§ 1. Notions and Opinions

211. What is the proximate cause of property? The proximate cause of private possession—whose remote cause we have proved to be nature itself—is held to be any title upon which the right of possessing some thing immediately rests. Therefore, while the remote cause brings it about that goods are divided, this is the proper force of the proximate cause: that the thing belongs to this person rather than to that one; through it, therefore, the “abstract” faculty of possessing things is reduced to “concrete” act. Why say more? The proximate cause is a mode of acquiring.

Now, among modes of acquiring, some are original and others derivative. The latter contain a formal succession into the right of another; through the former a thing is possessed as though for the first time. As though for the first time, I say; for original modes can concern not only a thing belonging to no one, but also a thing which another made his own and did not willingly relinquish. Thus you can acquire another's thing by usucaption, which mode is nevertheless numbered among the original modes.

Succession itself is both universal and particular, according as it regards a patrimony, whether whole or in part, or a particular thing.

Some modes are natural, which already have force from nature itself, such as true occupation and donation; others are civil, which flow from law: thus treasure and, as most hold, prescription—unless you wish to call civil all those modes of acquiring which are recognized by positive law. For the most part, a mode of acquiring is civil only in part, insofar as some form of a natural mode is sanctioned by law—as, for example, a form of occupation which lacks something per se for generating property. Observe that, since by law you can hold a thing either as though you were the first possessor or as though it were received from another (succession by law), law, for various reasons, is numbered among either original or derivative titles.

212. What is asked here. Moreover, at present the question does not concern every title of property, but that title which per se, without another assistance which perhaps cooperates together with it, is suitable for attributing ownership of a thing belonging to no one. Since this title, at the beginning, had to be employed formally or virtually so that things might become private from being common, it is customarily designated by the name primordial fact.

213. Opinions. Most place this primordial fact in occupation. The Scholastic Doctors seem to support them.

Thus Molina: “The natural act by which possession of things would have had to be acquired both before the division of things, and, after their division, is acquired together with dominion over those things which previously belonged to no one, is their bodily apprehension.” (Tract 2, disp. 12, no. 4.) For Lessius and C. de Lugo, a true apprehension suffices. Cf. Lessius, chap. 3, no. 46; C. de Lugo, disp. 2, no. 63.

Occupation, however, is described as: “The apprehension of things belonging to no one, with the intention of holding them as one's own.” Thus Rev. Fr. Cathrein, who nevertheless, besides the apprehension by which the will to hold the thing as one's own is declared, requires a marking, “that is, a known and lasting sign impressed upon the occupied thing itself.” He requires this so that “it may be apparent that the apprehension was made for stable possession.” Cf. Cathrein, Moral Philosophy, no. 374.

Others, on the contrary—chiefly economists—to whom this title seems per se too uncertain and indefinite, especially if it is extended to immovable things, place this fact in labor, or work expended upon the thing. Yet we are not now considering those who deny that anything except the fruits of labor can be claimed by man as his own; for we no longer have business with them or with others who think less correctly about the origin of property. Rather, we mean those who think that only when work has been expended is the thing sufficiently bound to someone that it becomes his property. But they understand by work not only that by which the thing changes its form and figure, but also that by which it is truly apprehended or occupied.¹ When they speak thus, they seem to approach very closely to the former opinion, except that formally they differ from it. For the former employed apprehension as such, so that labor was for them a certain manner of apprehending a thing; the latter take account of labor alone, and for them apprehension is a certain manner of labor.

¹ Thus Cauwès, Cours d'économie politique [Course of Political Economy], vol. 3, pp. 959-963: Labor can be “a labor of appropriation or true occupation, just as well as of subsequent transformation.”

Furthermore, that power which is said to be present in occupation can be explained in various ways. Rev. Fr. Cathrein, as we have seen, formally considers this: that occupation is a sign suited to manifesting the will to hold the thing as one's own. In this way the acquisition of things is traced back to the efficacy of the human will alone: man makes things his own by his will, provided (under this law and condition) that he makes this will sufficiently manifest. I do not know whether this explanation is approved by all, and whether others would not rather judge that the efficacy of some external fact must be joined to the will; and concerning that fact it could again be asked whether it is labor or something else affecting the thing itself. This is certain: Carrière² requires, besides the manifested will, “that the thing be physically subjected to power ... that it be constituted under our power”; and, among the more recent theologians who have treated our argument, there are those who defend the former opinion in such a way that they seem rather openly to concede something also to the latter. The Most Illustrious Bishop Waffelaert has these words: “Nevertheless, it seems ... that some industry and labor are required in occupation in order that there may be permanent property in the very substance of the things occupied” (On Justice, vol. 1, no. 33); Rev. Fr. Holaind ascribes to apprehension, which he calls fictitious or legal, merely the beginning of a title to be perfected through true occupation, by which a new utility is imparted to the thing.³

² On Justice and Right, no. 286.

³ “Fictitious occupation is the first title, and real occupation its complement.” (Op. cit., chap. 7, pp. 82-84.)

We rather assent to these men, as we shall show immediately.