Justice and Rights (Seventh and Tenth Commandments)

¹ ² "Thou shalt not steal." Ex. 20:15.

This precept, insofar as it is negative, prohibits every act by which the neighbor's right in goods of fortune is injured; and insofar as it is affirmative, it commands that to each one be rendered his own right which he has in goods of fortune. To the seventh precept the tenth must be joined: "Thou shalt not covet thy neighbor's house ... nor anything that is his."³ For just as external acts are prohibited by the seventh precept, so by the tenth internal acts are prohibited, namely the will of harming the neighbor in goods of fortune. Therefore the virtue which this precept regards is commutative justice, insofar as its object is the neighbor's right in goods of fortune; and since this right is called right of ownership, there must be treated: a. ownership in goods of fortune; b. injury of ownership in goods of fortune; c. reparation of injured ownership.

¹ Concerning the sixth and ninth precepts of the Decalogue the matter is treated in a fascicle edited separately.

² Ioan. de Lugo, De iustitia et iure, tom. I. Lud. Molina, De iustitia et iure, tom. I. L. Lessius, De iustitia et iure, l. 2, c. 1-16. I. Reuter, Theologia moralis, pars III, De iustitia et iure. L. Carriere, De iustitia et iure, 3 tom. (Lovanii: Fonteyn, 1845-1847). I. Vogler, Iuris cultor^3 etc. (Parisiis: Mequignon, 1833). P. H. Marres, De iustitia^2 (Ruraemundae: Romen, 1879). D. Delama, Tractatus de iustitia et iure^3 (Tridenti: Monauni, 1889). G. I. Waffelaert, Tractatus theologici de virtutibus cardinalibus, Tr. II, De iustitia (Brugis: Beyaert, 1885). Ballerini-Palmieri, Opus theol. morale^3, III, n. 1-550. A. Lehmkuhl, Theologia moralis^10, I, n. 884-1044. I. E. Pruner, Die Lehre vom Rechte und von der Gerechtigkeit (Regensburg: Manz, 1858), 2 Bd. Ios. Schwane, Die Gerechtigkeit u. s. w. (Freiburg: Herder, 1873). Georg Crolly, De iustitia et iure (Dublini: Gill, 1877), 3 vol. K. Kiefer, Die Tugend der ausgleichenden Gerechtigkeit (Eichstatt: Bronner, 1908).

³ Ex. 20:17.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter First. On Ownership, Question Third. On the Acquisition of Ownership

n. 382.

382. Preliminary notions. 1. By a mode of acquiring ownership is understood a title or cause apt of itself to confer ownership. Five diverse modes of acquiring ownership are distinguished: occupation (invention), accession, labor, prescription, contract.

a. These modes have the force of conferring ownership either immediately from the law of nature, such as occupation (invention), accession, and labor; or from human law, such as prescription; or from the private will of men, such as contract.

Modes of acquiring ownership are distinguished into original and derived. By original modes there is acquired ownership of things which have never had ownership, or at least actually do not have it, of which sort are occupation, (natural) accession, and labor; by derived modes there is acquired ownership of things which already fall under ownership, as by prescription and contract.

The distinction among vacant, abandoned, and lost things must be noted. Those are called vacant which never had an owner, whether they are animate, as wild animals in forests, or inanimate, as gems in the sea. Those are called abandoned which had an owner, but actually do not have one, as treasures once hidden, and things of an owner who died without legitimate heirs. Those are called lost or uncertain which have an owner, but an unknown one, as a gold ring found in a street.

Lost things are held as abandoned: a. when the owner from certain circumstances no longer has any hope of recovering his thing; b. when the owner neglects recovery of the lost thing, even if he could recover it; c. when the thing is not of great price, so that the owner is not judged to demand its restitution.

Note. Now the individual modes of acquiring ownership must be treated. But because the treatment concerning contracts became longer, we refer that matter to its own chapter (the fourth of this book).

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter First. On Ownership, Question Third. On the Acq…, Article Fourth. On Labor

n. 397.

397. Preliminary notions. 1. This mode of acquiring ownership today merits special attention, because socialists, rejecting the other modes, call this alone legitimate: for they contend that no one has ownership except of those things which he produces by his own labor.

By the name labor is understood human industry which is apt for producing goods. It makes no difference whether it is spiritual or bodily, whether it contributes mediately or immediately to producing goods, provided it consists in the use and effort of human powers, which by their nature tend to this, that they produce goods useful either to a single man or to the community.

Now, although labor is not the sole nor the primary mode, nevertheless it is a legitimate mode of acquiring ownership.

a. And indeed, since man is owner of the actions both of soul and of body, he can employ them either in his own name or in the service of another. If the first, by natural right he is also owner of the fruits which he produces by his own labor. If the second, he has a right to a suitable wage for the labor and becomes owner of it.

b. Bodily labor, whether it is exercised in one's own thing or in another's thing, necessarily supposes already preexisting ownership of the matter in which the labor is performed and the new form is produced. Therefore it cannot be either the sole or the primary mode of acquiring ownership.

n. 398.

398. Assertions. 1. He who produces a new form in his own thing is owner of the thing and of the form produced, or of the whole new substance, since he has a right in the fruits of his own labor.

He who by laboring in another's thing produces a new form of itself acquires partial ownership of the changed thing: the substance is of the prior owner, but the new form, as fruit of labor, belongs to him who performed the labor.
Since man is owner of his own labor, he can hire it out to another. Now he who has hired his powers, whether spiritual or bodily, to another and therefore labors in the service of another does not acquire a right in the fruits of the labor, but in a just wage for the labor, the quantity of which will be determined below, where there will be speech concerning the contract of hiring.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Second. On the Inj…, Question First. On Injury in General

n. 408.

408. Definition. Injury is the violation of another's right strictly so called, whether this happens by action or by omission of an action which is owed by strict right. A violation of strict right of this kind is theft, detraction, homicide.

a. Concerning the relation between injustice and injury it must be said that injustice is the wicked habit which is contrariwise opposed to the virtue of justice; for just as justice signifies a good habit, so injustice signifies the opposed evil habit. Injury is an act which pertains to that vicious habit.

b. Since there is a threefold true and properly so-called right, namely the right which is the object of legal, distributive, and commutative justice, there is also a threefold injury of right, namely injury of the right of legal justice, which lacks a proper name; injury of the right of distributive justice, which is called acceptance of persons; and injury of the right of commutative justice or of right strictly so called, which is properly called injury.

c. It is clear that injury is opposed to charity and justice, because through it a right is injured and at the same time an evil is inflicted. Nevertheless sins of injustice (for example, thefts) do not contain a twofold malice, one against charity and another against justice, but only one against justice, in which the injury of charity is contained as a genus.

n. 409.

409. Division. Injury is divided:

a. Into positive, which is inflicted by doing something against another's right, and negative, which is inflicted by omitting what is owed to another by strict right.

b. Into personal and real, according as the right of another is injured in the person, that is, in goods of soul or body, or in external goods.

c. Into verbal and real, according as the neighbor's rights are injured by words or by deeds.

To verbal injury is referred injury inflicted by writing, namely when through a letter, poem, defamatory pamphlet, etc., something which falls to another's ridicule, contempt, or infamy is spread among the people.

d. Into mere and damaging, according as the right of another is injured without damage or with damage of him to whom the right pertains. Thus adultery of a wife, with offspring not conceived, is mere injury; with offspring conceived, it is damaging injury.

n. 410.

410. Moral and specific malice. 1. Injury is a sin grave from its genus, because it is opposed to commutative justice, which indeed of itself obliges under grave obligation. This is also established from sacred Scripture: for the precept of not injuring justice is reckoned among the commandments which must be observed that we may enter into life.¹ It admits smallness of matter, because order is not gravely disturbed if a right in a slight thing is injured.

The gravity of matter in an injury of justice, especially if the matter concerns goods of fortune, must be determined from a twofold source: a. from the damage which is inflicted on the neighbor; b. from the damage which would arise for the community if such matter were not prohibited under grave obligation. For a twofold reason demands that the right of each be preserved uninjured: both the good of individual men, and the peace and security of the community. Since each person is gravely unwilling about grave damage inflicted on himself, it is usually said that a grave injustice is committed when the injured person, either on account of the damage which he himself suffers, or on account of the damage which threatens the community, is by right deservedly gravely unwilling.²

In sins which are committed against justice, gravity is to be taken not so much from the affection with which the owner is borne toward the thing taken away, nor from the indignation or sadness with which he is affected on account of it, but from the damage which he himself suffers, and consequently from the reluctance and opposition of will by which he is reasonably unwilling. Hence it can happen that he who takes away a thing of slight value, but very dear to the owner, sins gravely against charity, if namely he foresees that he will be affected with grave sadness and indignation, but not against justice.

Note. This universal norm, which extends itself to all genera of goods, will have to be applied and determined more accurately in its own places to individual goods.

Not all injuries are of the same moral species, but there are as many specifically diverse injuries as there are rights or goods diverse in species in which the neighbor can be injured. But first four genera of goods must be distinguished: a. spiritual goods, both natural and supernatural; b. internal goods (of life and members); c. mixed goods (of reputation and honor); d. external goods (of fortune). Some of these genera contain within themselves goods diverse in species, as will be said in their own places.
A right in goods of fortune can be injured in a twofold way: by unjust taking away of a thing and by unjust damaging. Through taking away a thing, the one taking receives profit; through damaging, the one damaging takes no advantage. Unjust taking away and damaging do not differ in specific malice: for each injures the neighbor's right only in goods of fortune; but that someone takes an advantage from this does not change the morality of the action.

¹ Matt. 19:18.

² Cf. Reuter, Theol. moralis, III, n. 294; Lehmkuhl, I, n. 761 s.

n. 411.

411. To one knowing and consenting no injury is done:¹ for no injury is inflicted where no right is injured; but no right is injured of him who freely yields his own right. But he freely yields his own right who consents to an action unjust of itself. Nevertheless a twofold condition is required, that then no injury be done: a. that the one consenting can yield his right; for if he cannot yield it, the yielding is invalid; b. that he in reality wishes to yield his right, that is, that the yielding be altogether free. For this it is required that consent be given fully and with full knowledge. Hence where consent is given from error or is extorted by fraud or fear, in reality it is none.

Hence a. he who kills one consenting or asking for his own killing commits injury: for since God alone has ownership over the life of man, man cannot fully yield this right. He who strikes a cleric renouncing the privilege of the canon does injury, because a singular person cannot renounce this privilege, since it was granted in favor of the clerical state. He who takes goods from a ward, even one consenting, commits injury, because the ward cannot validly yield his right. He who sins with another's wife commits injury, even if the husband approves the adultery of the wife, because he cannot alienate all the rights which in this case are injured.²

b. Therefore the action of him who kills one consenting is unjust against God, but cannot be unjust against him who consents to the action injurious in itself. Likewise the action of a wife who commits adultery with the husband consenting is opposed to the holiness of the sacrament and to the right of legitimate offspring, but is not unjust against the husband himself.

c. He who gives money to a robber to avoid death suffers injury; likewise a buyer who pays for merchandise beyond the highest price, or buys a defective thing as sound, because these persons do not consent freely. A worker who, compelled by necessity, consents to a wage less than what is owed to him by natural right suffers injury.

d. If someone, as holy men are read to have done, desires that injury be inflicted on himself and rejoices over it once inflicted,³ likewise if someone, having followed the counsel of Christ the Lord, leaves his cloak also to one taking away his tunic,⁴ he is not judged to wish to yield his right, but to exercise excellent virtue.

¹ C. Scienti 27, reg. iur. in 6.

² Cf. Lugo, disp. 8, n. 10; Vermeersch, n. 144.

³ Cf. Heb. 10:34.

⁴ Matt. 5:40.

n. 412.

412. Whether the intention of harming can render the external act unjust.

a. If the action indeed harms another, but does not injure his strict right, whether because the other does not have strict right, or because the agent has the right of placing the action, intention cannot render the act unjust, although it is harmful: for no injury is inflicted where no right is injured.

A private man who does not extinguish a fire from a wicked mind of harming does not act unjustly, because he is not bound to this by strict right. A judge who condemns a guilty person from hatred, so that he may harm him and his family, likewise he who in legitimate defense of himself wounds an enemy from hatred, is not unjust, because these persons have the right, one to condemn the guilty person, the other to defend himself.

b. If the action of itself is indifferent toward a just or unjust effect, it can become unjust through the wicked intention of the agent: for an unjust intention causes that then the right of another is injured.

He who takes another's thing from a thief so that he may restore it to the owner does not act unjustly; he who takes it so that he may retain it for himself commits injustice. According as someone takes away the book of a friend either with the mind of stealing or with the mind of joking, he acts or does not act unjustly; wherefore if afterward by chance he lost the book, by reason of the intention he would or would not be bound to restitution.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Second. On the Inj…, Question Second. On the Unjust Taking Away of a Thing

n. 413.

413. Declarations. 1. Another's thing can be taken away in a twofold way, either secretly and without force brought upon the owner, or openly and by force brought upon the owner. If the first, theft is committed; if the second, robbery.

Therefore two things are required for robbery: a. that the thing be taken away with the owner present; b. that it be taken away with violence brought upon him, which is judged to be employed also by any fear unjustly instilled, as when someone threatens another with death or a grave evil and thus compels him to hand over the thing. Hence a thief who breaks open doors but takes away the thing while the owner does not notice does not commit robbery; nor he who takes away the thing while the owner is indeed present, but without force brought upon him.

Theft and robbery are sins specifically distinct: theft is against commutative justice through real injury concerning goods of fortune; robbery is against commutative justice through injury concerning goods of fortune and through personal injury against the owner.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Second. On the Inj…, Question Second. On the Un…, Article First. On the Nature of Theft

n. 414.

