§ II. On the Subject of Dominion

I say. Every man, and only man, is capable of dominion. The reason is that, according to St. Thomas, the foundation of dominion is rational nature. And indeed, every man, and only man, can know the utility of things, will to apply them to himself if they belong to no one, and dispose of them thus applied to himself for his own end and his own advantage. Besides, he alone is capable of right or dominion who is capable of injury; but he alone suffers injury who suffers it against his will: however, he must be unwilling not indeed through the will by which he wills his own thing, but through the will by which he wills to retain the right to the thing itself, or to oblige others not to take it away. But brute animals cannot have such a will, since they can know neither moral obligation nor turpitude. Therefore.

Hence neither little children nor the insane themselves are incapable of dominion, as is clear from the practice of all peoples and from the reason just given; for, as was said, dominion is founded in the rational nature of men and its powers, but not in the actual exercise of those powers. Cf. St. Thomas, 2-2, q. 66, art. 1. - Lugo, disp. 3, n. 1.

Children of the family here are properly called those who, born from legitimate marriage or legitimated, of whatever sex they may be, are still subject to paternal power. - I said 1st. born from legitimate marriage or legitimated, because concerning the dominion of those who are spurious, judgment must be made only according to the equity of the right of nature, but not according to the special dispositions of the law. - I said 2nd. still subject to paternal power, because since only children not yet emancipated are reputed by law as infants, limitations are given only concerning their dominion, and therefore the question can be raised concerning them alone.

But emancipation can take place either by general law or by privilege and special declaration, and at a diverse age of children of the family, according to the diversity of regions. - Among us, with two or three States excepted, emancipation takes place in the twenty-first year both for males and for females. Cf. Wells, Every Man His Own Lawyer, p. 240.

You Will Ask. What can be the diverse goods of children of the family, and what dominion can they exercise?

Response 1st. From Roman Law the goods of children are: 1st. castrensia, that is, acquired on occasion of military service; 2nd. quasi-castrensia, or acquired from some public office, e.g., of judge, physician, etc.; 3rd. adventitia, which come from inheritance or donation, yet not made by the father or with a view to the father; 4th. profectitia, which the son gains from paternal goods, e.g., by carrying on business with the father's money, or which are given to him with a view to the father. - Moreover, of castrensia or quasi-castrensia goods the son has both dominion of property and usufruct; he also has administration if he has attained puberty. But the property of adventitia belongs to the son, but usufruct and administration to the father; finally profectitia in all respects belong to the father. Cf. St. Alphonsus, n. 488.

Response 2nd. Since, as Kenrick says, "these distinctions are not in force in the law which we use," the proposed question must be answered by distinguishing between the case in which the child of the family receives goods by title of donation or inheritance, and the case in which he acquires them by virtue of labor or industry. - In the first case, administration belongs to the father, but dominion of property and usufruct to the son. In the other, there is need of a new distinction; for either 1st. the son labors outside the paternal house and is not fed by the father, and then he will be able to make the goods which he gains his own, because he has been dismissed or is reputed dismissed; or 2nd. the son labors in the paternal house or outside it and is fed by the father, and then all things which he gains belong to the father.

But in that last case a threefold exception must be made in favor of the son, namely: 1st. if the father remits from his right, and he is considered to remit if he permits the son to contract marriage; 2nd. if the son by reason of his condition is not held to labor; 3rd. if he has evidently and undoubtedly labored more than the others of the family. - Although this last opinion can sometimes be held in practice, at least after the fact, nevertheless it is not to be taught publicly everywhere on account of the inconveniences which would follow through abuse. - Cf. St. Alphonsus, nn. 488 and 544. - Lessius, lib. 2, cap. 12, n. 81. - Kenrick, tract. 10, part. 1, n. 41. - Kent, Comment., vol. 2, nn. 191 and seq.

See Bouvier, Law Dictionary, 8th Edit., Parent and Child. Cf. Right to earnings of the child.

From Roman Law the goods of a wife are of three kinds, namely:

1st. Dotal goods, or goods which the wife already possessed, or which her father conceded to her for contracting marriage: the administration and usufruct of these are in the possession of the husband, but direct dominion is in the possession of the wife.

