Ownership and Railway Fares

Although Mine and Thine are, according to an ancient Father of the Church, cold and unsympathetic words, yet it is not likely that they will be banished from men’s speech. They express facts and rights which are likely to be unchanged as long as human nature remains unchanged. In an ideal state of society, in which every member was perfect, it might be possible to have and enjoy all property in common, and to have no private ownership. But as long as most men will not work, unless to supply their personal needs, or those of their families, as long as most men are covetous and strive to get all they can for their own comfort and convenience, as long as most men are selfish and take little care of what belongs to other people, it will be impossible to do without private property. And so one of the main functions of society is to defend private ownership. Private ownership is recognized and defended wherever social life exists. As one of the great springs of effort and exertion it forms a valuable factor in the world’s progress. Society which advances so slowly could not afford to dispense with so powerful an aid of advancement. Even if it wished to do so, the necessities of human nature as it exists would prevent it. Not only progress, but peace and security require that each should have his own. If each one ‘is protected in the peaceable possession of what his efforts have won, he has no right to complain; but there would be only too plentiful grounds of complaint and quarreling if the strong and capable were compelled to share on equal terms with the puny, lazy, and incompetent.

And so ownership is necessary for human nature ‘as it exists. It does not owe its origin merely to positive law, it is anterior to positive law, which supposes it and safeguards it. Nature herself gives a man the right to own what is necessary and useful for his many wants; society, for the common good, defends that right. ,

Private ownership then is one of those primary rights which flow from nature herself. As a man has from nature herself the right to live, so he has also from nature the right to own what is necessary and useful to preserve his life.

Let us try to get a clear idea of what the right of ownership means and implies. What does a man mean when he says that this house is his? He means something quite different from what he means when he says that this boy is his son. In the latter case he means that he is the boy’s father; which fact gives him the right and the duty of bringing the child up; he has the right, because he is the boy’s father, to educate him, and to direct him in everything until he is able to look after himself. But this right is chiefly for the benefit of the boy, not for the benefit of the father. The boy is a human being, a person, a creature with an intellect and free will, with a destiny of his own. He is free and independent, he does not exist merely for the benefit of his father, nor merely for the benefit of any other human being, or collection of human beings. He is a man, a person, like they are; he has his own separate end and destiny, which is not merely subservient to others. And so, though the father calls the boy his, his rights over him are not those of an owner. But when a man claims this house as his, he asserts that he is its owner. The house exists for the sake of the man, it has no destiny of its own, it was built for the man to live in, the whole reason of its existence is to serve his need and convenience. But in saying that the house is his, the owner means something more than that it exists for his benefit. He claims exclusive property in it. He has it in such a way that all others are excluded. He has the right to its exclusive use. Because he is the owner, he has a right to all the advantages that it is capable of conferring. The various uses that it can be put to, as, for dwelling in, or as a warehouse, belong exclusively to the owner; so that if any one, without the owner’s permission, makes use of the house, he takes what belongs to another and violates the virtue of justice, which requires that we should give to every one his own.

So that ownership implies a certain connection between the thing owned and its owner, which gives him the right to its exclusive use, in such a manner that if another, without the owner’s permission, take it or use it, he thereby violates justice.¹ If a man by force expels another from his house, and takes possession of it for himself, the injustice is obvious. But even if the house be empty, and without any violence being offered to the owner, if another against the owner’s reasonable wish should make use of the house, he would take what did not belong to him, and would be guilty of a violation of justice. It might happen that no harm was done to the house. The intruder might unlock the door, use the house for a night’s rest, and leave it in the morning just as he found it, neither better nor worse. And yet he would have committed an act of injustice in making use of what did not belong to him, against the reasonable wish of the owner.

¹ Lugo, De Just. et Jure, l. n. 6.

This seems obvious and undeniable. It is expressly stated or taken for granted by theologians. 2

It forms the basis of the distinction between the solemn and the simple vow of poverty. By the solemn vow of poverty the Religious renounces the ownership and the independent use of property; by the simple vow he only renounces the independent use. So that the vow of poverty can be violated not only by disposing of property, but also by using it without the requisite permission.

Again, the use of a thing may be the matter of ownership quite apart from the ownership of the thing itself. There is not only an absolute, but also qualified ownership of property in a great many different forms.

I may own not indeed the house, but the use of it. I may have a lease of the house for a certain number of years; and I have thereby as true a property in the house, though not so perfect and absolute, as if I were its owner. If I am unlawfully disturbed in the peaceful enjoyment of the rights which my lease gives me, an act of injustice is committed. Even the owner would violate justice, if he unlawfully, before the expiration of the lease, should resume the use of his own house. So that the uses of a thing may be the objects of property, and the subject-matter of justice and injustice, not less than the thing itself. If I let out a horse for hire, the hirer has a qualified property in the horse which cannot be interfered with without injustice. If I were, without the consent of the hirer, to make use of my own horse for a day, even though the hirer might not want him on that day, and might suffer no actual loss by my action, still I should be guilty of injustice, for I should have taken something which belonged to another.

