Article I. Notions and Conclusion

The perfect right of ownership is circumscribed by those, and only those, limits properly so called which are posited by the right arising from another's necessity and by the jurisdiction whereby the public power can, indeed, neither abrogate nor directly restrict the right of private ownership, but can indirectly affect it insofar as the common good requires.

231. I. State of the Question. 1. THE TIMELINESS, INTENTION, AND PARTS OF THE THESIS. After the fortune of liberalism began to decline, there were those who, certainly with the best intention, attacked the notions and definitions of the right of property handed down until then, which they thought agreed very little with the evangelical principles concerning external goods. From this there sometimes arose controversies of no slight importance, which, being about words rather than things, could have been avoided if the proper meaning of terms had been preserved with a peaceful mind. Therefore, it will be worthwhile to inquire into a genuine description of the right of perfect ownership and the Christian rationale of that same right. We shall easily reach this goal, after the things which have been said, if we define the very limits by which that right is circumscribed. This, then, is the intention of the present thesis.

There are, moreover, three parts of our argumentation, which follow upon one another in such a way that we first establish that there are two limits, then that there are no others, and finally endeavor to define the genuine role of the State in this matter. This last is not without difficulty. For although all who opine rightly hold that not all things are permitted to the public power, they nevertheless omit to hand down a clear formula by which the legitimate use of authority may be discerned from the tyrannical usurpation of another's sphere.

2. OPINIONS. We rest upon the authority of the Scholastics, who, when they define this right, mention no limits other than those established by laws. For in other places they openly defend that right which we call the right arising from another's necessity.

Some more recent authors seem to opine as though, in addition, there ought to be numbered among the limits of human property both the right of supreme dominion which belongs to God and the duties of charity toward one's neighbor. Thus the illustrious Bishop of Mainz, Ketteler, loc. cit., p. 8, and Rev. D. Pottier, loc. cit., no. 61. If they have wished to speak precisely, they seem to us to abandon the proper meaning of words to no purpose. Yet it is evident that neither divine rights nor the duties of charity are in the least denied by us.

Opposed to the rationale by which we explain the force of positive laws in the third part are the “socialists of the chair,” who make the right of private ownership directly subject to civil authority.

3. THE TERMS ARE EXPLAINED.

The perfect right of ownership, which contains within itself direct and useful ownership and all rights in a thing.

Is circumscribed by those, and only those, limits. Limits are those things by which a right is bounded in its own order, so that it cannot exercise its proper force upon its object per se. The proper force of a right, moreover, is that, in relation to other men, it guarantees an inviolable faculty of having, doing, or omitting certain things. Cf. nos. 5, 7.

Properly so called, or perfect. For, in a broader acceptation, whatever takes away, indeed, not an inviolable faculty, but the licit use of an inviolable faculty, can be regarded as some kind of limit.

Which are posited. We deliberately employ this word to signify that another's necessity or jurisdiction is not so much a limit as a cause of limits. For as long as another has not employed his right or his jurisdiction, nothing from this affects the things which the owner of the thing can do.

Which are posited by the right arising from another's necessity. By necessity we understand the necessity of using another's things, whether the extreme or almost extreme necessity of strangers, or the grave necessity of those to whom support must be furnished by the owner out of piety.

Necessity is extreme if you need another's thing in order to avoid an evil equivalent to death and that evil is imminent; almost extreme if the evil is not so imminent, or cannot altogether be assimilated to the loss of life: for example, perpetual or most grave captivity, a long-lasting illness, perpetual debility, or grave positive infamy. Cf. C. de Lugo, disp. 16, no. 154.

Necessity is grave when a grave evil threatens which, nevertheless, can in no way be compared with death: a fall from one's station, or deprivation of the maintenance suitable to one's own condition.

N.B. The right of necessity, as is evident, is bounded by the necessity itself. Therefore, the thing must first be requested before it can be taken against the will of the owner. And if, in order to provide for yourself, you need only some use of the thing, it will be unlawful to consume or destroy it; nor will one for whom, on account of goods which he has in act or in certain hope, it is sufficient to borrow another's thing be permitted per se, or by the title of necessity alone, to take the thing except with the burden of restitution. Per se, I say. For not rarely the tacit or presumed will of the owner will relieve him of the burden of restoring the small value of the thing.

And by jurisdiction. We deliberately employ this word so that it may be evident from the outset that the right of the State is not of a rationale similar to the right of a needy man; that it is not some ownership, but must be referred to the public power of commanding, or the ordinary power of governing a perfect society. For this is jurisdiction, taken universally.

Whereby the public power, which governs a perfect society.

Can, indeed, neither abrogate nor directly restrict the right of private ownership. Thus we already signify negatively the extent of the right of the public power. It does not avail to suppress the regime of private possessions—and this is not ambiguous; it does not avail to restrict that right directly—and this rationale is less evident. To explain it: he would directly restrict it whose formal intention was to impose a measure upon private possessions or riches. Directly, therefore, here means the same as immediately and for its own sake.

But indirectly, that is, on an occasion taken from elsewhere, for the sake of something else—some good to be procured, some evil to be averted—which is immediately intended, so that the restriction is in the manner of a means, not an end.

