§ II. On the Subject of Dominion

542. • The subject of dominion is the master of some thing, or he whose some thing is. On earth every man and only man is capable of dominion, because every man and only man can know the utility of things and will to apply them to himself if they belong to no one ¹. Nor are little children incapable of dominion, nor madmen themselves; because although they cannot make things their own by occupation, nevertheless they can do so through the acts of another, for example, a tutor ². We must treat specifically of the dominion: 1. of children under paternal power; 2. of wives; 3. of clerics; 4. of authors. But of the dominion of Religious it will be said below in the Treatise on States, where treating of the vow of poverty.

¹ Lugo renders the reason more clearly and effectively thus (De Iust., disp. 3, n. 1): "He alone can have a right who is capable of suffering injury.... But he alone suffers injury who suffers it unwillingly: but he must be unwilling, not indeed through a will by which he wills his thing, but through a will by which he wills to retain a right to the thing itself, or to oblige others not to take it away. But brute animals cannot have such a will, since they cannot know either moral obligation or turpitude; therefore they cannot be unwilling, just as they cannot give license or transfer dominion, for the same reason; because since they do not know moral right, they cannot yield to their right.... Therefore only an intellectual nature, which can know objects of this kind, is capable of having dominion."

² The deeper reason for the capacity of dominion in infants must be sought elsewhere; for that a tutor takes his place is from positive law, and does not furnish the reason for that capacity. Therefore Lugo should be approached, who explains two things on this matter excellently, in his usual way. The first is that from nature itself there is the necessity of dominion or property, which it is wrong to violate; indeed, setting aside every human convention or decree, from nature there are also generally certain modes of acquiring dominion (see De Iust., disp. 6, n. 1-6). The second is that the order of nature itself requires that dominions be able to be transferred to another even without the will of the one acquiring; indeed, that they can be transferred to one who does not yet live: so that human laws which decree concerning these things in reality explain and protect the right of nature.