3 Cf. Molina, De Just. et Jure, ii. d. 681, n. 8.

And whenever I have taken what belongs to another against his will, then justice prescribes that I should give it back to him. For justice requires that every man should have his own; as long then as I have anything belonging to another against his reasonable wish, so long am I violating justice; if I desire my sin to be forgiven, I must not only repent of what I have done, but I must as far as possible make restitution, otherwise I am constantly and unjustly detaining what belongs to another. In other words, an act of injustice by which I inflict an injury on another, always imposes an obligation of making restitution as far as possible. If the robber, or the thief, cannot restore the actual thing robbed or stolen, he must as far as possible give back an equivalent if there be one. It may happen that reparation for an injury is not possible, as in the case of adultery, where the right violated cannot be made good, and no equivalent can be offered. Or it may be that the owner does not care to exact an equivalent, or that a just equivalent is hardly determinable. Thus, if a neighbor against my will take a horse out of my stable and use it, I may be very angry on account of the injury done me, but I may not care to exact payment. I may have no intention of letting out my horses for hire. Or if a tramp makes himself at home in my house for the night without my knowledge and against my will, he does me an injury, but I should scarcely expect payment for the night’s lodging. On the other hand, if one took a horse which was kept in livery-stables on hire, and used him for a day’s journey, he would be expected, and bound in conscience, to pay the usual price for the accommodation he had received. And so too, if a man took the use of a bed-room for the night in a lodging-house, he would be obliged to give the ordinary price; for he had taken something which did not belong to him, which had its price, and that all may have their own, justice requires that this price be paid. And it is to be noticed that the obligation remains, even if no damage be done to another’s property in these cases. It might happen that the horse from the livery-stables would not have been wanted for anything else on the day on which he was taken, and that he was not only no worse, but distinctly better for the exercise, yet

compensation would have to be made for its use; for the use of it had a money value, and that use belonged exclusively to the keeper of the livery-stables; therefore, that all may have their own, the just price must be rendered to him, otherwise justice will not be done.

It would make no difference with regard to the obligation of making restitution, if in this case the livery-stables were owned by a company and not by an individual. For companies are moral entities and moral persons, capable of possessing property not less than natural persons. An injury, therefore, against the rights of ownership is done to a company when its property is unwarrantably taken or used against the wish of the company. And justice, which requires that all should have their own, compels a thief, who has unlawfully taken or used the property of a company, to make restitution of the thing taken or its equivalent, just as in the case of thefts from individuals.

This duty of making reparation for violations of justice flows from the very nature of ownership and justice. It exists independently of any sanction or punishment imposed by the civil law. The thief, if discovered, is indeed amenable to certain pains and penalties imposed by the law, but, quite independently of the law, he is obliged in conscience to make reparation for his wrong-doing. The law does not create this obligation — it is a sign that it already exists.

What has hitherto been said is merely the ordinary teaching of Catholic theology concerning justice and the obligations which it imposes. As far as I am aware, there is no theologian who would deny the principles which have hitherto been laid down. The doctrine is, I think, not only in accordance with right reason and the nature of justice, but it is supported by the unanimous authority of theologians.

We may make a direct and simple application of these principles to the question of paying the fare for traveling on the railway. The railway is owned by a company, whose exclusive property it is. The company has therefore a right, the natural right which belongs to all proprietors, to exclude all others from the use of the railway. If any one uses the railway against the wish of the company, he commits an act of injustice. The company, of course, sunk money in the railway in the hope of recouping itself by selling the advantages the railway offers to the public. The advantage of being carried so safely, easily, and quickly from one place to another is a convenience which is worth money. The use of the railway is a convenience which has its price, just as much as the convenience of a bed-room in a lodging-house. And just as one would act unjustly by making use of a bed-room in an hotel against the wish of the proprietor, with no intention of paying the ordinary price of the room, so one who travels on the railway with no intention of paying his fare acts unjustly. He makes use of the property of another against the owner’s reasonable wish; that use is something which has a definite money value; he has taken the property of another against his wish; justice therefore prescribes that he should restore to the owner the price of the property that he has stolen.

We do not rest the conclusion on the question as to whether any damage has been done to the property of the company by the passenger or not.

It is sufficient to found the obligation of payment on the undoubted principle, that no one has a right to use another’s property without his consent. If he does do so he commits an act of injustice; and if the use in question has a determinate money value, he has, against the reasonable wish of the owner, taken so much of another’s property, he is a thief, and must make restitution. It is quite immaterial whether the place which he occupied would have been occupied by some one else or not. For even if I foresaw that a fishmonger would not be able to sell or make any use whatever of a stock of fish exposed for sale, I should commit a theft if I took any of his property without paying for it; so one who travels by railway without paying his fare, even though no other positive loss thereby accrues to the company, takes what does not belong to him, and must restore its value to the owner. The right to travel by rail is property which only the owners or those who buy it from them can use. As every one knows, the law of the land recognizes and enforces the obligation of paying one’s railway fare, and punishes any one who seeks to escape the obligation. We have heard it discussed whether such a law is not a merely penal law. But a law cannot be merely penal which enforces a natural obligation. And, as we have seen, the railway passenger is under a natural obligation of paying his fare. To judge from the lists of convictions which are to be seen in our railway stations there would seem to be either some ignorance in the public mind on the moral principle of the question, or some laxity of conscience on the point. We have briefly treated the question from the point of view of moral theology.