Insofar as the common good requires. By these words we give the positive norm, namely, the good on account of which such a means (restriction) is legitimately employed. Cf. certain cases, no. 241.

232. A. OF THE FIRST PART. The perfect right of ownership is circumscribed by those limits properly so called which are posited by:

1. The right arising from another's necessity.

For the right of perfect ownership contains the faculty of excluding all others from the use of one's own thing.

But. By the right arising from another's necessity, the owner is prevented from excluding certain others from the use of his own thing.

Therefore. The right arising from another's necessity posits limits properly so called.

The major is evident from the notion of the right of property; the consequence, from the notion of a limit just handed down. But because we wished this right of necessity to be twofold, that of strangers and that of the family:

a) The minor is proved as regards the necessity of strangers. Since external things, by the primary intention of nature, are destined for the use of all, the right of private property is not only, like any right, a means whereby the one having the right can pursue his personal end, but is also a means whereby external things themselves are applied to that use which is contained in the primary intention of nature, at least in such a way that no private property could derogate from this primary intention. For this, however, it is necessary that private possessions be subject to this law: that, when every other way is closed, each person can employ, as though vacant and unoccupied, things which are the property of another who is not in equal need, in order to provide for either extreme or almost extreme necessity, at least insofar as nature willed certain goods of a superior order to belong to each person more absolutely than it willed external things to become anyone's private property. We add this because the faculty of taking in extreme necessity extends more broadly than in almost extreme necessity, as we shall show immediately.

The major of this argumentation is evident from the fact that the primary intention or the end must be preferred to the secondary intention or the volition of the means.

As to the minor. For on the one hand, this primary intention regards the goods which nature willed to belong to all, and to the extent to which it so willed; that is, to speak more explicitly, the general ordination of external things to all men is a general ordination to those human uses of which nature willed to give all men an opportunity; but on the other hand, a true and serious destination of things to some end demands that the general destination be converted into a particular one where, in certain circumstances, that end can be procured by only one thing or one species of things. For the destination could be at once serious and general precisely because there was a choice among many things.

Since these things are so, it readily appears that the general but primary intention by which external things are destined for human uses becomes a particular and prevailing ordination of certain things to a particular person who, without them, could not provide for some good of his own as is granted to him by nature. This ordination, in turn, in order to be efficacious, demands the faculty of taking, and consequently denies to the owner the faculty of excluding.

Now the goods concerning which that primary intention exists are, first of all, those exposed to danger in the present life. For unless external things furnish someone with this fundamental benefit which is existence itself, they will in no way be able afterward to be useful to this person. Next, as C. de Lugo argues, there are other goods which are so closely joined to the natural condition of the human person that nature is proved to have willed them, at least per se, to be available to all men. Therefore, for preserving these goods, anyone will be able to employ ordinary means, setting aside another's ownership. He will therefore be able to take another's things for this purpose, but not in excessive quantity. Moreover, these goods are those which we indicated when explaining almost extreme necessity.

And thus we have now proved everything which we contended in the minor, except the exception indicated by the words of another who is not in equal need. Yet the truth of this is manifest. For if the owner himself is equally in need, he is then protected by the very primary intention of nature, so that he must be preferred simply.

b) The minor is proved as regards the necessity of the family. In relation to suitable support, the family stands in the same place with respect to the goods of the father of the family as men stand with respect to all goods in relation to extreme or almost extreme necessity. And in truth, since the volition of the use is prior to the volition of the right which is a means to the use, and the right of property is attributed to the father of the family also for discharging the duties of piety and consequently for furnishing suitable support to the family, nature willed the use of the goods for sustaining the family more than it willed the right of the father of the family over those goods themselves. On the other hand, by the very closeness of the persons, the disadvantages which are inherent in this invasion of a sphere per se belonging to another are warded off. Therefore, since the use is sufficiently defined, it is again sanctioned by nature, so that, when the father of the family fails in his duty, the family can take suitable support for itself. Cf. nos. 151, 154.

2. The right of ownership is also circumscribed by the limits which the jurisdiction of the public power posits.

For the jurisdiction of the public power extends to this: that certain things be withdrawn from private commerce; that certain modes of acquiring or transferring goods be rendered ineffective, either absolutely or in relation to certain persons; that citizens be prohibited from doing several things in their own property and be commanded to perform others (servitudes légales [legal servitudes]).

But. All these are limits properly so called of the right of acquiring things and the right of possessing them. Therefore.

The major is proved. It is already established by the perpetual and most approved practice of all nations. The same is, moreover, readily demonstrated by an intrinsic rationale. For:

a) External things and their acquisition are the matter of frauds, injuries, and evil arts, which it is per se the right and duty of the public power efficaciously to forestall. It will therefore be able so to order possessions and agreements that, insofar as this can be done, these evils may be met.

b) Rights over external goods are among those things which, on account of the lawsuits and discords to which they give occasion, and the disadvantages which certain modes of exercising them cause to others, most greatly demand that they be suitably reconciled and composed among themselves. Prudently to temper mutual rights, so that peace may be made firm and citizens may live joined to one another by a closer bond, belongs per se to the primary sphere of the civil power.

c) External things ought to yield to the common utility of all, and the rationale by which they are possessed and divided contributes greatly to temporal prosperity and happiness. Upon the ruler, moreover, rests the care of the common utility and the office of directing society so that it may attain that happiness and prosperity. It is therefore his office to establish those things concerning external possessions by which those ends may be obtained.

