§ II. On the subject of dominion

600. • The subject of dominion is the owner of some thing, or he whose some thing is.

Hence 1° to God alone belongs supreme and absolute, and therefore independent, dominion over created things, as Scripture cries out: The earth is the Lord's and the fullness thereof, the world and all they who dwell in it.³ Indeed he can communicate this dominion to no one, because it depends on creation and conservation, from which God cannot abdicate himself. Yet this does not prevent God from being able to communicate particular dominion to rational creatures, according to that: but the earth he has given to the children of men.⁴

2° On earth every and only man is capable of dominion. It is proved. "He alone can have a right who is capable of suffering injury ... but he alone suffers injury who suffers it unwillingly; but he ought to be unwilling not indeed by a will by which he wishes a thing to be his, but by a will by which he wishes to retain right to the thing itself, or to obligate others not to take it away. But brutes cannot have such a will, since they can know neither moral obligation nor turpitude; therefore they cannot be unwilling, just as they cannot give permission or transfer dominion for the same reason, because, since they do not know moral right, they cannot yield their own right. ... Therefore only intellectual nature, which can know objects of this kind, is capable of having dominion."¹

3° Nor are infants incapable of dominion, nor even the insane; for the use of reason, of which they lack, is necessary only for disposing here and now of goods, or for the exercise of right (n. 589), but not for having dominion, which is founded in the nature of man and his powers, not in the actual exercise of the powers. (a) p. 475.

We must treat especially of the dominion 1° of children of a family, - 2° of wives, - 3° public and national dominion, - 4° of colleges or corporations, - 5° of the Church and clerics. But concerning the dominion of Religious it will be said below in the Treatise on States, where the vow of poverty is treated.

601. • Children of a family are properly called in this place children of either sex born from legitimate marriage, or legitimated, and still subject to paternal power.

It is said: 1° Born from legitimate marriage, or legitimated. For the dominion of illegitimate children, if and insofar as it is not defined by civil law, is governed by natural right.

It is said: 2° Still subject to paternal power, or minors, not emancipated from paternal power. For although the obligations of children existing from natural right, and which exact offices of honor, love, and reverence toward parents, can never be dissolved, nevertheless this does not have place as to those which natural right does not impose forever, such as obedience, or which draw their origin from civil right alone.

602. • In Roman law various goods of children of a family are distinguished;² but since these distinctions are not found in the laws which we use, we set forth here only the dispositions of these. Hence:

603. • Quaer. 1° How many kinds of goods of children of a family are distinguished, and what right belongs to the father in them?

Resp. Among goods which come to a child of a family, some come from his own labor, others from another title, for example from inheritance, legacy, or donation. The father has the usufruct of these if either by law of the State,¹ or by the will of the testator or donor, this is assigned to him; but he has the administration² in every case, unless perhaps goods have been given or bequeathed to the son on this condition, that custody of them be committed to others and not to the father. But if the father has administration alone, the son who uses those goods against the will of the father or without his knowledge will indeed sin against the fourth precept of the Decalogue, but not against justice strictly so called: for in this case nothing of his own thing or of the fruits of the thing perishes for the father; for both the thing and the fruits of the thing, in the supposition, are the son's, not the father's. Yet in this case the son would sin against justice if the father also had the usufruct: for he would deprive the father of the part of the fruits owed to him.

The proper labor by which a son acquires goods is either private or common with the father. It will be private, if for example he carries on trade in his own name; if he exercises an art entirely diverse from the father's art; if he labors in a workshop outside the paternal house; if as a hired man he has hired out his work in his own name. Those things which the son acquires by private labor, with law forbidding this set aside,³ or with the father's consent, whether express or tacit,⁴ supposed,⁵ he acquires for himself, yet with the burden of compensating the father for the expenses of food, clothing, and shelter.

What if the son exercises a common industry with the father?

Resp. Setting aside a contract, for example of partnership, the son lacks right both to a part of the gain procured by his labor, because in this supposition he conducts the father's affairs only as helper or mandatary, and, if at least his labor is already compensated elsewhere by a just wage, to a stipend: for a double wage cannot be asked for the same labor. I say: if his labor is already compensated elsewhere by a just wage, for example by the increase of inheritance through equal labor of the brothers, or by food, clothing, etc., provided to him. Hence, that is, because of defect of compensated labor, he has a right to a stipend; and therefore he can demand it as owed to him by strict right, or, if from reverential fear or from another cause he has not demanded it, he can procure it for himself by hidden compensation, if his labor was certainly not owed. Such would be the case if either from his condition he was not bound to such labor, or by an indubitably extraordinary and undue excess he labored more with the father than the other brothers.¹

604. • Quaer. 2° Does a son have perfect dominion in movable goods given to him by parents or relatives?