414. Notion and malice. 1. Theft is defined as the hidden taking away of another's thing, while the owner is reasonably unwilling.

a. Taking away is understood as done with the mind of retaining the thing for oneself and receiving profit. Therefore he who takes another's thing to destroy it is not called a thief. Hidden, so that theft may be distinguished from robbery.

b. Unwilling: for committing theft it is required that the owner be unwilling, and indeed as to the substance or as to the taking itself, not only as to the mode of taking away, namely that the thing be taken away secretly while the owner is ignorant. He who takes something away while the owner is unwilling only as to the mode sins venially, because in the mode of taking he acted against the will of the owner, but he does not commit theft.

c. Reasonably unwilling: he is reasonably unwilling about the taking away of a thing who is not bound to leave his own thing; but he who is bound to yield his thing is unreasonably unwilling about its taking away. But he is unreasonably unwilling only if he is bound to give or leave it from justice or from piety, not however if he is bound from mere charity. Hence he who takes away a thing in extreme necessity or to compensate himself does not commit theft; nor a son who secretly takes from the goods of the parents what is necessary to himself for honest sustenance. But a poor man who takes away the goods of a rich man in grave necessity commits theft.¹ - Likewise he who abuses his own thing (for example, a wicked book) for sinning is reasonably unwilling if the book is taken away from him lest he commit sin, because he is not bound to deprive himself of the book either from justice or from piety.

Theft is a sin grave from its genus: a. For by theft commutative justice is injured, which of itself obliges under grave obligation. b. By the Apostle theft is reckoned among the sins which exclude from the kingdom of God: "Neither thieves ... nor robbers shall possess the kingdom of God."² That theft can become a light sin from smallness of matter will be conceded the more easily because here the matter is divisible, which can be diminished so much that it is no longer capable of grave fault.

¹ Cf. Vermeersch, n. 150 ss.; Ballerini-Palmieri, III, n. 274 ss.

² 1 Cor. 6:10.

n. 415.

415. Grave matter of theft (and damaging) must be determined both relatively and absolutely.

Matter absolutely grave is taken from the value alone of the thing taken away, with no account had of the condition of the person from whom it is taken away, and therefore it is always and with respect to all considered grave. Matter relatively grave is derived from the value of the thing and from the condition of the owner, and therefore is grave with respect to some, but light with respect to others. Wherefore matter absolutely grave is called that which, when taken away (in this place and time), inflicts grave damage, not always indeed on him from whom it is taken, but at least on society. Matter relatively grave is called that which inflicts grave damage on him from whom it is taken.

Matter relatively grave must be determined: for the gravity of theft depends on the gravity of the damage which is inflicted on the neighbor. But damage is of diverse gravity according as the condition of the person who suffers the damage is diverse: for what is light to one can be grave to another. Besides, if no account were had of the condition of the owner, and the same grave matter were established for all, this greatest inconvenience would follow: that a florin taken from a rich man would be grave sin, or ten florins taken from a poor man would be light sin, according as great or small matter is assigned for constituting grave sin.

That matter is considered relatively grave which, for the one from whom it is taken, would suffice according to his condition for the suitable sustenance of himself and his own for a day: for since external goods have been granted to man for the sustenance of life, and to be deprived of daily sustenance is a great harm, the quantity equaling daily sustenance (food, clothing, habitation) is deservedly considered grave.

To determine this rule more accurately for practice, from the nearly common consensus of more recent theologians and with account had of the value which money now has in most provinces of Europe, it seems possible to establish that grave matter is:

a. relative to poor beggars, about 1/2 florin = 1 mark = 1 lira = 1 crown, or even less according to greater poverty;

b. relative to workers who acquire sustenance for themselves by daily labor, about 1 florin = 2 marks = 2 lire = 2 crowns;

c. relative to craftsmen, artisans, merchants who labor in their own workshop, about 3 florins = 6 marks = 6 lire = 6 crowns;

d. relative to those moderately rich, about 5 florins = 10 marks = 10 lire = 10 crowns;

e. relative to the truly rich, about 10 florins = 20 marks = 20 lire = 20 crowns;

f. relative to the very rich or extraordinarily rich, about 50 florins = 100 marks = 100 lire = 100 crowns and more, but when the matter concerns these, attention must be given to absolute matter.

Note 1. These quantities are to be taken not mathematically, but morally; besides, attention must be given to the circumstances of places. For the wealth of inhabitants is not the same everywhere, nor is the value of money the same everywhere. 2. When it is unknown to whom the damage has been inflicted, according to the common opinion of doctors it is presumed to have been inflicted on one moderately rich, because this is usually what happens more frequently.

n. 416.

416. 2. Matter absolutely grave must also be determined, because, if matter absolutely grave were not determined, great damage would threaten the common good. For since men on the one hand are not accustomed to avoid light sins so diligently, and on the other hand most wish to become rich, unless a certain matter were prohibited always under grave sin, thefts would become very frequent with great damage and disturbance of peace and security.

Matter absolutely grave, which is such relative to anyone very rich and even to the fisc itself, is about 15 florins = 30 marks = 30 lire = 30 crowns. For on account of the taking away of this sum even the very rich man is gravely unwilling, even if not on account of the damage which he himself suffers, certainly on account of the damage which society would suffer if such matter were not prohibited under grave obligation.

For determining the gravity of matter relative to sacred things, one must distinguish: if the sacred thing can be estimated by price, such as a chalice, the gravity of matter must be measured as in a profane thing; but if it cannot be estimated by price, such as sacred relics, its dignity and rarity must be considered. Therefore it would be mortal to steal the smallest particle of the Holy Cross, but outside the territory of the City it would not be mortal to take away the smallest thing from the body of some saint.¹

Article Second. On Causes Diminishing Theft

The rules concerning the gravity of matter in theft set forth above admit various modifications in the concrete: for various causes can bring it about that the owner is less unwilling about the taking away of his thing; therefore the same causes can also bring it about that a greater quantity is required for constituting grave sin. Now, that the owner may be less unwilling can happen: a. by reason of the persons who steal; b. by reason of the things which are taken away; c. by reason of the mode of taking away. Therefore in order there must be treated: domestic thefts, theft of exposed things, petty thefts of things pertaining either to one or to several.

¹ Reuter, Theologia moralis, III, n. 438. Outside the territory of the City: for from the constitution Apostolicae sedis (II, 15) they incur censure who extract relics from the sacred cemeteries or catacombs of the City of Rome and its territory without legitimate permission, with no account had of quantity of matter.

n. 417.

417. On domestic thefts. The persons toward whom the father of a family, if they take something away at home, is judged to be less unwilling are sons under family power, wives, and servants.

With respect to thefts of sons, ordinarily a quantity twice greater is required for constituting grave sin than in thefts of strangers; but wives generally can be judged still more liberally, especially if they spend the things taken away for the uses of the family or relatives.

a. Yet attention must be given whether the father is rich, liberal, friendly, or on the contrary poor, avaricious, little loving; whether household members steal for their own uses or for giving to others; whether they steal money or other precious things, or other things; whether there is one son or several.

b. Not rarely, although the father of a family, once the theft is known, seems very unwilling and is vehemently angry, he is unwilling not so much about the thing taken away as about the mode, namely that it is secretly stolen, or about the end, namely that it is consumed by gambling and drinking. Therefore frequently sons taking a thing at home do not sin except venially.

c. With respect to the obligation of restitution which is to be imposed on sons (wives), these things are to be noted: alpha. If things taken away by them are consumable by first use and have already been consumed, restitution is scarcely ever to be imposed. beta. If things taken away (for example, money) are still extant, they must be restored. gamma. If things taken away in greater quantity are no longer extant, they are earnestly to be exhorted that by caring for the domestic estate more diligently they repair the damage in some way. Moreover, condonation by the father can for the most part be presumed, unless the things taken away are very notable and were spent for the uses of outsiders. Yet it is scarcely ever expedient to advise, and much less to command, that wives or sons ask condonation of the debt.

With respect to thefts of servants. a. If servants steal money or other things which are usually carefully guarded, such as precious things, garments, etc., a greater quantity is not required for grave sin, because masters are not less unwilling toward them than toward others; and rightly indeed, because of the continual danger which threatens them from the unfaithfulness of servants.

b. If the thefts of servants happen in things which they administer or which are not usually cautiously guarded, such as food and drink, ordinarily servants do not arrive at grave sin, provided the things taken away are consumed by the servants themselves, are not sold, and are not taken away in extraordinary quantity: for in these things masters are usually less unwilling. Moreover, in estimating the gravity of the fault attention must also be given whether the master is liberal or close, and whether the person serving is disliked or dear, useful and diligent or of slight industry.¹

¹ Lessius, De iustitia, l. 2, c. 12, n. 48.

n. 418.

418. On theft of exposed things. The things in whose taking away a greater quantity is required for constituting grave sin are those which grow spontaneously with almost no labor of men, especially if they are exposed, such as fruits (grapes, apples) beside roads and wood in forests.

Concerning fruits plucked from another's vineyard or another's orchard, the old authors are very benign and indulgent. For they say that travelers who pluck one or another apple or cluster of grapes to quench thirst or refresh strength do not sin. Indeed they universally permit grapes and apples to be eaten up to satiety, provided they are not rare and of great price and nothing is carried away.¹

But today, on account of the circumstances of things altogether changed, which cause most fruits to be valued more highly and carefully guarded, this doctrine seems to be restricted to those fruits which are not much valued.

a. Yet these things seem able to be conceded: that it is not a sin to pluck one or another apple or cluster of grapes here and there; that workers, from the presumed consent of the owner, do not sin if they eat of the fruits for whose gathering they have been hired; that he who more often takes away that quantity of fruits which he himself can eat sins only lightly, unless the fruits are of great price.

b. But thefts of these things are to be gravely reprehended where rather grave damages are caused to the owners from them, because not only are fields trampled down, but owners are compelled to gather immature fruits lest all be carried away.

Wild fruits (mushrooms, strawberries, bilberries [Heidelbeeren], etc.) indeed of themselves pertain to the owner; but he is presumed to grant permission that they be gathered by passers-by and the poor and also sold. But if, using his right, he prohibits their collection, those gathering them sin against justice. Yet in forests of the government or of one's own community, a prohibition of gathering fruits of this kind is judged merely penal, unless a manifest reason (for example, of forestalling damages in a growing forest) dictates otherwise.
With respect to wood which is cut in forests, these things should be noted:

a. If wood is cut in forests which pertain to private ownership or to another community, sin is committed against justice, unless the matter concerns brushwood and dry fragments of wood; for with respect to these the owner is not judged unwilling.

b. If wood is cut in a forest which pertains to one's own community, no sin is committed if the poor take away only those things which are required for domestic use, and no great destruction is made. For the law prohibiting the cutting of wood is judged penal, which obliges only to paying the penalty after the sentence of the judge.²

¹ Cf. St. Alphonsus, n. 529.

² St. Alphonsus, n. 529.

n. 419.

419. On petty thefts. The third cause on account of which a greater quantity is required for constituting grave sin is the mode of stealing, namely through thefts in light matter, which are usually called petty thefts. Therefore it is asked when thefts in light matter become grave sin and what quantity is required for constituting grave matter.

Generally, theft of light matter becomes grave sin when the matter taken away in individual thefts coalesces into grave matter. But this can happen in a threefold way: a. by intention of arriving at grave matter; b. by conspiracy; c. by multiplication alone.

n. 420.

420. By intention. 1. The intention of arriving at grave matter causes individual thefts to coalesce, even when a rather long interval is placed between the individual thefts, whether the thefts are committed against the same owner or against various owners.

This intention, by which individual thefts are committed, causes two things: first, that the matter of the individual thefts coalesces into one, even if a rather long interval intervenes between them; and then also that even thefts in light matter are grave sin: for what happens from an intention gravely evil is grave sin. In this case we have a sin indeed light with respect to the external act, but grave on account of the internal affection. The sin, even insofar as it is external, becomes grave when grave damage is completed.

For constituting grave matter, a greater quantity is not required than in thefts which are done at once and together, if they are committed relative to the same owner; but if the thefts are done to diverse owners, an absolute quantity is required.

Therefore he commits grave sin in each instance: a. a merchant who, by moderately falsifying measures and weights in individual instances, intends to gather notable profit or foresees that in this way he will arrive at great profit; b. an innkeeper who, by mixing a little water with wine several times, wishes to become rich: "A deceitful balance is an abomination before the Lord";¹ c. he who, having the intention of harming the neighbor in a grave matter, inflicts light damage in individual instances. Yet because all these sins proceed from the same intention of becoming rich (of harming) virtually enduring, morally they constitute one sin.²

¹ Prov. 11:1.

² Cf. De principiis^9, n. 308.

n. 421.

421. By conspiracy. 1. If several, by common plan and consent, either together or successively, commit small thefts against the same owner or against various owners, their matter coalesces into one, because the individual conspirators intend the whole taking. Therefore when small thefts taken together constitute grave matter, the individual conspirators sin mortally: for conspiracy causes the individuals to will the whole damage and cooperate toward the whole.

If petty thefts are done to the same owner, a greater quantity is not required for constituting grave sin; but if they are done to diverse owners, an absolute quantity is required.¹

a. If individuals act independently from each other, even if they know the damage inflicted by others, they do not sin gravely, because none of them inflicts grave damage, nor intends the damage inflicted by others, nor cooperates in it.

b. If several, stirred up by the example of another, commit light thefts which together inflict grave damage, he gravely sins whose example provoked others to inflicting damage, not indeed against justice, but against charity, provided he foresaw the damage to be inflicted.

¹ Cf. Ballerini-Palmieri, III, n. 311.

n. 422.

422. By multiplication. He who by petty thefts committed either against the same owner or against various owners arrives at grave matter sins gravely, provided he retains the things taken away, a great interval is not present between the individual thefts, and the thing taken away is of some price. For in this case the individual thefts coalesce.