2nd. Paraphernal goods, or goods which the wife reserved to herself besides the dowry: these belong to her by full right.

3rd. Common goods, or goods which, by agreement had between the spouses or by determination of law, are brought into a certain partnership: of these, both direct and useful dominion belong to both spouses. - Cf. St. Alphonsus, n. 489. - Elbel, n. 69.

But in this region the three aforesaid names are taken otherwise, and the dominion of wives is different in it. For:

1st. "The dotal goods of a wife, according to our customs," says Kenrick, "are the third part of the immovable goods which the husband has possessed during marriage, which therefore he cannot alienate to the prejudice of the wife, unless she herself, questioned separately by a magistrate, has freely consented, and by her signature has renounced her right. If the husband by testament has left certain goods to the wife, that her dowry be excluded, it is in her power to reject them so that she may enjoy her right. Moreover, only during her life does her right remain, and when she has died, it passes to the heirs of the husband." Cf. Kenrick, n. 45. - Bouvier, Law Dictionary, under the word Dower.

2nd. Paraphernal goods among us mean all goods which pertain to the clothing or ornament of a woman, according to her condition, and which she used during marriage: these after the death of the husband belong altogether to the wife. - Cf. Kenrick, n. 42. - Bouvier, Law Dictionary, under the word Paraphernalia. - Wells, Every Man, etc., p. 82.

3rd. Common goods are those which are acquired by husband and wife together by title of purchase or of donation had during marriage. Each spouse possesses these goods as if the two spouses were one person, so that neither can sell them without the consent of the other. Cf. Kenrick, n. 44. - Kent, Comment., vol. 4, part 6, lect. 55. - Bouvier, Law Dictionary, §§ Dower, Husband and Wife.

Question 1. Can a wife give alms from common goods?

Response. Affirmatively, even if otherwise she has her own goods, provided that it is done according to the custom of other women of the same condition. The reason is that a wife is not a servant but a partner; therefore she must have a certain administration in the house of the husband. Besides, the husband is deservedly presumed to consent to those things which are done by the wife according to the respectable custom of condition and region; and if he shows himself unwilling, such dissent is considered irrational, because the husband cannot deprive the wife of a right conceded to her by legitimate custom. - Cf. St. Alphonsus, n. 540. - Kenrick, n. 46.

Question 2. Does a wife sin by giving something from common goods for relieving the necessity of parents or children whom she has had from a prior marriage?

Response. Negatively, if she does not have her own goods, and through this necessary things are not lacking to the husband and his family. The reason is that by the right of nature the wife is held to relieve the aforesaid blood relatives, and therefore the husband is reasonably presumed to consent to this. Cf. St. Alphonsus, n. 542. - Kenrick, n. 46.

Question 3. Is the wife held to restore goods given in this manner when, the husband having died, she comes into the inheritance of dotal goods, or before his death she has acquired paraphernal goods?

Response. Negatively, if the goods given are of small moment, because then they are held as common alms, which, if they are made moderately, do not carry with themselves the burden of restitution. Indeed, the response must also be negative, at least probably, if the goods withdrawn are of greater moment; because all burdens which, while marriage stands, naturally befall one of the spouses are considered common to the other, and therefore the husband cannot be reasonably unwilling.

The goods of clerics are distinguished into four kinds, namely: 1st. Patrimonial goods, which come from paternal inheritance or from any other profane cause, for instance from donation, succession, etc.; 2nd. Quasi-patrimonial goods, which are also called quasi-ecclesiastical or casual, and these are those which are acquired on occasion and in view of functions, e.g., by celebrating Mass, preaching, etc.; 3rd. Ecclesiastical goods, which are received from benefices of the Church, e.g., from revenues of benefices, etc.; 4th. Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably.

I say. Clerics have perfect dominion in patrimonial, quasi-patrimonial, and parcimonial goods, so that they can dispose of them at will. The reason is both that that dominion is nowhere found restricted, and that in this all theologians, even the stricter ones, agree.

Although a benefice-holder may have other non-beneficial goods, he can freely use and enjoy benefice fruits which are necessary for his honorable support; but he is held by the obligation of expending superfluous fruits for the poor or for pious causes, with the prescription of can. 239, § 1, n. 19 being saved (Can. 1473).

