave positive infamy, since this is sometimes esteemed no less than captivity. And the same will be true concerning a perpetual or long-lasting disease and other similar evils, on account of the same reason. After this reason has been set forth, he adds: Although nature did not wish refined and extraordinary means to be common to all, nevertheless it seems to have wished common and ordinary means, by which these goods are commonly preserved, to be common to all for the common preservation of those goods. For to that use it produced horses, for example, so that by them man could flee enemies and grave dangers, and to that end it produced common garments and medicines, so that by these we could commonly protect ourselves against grave dangers of this sort.