That petty thefts which happen successively coalesce into grave matter, a twofold condition is required: a. That the thief retain the things taken away.

If he restores the prior thefts, the subsequent little thefts are not united with the preceding ones. But if he only had the intention of restoring, this does not impede thefts from coalescing; for by a new theft the intention is judged revoked.

b. That a great interval not intervene between the individual thefts.

If a notable space intervenes between individual thefts, the things taken away are no longer judged to be united. This interval must be determined from common sense, with the quantity of the thing taken away considered. If the thing taken away nearly reaches grave matter, an interval of two months causes it no longer to coalesce; if the thing taken away is far distant from grave matter, an interval of one month causes the same; finally, if the thing taken away is very slight, either it does not coalesce at all, or certainly an interval of one week impedes it from coalescing.¹

alpha. In this case of coalescence, that theft by which grave matter is knowingly completed is grave sin; but the individual preceding thefts are venial. beta. Petty thefts which afterward happen after grave matter has been completed are grave sins, provided the will of retaining the things taken away endures and they happen with advertence to the grave damage inflicted, because they coalesce with the prior ones into grave thefts and continue the prior grave sin, but they constitute one sin in number with the prior one.² gamma. He who does not advert that by a light theft grave matter is completed does not indeed commit grave sin by stealing; but when afterward, adverting to grave matter, he does not propose restitution of the thing taken away, he sins gravely on account of the wicked will of retaining another's thing in great quantity.

For constituting grave sin in these petty thefts which happen successively, a greater quantity is required, and indeed, if the thefts happen to the same owner, matter is required which is greater by half: for the owner ordinarily does not suffer so grave a damage if the thing is taken away at intervals. But if the thefts happen to diverse owners, an absolute quantity is required.

a. Therefore tailors sin gravely when they reach grave matter by retaining fragments of cloth which remain and are still useful to the owners, unless either this custom is in force somewhere and therefore less is paid for the labor, or it is established that rich persons do not wish fragments to be restored to them, or these are of lesser importance and are not cared about by the owners. Something similar must be said of millers who retain a moderate part of the grain or flour for themselves.

beta. Servants or maidservants, especially in the families of the rich, who continually take away or consume certain small things and never restore, are not easily to be accused of grave sin nor obligated to making restitution, both because in this case from a twofold reason a greater quantity is required for constituting grave sin, and because they do not advert to grave damage, and because owners are not gravely unwilling nor demand restitution, and finally because ordinarily the things consumed are of the kind that do not coalesce into grave matter.

Note. Those accustomed to thefts are to be asked concerning the number and quantity of thefts, and where the matter concerns petty thefts, concerning the interval placed between individual thefts, so that judgment can be made concerning the coalescence of matter. Yet because they ordinarily do not know how to indicate these things, since they steal on any occasion, it suffices that in general they indicate the frequency of the thefts, the quality of the things taken away, and the time elapsed from the last confession. From these the confessor will form for himself a judgment concerning the state of the soul of his penitent. Then he will warn him concerning his obligations: of restoring, of laboring, and of abstaining from thefts in the future.

¹ Cf. Ballerini-Palmieri, III, n. 312.

² Lugo, disp. 16, n. 43 s.

n. 423.

423. On thefts of things pertaining to several.

a. He who in grave matter takes away a thing pertaining to several sins gravely: for although grave damage is not inflicted on individuals, nevertheless individuals are gravely unwilling, because, if thefts of this kind were multiplied, the security of human commerce would suffer grave damage unless they were prohibited under grave obligation.

b. For constituting grave sin in thefts of things pertaining to several, whether these several constitute a moral person (as a commercial, industrial, insurance society, or religious community), or do not constitute a moral person, matter absolutely grave is required, because grave damage is not inflicted either on individuals or on a particular community, unless the community is small or the associates are few.

Article Third. On Causes Excusing from Theft

There is a twofold cause which excuses altogether from theft and renders the taking away of another's thing licit: extreme necessity and hidden compensation.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question First. On Restitution in General

n. 431.

431. Definition. Restitution is an action by which damage unjustly inflicted on the neighbor is repaired.

a. Therefore from an injury by which either no damage or no unjust damage is inflicted, no obligation of restitution arises; as if a judge gives a sentence which he thought was unjust, although it is just, or if a husband by adultery inflicts an injury on his wife. He who kills a man who was shortly and certainly going to die from an internal disease is not bound to compensate damages to the heirs, because he inflicted no damage.

b. Therefore restitution differs from satisfaction: for the former is compensation of a real injury, by which the thing taken away or destroyed is returned; the latter is compensation of a personal injury, by which the offender, through the deference shown, intends to reconcile to himself the person to whom the injury was inflicted.

¹ I. Vogler, Iuriscultor theologus circa obligationes restitutionis instructus. P. J. Loenartz, Die Restitutionspflicht des Besitzers fremden Gutes (Trier: Paulinus-Druckerei, 1885). A. Vermeersch, Quaestiones de iustitia^2 (Bruges: Beyaert, 1904), n. 155-172. Marres, De iustitia^2 (Ruraemond: Romen, 1889), l. 2. Kutschker, Die Lehre vom Schadenersatze (Olmutz: Neugebauer, 1851).

n. 432.

432. Obligation of restitution. 1. Restitution is necessary for salvation by necessity of precept, both natural and divine, but not by necessity of means except in vow.

a. The natural precept of charity teaches: As you will that men should do to you, so do you also to them likewise;¹ but when we have been injured, we will the reparation of the injury. Moreover the same precept which prohibits taking away another's thing also commands not retaining the thing taken away: for he who retains a thing taken away continues to despoil the owner of his own thing.

b. God expressly enjoins restitution of the thing taken away: If anyone injures a field or vineyard . . . he shall restore according to the estimation of the damage;² moreover he proposes restitution as the condition on which a sinner may obtain pardon for his offenses.³

c. Restitution positively contributes nothing to salvation, but only must be made, if it is possible, lest sin be committed and lest an obstacle to salvation be placed.

d. He who has contracted the obligation of restitution must be so disposed in mind that he wishes to restore when he can; otherwise he would retain affection for the injury inflicted.

Therefore for him who is bound to restitution under grave obligation, at least a serious and efficacious will of repairing the damage inflicted is necessary for salvation. In this sense, namely concerning a serious will, the saying is true: the sin is not remitted unless the thing taken away is restored.⁴ Indeed this is also necessary, that he apply the means which morally he can, so that restitution becomes possible. Therefore debtors who otherwise cannot restore are bound not only to avoid superfluous expenses, but also to diminish daily expenses insofar as they can according to their condition.

¹ Luke 6:31; Matt. 7:12.

² Exod. 22:5.

³ Cf. Ezek. 33:13 ss.; Tob. 2:20 ss.

⁴ St. Augustine, ep. 152, to Macedonius.

n. 433.

433. 2. He who cannot restore from goods of the same order is not bound to restore from goods of a different order, for example, to compensate injured reputation by money; for commutative justice commands restitution only so that the violated equality may be restored; but equality cannot be recalled from goods of a different order, and indeed reputation taken away is not repaired by money.

a. The opposite opinion is held as probable by St. Alphonsus (n. 627); but the words of St. Thomas¹ seem to be understood of counsel, not of precept. And indeed it is fitting that compensation in money be enjoined for damage inflicted in goods of a higher order.

b. A judge or superior by reason of penalty can impose that, because of an injury inflicted in one good, something be paid from goods of another order, for example, money for an inflicted wound; and certainly this sentence must be obeyed.

¹ Summa II-II, q. 62, a. 2, ad 1.

n. 434.

434. On the gravity of the obligation of restoring. 1. The obligation of restitution is of itself grave: for it obliges by the same reason as commutative justice, which requires that to each one be rendered what is his. Therefore in grave matter restitution must be made of itself under grave obligation, and in light matter under light obligation.

In particular, for determining the obligation of restitution, especially where there is question of damage inflicted on another, attention must be given not only to the quantity of the damage, but also to the quantity of the fault with which the damage was inflicted.

a. He who inflicted grave damage with grave fault is bound to repair the damage under grave obligation.

b. He who inflicted grave damage with light fault, which was a perfectly human act, is bound to restitution under light obligation; for from light fault a grave obligation cannot arise, because the obligation of repairing an injury cannot be greater than the injury from which it arises.

Therefore he who restores a thing taken away not wholly but only in part does not sin gravely if the part which he retains does not reach grave matter.

alpha. The principle must be held altogether, that the obligation of restitution and its gravity arise from the formal injury by which the damage was inflicted, and from its gravity. Therefore grave damage inflicted with light fault, which was a perfect act, must not be repaired under grave obligation, unless the damager either retains another's thing or has become richer from it. Thus he who steals thirty florins from a prince while invincibly thinking that this matter is not grave is bound only under light obligation to return them, if he consumed them and did not become richer from them.

beta. He who by several acts of damaging committed either against the same person or against various persons inflicted grave damage, to the gravity of which he never adverted, is bound to repair the damage inflicted only under light obligation. Not under grave obligation, both because the damage was inflicted without grave fault, and because grave matter is not retained which would have to be returned under grave obligation.

gamma. Yet he who by several small thefts committed either against the same person or against various persons sinned only venially, because he never adverted to the coalescing grave matter, is bound under grave obligation to restitution as soon as he adverts to the gravity of the matter taken away, because it is gravely illicit to retain another's thing in grave matter or to grow rich unjustly from another's thing.

b. There are authors who exempt from the obligation of restitution him who inflicted grave damage with light fault, so that this opinion can be called externally probable; yet it is plainly destitute of internal probability, since their arguments are nothing.

n. 435.

435. c. He who inflicted grave damage with fault light from imperfection of the act, according to the opinion to be followed practically, is bound to nothing; and by like reason, he who inflicted light damage with fault light from imperfection of the act, contracts no obligation of restoring.

alpha. Authors do not agree in this question: for some teach that a damager of this sort must repair the damage under grave obligation: for, once theological fault is supposed, the quantity of the obligation of restoring depends on the quantity of the matter, because the law of nature, such as the obligation of restoring is, obliges under grave obligation in grave matter. But truly the quantity of the obligation of restoring does not depend simply on the quantity of the damage, but also on theological fault sufficient of itself for inducing the obligation; but fault light from imperfection of the act is not sufficient for inducing the obligation, which the third opinion proves.

beta. Others teach that he must repair, under light obligation, either the whole damage or a part proportioned to the quantity of the fault: for the obligation of repairing damage cannot be greater than the fault with which the damage was inflicted.¹ This opinion is true insofar as it denies a grave obligation of restoring, but it does not demonstrate that the obligation is light.

gamma. Finally the third opinion teaches that the obligation of restoring is none: for a true obligation arises only from an act perfectly human, that is, one exercised with full advertence and full consent; but from an act imperfectly human, that is, one placed with half-full advertence and half-full consent, no obligation arises. Therefore a vow or oath made with half-full deliberation is void; likewise a contract entered with half-full deliberation is invalid. And because the patrons of the prior opinions do not deny at least the probability of this opinion, it must be followed in practice.²

d. He who inflicted light damage with fault light (from smallness of matter), or with fault grave (from error), is bound to repair the damage under light obligation, both because the obligation of restoring in light matter urges under light obligation, and because light matter is not capable of a grave obligation.

Therefore there exists an obligation of repairing even small damages; yet since this obligation is not grave, it cannot be urged under penalty of denial of absolution; indeed frequently prudence will advise that it be entirely passed over in silence.

¹ Laymann, l. 3, tr. 3, pr. 1, 6, n. 4.

² Lugo, disp. 8, n. 57 ss.; St. Alphonsus, n. 552.

n. 436.

436. Roots of restitution. The root of restitution is called the cause from which the obligation of restoring arises. A twofold root of restitution is distinguished: general and remote, which consists in the violation of commutative justice; special and proximate, which consists in the diverse modes by which commutative justice is injured. And because this can be injured in three different ways, a threefold root of restitution is usually distinguished: a. possession of another's thing, whether materially or formally unjust; b. unjust damaging; c. unjust cooperation in damage inflicted on the neighbor by another, whether through theft or through unjust damaging.

a. The roots of restitution are properly reduced to two: to unjust possession of another's thing, whether the thing was received in good faith or unjustly usurped, and to unjust damaging, by which someone inflicts damage on another and himself profits nothing from it. Unjust cooperation is recalled to one or the other of these; yet for greater clarity of matters it is treated separately.

b. St. Thomas sets forth two roots of restitution thus, saying that the obligation of restitution arises from a thing accepted, when someone possesses another's thing without formal injustice, and from unjust taking, when someone unjustly deprived another of his own thing, whether by taking it to himself or by destroying it.¹

Question Second. On Restitution Because of Possession of Another's Thing

He who possesses another's thing can hold it in good faith, bad faith, or doubtful faith. Now the obligations of the possessor of another's thing are different according as he holds it in good faith, bad faith, or doubtful faith.

¹ Summa II-II, q. 62, a. 6.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question Third. On Restitution Because of Unjust Damaging

n. 453.

453. 1. Unjust damaging here is understood as damage unjustly inflicted on the neighbor in external goods, without profit being taken from it. Damage can be inflicted on the neighbor in two ways: positively, by destroying his good, or negatively, by impeding him from obtaining a good (n. 429), or by not guarding goods which had to be guarded by duty of office.

For estimating the quantity of restitution to which he is bound who impeded another from obtaining a good, the damage which this one suffered must be considered. Therefore where the injured person had full certitude of obtaining the good, the whole good must be restored; but where he had only a more or less probable hope of obtaining the good, only a part of the good must be restored according to the value of the hope as determined by prudent judgment: for hope, however great, scarcely has half the value of the thing itself, because hope can fail and be impeded in many ways.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question Third. On Restitu…, Article Third. On Certain …, Section 2. On Damaging Because of Homicide

n. 465.

