§ 2. Formulation and Arguments of the Proposition

The primordial fact by which stable property in a thing belonging to no one is acquired is true occupation, by which the thing, according to its nature, is shown to be subject to someone's power or to serve him for a use which cannot be common.

214. I. State of the Question. After what has been said, it will be enough TO EXPLAIN THE TERMS.

The primordial fact, or the title which, being prior by nature, per se gave origin to private possessions. We say per se because causes of appropriation can occur which are produced by the power of jurisdiction or by common consent. Thus today it happens not infrequently that uncultivated lands are assigned to private persons by a decree of the ruler; and already in the most ancient times Abraham and Lot divided the pastures between themselves by a certain agreement.¹ These and similar things can be omitted by us. We have only this one thing to prove: that occupation, such as we have described it, is per se suitable for conferring private possession, so that unless, per accidens, some artificial mode intervened, the first property in things which belong to no one is to be derived from occupation. And under this rationale, and no other, we call it the primordial fact.

¹ Cf. Genesis, chap. 13.

By which ... stable property is acquired. For the question concerns that property which is not lost together with physical apprehension or use, but is of itself perpetual. For the present use of a thing which belongs to no one would have been inviolable even in the state of integral nature, and even now it is sanctioned concerning things which have remained common. Thus no one can prevent me from receiving sunlight or collecting rain. The reason for this is that one who obstructed a use of this kind would inflict violence upon the person himself who is using it. Cf. no. 195.

Of a thing belonging to no one: This condition is negatively required so that occupation can exercise its force.

Is occupation. We shall describe this as: the apprehension or subjection to power of an external thing which is capable of commerce, with the intention of holding it as one's own.

True, which we distinguish from fictitious occupation, which is not infrequently called legal, because from law, but not per se, it is considered suitable for conferring dominion. But what true occupation is, we immediately add:

By which the thing, according to its nature, is shown to be subject to someone's power or to serve him for a use which cannot be common. By this mark, therefore, we define true occupation: that it impresses upon the thing a conspicuous sign by which either it appears to be subject to someone—as when a thing is enclosed in a chest, placed in one's own house or in a place already belonging to someone, or among things possessed by someone—or it provides him a utility which cannot be common. Suppose that I admire the location of some tract of ground, pass through that tract, or rest my limbs upon it: another person can equally obtain utilities of this kind from the thing, without inconvenience to me, either at the same time or after I have departed. But if I have begun to clear a field, to prepare it for cultivation, to sow seed in it, or to erect a building, it is evident that these uses cannot belong to several persons, but that what you grant to one will be withdrawn from another. Now we contend that the thing is truly occupied by you because you have made the latter use, and by no means because you have made the former.

According to its nature. For the modes of subjecting things or using them must be accommodated to the nature of the things. We exercise dominion over tame animals in one way and over wild animals in another; we use a meadow in one way and a coppice in another.

As regards the NOTE OF THE THESIS, it is sufficiently evident that no theological censure can be imposed upon the other opinions. We hand down the doctrine which pleases us and is approved by most.

215. II. Proof.

First Argument. The primordial fact is that which, together with the will to possess property, joins the proximate matter of this right.

But. Such is true occupation alone, as we have described it.

Therefore. This occupation is the primordial fact.

To the major. For in order that you may pass from an “abstract,” or hypothetical, right to a “concrete,” or absolute, right, nothing further can be required besides the will to enjoy the right than that you be situated in those circumstances and have fulfilled those conditions which furnish the right with its proximate foundation and rationale. For in these moral matters no less than in physical matters, the form of the right is educed from the potency of matter proximately disposed for it; but, so long as the proximate matter is not present, it is sufficiently evident that something is lacking for the introduction of the form.

To the minor. Concerning the intention of an owner and the conspicuous sign which we require, there is no doubt, nor can there be. For a right which we are able to renounce takes its beginning from our will. But that those things upon which a right is founded must consist in a conspicuous sign is apparent to one who considers that it belongs to the essence of a right that men be bound by the duty of observing it; yet they can have knowledge of the right only through conspicuous signs. But there is no duty of observing a right which is of itself unknown.

It remains, therefore, for us to show: 1) that the proximate matter of the right of property is perfected by the remaining marks which we have given; 2) that this matter is not furnished by the tenets of those who oppose us.

1) Consider the various notions of the right of property which are commonly received. From these, that right appears to be the inviolable precedence of some person with respect to some thing; the right of exercising exclusive dominion over some thing, of excluding others from a utility whose supply is not infinite; the faculty of referring a thing to one's own utility, on account of the peculiar connection which the thing has with oneself;² the right which belongs to a person of having what is ordered to him;³ a certain extension of the dominion which we have over the use of our faculties.

² C. de Lugo, disp. 1, nos. 5-6.

³ St. Thomas, I, q. 21, art. 1.

But. By these notions, the right of property is presented as rendered concrete by some fact, as its proximate matter, and by the sanction by which it is forbidden to be violated, as its form. But the fact is either the subjection of the thing or a use which is not common.