Resp. 1° Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, as for example money granted for amusements (pocket money). Make exception if they are given for a determined use, as money for buying clothes or books, etc.

Resp. 2° If they are not consumable by first use, such as books, clothes, etc., the son generally has, that is, outside the case of consent of the parents either express or reasonably presumed, only useful dominion of them, because parents commonly intend to confer nothing else upon them. Wherefore, if the son disposes of these things against the right granted by the parents, a burden of restitution arises.

605. • By English and American common law, the goods of a wife can be said to be of three kinds, namely dotal, paraphernal, and common.

Under the name of dotal goods (Dowry or Dower) among us comes that which, according to the laws of each State, must be left from the goods of the husband to the surviving wife, namely, by common law, the usufruct of the third part of immovables during her life.

In Louisiana dowry "means the effects which the wife brings to the husband to support the expenses of marriage."¹

That which is termed by the civilians vidualitia, though we call it also dowry or dower, in the legal sense of the word is not a dower, but only that part of the goods of which the wife, after her husband's death, is heiress ad intestato, which, according to the common law, is the third of the personalty of the husband leaving issue, or a moiety, if he dies without issue.

606. • Paraphernalia are called those things which have been wholly reserved in the full dominion of the wife.

What these are from common law would be said almost uselessly, since the dispositions of common law concerning this matter have been changed in almost most States. Consult, if you please, Wells's Every Man, etc.² - But see the dispositions of common law, if you please, apud Kent.³ - For the law of Louisiana see Civil Code of Louis.⁴

Everywhere the following can be held as paraphernalia: both 1° paraphernalia strictly so called, or the wife's personal apparel and ornaments, suitable to her rank and condition in life; and 2° that which is called "pin-money," i.e. a sum payable by the husband to the wife, in virtue of a particular arrangement, and to be applied by the wife in attiring her person in a manner suitable to the rank of her husband, and in defraying other personal expenses. Finally 3° those things also ought to be held as paraphernalia which either by the laws of each State, or by antenuptial agreement, are reserved to the full dominion of the wife.

607. • Common goods among us can be called immovables which are given simultaneously to husband and wife during the marriage, or which are bought by them together. Concerning these our law establishes: "They" (the husband and wife) "are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole."¹

Except Louisiana, where "the partnership ... of acquets or gains ... arising during coverture" (i.e. while the marriage stands) "exists by law in every marriage contract in the State, where there is no stipulation to the contrary."¹ "The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property."²

608. Questions. - Quaer. 1° Can a wife distribute alms from goods that are not paraphernal?

Resp. In the affirmative, even if otherwise she has paraphernalia or her own goods, provided this is done according to the custom of other women of that place and condition. The reason is that a wife is not a slave, but a partner; therefore she ought to have a certain administration in the house of the husband. - Then the husband, merely ignorant, is deservedly presumed to consent in those things which are done by the wife according to the honest custom of the region and of her condition; and if he shows himself unwilling, such dissent is judged irrational, because a husband cannot deprive his wife of a right conceded to her by legitimate custom. - So with the common sentence, Lugo, St. Alphonsus.³ - Moreover, if a wife were to acquire something by extraordinary labor after having spent due care upon the governance of the family; or if by thrift she were to subtract something from what has been conceded to her for solace, clothing, etc., she can likewise dispose of it for other uses, if nothing else stands in the way. So theologians from the rules of equity.

609. • Quaer. 2° Does a wife sin by taking something from goods that are not paraphernal in order to relieve the necessity of parents or children who were received from a prior marriage?

Resp. In the negative, if she does not have paraphernalia and the husband is unwilling to give what is necessary, because by natural right a wife is bound to feed the aforesaid blood-relations, and the husband is bound to consent to this.⁴ What is said here of parents and children certain authors also extend to brothers and sisters of the wife.⁵

610. • Quaer. 3° Is a wife bound to restitution of goods received in this way, either from paraphernalia, if she has or is going to have them, or from those things which will come to her when the husband has died?

Resp. In the negative, if these goods are of small moment, because then they are held as alms (n. 608). In the affirmative, if they are of greater moment,¹ such as those whose subtraction has brought notable detriment to domestic administration.

