Article II. Supplements to the Doctrine

236. Definition of the right of property. From the things which we have discussed, it follows that the perfect right of ownership, such as belongs to men, is rightly defined: The right of perfectly disposing of a corporeal thing, unless prohibited by law.¹ For this definition, given by Bartolus, and, having become common among jurists and having been approved also by Molina, disp. 3, no. 1, Lessius, chap. 3, no. 7, and C. de Lugo, disp. 2, no. 3, gives the genus—right—and the species by accurately describing its remote matter, which is a corporeal thing, and its proximate matter: free disposition of the thing, except for legal limits. Hence we have the very scope of the right declared positively and negatively. Nor is it an objection that the right of necessity is not mentioned, since this is present only rarely and per accidens.

¹ Rev. D. Pottier does indeed retain this definition verbally, diss. 1, no. 57; but when, at no. 60, 4°, he wishes “law” to be understood also as natural law, he in reality attaches to it a meaning foreign to the truth and altogether new. Cf. Molina, Lessius, de Lugo, etc., and it will immediately appear that they, no more than the jurists, thought of any law other than positive human law.

Another sufficiently received definition has the same meaning: The right of disposing, for one's own advantage, of the utility and substance of a thing, within the limits established by just law. This perhaps more clearly separates the ownership of property from the dominion of jurisdiction, which is the right of disposing, not for one's own advantage, but for the common good. In the former definition this was signified by the word perfectly and by the object, a corporeal thing. On the other hand, because property, which permits use for one's own advantage, does not deny the faculty, and indeed the duty, of providing also for others, we prefer the word perfectly to the words for one's own advantage, from which all ambiguity is not absent.

With the same definition agrees the celebrated description of a certain unknown Roman jurist: The right of using and consuming insofar as the rationale of right permits. For the thing which serves as the object of the word consuming is not an evil use, but the use by which the thing is consumed or extinguished.

Thus Cicero, in the Topics, denies to a woman to whom her husband had bequeathed the use of his goods the faculty of draining the wine cellars: “For use, not consumption, was left”; thus things which are consumed by their first use are said to consist in consumption;² nor does canon law speak otherwise: “But to consume, when consumable things are being treated, is taken for the consumption of the thing, which is opposed to that which is to use” [chap. Ad conditorem, 2, Extravagantes of John XXII, On the Signification of Words (XIV, 3)]. Very inappropriately, therefore, has this definition been rejected by some.

² Cf. law 5, § 1, D., On the Usufruct of Those Things Which Are Consumed by Use, etc. (VII, 5).

237. The Christian rationale of the right of property. Just as the customary rationale of the marriage contract itself, which nevertheless became a sacrament, was preserved in Christian law, so the formal rationale of perfect ownership was changed in no respect by the Gospel itself. But the Christian rationale differs from the pagan, liberal, or rationalistic rationale in this: that through it:

1. The source of right is placed, not, as is done by the rationalists, in ourselves, but in the provident God, who joined right with duties. Cf. St. Thomas, II-II, q. 66, art. 1, ad 1.

2. Contrary to the liberal rationale, the right is referred not merely to the individual person, but the social end is positively inculcated, whereby the ownership of things has been ordained by the divine intention to the good of the family and of the whole city,³ and indeed also of the human race.

³ According to St. Thomas, private property procures three advantages for the city, and therefore is necessary: a greater abundance of goods on account of more solicitous care; greater order on account of the division of labor; and greater concord and peace on account of the sanctity of right. Cf. II-II, q. 66, art. 2.

3. A humble enjoyment of the right is commended to men, and, once the vanity of riches has been manifested, all are impelled to be detached in affection from these vain things. That these things may be established more efficaciously, the Catholic Church at the same time presents in not a few of her children a perpetual example of the voluntary practice of poverty. Hence it comes about that she obtains ready gifts of money from the rich and a blessed resignation and quiet of soul from the poor, which is accustomed to contribute so greatly to the concord and happiness of souls. And in this manner also, if her precepts were better heeded, the evils and vices by which present-day society is infected would depart, as though without effort, torn out by the roots.

The Christian rationale, therefore, affects the right less than its use; it changes ownership less than the owner himself.

238. The common destination of all endowments and gifts. Not only do those things which were first destined for all become private under this law alone, that in this manner they may better serve the common utility, but also other things of which we have an innate property: talents, I say, and every kind of gift, are to be dispensed for the good of all, as God so ordains. This is openly handed down to us by St. Peter, First Epistle, chap. 4, v. 10: “As each one has received grace, administering it to one another, as good stewards of the manifold grace of God”; recently this was again inculcated in this manner by Leo XIII: “The substance is this: whoever has received a greater abundance of goods by the gift of God—whether they be goods of the body and external goods, or goods of the soul—has received them for this reason: that he may employ them for his own perfection and likewise, as a minister of divine Providence, for the advantage of others.” Encyclical Rerum novarum. Cf. St. Thomas, I, q. 96, art. 4, in the body.

Here, however, it appears again (cf. no. 209) that external things become one's own under a rationale different from that under which powers, faculties, and talents were one's own from birth. For, as though a vestige of the first ordination of external things, there remains the right of taking them in extreme necessity (no. 232), while one's neighbor, even when laboring under extreme necessity, cannot by justice claim for himself any use of the faculties or powers which inhere in our person. Therefore, if, when you easily can, you deny personal assistance to your neighbor in these straits, you will have committed an enormous sin against charity, yet you will have been guilty of no injustice; nor can you be strictly compelled by the needy person.