Therefore. Dominion truly exercised and a utility obtained which cannot be possessed simultaneously by others are, as we were saying, the proximate matter of the right of property.

This latter minor is proved. Inviolable precedence signifies a precedence existing in fact, and therefore the subjection of the thing itself, and the sanction of that subjection; the right of exercising exclusive dominion, of excluding others from a utility, contains as its matter dominion over and use of the thing; even more clearly, the faculty whose cause is said to be a peculiar connection of the thing with the person requires a connection of the same order as the faculty, which accordingly consists in this: that the thing truly redounds to someone's own good; the right of having what is ordered to you signifies an ordering already made; finally, our faculties and members are joined to us by nature in such a way that they truly serve us and are subject to us; therefore, in order that we may obtain a similar right over external things, we must first make them subject to us in the same manner.

Molina speaks appositely: “The faculty or right of disposing perfectly is the effect of dominion.... It comes about ... that the relation of right follows the relation of dominion for this reason: each person has the faculty ... of disposing perfectly of some thing because that thing is his and he himself is its owner.”⁴ Lessius says: “Dominion, on the part of the thing, signifies the subjection of the thing and, as it were, a servitude by which it is bound to its owner”;⁵ and C. de Lugo: “That right which arises from the very connection which we have with some thing,” disp. 2, no. 3. Cf. also Van Gestel, On Justice and Civil Law, VIII, p. 26.

⁴ Tract 2, disp. 3, no. 5.

⁵ Chap. 3, no. 11.

2) What the adversaries hold to be the primordial fact does not furnish that proximate matter.

For some point to law or a compact. But property is older than civil society and consequently than law, and it is sanctioned by nature without law or compact.

Others rely upon occupation insofar as it manifests the will to possess. But we do not see why precisely this manifestation of will would then be necessary, or why another manifestation, equally solemn or even more solemn—such as one made by a public edict—could not suffice. Furthermore, by means of an occupation of this kind someone could acquire immense lands with almost no labor. Nor may you say that he would be prohibited by law. For what if we are situated outside civil society? Finally, even the most manifest will to acquire some thing does per se nothing to the thing itself. What power can therefore be present in it to bind a thing to someone by a stable bond? This is by no means apparent.

Nor do others more successfully establish labor itself as the primordial fact. For either they understand the work by which a thing changes its species: but by what title, then, will the many things which of themselves have been adapted by nature for our uses⁶ enter private dominion? Or they are now content with that work which is contained in every occupation: and what labor then contributes formally is not demonstrated. And, speaking universally, there is no doubt that each person acquires the fruit of his own labor; but beyond this nothing can be concluded formally from labor. Hence those who hold labor as a title, if they are asked the rationale why they judge thus, can argue only from the connection which is introduced through labor between the thing and the artisan, so that at last they formally invoke the latter as the cause.

⁶ Consider fruits, animals, gold found by chance, etc.

Second Argument. The primordial fact must be such that it sufficiently connects the external thing with a particular person, so that the thing, besides the common destination by which it is assigned to the human race, receives another destination by which it appears to be assigned to this particular person.

But. Apart from law, which cannot be a universal title, such a fact is occupation alone as we have defined it. Therefore.

To the major. For until the thing has this special destination, there is no reason why it should be said to belong to one person rather than to another.

To the minor. 1) True occupation is such a fact. For whence do we know that external things were made for the human race and can become private, except from the fact that they admit of true dominion by men and can be useful to them? But if things “in potency” belong to those who are able to subject them to themselves and apply them to their own utility, they will begin “in act” to belong to him to whose power they are truly subjected or whose utilities and advantages they serve in act.

2) Apart from law, which cannot have general force, occupation is the only such fact. For a compact to distribute a thing common to a family or tribe presupposes that it is already possessed in common by the family or tribe. Concerning this common property it is asked how it arose.—Occupation which merely manifests the will changes nothing in the relation of the thing; nor is it undeservedly argued against it that it is less definite and permits the useless usurpation of a vast region.—Finally, labor is materially suitable for introducing this destination; formally, however, it is of no avail except because it is a mode of subjecting a thing to oneself or converting it to one's own uses.

216. III. Difficulties.

1. From the first moment in which someone has begun to occupy a thing, he must already be able, by the protection of a right, to prohibit others who wish to disturb his possession. Therefore. From that moment already, before the completion of occupation properly so called, he will be the owner of the thing.

Reply. I distinguish the antecedent. He must already enjoy the protection of some right, C.; he must be protected by the safeguard of property, N.

The right by which he is protected is the very right of making things one's own, which demands that men be able peacefully to order things to themselves. Yet before the ordering has been made, stable dominion will not have been acquired.

2. True occupation is a certain labor. Therefore. Appropriation can be attributed to labor. But if this can be done, it will be better attributed to labor, since this title is more acceptable to all. Thus, in substance, D. Cauwès, vol. 3, nos. 961-963.

Reply. I pass over the antecedent. I distinguish the consequent: Therefore. Appropriation can be attributed to labor taken either materially or formally, C. or I pass over; taken formally, I deny the consequent.