465. Prenotanda. a. It is clear that the obligation of restitution arises only from voluntary and unjust homicide; therefore he who kills another by chance or for the sake of defense is bound to nothing.

b. What is here established concerning homicide, with due proportion, also holds concerning damage inflicted by mutilation or wounding.

c. The obligations of the killer pass to his heirs, because they are real obligations inhering in his goods; and likewise restitution which cannot be made to the one killed himself is owed to his heirs, unless condonation has been obtained, because heirs succeed to all the rights of the one killed.

The remission of injury which a dying man grants to the killer is not of itself a condonation of damages or of restitution. In the same way, if the killer is punished by a judge, the obligation of repairing damages to the heirs is not extinguished by this penalty.

d. By homicide the killer contracts two kinds of debts: some toward the one killed because of damage inflicted on the one killed himself, others toward persons joined with the one killed in some way because of damage which followed for those persons from the homicide.

Persons joined in some way with the one killed are: wife, children, parents, blood-relatives and relatives by marriage, friends, the poor, to whom the one killed was accustomed to do good, and creditors. But the damages which occur to these persons joined with the one killed consist in this: that they are deprived of goods which were conferred on them by the one killed, or which they hoped would be conferred, either gratuitously or from debt, such as due support for children, alms for the poor, payment to creditors.

e. The one killed can condone the restitution of damages which the killer inflicted on the one killed himself; but the one killed cannot condone the restitution of damages which the killer inflicted on persons joined with the one killed (whether they are heirs or others), because he cannot remit the rights of others.¹

¹ Cf. Lugo, disp. 11, n. 63, 64.

n. 466.

466. Obligation of restoring. 1. The killer must repair all temporal damages which befell the one killed himself from the killing before his death.

a. Therefore expenses (necessary, not likewise superfluous) for treatment must be repaired, and emergent damage or loss of profit arising from work omitted or from business omitted during the time of illness.

The loss of profit which must be compensated to the injured man himself, if he lives, is not that quantity which he had profited before the misfortune happened to him, but much less, "because," as Lugo notes, "there is question of profit not held in fact, but in hope; but profits in hope are worth less because of the dangers and impediments which can happen; but especially uncertain are profits from business." It is better to enter a settlement with the injured man concerning this matter, because the quantity of the damage is very difficult to determine.

b. Expenses made for funerals must not be repaired, since they would likewise have had to be made if he had died by a natural death; nor for bodily damages, namely for pains tolerated, or for a member amputated, or for life itself lost, is anything to be restored from commutative justice, because restitution must not be made in another kind of goods unless it has been enjoined by the sentence of a judge.

Damages inflicted on those persons who are so joined with the one killed that the killing is the cause per se, and not only the occasion or cause per accidens, of those damages must be repaired.

a. To these persons pertain wife, children, and parents,¹ to whom support was owed by the one killed: for the damage of those to whom support is owed from piety follows per se from the killing of the father of a family, because they constitute with him as it were one person; and therefore the damage follows proximately and necessarily from the killing.

alpha. In order that the killer must restore to those joined with the one killed, it does not suffice that support is owed to them from piety, but it is required that they truly received it from the one killed: for if they did not receive support from him, either because the one killed could not furnish it on account of incapacity or did not wish to furnish it on account of malice, or because, on account of abundant riches, the father's work was not necessary, they truly suffered no damage from the killing.² Indeed even in the case in which the family of the one killed is otherwise provided for after his death, by the same reason restitution is not owed to them.

beta. The quantity of restitution which is owed to these persons is not the whole of what they were accustomed to receive before the death of the one killed or to which they would have had a right, but must be determined according to the hope of support. But this hope must be estimated from the conditions of the killed person, namely how long he would still have lived and how much by his skill and diligence he would have profited.³ Yet because of the difficulty of determining the quantity of damage to be repaired by the killer, in practice it will generally be licit to follow the opinion, in itself little probable, which holds that to those joined with the one killed the support must be restored which they were receiving from the one killed, as long as they do not have from elsewhere that by which they may be supported.⁴

If the widow of the one killed is provided for by a pension paid from the public treasury, she suffers either no damage or little damage; therefore either no restitution or only little restitution is owed to her. In rigor of right, restitution would have to be made to the public treasury. But the public treasury, and the same must be said of an insurance society (of life), perhaps do not urge the obligation of repairing the damage inflicted on them: for concerning cases of this kind, although foreseen, nothing is provided in their statutes.

b. To these persons do not pertain alpha. the poor or pious causes, even if they certainly would have received alms from the one killed; beta. nor other blood-relatives besides those named above: for the damages of those to whom goods came from the mere liberality of the one killed follow from the killing not per se but per accidens, because they do not morally constitute one person with the one killed, and therefore the damage follows only remotely.

¹ From C.A. Section 1327, only wife and children.

² St. Alphonsus, n. 631.

³ Cf. Lugo, disp. 11, n. 42 ss.

⁴ Cf. St. Alphonsus, n. 631.

n. 467.

467. Whether the killer must repair the damages which befell the creditors of the one killed from the homicide, or whether he must pay the debts of the one killed.

a. Two things first of all are certain: that the killer is not bound to pay to the creditors the debts of the one killed which he in no way foresaw, as is clear; then that he must restore the damages which he so directly intended to inflict on the creditors that the damage of the creditors was the sole cause of the killing: for this intention brings it about that the killing becomes the directly voluntary cause of those damages and therefore a cause per se.

b. In practice the killer is not bound to repair damages which befall the creditors of the one killed but are not intended, because either he did not foresee them, or, even if he had foreseen them, he is the cause of them per accidens: for what follows rarely or only remotely from some action is said to happen from it per accidens.

Theoretically they dispute whether the killer is a cause per se or per accidens of these damages. Those who say that the killing is the cause per se of the damages consequently oblige the homicide to repair the damages if he himself foresaw that the one killed had a certain hope of satisfying the creditors, because they have a right not to be unjustly impeded from obtaining their good.

n. 468.

468. He who kills another in a duel is not bound to restitution, even if he was the challenger, neither toward the one killed nor toward those joined with the one killed, except in the case in which the one killed accepted only to avoid grave damage. The reason for the first is that by freely accepting the duel he implicitly consents to the damages to be inflicted on himself, and by consenting remits to the killer the obligation of repairing those damages; the reason for the second is that he who consents to the duel is himself by his consent the cause that those damages are not inflicted unjustly; the reason for the third is that the challenger compelled the other by force and fear to expose himself to danger.

a. The one killed indeed cannot consent to the damages which are inflicted on those closely joined to him in such a way that the obligation of repairing them is remitted, because he can yield only to his own rights, not to the rights of others. Nevertheless the killer cannot be obligated to repair the damages of those joined with him. For he would be bound to repair them insofar as the killing would be unjust either against the one killed or against his family. But the consent of the one killed brings it about that the killing is not unjust either against the one killed or against the family of the one killed. Not against the one killed, because no injury is done to one knowing and willing; not against those joined with the one killed: for he impeded them from obtaining support, and because support is owed to them not from justice but from piety, the killing with relation to the family would be unjust insofar as by unjust force it impeded them from obtaining support; but since the one killed consents to his own killing, the killer did not by unjust force impede the family from obtaining support.¹

b. Since today it not rarely happens that those are challenged to a duel who, because of religion, will not accept it and therefore are foreseen to be deprived of their office with great damage to themselves, it is asked whether those challenging are bound to repair this damage. But the challenge and the rejection of the duel constitute the occasion of the damage, not its cause, which is constituted by the sentence of the tribunal of honor (Ehrengericht), by force of which, dismissed from office, he incurs damage. But from the fact that the challenger foresaw and even intended the damage, the challenge, which of itself is the occasion, does not become the efficacious cause of the damage. Wherefore the challenger is not bound to repair the damage.

¹ Lugo, disp. 11, n. 71, 72; Bucceroni, Casus consc., n. 82, 6.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question Third. On Restitu…, Article Third. On Certain …, Section 5. On Damaging Because of Injured Law of Military Service

n. 475.

475. Because of refused military service. 1. Those who by illicit means, for example, lies, feigned diseases, mutilation, withdraw themselves from military service, even with the obligation of the law in conscience supposed, a. certainly do not act against commutative justice nor are they bound to restitution where all are called to military service: for they injure the rights of no one: not of society, which obligates to military service only from legal justice; not of others, who suffer no damage from this manner of acting. b. But neither are they bound to restitution where only a determined number are assumed for military service, whether they withdraw before or after the drawing of lots, because their manner of acting toward those who are called in their place is neither unjust nor efficacious of damage.

It is not unjust, because they are bound to serve as soldiers only from legal justice and therefore they are not bound by a strict obligation of justice to impede the damages of others; nor do others have a right of remaining immune from military service. It is not efficacious of damage: for the manner of acting of the youths is the occasion, and the law of conscription is the cause, why others are assumed in their place.

Those who corrupt physicians or other officials by money or other gifts so that they are declared unfit by them, although they labor under no defect, act against commutative justice equally as the physicians and officials do, and are bound to restitution, not indeed toward the republic, which suffers no damage, but toward those who are called to military service in their place. For since physicians and other officials, by force of their office, are bound to choose those fit while rejecting only those unfit, all have a strict right of demanding from them that they perform their office rightly.

a. Those who corrupt physicians: for those who strive only to win their benevolence for themselves, so that in doubt concerning fitness they may pronounce sentence in their favor, do not act illicitly.

b. Against the common opinion of others Lehmkuhl (n. 888) raises a doubt whether physicians and officials are bound from commutative justice or from legal justice to discharge their office rightly, that is, according to the laws. He who judges this opinion probable, and likewise he who probably thinks the law of conscription unjust, can excuse youths who corrupt and corrupted physicians from the obligation of restoring toward the substituted soldier.

c. If those who by ecclesiastical (divine) or natural law are exempt from military service (n. 319) use frauds or corrupt physicians so that they may be declared unfit for military service, they are not bound to restitution, because they pursue their right; but they sin insofar as they do this by illicit means.

d. They are not bound to restitution toward the republic, not even in the case of universal conscription. For although the republic has a strict right of demanding from physicians that they assume for military service all youths who are not unfit, nevertheless neither is there question of grave matter nor does the republic suffer true damage because among so many one or another is unduly exempted. From this it also happens that they are not accustomed to interpret this office so rigorously as other public offices.

He who, after receiving payment, serves in the military for another and deserts from military service, is bound to restitution toward him from whom he had received the price, if this one is forced either himself to undergo military service or to hire another.

If he who had hired the deserter suffers no damage, the deserter cannot be obligated to restitution: for he who had hired the deserter can demand nothing else except that he himself be free from the military burden, not that another truly serve as soldier for him.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question Third. On Restitu…, Article Third. On Certain …, Section 6. On Damaging Because of Defrauded Taxes

n. 476.

476. Obligation of restoring. 1. The question whether those defrauding taxes are bound to restitution means whether afterward they are bound to supply the omitted payment; whether a law not observed at the determined time, once the time has elapsed, still obliges. Since there is no obligation of paying indirect taxes, the question is referred to direct taxes.

a. Those who say that tax laws are penal laws consequently deny any obligation of restitution, unless it is pleasing to call the payment of the imposed penalty restitution in the case in which defrauding has been punished.

b. Those who teach that tax laws oblige in conscience and indeed from commutative justice consequently affirm also the obligation of restitution, that is, that from the same commutative justice the defrauded tax must be paid to the republic.

c. Finally those who teach that tax laws oblige in conscience from legal justice ask about the obligation of afterward paying the tax which previously had not been paid; therefore they ask whether the tax law, which was not observed at its time, must still be satisfied afterward. Now those defrauding are not bound to pay taxes afterward unless by the sentence of a judge they are obligated to this.

Nor may it be said that those defrauding the whole tax compel other citizens to have to pay more: for from the defrauding of some, the taxes of others are not increased, because there is so great an abundance of taxes that those which are paid suffice for the republic; yet if it could be shown that others therefore have to pay more, commutative justice would be injured by him who does not pay the tax; but this can scarcely ever be shown.

Those defrauders are bound to restitution who, after entering a pact, express or tacit, with the collectors, use force or frauds so that they may decline payment of taxes. For by an unjust means they impede the republic from obtaining a just tax, and therefore also citizens from enjoying the good of freedom from paying larger taxes.

The distinction must be noted between a tax which is imposed by a preceptive law and a tax which is imposed by a penal law. To avoid the payment of this latter, he alone uses an unjust means who uses force or a pact, but not he who uses lies or perjuries: for in this case the fisc does not have a right in the tax, but only the right of occupying the tax; wherefore a means which concerns the goods subject to tax (concealment, lie) is not unjust, but only a means which concerns the person occupying the tax (force, pact). In a similar way one does not inflict injury on a poor man existing in extreme necessity if he conceals his goods by lies, but only he who impedes him wishing to occupy the goods which he needs.

Collectors are bound to restitution of the tax if they culpably neglect collection: for from office they are obligated to collect them; but they are not bound to restitution of the fine which would have been imposed on the defrauders if the collectors had reported them, because the office of caring that the fisc receive a fine does not rest upon them.

Restitution which is owed because of defrauded taxes either by collectors or by citizens is not to be made to the republic, which therefore suffers no damage, but can be made to the poor or by contributing something to the common utility.

Vol. II, Part Second. On the Precep…, Book Sixth. On the Seventh…, Chapter Third. On the Repa…, Question Fourth. On Restit…, Article First. On Unjust Cooperation in General

n. 477.