233. B. OF THE SECOND PART. It is circumscribed by these limits alone.

For any other limits which could be imagined would flow either from the supreme right of God or from the non-juridical duties of those who possess goods. You will say that juridical duties also ought to be mentioned.¹ But the rights by which these duties are imposed either regard external goods, and then we are outside the supposition—for we are treating of perfect ownership, whereas those rights, if they exist separately, exclude the rationale of perfect ownership, since they are like parts severed from this ownership²—or they regard the superior goods of life and reputation, and then the limits which are posited by the necessity of preserving these goods have just been explained in the proof of the first part. There is therefore no place for a third hypothesis.

¹ Juridical duties are those which must be carried out on account of a right existing in another.

² “For it is one thing for a part of the right, as though integrating ownership, to be taken away from one person and conferred upon another, as happens when ownership of a field is bequeathed to one person and the usufruct to another ... but it is another thing, with no part of the right transferred to another, for someone to be impeded from such a use: for the first causes someone not to be the owner integrally and perfectly ... but the second does not take away anyone's being the owner perfectly, but only binds his right in whole or in part.” Thus Molina, disp. 3, no. 3. These things, therefore, are not to be confused; and one must adhere carefully to the genuine notion of a limit, that is, of a restriction or impediment by which perfect ownership of the thing is not taken away. Cf. Lessius, chap. 3, no. 9.

But. The right of perfect ownership is circumscribed by neither of the indicated sources. Therefore.

As to the minor. Not by the right of God. For, as we said at the beginning, no. 6, we are considering right among men; nor can a restriction common to every right be indicated as a limit of property. Moreover, that right of God does not so much posit limits as altogether take away our right of possessing. For we can oppose no right to God. Therefore, if we wish to speak precisely, with regard to divine right, usufruct (right)³ belongs to us no more than ownership does, but only a merely precarious use subject to the divine will.

³ Ketteler overlooked this when he thought that human possession contained the rationale of usufruct rather than ownership—as though a usufructuary converted the utility of the thing to himself less than an owner does, and could not oppose to the owner himself his own right of enjoyment. Therefore, by these improper modes of speaking, the cause of the poor is helped in no way. Nor does St. Thomas employ them, II-II, q. 66, art. 1, ad 1.

Nor is it circumscribed by non-juridical duties. For by these it comes about that a certain use is right or illicit. But a right is never said to be bounded by right use, especially since the obligation of using rightly does not take away the faculty of illicit use which is inviolable by men. The exception arising from the right of necessity was handed down above.

234. C. OF THE THIRD PART. The public power cannot abrogate or directly restrict the right of private ownership, but it is permitted only to affect it indirectly, insofar as the common good requires.

1. It cannot abrogate it. For this right, more ancient than civil society itself, is sanctioned by the higher law of nature, nor is it among those rights whose exercise, like the right of vengeance, must be transferred to the public power on account of the common good.

There is added this second rationale: A just law is an ordination to the common good. But. A division of goods is required for the common good. Therefore. Even if this division had been introduced by civil law, or depended upon it as regards its first existence, it could not be abrogated by that law, or would not depend upon it as regards its preservation.

2. It cannot directly restrict it. For a direct limitation of a right bespeaks power over the right itself. But this power must be denied to civil society on account of the rationale just given.

3. But it is permitted only to affect it indirectly, insofar as the common good requires. Once direct power is denied, it remains that the faculty be indirect. Moreover, the rationale by which it can indirectly affect the right will be that which is furnished by the very formal office of the public power to procure the common good. How this is to be done, we gave above in the first part.

235. III. Difficulties.

1. He who posits limits to the right of property denies that it is absolute, which pertains to the rationale of property.—Thus, approximately, Spencer.

Reply. I distinguish the assertion. He who posits limits left to another's caprice denies perfect ownership, C. He who posits limits which right reason derives from a superior right denies an absolute right—Subdistinguish. Absolute, that is, which cannot be violated, N. Absolute, that is, uncircumscribed, C. But at the same time, I deny that the right of property is absolute under any other rationale except that, within the limits legitimately posited, it cannot be violated by any man or ruler.

2. There is no right of doing an act which is repugnant. Therefore. Every duty posits a limit.

Reply. I distinguish the antecedent. There is no right granted per se for those acts, C. There is no right which per accidens extends even to acts of this kind—Subdistinguish. There is no right in such a way that those acts become licit, C.; in such a way that they are valid and cannot be impeded by other men, N.

As we said in no. 152, the common good not rarely demands that a faculty which someone abuses nevertheless cannot be violated by men. And because a right is spoken of in relation to men, under this rationale there is sometimes a right to acts which conflict with duty. Yet the right was granted per se for good acts.