But from this an objection can be made against the right of necessity itself. For what the needy person generally requires is not a thing such as it is from nature, but the fruit of another man's industry: bread, grain, money, etc. How does it come about that, against the will of the owner, a thing of this kind can be appropriated? Therefore, unless we are mistaken, the rationale of the right of necessity must be developed in this manner: after the division of things has been made, since in practically all things by which a needy person can relieve extreme want there is at once some natural utility and some human industry, and since both are indivisibly joined, nature permits private possessions of things under this law: that their owners concede, in extreme circumstances, the appropriation even of the fruits of their industry which are annexed to external things. Otherwise, the right of extreme necessity and the very assignment of natural things to the common good would turn out altogether void.

239. Acquisition from necessity. The things which, by reason of necessity, either any neighbor or the family has the right to seize do not belong to those persons until they have occupied them in fact. Therefore, the father of a family who dissipates things which he was bound out of piety to furnish to the family is not guilty of injustice; nor is he who conceals from an extremely needy poor person, even by using a lie, that he has goods. Nor, from what was just said in no. 238, is it a duty of justice positively to furnish assistance to a needy person. Cf. de Lugo, disp. 16, no. 143.

Some, however, oppose this conclusion, and these words of the Encyclical Rerum novarum seem to favor them: “These are duties, not of justice—except in extreme cases—but of Christian charity.” Yet it is not likely that the Supreme Pontiff wished by these few words to disapprove the doctrine which C. de Lugo openly defends and St. Alphonsus judges to be the more probable and common doctrine (bk. 3 [4], no. 520).

240. The error of more recent jurists. Not a few of the more recent jurists, when they observe that the regulation of private possessions has varied together with the times, think that the very rationale of the right is one thing in one age and another in another age. But in this they are deceived, confusing the limits, which must be posited differently in different societies, with the very substance of the right, to which the definition which we handed down has always been fitted.

241. What the State can or cannot do in the regime of private property it is useful to illustrate by several examples, which appear true from the formula proved above in the thesis.

It is not permitted to the ruler to suppress private possessions, even of immovable things; nor to define a maximum sum beyond which citizens are prohibited from increasing private riches; nor to impose taxes for the end of making fortunes more equal by taking from greater means; nor, except for a public cause, to despoil anyone of just ownership; nor to restrict to a certain number of years the ownership of things which either were given by nature as one's own (the fruits of industry) or were acquired without such a condition. For these things cannot be done without direct power over the right itself, which we have denied to the State.

Nor does it belong to the State, at its own judgment, to practice trades or distribute goods. For these affairs are by their nature of a private rationale.

It can, however, insofar as this seems to be required for the common good according to the condition of the city, withdraw certain things from private commerce (public ownership, legal monopoly); set a limit to the portions of national soil which one person can possess, so that the land of some nation may be divided among many citizens or with sufficient equality;⁴ prohibit or prescribe certain things concerning possessions—for example, that people not build higher, that they tolerate an aqueduct, etc. (servitudes légales [legal servitudes]); prohibit suspect acquisitions of money (games, wagers, base contracts); attach new conditions of capacity and solemn form to the modes of acquiring or losing goods (testaments, donations); establish new modes of acquiring (treasure, prescription, as most authors hold); and provide by laws that the price of certain things be equitable, and that there be available per se to all who wish to devote themselves to work the opportunity of obtaining that condition of life which, according to the civil culture and common prosperity, can belong to all.

⁴ Safeguards of this kind are contained in Hebrew law, with St. Thomas approving, I-II, q. 105, art. 2, ad 3.

242. Concerning taxes and the eminent domain of the State. From what has been said, it also follows that the faculty of exacting taxes, and the dominion which is called eminent, must be ascribed to the same jurisdiction. For the rationale of eminent dominion or eminent domain, properly so called, consists in this: that the ruler can, if the common good requires it, take away a private possession from a citizen.⁵ Yet this must not be done rashly; and, that this burden may be distributed equitably, the damage inflicted must per se be compensated with money.

⁵ In French we say: expropriation pour cause d'utilité publique [expropriation for a cause of public utility].

243. The power of the Church. Just as the State, for procuring the end of civil society, possesses jurisdiction over the goods of citizens, so the Church, under the formal rationale by which she directs the assembly of the faithful, can govern the goods of Christians; and, for a just cause, she can impose upon them taxes and restitutions, or prohibit certain suspect practices. Hence the laws concerning pious causes, the sanctions concerning simony, usury, etc.

244. You will ask how certain prodigal promises can be regarded by St. Alphonsus as invalid, if the right of ownership is bounded only by the right arising from another's necessity.

Reply. Another cause is present here: a defect of consent on account of the passions by which a man is accustomed to be led to these extravagances.

Similarly, we excuse, not by some limit of the right, but by the presumed consent of the owner, a certain momentary force by which the owner is prevented from a certain use concerning which it is foreseen that he will soon regret it. Cf. no. 154.

245. You will ask whether positive law ought to recognize the right of necessity.

For modern laws are silent, and therefore are reproved as unjust by Rev. D. Pottier. Yet it does not seem necessary that laws, which concern things that occur for the most part, should formally except such infrequent cases from the general disposition, especially since their express mention would perhaps loosen the reins more than is proper for not a few who would seek by these excuses to cover their frauds. Nor on this account are innocent persons to be condemned by judges. For even if magistrates today cannot bring forward this brief rationale—that a thing taken in extreme necessity is not another's—more than one way remains for magistrates to acquit defendants of this kind.⁶ It would be more expedient still, for forestalling these difficulties, to permit judges a greater use of epikeia.

⁶ You have these ways learnedly set forth in the articles Le pain volé [The Stolen Bread], written by D. de Lantsheere on the occasion of a celebrated case which was adjudicated in France. Cf. Revue sociale catholique [Catholic Social Review], vol. 2.