477. Prenotanda. Cooperation in general is concurrence with another acting. As it is taken here, it is concurrence with another unjustly inflicting damage; therefore a cooperator is said to be one who with another is the cause of unjust damage.

a. This cooperation is either positive or negative: negative consists in the omission of an action due from justice for impeding damage; positive consists in an action by which damage is unjustly inflicted with another; each can be physical and moral.

b. Positive moral cooperation influences the will of the damager; physical cooperation concurs with the damaging action, or assists the damager in inflicting damage. Negative moral cooperation consists in the omission of an action due from justice by which damage must be impeded through influence on the will of the damager, as if someone omits counsel or command by which he can and must turn another away from inflicting damage. Negative physical cooperation consists in the omission of an action by which damage can be impeded through influence on the damaging action, as if a guard does not drive away a thief.

c. This cooperation differs from that of which there was speech above (n. 116 ss.) in that here there is question alpha. of cooperation in a sin against justice; above, of cooperation in a sin against any virtue; beta. of formal cooperation, from which the obligation of restitution arises; above, of formal and material cooperation; gamma. of any cooperation whatever, whether the cooperator is an equally principal or secondary cause; above, of cooperation with another acting principally.

n. 478.

478. Obligation of restitution. 1. Unjust cooperation induces the obligation of restitution: for it is the cause of damage unjustly inflicted, at least partial cause, whether the cooperation was positive or negative.¹

Therefore even negative cooperation, by which another's damage is not impeded when it ought to have been impeded from justice, induces the obligation of restitution. To impede the damage of others pertains of itself to charity, just as to preserve and promote the good of others does, because commutative justice only requires this: that we not violate the rights of others nor inflict damages on them. Yet per accidens, namely from contract or from office or quasi-contract, there can be an obligation of justice to procure the good of others and to impede the damages of others.

In order that unjust cooperation induce the obligation of restitution, these conditions are required: that it be truly unjust, efficacious of damage, and theologically culpable: for an action by which damage is inflicted on the neighbor induces the obligation of restitution only under this threefold condition (n. 454).

Therefore no obligation of restoring exists if the action of the cooperator influenced nothing in the damage; and this generally has place in moral cooperation when the damager is already determined of himself and independently of the cooperator to inflict the damage.

¹ Therefore proposition 39 was condemned by Innocent XI: "He who moves or induces another to inflict grave damage on a third person is not bound to restitution of that damage inflicted."

…and 50 more passages — all of them are listed on the topic page.

Slater, Manual of Moral Theology

Thomas Slater, S.J. — 81 passages

Vol. I, Bk. VI, Part VII. The Seventh and Tenth Commandments

The Seventh Commandment is, ‘‘ Thou shalt not steal,”¹² and therefore directly and explicitly it forbids theft, but implicitly it commands us to observe justice in our dealings with others. The Tenth Commandment is, ‘‘ Thou shalt not covet thy neighbour’s goods,’ and so it forbids internal sins against justice. The subject-matter, then, of these commandments is the virtue of justice, of which we have now to treat.

¹ Exod. xx 15.

² Exod. xx 17.

Vol. I, Bk. VI, Pt. VII, Div. I, Chapter I. Nature of Justice and Right

THE word “ justice” is used in a variety of senses, but here it is used in its strict meaning to designate the moral virtue which inclines its possessor to give to everyone his due or his right.

The habit of giving to everyone his due from principle because it is right and proper is obviously a virtue, and it is 5 a moral, not a theological, virtue, for its immediate motive is not God, but the natural honesty and uprightness of so acting. Justice is a moral virtue which resides in and perfects the will, not the intellect, like prudence; it inclines the will to wish and to execute what is right. Justice inclines the just man to give his due to everyone irrespective of who he may be. It does not consider the relation in which that other stands to God, or to one’s self, as charity does; nor precisely what it is becoming in the just man to do, so that his actions may be worthy of himself, as does temperance, for example; it only considers what is owing to another, what is his due; and because it is the right thing that everyone should have his own, justice inclines to give it to him.

What is due to another in justice and is therefore his strict right must be distinguished from what a man has a claim to on some other ground. A poor man who cannot support himself has a claim on our help, but out of charity, not out of justice. He is our brother; he is a child of our common Father in heaven; he is destined to be a fellow-citizen with us for ever in the kingdom of heaven; the bond of mutual love which binds all such in one body, and makes them one big family, requires that all who can, should, out of their abundance, assist those who are in want. But this does not cause the abundance of one to belong to a needy neighbour in justice; it only prescribes that as much as is required to succour him in his necessity should be given him out of charity. A sufferer who is in pain has a claim on my sympathy and pity, not that it would be unjust to deny him my sympathy, but because pity and compassion require it of me. But when ten pounds are due to another in justice, those ten pounds belong to him; they are his property; he has a right exclusive of all others to all the benefit that can be derived from them, because they are his. Because they are his he can dispose of them as he pleases; he can put them in the bank, or spend them, or give them away; he would wrong no one even if he threw them into the sea, Anyone who steals them, or to whom he lends them, must, if he would be just, restore them to the owner, because justice requires that all should have their own.

We may divide the species of justice into individual or commutative and social justice.

Commutative justice regards the relations between man and man in their private and individual capacity. It supposes a perfect distinction of rights between them, and prescribes that these should be duly observed and respected. It exists between physical and moral persons alike, or between a physical and a moral person, provided that their rights are perfectly distinct from each other.

Social justice regulates the mutual relations between the individual and the society or State to which he belongs. As a member of society the individual has certain duties toward it; he must contribute his share to the common burdens; he must be ready to defend the common weal at the call of authority; he must obey just and equitable laws. This duty of rendering to the State what is its due is called legal justice. On the other hand, the State has its obligations toward its subjects; it must distribute burdens, honours, and rewards equitably without showing favour to particular classes and persons; not indeed with absolute arithmetical equality all round, but according to respective merits. The virtue which should regulate the distribution of burdens and rewards among its subjects by the State is called distributive justice. To such as have committed crime and injured the common weal the State metes out condign punishment according as vindictive justice demands.

There is a difference of opinion among Catholic writers as to whether legal, distributive, and vindictive justice, which we have grouped together under the name of social justice, are really subordinate species of the virtue, or whether commutative justice is the only species that may in strictness be so called. Whatever view be taken we must allow that in commutative justice alone is there a perfect distinction between debtor and creditor; it alone observes arithmetical equality in satisfying its obligations; it alone binds to restitution after being violated. In social justice, on the contrary, there is no perfect distinction between the State and its subjects; social justice does not prescribe the observance of arithmetical equality, nor does its violation bind to restitution, except when by the same act commutative justice has also been infringed.

That which in justice is due to me is my right, as it is called. I have a right to my life, to my good name, to my property; and anyone who deprives me of these rights is guilty of injustice. Rights, then, are the subject-matter of justice, and in this, its strict sense, a right may be defined as a moral power of having, doing, or exacting something.

It is said to be a moral power to distinguish it from the mere physical capacity of brute force, which confers no rights of itself. It is a moral power which may not without injustice be interfered with. It is the power of having and possessing as one’s own something which man values and which serves his convenience and wants; or of doing something, of giving scope to his bodily or mental activity; or of exacting some service as due to him from another.

A right is in re or ad rem. A right in re is a right which one has to something determined and already his own. In order that one may have a right in re the object must already exist; it must not be merely possible or future; it must be determined and separate; it must belong to the person by a title of justice so that it is his. If one of these conditions is wanting but notwithstanding someone has a claim in justice that something should become his property, he has a right ad rem to it. Thus a farmer has a right in re to his harvest after he has gathered it; before it has grown he has only a right ad rem. 'The right of a servant to his wages is ad rem until they are paid; after they are paid his right is in re.

A right in re seems to be practically equivalent to ownership (dominium). Ownership is absolute or qualified. Absolute ownership is the unlimited power of disposing of a thing for one’s own benefit. The absolute owner of a horse may use him, sell him, give him away, or kill him, without violating justice; he may do what he likes with his own. If ownership is limited in some way so that the owner has not a right to all the uses to which the object may be put, the ownership is qualified. Qualified ownership of the thing while its use belongs to someone else is called direct; qualified ownership of the use of what belongs to someone else is called indirect ownership.

According to English law, a subject is incapable of absolute ownership of realty; he is only capable of a qualified ownership therein, although to all intents and purposes an estate in fee simple is equivalent to absolute ownership. A qualified property of many different kinds may be had in realty, and both an absolute and qualified property of many different sorts may be had in movables. The various kinds of property, especially in immovables, are recognized and determined by law, which enforces the rights and obligations annexed thereto. In different systems of law there will be different kinds of property recognized. It will be sufficient for our purpose merely to mention ususfructus, usus, habitatio, servitus, of the Roman and canon law.

In. English law the quantity of interest which a man has in lands and tenements is called an estate, of which there is a great variety: equitable and legal estates; estates of inheritance and not of inheritance; estates of freehold interest and less than freehold, such as estates for years, estates at will, and estates at sufferance.

Vol. I, Bk. VI, Pt. VII, Div. I, Chapter II. Objects of Ownership

WE will here consider the various objects which can be owned by men, and to the exclusive use of which they can lay claim as being due to them in justice. We saw above that God has reserved to himself the dominion of human life; he is the God of life and of death, so that an injury is done to God by suicide or by unjustifiable homicide. Not even the State can have the absolute ownership of human life; it can never directly kill the innocent, although, as far as the common good demands it, the State may take the life of malefactors, and may require that each and all should be ready to defend the common weal even at the risk of life itself. No one, then, but God has the absolute ownership of human life or of man’s limbs and members.

Each one, however, has a qualified ownership in the faculties which God has given him. His activities of mind and body have been granted to man that by using them in a proper way he may do good and avoid evil, and thus secure the end of human existence. A man, therefore, is under the obligation imposed by God of making use of his mental and bodily faculties, and he has a consequent right to do so, as far as he does not thereby injure others.

When man by his labour has produced something which serves his wants and convenience, he has a right to the fruit of his toil; this is his property, and he cannot be deprived of it without injustice. This applies to what he has produced with his own toil, out of his own material, with his own resources.

A man’s reputation, then, inasmuch as it is the fruit of his merit and industry, is his property, and he cannot be unwarrantably deprived of it without injustice. He may, however, surrender it himself for good reason; he may write his confessions, like St Augustine, for the purpose of self-humiliation and for the instruction and edification of others; otherwise he must have a care of his own good name, without which he can do little good, and may do great harm to others,

Similarly, by the law of nature a book, design, or composition belongs to the author, and a new invention to the inventor. These things and others of the same kind are the fruit of the author’s or inventor’s thought and labour, and anyone who stole them and published them without their owner’s consent would commit a sin against justice.

Among modern civilized nations these rights are protected by municipal laws and international agreements, and, inasmuch as these determine the vague and uncertain prescriptions of the natural law, they bind in conscience.

The exclusive right of printing or otherwise multiplying copies of books, etc., is called in English law copyright. It extends not only to books, but to every volume, part, or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately printed; to engravings, prints, sculpture, models, busts, paintings, drawings, photographs, designs, dramatic and musical representations.

Copyright is protected throughout the British dominions and the principal countries of Europe, which form the Copyright Union. On certain conditions copyright is now protected in the United States of America, and foreign authors may acquire copyright within the States by complying with those. conditions.

English law grants copyright for the author’s natural life and for fifty years longer.

In the United States the original terms run for twenty-eight years; it may, however, be renewed for a further term of fourteen years, making forty-two years in all.

In the same way patent right, or the right of the inventor to reap the benefit of a new contrivance, is protected in England on certain conditions for fourteen years, which protection may be extended for a further period of seven or fourteen years if the inventor has not yet reaped the full benefit of his invention, and such patent is for the public benefit. The period to which patent right extends in the United States is seventeen years.

There is a controversy among theologians as to whether the natural law of itself forbids the reissue by another without the author’s consent of a book which has once been published. Some deny this on the ground that by being published, apart from the prescriptions of positive law, a book becomes public property, and anyone who buys a copy may make what use of it he pleases. He is merely disposing of what is his own. The contrary opinion, however, seems better grounded, for the author in publishing a book makes over indeed to the buyers of it certain advantages, but there is nothing to prevent him reserving the right of issuing it again to himself. The buyer of a copy may make the contents of the book his own and work them up again in any form of his own that he chooses; he buys the material part of the book, paper, binding, etc., and may make what use of them he pleases; but he does not purchase the right to issue the book again, and he violates justice if he does so against the author’s wish. The same holds with regard to patent right.

This controversy is of little practical importance, for sufficient protection is provided in most civilized countries by positive law.

We saw above that no one except God can have an absolute property in man’s life or members. No man, then, can become the chattel of another so that he may lawfully be disposed of like a brute beast. Christian teaching has banished such an idea from Christendom at least. On the other hand, there is no difficulty in admitting that one man may make over his services to another for as long as he pleases. Theoretically, therefore, there seems no reason for saying that slavery is against the law of nature. We here understand by the term the state of perpetual subjection of one to another so that he owes that other his life service in return for board, lodging, and clothes. Practically, great abuses usually accompanied slavery, and we must allow that it is out of harmony with the spirit of the Gospel. Chiefly through the wise and gradual action of the Church, it has ceased to exist as an institution among civilized nations. However, we must not forget that penal servitude is still the just and recognized punishment for grave crime. Merely looking at the question from the point of view of the strict law of nature, we must acknowledge that a state of slavery arising from contract, or birth, or in punishment for crime, or as the result of a just war, is not in itself immoral.

Animals and the earth, together with all that they produce, may become man’s absolute property. God has imposed on him the obligation of maintaining himself and those who are dependent upon him, and he has-a consequent right to make his own whatever is necessary and useful for that purpose, if it has not been appropriated by someone else. He has a right to provide not only for his immediate wants, but for the future also; not only for himself, but for his offspring. In other words, nature herself gives man the right of private property. This right is not given by the State; it is anterior to the State, and its preservation and defence is one of the chief reasons for the existence of the State. It may indeed be regulated by the State, as far as is necessary for the common good, but it is beyond the power of the State to do away with it.¹ No Catholic is at liberty to deny the lawfulness of private property and its necessity in the general conditions of the modern world.