§ 1. Unless the contrary is proved, those things which are donated to rectors of churches, even of religious, are to be presumed to have been donated to the church.

§ 2. A donation made to the church cannot be repudiated by its rector or Superior without the license of the Ordinary.

§ 3. If a donation has been illegitimately repudiated, on account of the damages which have arisen thence an action is given for restitution in full or for indemnity.

§ 4. A donation made to a church and legitimately accepted by the same cannot be revoked on account of the ungrateful disposition of the Prelate or rector (Can. 1536).

Question 1. Are clerics badly expending the surplus of ecclesiastical goods held to restitution?

Response. Certain strict theologians, such as Collet and Antoine, respond affirmatively, because they say: clerics are only administrators and stewards of ecclesiastical goods. But the opinion denying is probable, because although it is established concerning the precept of giving these superfluous goods, nevertheless it is not established concerning the origin of this obligation, namely whether it proceeds from justice. This opinion is also called probable by St. Alphonsus in his reformed propositions, especially on account of the authority of St. Thomas. Observe moreover that for the gravity of fault in the violation of this ecclesiastical precept there is required a quantity much greater than in theft, namely, according to the truer opinion, about a twentieth part of the superfluous goods. - Cf. St. Thomas, 2-2, q. 185, art. 7. - St. Alphonsus, n. 491; and QQ. Reform., n. 10.

Question 2. Whether the annual pension which is given to our Missionaries from the renting of pews is to be assimilated to ecclesiastical goods?

Response. According to the Constitution Romanos Pontifices, this annual pension is to be held as ecclesiastical goods.

§ 1. Temporal goods, whether corporeal, both immovable and movable, or incorporeal, which belong either to the universal Church and to the Apostolic See or to another moral person in the Church, are ecclesiastical goods (Can. 1497).

I say. Any man from natural right has a right in the fruit of his own ingenuity or industry. For if a thing bears fruit for its owner, a fortiori this must be true concerning internal faculties, since nothing can be more proper to a man. Wherefore the inventor of some art has a strict right that his secret not be stolen and, against his will, divulged to the public; but if this is done, the one causing damage will be held to restitution according to the measure of the injury inflicted. - Cf. Wells, Every Man, etc.; qq. 243 and seq.

Question 1. Does he violate another's right who publishes in type a manuscript work without the consent of the author?

Response. Affirmatively; and the reason is that it is established among all that a manuscript work is not in the public domain, but lies under the dominion of the author. The same must be said of one who would publish in type the public lectures of some professor or the sermon of an orator; for to teach publicly or to preach is not to hand over one's work to another for publishing and selling. - Yet except the case if someone delivers again from the pulpit a sermon already heard as if composed by himself, both because through this he does not properly claim the thing of another for himself, and because he does not necessarily and of itself harm the prior orator. - Cf. Carrière, n. 61.

Question 2. Does he who has published a book in type have the right of preventing anyone from committing it to the press and selling it with damage to the author or to the bookseller to whom the author has transmitted his right?

Response. Affirmatively, by positive right prevailing in most places, just as in these States, provided nevertheless that the conditions or formalities required by law have been fulfilled. But if there is question of natural right, it is controverted, and to some the denying opinion seems probable, because the author has a right in his work as long as it remains his own, namely is not handed over to the community, and thus as it were becomes of common right. Wherefore according to these, if someone in this region committed to type a book published in Europe without the permission of the author, strictly speaking and looking only to the right of nature, he does not seem to be accused of the temporal pecuniary damage which the author would suffer thence. I said 1st. strictly speaking, because by such a manner of acting, if not a right properly so called, public uprightness and natural decency seem to be injured. - I said 2nd. looking only to the right of nature, because if the contrary has been provided through international stipulation, the violator certainly would be held to paying the fine and congruous compensation. I said 3rd. concerning temporal pecuniary damage, for if the same or almost the same book were published under another name, then the true author would be damaged in the goods of reputation, which can never be lawful, and a sin of this kind is designated by a special name among all nations. - Cf. Carrière, ibid. - Kenrick, tract. 10, part. 1, nn. 13 and 14. - Bouvier, Law Dictionary, Ed. 8th. Cf. Copyright, De lege lata among us (March 4, 1909).