Note. - If the husband squanders or wastes goods to the detriment of the family, the wife will be able to hide them and reserve them for the good of the family; likewise from common goods she can disburse, or even, when the husband resists, secretly take for herself, those things by which she may procure for herself and the children from the present marriage what is suitable to their state, or avert spiritual or temporal damage from the husband or family, for example that sacred rites may be performed for the dead.²

611. • Quaer. 4° Is a husband bound to restitution who spends prodigally or badly a notable part of common goods?

Resp. Affirmatively; because in our law these goods are possessed whole by each spouse, and indeed in such a way that neither can sell them without the consent of the other, and, when either has died, the other obtains perfect dominion in them.

It is disputed as to States where community of goods is held in the meaning of French law. To us the affirmative sentence seems more probable, since the husband is only the administrator, not the sole owner of the common goods.

612. • Public dominion is called the dominion of the republic over all things destined to the public and common use of citizens. Thus each State has dominion over bridges, canals, and roads.

Over roads which we are accustomed to call national, namely those which were made by authority of the supreme assembly, Congress, through various States on account of the transmission of letters and documents, the easier passage of soldiers, and other uses common to the whole nation, authority belongs to the general government. But this authority should scarcely be called by the name of dominion, since each State is supreme and would bear with difficulty dominion in the true sense of the name exercised by the general assembly.¹

613. • It pleases one to call national dominion the public lands which namely the President, in the name of the Federated States, buys from the Indians by the right, as they call it, of pre-emption, with money or merchandise handed over for them. In this way it has happened that the Indian tribes have little by little withdrawn farther away; and these, each year, by a new cession of lands made for a very small price, easily supply the general treasury with a means of increasing the public treasure, by selling to new settlers the lands thus bought.²

614. • Not only physical persons (individuals), but also moral persons are capable of dominion. Among these colleges (corporations) obtain the chief place.

Definition. - "A corporation is a franchise possessed by one or more individuals, who subsist as a body politic under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual." Therefore it differs from a contract of society or partnership (n. 1018).

615. Division. "Corporations are divided: 1° Into aggregate and sole. A corporation sole consists of a single person, who is made a body corporate and politic, in order to give him some legal capacities and advantages, and specially that of perpetuity, which, as a natural person, he cannot have. A bishop ... is given in the English books as an instance of a corporation sole; and he and his successors in perpetuity take the corporate property and privileges; and the word successors is generally necessary" (in the grant) "for the succession of property in a corporation sole.⁴ The corporations generally in use with us are aggregate;⁵ but there are instances also in this country of sole corporations.

2° Into religious and lay.¹

Lay corporations are again divided into eleemosynary and civil.²

Civil corporations ... are either public or private. Public corporations are such as are created by the government for political purposes, as counties, cities, towns, and villages. ... If the foundation be private, the corporation is private, however extensive the uses may be to which it is devoted by the founder, or by the nature of the institution."⁴

616. How they are created. - "With us they are created by authority of the legislature," and also de facto by that of the Congress,⁵ which has exercised it twice by the incorporation of a national bank.

617. The powers and capacities of corporations. - "The ordinary incidents to a corporation are: 1° To have perpetual succession, and, of course, the power of electing members in the room of those removed by death or otherwise. 2° To sue and be sued, and to grant" (except by will) "and to receive" (except also by will unless specially authorized by their charter) "by their corporate name. 3° To purchase and hold lands and chattels. 4° To have a common seal. 5° To make by-laws for the government of the corporation; this power, however, must be exercised within the limits of the charter, and in subordination to the Constitution and general law of the land, and the rights dependent thereon. 6° The power of amotion, or removal of members." But this power also must be exercised for good cause, and for some offence that has an immediate relation to the duties of the party as a corporator.

"It is now very generally the practice to specify, in the act or charter of the corporation, the powers and capacities with which it is intended to endow the corporation."⁶

618. Dissolution of corporations. - A corporation may be dissolved, 1° by statute; 2° by the natural death or loss of all the members, or of an integral part; 3° by surrender of its franchises; 4° by forfeiture of its charter through negligence or abuse of its franchises.

For Louisiana see "Civ. Code of Louis."²

Since the condition of the temporal things of the Church in our Federated States is altogether peculiar and because, on account of circumstances, in many things it cannot be arranged according to the norm of the sacred Canons, a fuller treatment concerning them is necessary. We comprehend the whole matter in four questions. I. Whether and of what temporal things the Church can have dominion, and in what way this is recognized by our law. II. What is the subject in which direct dominion of ecclesiastical goods resides, and what is required so that they may be legitimately acquired and held. III. To whom the administration of ecclesiastical goods pertains, and in what way it is to be conducted. IV. What are the various species of ecclesiastical goods, and what is to be observed here concerning each.