Socialists, indeed, advocate the nationalization of the land and of all the means of production and exchange as a sovereign cure for the economic evils of the world. The plan militates against the right of private property; it is unworkable, and even if it could be introduced it would be no cure for existing evils, and would introduce other new ones. The fuller treatment of this, a practical question in our days, scarcely belongs to moral theology; it is not in the confessional that such questions are treated. The student should consult books on ethics, or special works written on socialism or collectivism.

¹ Leo XIII, on the Condition of Labour, May 15, 1891.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section I. General Principles

None but an intellectual being endowed with intellect and will can own property. For such alone, or persons as distinct from things, are the subjects of rights; persons alone can freely dispose of objects which are necessary or useful for the attainment of man’s destiny. Persons alone can suffer a formal injury by the wilful violation of their rights against their will, and so they alone are capable of having rights and holding property.

God, who is the Creator of all things, is also their universal Lord and Master. He can do what he pleases with his own; however he may treat his creatures, they cannot complain of God’s injustice toward them. He is bound only by the laws of his own infinite Goodness and Wisdom.

Other pure spirits whom God has created might conceivably have rights of ownership, but as they have no use for material things with which we are specially concerned, we need not further consider them in this connection.

All men, even imbeciles, who will never have the use of reason, and infants still unborn, are subjects of rights and capable of holding property. For they all require many things for their support, preservation, and defence, for the perfect development of all their faculties, mental and bodily, and for the orderly and secure attainment of their end. As, then, they are under the obligation of striving for the attainment of their end, and they have the right to do so, they have also the right to the necessary means. This reasoning is not invalidated by the incapacity of infants and imbeciles to use their faculties and administer their property. Their rational nature gives them their rights; their capacity to use them is not a necessary condition of their existence. A man who is asleep retains his rights, though he cannot then exercise them. Besides, whatever defect there might be in the title of infants and imbeciles to the rights of men is supplied by the provisions of positive law, which confers rights of property independently of the knowledge or acceptance of the owner.

Inasmuch as man is a social animal, and develops his faculties in the society of his fellows, whose help he constantly needs, nature herself has given him the right to form private societies, companies, or corporations, for the furtherance of common ends, independently of that larger public society which we call the State, and to which all belong. As Leo XIII teaches: “‘ Private societies, then, although they exist within the State, and are severally part of the State, cannot nevertheless be absolutely and as such prohibited by the State. For to enter into a society of this kind is the natural right of man; and the State is bound to protect natural rights, not to destroy them; and if it forbid its citizens to form associations, it contradicts the very principle of its own existence; for both they and it exist in virtue of the like principle—namely, the natural tendency of man to dwell in society.¹

The State, of course, has the right of control over such societies as are founded for civil purposes, and they are subject to the just laws which the State may make in their regard. English law acknowledges both corporations aggregate, consisting of more than one person united for the purpose of pursuing a common end, and corporations sole, consisting of but one person like the sovereign or the rector of a church. A corporation is a moral entity, a fictitious person, with rights of its own, distinct from the rights of the physical persons who compose it. As far as property is necessary for the attainment of its end, a corporation has the right of ownership, though this right is subject to the control and regulation of the supreme authority. Leo XIII in his encyclical on labour warmly approves of workmen forming their own unions and societies for the defence of their rights and the furtherance of their welfare.

¹ Encyclical on the Condition of Labour, May 15, 1891.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section II. Property Rights of Minors

Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child’s property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child’s minority, if no trustee or guardian of his property has been appointed, the father or mother will usually be appointed guardian, and in that capacity they are bound to administer the property for the benefit of the child, nor may they use it for their own profit.

On the other hand, English law gives no right to children to share in their father’s property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. As to entailed property, a tenant in tail in possession may now under the Law of Property Act, 1925, in certain circumstances bar an entail and dispose of it as a fee simple, not only by deed but by will.

When an intestate, whether husband or wife, leaves a surviving spouse and issue, the survivor of husband or wife takes (a) personal chattels absolutely; (b) £1,000 net free of Death Duties and costs, with 5 per cent. interest thereon from death till payment or appropriation; (c) a life interest in half of the rest of the intestate’s estate. Subject thereto the property is held on the statutory trusts for the issue.

If the intestate die leaving no husband or wife surviving, but only issue, then the issue take the whole of the estate on the statutory trusts. These statutory trusts provide for equal division of the estate per stirpes.

A child who has the means is under a moral obligation of supporting his parent when he is incapable of supporting himself, and this obligation is enforced by English law.

Moreover, if a minor living with his parent is earning wages the parent is not bound to support him free of cost, and until he is sixteen it would seem that the parent is justified in taking his earnings. Even after that age it may well be that an elder son or daughter who is in receipt of wages is bound to help to support younger brothers and sisters if the family is numerous. Apart from these obligations a minor acquires a full right to what he earns, and may enter into a contract with his parents for the payment of the cost of his board and lodging, reserving what is over of his wages for himself. If a minor works in his father’s house no contract for wages will be presumed; he is supposed to forgo them, or his keep is supposed to be an equivalent, unless an express contract for wages is entered into between them.

Minority ceases on the completion of the twenty-first year of the minor’s age, or by emancipation. A minor is emancipated from his parents’ control by marriage, by entering into religion, or when an adult child leaves the paternal household and enters the army or ordinary service as a domestic servant or labourer.¹

¹ Eversley, Law of the Domestic Relations, p. 599.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section III. Property Rights of Married Women

The fact that a woman marries does not of itself take away or lessen her natural capacity to possess property. Her husband is indeed the head of the family, and is presumed to be better able to administer family affairs than his wife. Moreover, the law of England used to give the husband very extensive rights over his wife’s property. For in general any freehold estate of which the wife was seized at the time of the marriage, or of which she became seized afterwards, became vested in her husband and herself during the coverture, and the husband was entitled to the profits, and had the sole control and management. By marriage a husband became possessed of his wife’s leaseholds in her right. He was not only entitled to the profits and management of them during the joint lives, but he could dispose of them as he pleased by any act during the coverture. The personal chattels of the wife became in general the absolute property of the husband.¹

By degrees inroads were made on the rigour of the common law, and means were found to secure separate property to a married woman. By the Married Women’s Property Acts of 1870 and 1882 great changes were introduced, so that now a woman married after the first day of January, 1883, possesses as her separate estate all her property, whether acquired before or after the marriage. All women who were married before the above date similarly possess as their separate estate all property which comes to them after that date. Practically, therefore, during her life and that of her husband a married woman has rights of property as if she were single.

Furthermore, she has a right to support for herself and her children, even those of a previous marriage, at her husband’s expense, according to her condition in life, and she may effect an insurance on her own or on her husband’s life for her separate use.

¹ Stephen’s Commentaries, 2, p. 277.

A married woman can now make a will and leave her separate property according to law to whom she pleases. In conscience she must of course take account of the needs of her surviving relatives and of other legitimate claims on her remembrance. If she dies intestate, all her personalty goes to her husband; her realty also goes to him for life, afterwards to the only child, or to the eldest son or his issue if he be dead, or to the daughters equally.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section IV. Property Rights of the Church

The Right of the Church to Possess Property

We have already seen that not only physical persons but corporations or societies can also own property. The Church is a perfect, independent, and visible society founded by Christ our Lord, and endowed by him with all the rights and privileges which are necessary to enable her to attain her end. This end is the sanctification and salvation of souls by the preaching, propagation, and exercise of the Christian religion. It is obvious that for the support of the Church’s ministers and missionaries, for the building and upkeep of churches, for the decent and proper exercise of religious worship, and for numerous other purposes, ample revenues and lands are required, and, inasmuch as the Church has the obligation and the right to work for the end for which she has been founded by God, so she has the right to the necessary means. This reasoning is confirmed by the condemnation by the Popes of several false propositions bearing on the Church’s right of ownership¹ (Can. 1495).

¹ Props. 10, 32, 33, 36 of Wyclif; and Prop. 26 of the Syllabus.

The general truth that the Church has a right to own movable and immovable property is certain, and does not depend for its validity on the question as to who is the definite owner of Church property. This was a disputed question, some theologians maintaining that God is the immediate as well as the ultimate owner, inasmuch as Church property is said to be given to God; others taught that the universal Church or the Pope is the owner; others, again, that the corporations constituted by individual churches, dioceses, religious congregations, and orders are the real owners of the ecclesiastical property belonging to those institutions. This last opinion is commonly accepted nowadays, and it seems more in keeping with the intention of the donors of such property, which is usually the benefit of a particular religious institution for the honour of God, and in this sense they make their offering to God (Can. 1499, sec. 2).

The administration and management of Church property belong to those ecclesiastics who have been lawfully placed over the churches, dioceses, institutes, etc., to which the property belongs; and the Pope as the supreme head of the Church on earth has the supreme administration, or the altum dominium, as it is called.¹

¹ Can. 1519-1521, etc.

The profits derived from ecclesiastical property should, according to the Church’s law and natural equity, be devoted to those purposes for which the donors gave the property. If this cannot be done because the object for which the property was given no longer exists or for some other legitimate cause, it is for the Pope to make the needful dispositions so that the intention of the donors may be carried out as far as possible (Can. 1514).

No immovable ecclesiastical property, or even movable when it is of considerable value, may be alienated without the leave of the Holy See, and the penalty of excommunication is incurred by all who attempt to do so or to receive the same without the requisite permission. The Pope for good cause may of course alienate Church property, as he has not infrequently done, especially in times of upheaval, as after the Reformation in England and after the French Revolution (Can. 2347).

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section V. Property Rights of Clerics

We do not propose to treat here of the capacity of religious to own property; that question will be best considered when we treat of the state of religious. Here we only inquire into the property rights of the secular clergy.

The property of the clergy is divided by theologians into four kinds. What they possess as private persons, whether it has been given or bequeathed to them or they have inherited it, is called their patrimony. Quasi-patrimony is what they have obtained by the exercise of their ministry in stole fees, stipends, and casual offerings. Ecclesiastical goods are derived from the revenue of benefices. Savings are what a cleric has acquired by living sparingly and which he might have spent by living according to the ordinary standard.

Of these different kinds of property, patrimony and quasi-patrimony belong to the cleric; they are his private property, of which he has the ownership just like anybody else, for he is not deprived of the right to possess property by becoming a cleric. What he saves also from what he might have spent lawfully on his support belongs to him, for the labourer is worthy of his hire; he has a strict right to a decent living from the revenues of the Church, and what he saves from the sum required for this belongs to him as his own.

There is a difficulty concerning the profits derived from his benefice if the cleric has one. He may, of course, use the income derived from this source for his maintenance according to his rank; but supposing that a balance remains over, what must he do with that? Ecclesiastical law prescribes that he must employ it for pious purposes, and must not squander it or enrich his relations with it. He is bound under pain of sin to give it to the support of religion, or to the poor, or for educational or other pious causes. If he does not do this, he certainly sins against obedience; but does he also sin against justice, and is he therefore bound to make restitution ? This is a disputed question among divines. The more probable opinion is that he does not sin against justice and so is not bound to restitution; for the income derived from his benefice is his own property, and he may do what he pleases with his own, unless there be some free disposal of his property. law which restricts his In this case there is such a law, which must be observed, but which for all that does not make an act which it prohibits unjust; it only makes it unlawful (Can. 1473). . 2. In English-speaking countries there are few well-endowed benefices, so that in general the clergy have to be supported by the offerings of the faithful. As Leo XIII says in his Constitution Romanos Pontifices, May 8, 1881, the offerings of the faithful were not regarded as ecclesiastical property where religion and the clergy were sufficiently provided for from other sources. In Britain, however, the offerings of the faithful are almost the only means available for the maintenance of divine worship, the building and repair of churches and schools, the support of charitable institutions and of the clergy. Hence it becomes a matter of importance to be able to decide what offerings belong to the clergy as their own property, and what constitute ecclesiastical property and belong to the Church. Of the latter property the clergy are only the administrators, and they are bound to render an account of their administration to their superiors and to God. Rules for settling what offerings are private and what ecclesiastical property were drawn up by the Second Provincial Synod of Westminster, approved in the year 1856; and Pope Leo XIII sanctioned those rules and ordered them to be observed wherever his Constitution Romanos Pontifices should be in force. I here give Father Guy’s version of the rules: “ (1) Offerings of the faithful for the propagation and ornament of religion, for the support of the clergy, the relief of the poor, and other pious uses, are considered as made to God and the Church, and the administrators or guardians of them, whether ecclesiastics or laymen, are to be deemed merely dispensers of them, under an obligation of rendering an account to God of their stewardship. As here now it is required among the dispensers that a man be found faithful in those things which concern the rightful administration of Church property, it seems proper that in this synod we should treat this matter more fully, inasmuch as having been occupied with matters more important in the First Provincial Council, we deferred the consideration of this subject to a more convenient opportunity. _“* (2) Every effort must be made to determine, if there be any doubt, the intention and purpose of the donor or testator of each fund, and that the proceeds of it may be rigidly applied to the use prescribed by him.

“‘(3) If this intention cannot be ascertained from any trustworthy document, rules or canons by which a safe judgement may be formed in such cases should be observed.

(4) Whenever a church or school or any other building intended for religious uses is erected or provided, either wholly or in part, from money contributed by the faithful, or granted by any society administering the alms of pious Catholics, every edifice of this kind is to be considered as belonging for ever to the place where it stands.

“‘(5) The same judgement must be passed on buildings erected by any benefactor, unless it is clearly proved that he made a declaration that in erecting such an edifice he did not intend it for the advantage of the faithful of that place, but that he wished to confer a benefit on some particular order. The rules laid down in this and the preceding number as to rights in foundations are in the case of Regulars to be applied to new foundations only. ** (6) But the Bishop shall not be allowed on this account to take away a mission lawfully entrusted to any religious order. These rules regard merely a case in which a religious body either cannot or will not retain the care of a mission—for example, if a superior remove it to some other place, or for any other reason it there cease to exist altogether, and not for a time only. “ (7) If, however, any mission be founded altogether or for the most part by funds belonging to any religious body, which for good reasons may wish to leave entirely and go elsewhere, we recommend that a distinct agreement be made between the Bishop and the superiors of the order as to what has to be done; so that on the one hand just rights may not suffer, and on the other no scandal may arise nor grievous loss of souls ensue. (8) Much less is it lawful for any cleric, or even for the Bishop himself, to alienate Church property, as is evident from almost numberless decrees of canon law. If, however, on account of reasons approved of by the canons, such an alienation become necessary, the priest can never act in this matter without the authority of the Bishop, nor the Bishop without the precautions required by canon law.

“‘(9) In every mission where money is contributed by the faithful in the ways hereafter described it is to be accounted Church property, and not a donation to the priest. For from this money he must provide not only for his own decent support, but for the expense of religious worship, for the maintenance of the fabric, for payment of debts, where there are any, and for other wants. Wherefore, if any priest leave a mission during the course of the year, he has not a right to his proportion of the yearly income until the amount justly due for expenses be deducted. In like manner, what he has provided for the use of the church from the income of the - church—for example, wax candles, wine for the most holy Sacrifice, sacred furniture—these he should leave behind him, without any compensation, unless he can clearly show that the supply is excessive. “

(10) All are aware that there are now in operation different methods of raising money for the support of missions. The following in particular we do not disapprove of, till the charity of the faithful shall provide in a better way. They are:

(a) Letting of seats or places in the church to certain persons or families at a fixed rent to be paid to the church.

(b) Church collections made at the Offertory. (c) According to a custom prevailing generally in England, payment of a fixed sum, according to the part of the church which they occupy, by those who do not rent seats, yet are not content to occupy what is called the free space. (d) Sermons by some distinguished preacher of the word of God, after which the alms of the congregation, whose number is often swelled by a concourse of strangers, are collected for the general or particular use of the church or for some special purpose. (e) Collections which are either made from house to house, by persons appointed for the purpose, or by societies and confraternities lawfully appointed, or which are gathered from tens or hundreds as is done in the excellent society called the Society for the Propagation of the Faith, or contributions made by the more wealthy portion of the congregation at fixed times or yearly. “

(11) Although it is certainly much to be desired that many of these methods of maintaining the Church were done away with, yet experience has taught that it is as yet impossible altogether to dispense with them. Wherefore, in those places where one or more of these methods prevail, they ought to be so kept on that no innovations be introduced without the authority of the Bishop. Especially the free space should not be diminished nor narrowed without consulting him. But whatever money comes to the mission by these means, it should be considered as belonging not to the priest personally, but to the general wants of the mission. Therefore, whatever furniture, either sacred or domestic, he acquires from these sources, or whatever he expends in keeping in repair the church or other buildings in any way belonging to it, in this expenditure he is not making provision for himself, but is providing for the mission from mission property. ‘

(12) As soon, therefore, as any priest enters on a mission, an inventory of all property belonging to the mission should be placed in his hands by the dean or by someone deputed by the Bishop. The missionary is bound to keep the furniture and buildings in good repair, yea, rather to improve them, that he may deliver to his successor as much at least as he received himself. Should he provide for the renewing of what is grown old and mean, or procure something new and more elegant to ornament the place, a distinction must be made as regards the sources from which the expense is defrayed.

(a) If the priest has procured these things from his own property, or from the gifts of friends well disposed towards him, or in fine, from that portion of the income of the church which he might have expended on his own decent maintenance, they are to be considered as his own property, provided he has kept all that he received in good order. (b) But if these things were procured out of the general revenues of the church, or by gifts and collections from the congregation, or by money granted by the Bishop or the administrators of the temporalities of the diocese, they are to be deemed entirely the property of the mission, nor is it lawful for the priest on any account to claim them. “*

(13) It is also to be generally understood according to a rule of canon law that things adapted for ecclesiastical purposes given to a missionary are, unless there is proof to the contrary, given to the mission; but things adapted for personal use are presumed to be given to the priest personally, as are also such church things as are given by a flock to a priest as tokens of gratitude or affection. ‘

(14) Retributions for Masses are the property of the priest. In like manner, where it is the custom, which is a very ancient one in England, of making presents to each priest at Easter and Christmas, these gifts of right belong to them. But the priest should be on his guard lest he incur the suspicion of avarice, by receiving anything on account of his administering the sacrament of Penance.

“‘(15) As to the application of money derived from stole fees, there is no uniform practice throughout the whole Church. For though the Church detests all filthy lucre in extorting or exacting money for the administration of the sacraments, yet the Council of Lateran, held under Innocent III in the year 1215, prescribed that the laudable customs in accordance with which offerings were made by the faithful to the ministers of the altar, on occasion of the administration of the sacraments, should be observed. The proceeds derived from this source should be ordinarily considered as belonging to the priests; though they are distributed in different ways in different places. That distribution seems to be the best which is most conducive to alleviate the burthens of the mission. “

(16) Whilst, therefore, we forbid anything to be asked for and much more anything to be exacted before the celebration of baptism and matrimony, and even after the celebration as a right, we leave it to the prudence of Bishops to determine in their diocesan synods what seems best adapted to the customs and state of places. Especially should they most vigilantly correct all abuses, if any exist, as to the amount or to the exaction of these offerings, by enforcing everywhere an equitable arrangement.”

These provisions seem to be in harmony with Canons 1182, 1519-1528, etc., of the new Code, and so it would seem that they are still in force.

Vol. I, Bk. VI, Pt. VII, Div. I, Chapter IV. Title to Property

TITLE is a cause sufficient to confer property in a thing. There are several kinds of title, some derived from the natural law, others due to positive law, and others which have their effect from the will of private persons. They may be reduced to title by occupation, by accession, by prescription, and by contract. On account of its importance and the abundance of material we will treat of contract in a separate Book; the other three titles must be considered here.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. IV, Section I. Occupation

Occupation is the taking possession of some material thing with the intention of making it one’s own. It will be a lawful title to ownership of property if the thing occupied had previously no owner, and actual possession is taken of it with the purpose of making it one’s own. If these conditions be fulfilled, it seems useless to investigate further how occupation is capable of conferring property. Whether the fact of occupation sanctioned by the community is sufficient, or whether we say that by occupation a man’s labour is mingled with the thing, and thus the connection of ownership is set up, is really immaterial. It is a title universally acknowledged and is derived from Nature herself.

As is clear from the definition, there cannot be occupation without actual, or at least constructive, taking possession of the thing, whether it be movable or immovable; it is not sufficient merely to see the thing at a distance, nor is it enough to take hold of it with the intention of seeing what it is, without any idea of retaining it for one’s own.

Most things of value, especially the land, have owners already, and so a title to ownership by occupation can only arise with reference to certain classes of property which are not of very great importance. In moral theology this title is at the root of ownership derived from finding lost property, treasure-trove, and the capture of fish and wild animals. Here English law only partially agrees with what seems safe in conscience.

The finding of things of value without an owner confers ownership in the things found if they be taken possession of with the intention of making them one’s own. Whether they ever had an owner or not is immaterial in conscience, provided that they have none at present. English law, indeed, grants property which belonged to someone who died intestate and without heirs to the Crown, under the name of bona vacantia, and when such property is claimed by the Crown, its title of course prevails. If the Crown does not claim the property, the first who should occupy it would seem to be safe in conscience if he kept it. The same doctrine may be applied to wreck found, which positive law requires to be delivered to the receiver of the district, and this officer, if no owner appear within a year, sells the same and pays the proceeds into the Exchequer.

Any money, coin, gold, silver, plate, or bullion, found hidden in the earth or other private place, the owner thereof being unknown, is called treasure-trove. By English law it belongs to the Crown, but if the Crown does not claim it, the finder would be justified in keeping it.

One who finds property that has recently been lost may be bound in charity to take possession of it and try to discover the owner, but there is no obligation to do so in justice. If, however, he take possession of it, he is bound in justice to take reasonable care of it, and to use ordinary diligence to discover the true owner. On the true owner being discovered the finder has a right to be compensated for any expenses he has been put to in consequence of keeping the property, but he must deliver it up to the owner. As English law does not grant prescription in movables, this doctrine will hold even though the owner be discovered after the lapse of years; if the property still remains intact or in its equivalent, it belongs to the original owner and must be restored to him. The finder of lost property acquires thereby a qualified property in it which is valid against all save the true owner, and if the true owner cannot be discovered within a reasonable time, the title of the finder becomes absolute, and he may use it as his own.

Animals are either domestic, tamed, or wild. The property in domestic animals such as dogs, sheep, kine, pigs, always remain with the owner, however much they may stray, as long as they are not so utterly lost that there is no hope of finding the owner. Such animals always belong to their original owner as long as he can assert his ownership over them, in the same way as his household furniture belongs to him. Wild animals which enjoy their natural liberty and go where they please belong as a general rule to him who first captures or kills them. Such a one makes them his own by occupation, for before he took them they belonged to no one. English law has modified this general rule to some extent, for if a trespasser capture or kill a wild animal on another person’s land, it belongs to the owner of the soil on which it has been started and killed; if a trespasser start an animal on one person’s property and kill it on another’s, it belongs to the owner of the former. These rules of positive law give the owner of the property at least the right to vindicate his claim, which cannot then be lawfully resisted by the trespasser.

Animals which have been tamed, such as pigeons, bees, young pheasants that have been hatched under hens, belong to their owner as long as they retain the habit of returning to his premises, but if they lose that habit and recover their natural liberty, they belong to the first who takes them, like wild animals. Animals which are enclosed like deer in a park, rabbits in a warren, or fish in a pond, belong to the owner of the enclosure, as long as he can exert his control over them. If they recover their natural liberty, they are primi occupantis.

A poacher may be guilty of sin by damaging the property of another by trespassing on it, and from the fact that he exposes himself to grave personal risk or to the danger of violently resisting lawful authority if he is caught. By the mere fact of capturing wild animals he does not commit a sin against justice, unless he kills so many in a particular property that the right of killing game therein is seriously lessened in value, and the owner in consequence suffers considerable loss, because, for example, he cannot let it at so high a price.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. IV, Section II. Accession

Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale, ‘The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.

Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial, With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.

When one thing is added to another, the general rule is that what is accessory becomes the property of the owner of what is principal. And so the owner of land has the property in gradual increments made to it by alluvion; an island formed in a river belongs to the owner of the bed. If a river suddenly changes its course, or the sea suddenly retires, the rule does not hold; the ownership remaining as before. If wood belonging to another has been used in a building, the property is transferred to the owner of the building, with the obligation of making compensation for the wood. Similarly a painting on another’s canvas belongs to the painter, but he must pay for the canvas. When a new form has been introduced into the material, as by baking bread, making wine or oil, the product belongs to the workman, but compensation must be made for the material. The ownership is then said to be acquired by specification, When liquids or solids belonging to different owners have been mixed, they should be separated if possible, and each owner will retain his separate property. If this is impossible, the former owners still retain their right to a proportionate part of the whole or to its value.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. IV, Section III. Prescription

As the term is used here in moral theology, prescription is a title by which the ownership of property is gained or lost through adverse possession during the time and in the manner laid down by law.

In English law the term prescription is only used with reference to incorporeal hereditaments—i.e., rights and profits annexed to or issuing out of land. Of these the chief are advowsons, tithes, commons, ways, offices, dignities, franchises, pensions, watercourses, lights, annuities, and rents. Land and movables cannot be claimed by prescription. However, the Statute of Limitation, 3 & 4 William IV, c. 27, and the Real Property Limitation Act, 1874, have the same practical effect as Prescription Acts, with regard to real property, and it will be convenient to consider them here as such.

The mere possession of property belonging to another even for a lifetime would not of itself transfer the ownership to the possessor. But as it is so much easier to prove possession than ownership, and because those who have been in peaceful possession of property for a long time should not be liable to be unwarrantably disturbed, and, moreover, in order that owners of property may look after their rights, the legislature has authority to confer a right to property, in consideration of long and peaceable possession. This is what both ecclesiastical and civil laws of prescription do, and these laws avail not only in the external forum, but also in the forum of conscience.

In order that ownership of property may be transferred by prescription, certain conditions are requisite either from the nature of the case or by positive law. Theologians usually reckon five such conditions—viz.: (a) the property must be such as the law allows to be prescribed; (b) there must be good faith in him who prescribes; (c) consequently there must be some sort of title; (d) there must be possession (e) for the time required by law.

(a) As prescription depends for its validity on positive law, there can be no prescription which the law does not recognize. English law does not recognize any title to movables by prescription, as we have already seen. Ecclesiastical law acknowledges a right of prescription to both movables and immovables. Inasmuch as laymen cannot hold benefices, they cannot gain a title to them by prescription, though clerics may do so. .(b) Good faith is the second condition required for prescription, English law does not expressly require good faith, but it is certainly required in conscience. He who prescribes must not know that the property which is in his possession belongs to someone else; if he knows this, he can never become its owner by prescription. This was defined by the Fourth Council of Lateran, c. 41, and the reason is plain.¹ For as soon as anyone is conscious that he has something which belongs to another, he is bound to restore it to the owner, and the longer he keeps it against the owner’s will the more grievous sin of theft does he commit. Positive law could not by prescription transfer another’s property to one who was in bad faith, for such a law would not be for the common good, but would foster crime. The user, then, by which property is acquired by prescription must be without the consciousness of wrongdoing; in one who frees his property from a servitude by prescription, there will be good faith if he put no obstacle in the way of the other’s enjoying his right; he is not required to warn him that prescription is running against him. If during the time required for prescription a doubt about the right to the property occurs to the possessor, he must make all needful inquiries, and satisfy his conscience that at least no one else has a certain title to the property in question.

The time during which a predecessor in title held possession of the property may be reckoned together with the period during which the present possessor has held it in order to complete the time required for prescription, if possession was always held in good faith. Even if a predecessor in title was in bad faith, this will not prevent a successor from gaining a title by prescription, provided that the latter possesses the property in good faith for the full time required by law.

(c) Inasmuch as good faith is required, as we have seen, and this cannot exist without some colourable, supposed, or at least presumed title, the third condition requisite for prescription is some sort of title. The quality of the title affects the period of time required for prescription by ecclesiastical law,as we shall see; no special title is expressly required by English law.

(d) No prescription can be had without uninterrupted, open, and peaceable possession. The prescription must be nec vi, nec clam, nec precario. It is precisely the possession for the period required that furnishes the ground for the transference. of ownership by prescription. When the term is up the property is vested in the possessor, who acquires also a right to all the fruits, if any, which he has meantime reaped from the property; for what is accessory follows the principal.

(e) Different systems of law require different periods of time for prescription, and the time varies with different kinds of property.

A great change in the ecclesiastical law of prescription was made by the new Code, as is clear from Canon 1508, which is as follows: ‘‘’ The Church accepts for ecclesiastical property prescription as a mode of acquisition and of freeing one’s self from burdens as it exists in the civil legislation of each nation respectively, with the exceptions laid down in the following canons.” Canon 1509 exempts certain classes of property from prescription, Canon 1510 lays down that sacred things in the possession of private persons can be prescribed by private persons, but that sacred things which are not in the ownership of private persons can only be prescribed by a moral ecclesiastical person against another moral ecclesiastical person. In general one hundred years are required to prescribe against the Apostolic See, and thirty years are required to prescribe against other ecclesiastical moral persons, according to Canon 1511.

The term required by English law for the acquisition of rights by prescription varies according to circumstances. At common law, time immemorial was required to establish a prescriptive right, but the Prescription Act, 1832, provided that with respect to rights of common, and all other profits or benefits to be taken and enjoyed from or upon any land, where there shall have been an enjoyment of them by any person claiming right thereto without interruption for thirty years next before the commencement of any action upon the subject the prescriptive claim shall no longer be defeated by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. It is also provided that the time during which the adverse party shall have been an infant, idiot, non compos mentis, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, shall be excluded in the computation of the period of thirty years. But where there has been an enjoyment for sixty years the claim is to be absolute and indefeasible.

Rights of way and other easements, or any watercourse, or the use of any water, to be enjoyed upon, over, or from any land or water, and also as to the access or use of light to and for any dwelling-house, workshop, or other building, are prescribed after twenty or at least forty years, instead of thirty and sixty respectively. An uninterrupted enjoyment of lights for twenty years constitutes an absolute and indefeasible right to them.

¹ Can. 1512.

Prescriptive rights may be extinguished by abandonment, express or implied; and after a period of twenty years’ nonuse, or sometimes even after a shorter period, abandonment will regularly be presumed. They are also extinguished by operation of law when the dominant and servient tenements come into the possession of the same owner in fee.

As we have seen, the right to-real property is by the Real Property Limitation Act, 1874, extinguished after twelve years’ adverse possession. The Limitation Acts which affect the ownership of real property differ from other Limitation Acts which concern personal property or a right of action in that the latter only bar the remedy after the lapse of the time fixed by law; they do not take away the right; the former, on the contrary, extinguish the right.

The conditions for prescription in the United States are in general the same as in England, except that as a rule a period of twenty years is necessary and sufficient to acquire both land and incorporeal hereditaments, and also to extinguish those rights. In some States squatters who have cultivated plots of land in good faith may become owners of them by prescription in a shorter space of time than twenty years.

The subject of prescription is a thorny one in English law, and it would be imprudent for a confessor not otherwise specially skilled to venture to determine questions of right by prescription. What has been said will, it is hoped, enable him to judge how far conscience may follow the law, and when a penitent should be recommended to consult a lawyer.

Vol. I, Bk. VI, Pt. VII, Div. II, Chapter I. Injuries in General

THE wide term injustice may be used to designate any violation of justice, whether it be legal, distributive, or commutative. Sins against legal justice are committed by doing anything against the common good of the society to which one belongs, or by neglecting to do what the common good requires to be performed. Such sins may be committed by rulers and by subjects, more frequently, however, by the former, inasmuch as the common good is specially entrusted to their care and guardianship. As the separate members of a society constitute that society, it is obvious that there is not a perfect and adequate distinction between a society and its members, In legal justice, therefore, which regulates the relations which ought to subsist between men and the society to which they belong, there is something wanting to the complete distinction of persons required in order that the obligations of strict justice may subsist between them. A violation, then, of legal justice is not a sin against justice in the strict and full sense.

Distributive justice prescribes that the ruler divide common burdens and emoluments among his subjects. according to their capacity and merits. Before they are assigned to each one, no one has a strict right to any determinate share of them, and so a distribution of burdens and favours which is not according to merit is not against strict justice. A ruler who in his distribution of offices and burdens shows undue favour to some to the detriment of others’ sins indeed against strict justice if he thereby cause damage to the community, for strict justice and the implicit agreement which he made on assuming his office forbid him to do that. If, however, no special injury accrues to the community through his showing undue preference for some of his subjects, he commits a sin which is called acceptation of persons, but he does not sin against strict justice. On the other hand, one who violates particular or commutative justice deprives another of his strict right. Such a sin is called an injury, which may be defined to be the violation of the strict right of another against his reasonable will.

Such an injury is formal if it is committed knowingly and - wilfully, otherwise it is material.

A personal injury is committed against rights which are intrinsic to the person, such as the right to life, liberty, good name, and honour. A real injury is committed against the property of another.

Personal injuries are treated of elsewhere under the Fifth and Eighth Commandments; here we consider more especially real injuries done to the property of another.

There are three different species of real injuries—robbery, theft, and simple damnification. Robbery, besides injury to property, includes also a personal injury, which consists in violence offered to another by forcibly depriving him of what is his. Simple damnification is the causing of damage to the property of another without taking away any of that property. Theft is the secret taking away of the property of another against his reasonable will. . No action is an injury unless it is against the reasonable will of the injured person, scienti et volenti non fit injuria, according to the twenty-seventh rule of law in the Sixth Book of the Decretals. The reason is obvious; because a person may as a rule renounce his rights, and then an action contrary to them ceases to be a violation of justice. It is no longer a depriving another of what is his; it has ceased to belong to him. There are, however, some rights which are inalienable, and actions against these will be contrary to justice even if the party wronged give his consent. No one can validly renounce his right to life, and so the private killing of another, even with his consent, except in lawful self-defence, is always murder. Similarly, marital rights of married people are inalienable, and, even if the husband consent, a wife’s adultery is always adultery. The maxim, then, must be understood of rights which the owner can validly forego, and it asserts that no injury is done by acting against rights which the possessor with full knowledge and with perfect freedom does forego.

Vol. I, Bk. VI, Pt. VII, Div. II, Chapter II. Theft

THEFT, as we have seen, is the secret taking away of what belongs to another against his reasonable wish.

Not only the taking away, but also the keeping of what belongs to another against his reasonable wish is theft, as when a borrower fails to return what has been lent him on the day appointed, to the disappointment of the lender. Moreover, the use of, or any unlawful dealing with, the property of another against his wish is theft, as when a tramp makes himself at home for the night on another’s premises, or when a passenger travels on the railway or tram without paying his fare.

In order that a sin of theft may be committed, the owner of the property must be unwilling that it should be thus dealt with by the thief; there is no theft committed by using another’s property if the user knows that the owner would not object. Moreover, he must be reasonably unwilling, and so a man who is in danger of dying from starvation, or who is in extreme necessity of any other kind, may take or use what is necessary to save life, even if the owner be unwilling that he should do so. The reason of this is that, by the primary intention of our Creator and Lord, material things were created for the preservation of human life, and no rights of ownership can prevail against the higher claim of one who is in extreme necessity.

The sin of theft is of itself grievous, as is clear from the fact that it is against justice and charity; and St Paul classes it among the sins which shut the kingdom of heaven to the sinner. However, like other sins of injustice, it is sometimes venial on account of light matter, and a practical question here arises as to when theft is a mortal sin, and when it is only venial. The same question is put in other words when we ask, What amount must be taken to constitute a mortal sin of theft? .

Theologians are agreed that we must distinguish between the absolute sum, the taking of which is as a general rule 1 x Cor. vi 10. necessary and sufficient in all cases to constitute grave matter, and the relative sum, which will be sufficient for grave matter, regard being had to the loss of the owner. The general principle on which the quantity required for grave sins depends is the damage caused by the theft. For it is a grave sin to cause grave damage without a just reason; but in the case of very rich persons or companies we must consider not only the personal and particular damage done to them by theft of what belongs to them, but also the harm done to society. It may well be that a rich millionaire would not be appreciably worse off for the loss of a hundred pounds or of ten times that sum. The damage done to him by a thief taking a hundred pounds would be relatively less than if sixpence were taken from a day labourer. However, we must also consider the harm done by theft to the community and to the security of property. The malice of sin is not measured merely by the harm done to the individual; the harm done to society and other considerations also enter into the estimate. We must, then, besides considering the damage done to the owner of stolen money, weigh also the harm which theft does to society, And if grave harm is caused to society by stealing a certain sum of money, if the security of property would be seriously imperilled unless the theft of a certain sum were forbidden under pain of mortal sin, that sum will be the absolute quantity required for a mortal sin of theft, What the precise sum is must be left to the judgement of experts, who will consider all the circumstances of time and place, for, as values are perpetually changing, the sum required for a mortal sin of theft will also change. Under present circumstances, in civilized countries where similar conditions of commerce prevail, the common opinion of theologians fixes one pound sterling as the absolute sum required for a grave sin of theft. This will serve, therefore, as a measure of the gravity of theft from very rich people, or from companies with large resources.

However, a mortal sin of theft may be committed by stealing a much less sum than one pound if the theft cause great harm to the owner of what is stolen. The loss of a day’s wage or of a sum which is sufficient for the support of a labourer and his family for a day, is a serious loss for a workman, and so, as the common opinion holds, the theft of such a sum from a labouring man is a grave sin. Something between this and the absolute sum will be grave matter if stolen from persons whose wealth is between the two extremes.

Matter which in itself is grave may become light on account of special circumstances. Thus although grave necessity does not excuse theft, yet it may lessen the sin and cause to be venial what would otherwise be mortal. In the same way, less unwillingness on the part of the owner may lessen the sin. A father is less unwilling as a rule that a little of his money should be taken by a member of his family, especially if it is for a good purpose, than by a common thief. On this ground some divines say that in thefts from parents a double quantity is required for grave matter. Also when a number of small thefts are committed, which in the aggregate amount to grave matter, a larger sum is required for a mortal sin than when it is all taken at once. For the loss is not felt so keenly, and so the owner is not so unwilling.

That small thefts may coalesce and constitute grave matter is certain, for by a number of small thefts grave harm may be done, and the opposite opinion is implicitly condemned by the 38th proposition condemned by Innocent XI. Small thefts coalesce if the intention of the thief is to take a considerable sum, but for some special reason he takes it in small quantities at different times. Similarly, if a number conspire together to steal from another, they will all commit grave sin if grave damage be inflicted, even though each one only obtains a small sum. Also, when the proceeds of pilferings are hoarded, grave sin will be committed when grave matter is reached, or even if the proceeds be spent and do not coalesce by accession as in the preceding case, the different pilferings will coalesce and constitute one moral act of injustice if the interval be not notable—not over two months—as some theologians say. On the other hand, small thefts committed at wide intervals of time, and which do not coalesce on account of any of the reasons given above, do not constitute one moral act, and remain so many venial sins of theft.

The theft of something of small money value, but whose loss is very keenly felt for reasons of affection or association, will be a venial sin against justice, but a mortal sin against charity, if it was foreseen that its loss would cause very serious pain to the owner.

Vol. I, Bk. VI, Pt. VII, Div. III, Chapter I. Restitution in General

Vol. I, Pt. II, Q. I, Art. 9. The Sins Against B…, Fulfillment of the Commandments of Charity · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Objects of Commutative Justice · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Roots of Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution for Cooperation in Injustice · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Circumstances of Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Causes Excusing From Restitution · Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Some Special Cases of Restitution

WHEN other sins have been committed they are blotted out and reparation as far as possible is made for them by sincere sorrow and repentance. But when commutative justice has been violated it is not sufficient to be sorry for the injustice done; reparation must be made for it by putting, as far as possible, the person injured in the same condition as he would have been if the injury had never been inflicted. This reparation for an injury that has been done to another is called restitution. There is a strict obligation in justice to make restitution as far as is possible to another whom one has injured; for justice requires that each one should have his own; but one who has been injured is deprived of his own so long as restitution has not been made; and so, in order that each one may have his own, in order that that equality may be preserved which justice prescribes, restitution is of strict obligation whenever commutative justice has been violated. It is an obligation of justice, and so it is a grave one, unless the matter be light.

…and 41 more passages — all of them are listed on the topic page.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 2 passages

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Article I. On the Nature and Division of Commutative Justice

n. 758.

I. Nature. Although the nature of commutative justice and its difference from distributive and legal justice have been explained above (n. 380 ff.), nevertheless it is useful to recall to memory or to add these things:

The conditions required for justice, namely alterity, debt, and equality, are present in commutative justice in a more perfect way than in distributive and legal justice. For in it there is:

a) The perfect character of alterity, as between part and part; not so in distributive justice, which is between the whole and the parts, nor in legal justice, which is between the part and the whole.

b) The perfect character of debt, because it regards a strict right, while the other kinds of justice regard a less strict right (n. 757).

c) The perfect character of equality, because it requires equality taken simply, or arithmetic equality, of thing to thing; while the other kinds of justice require equality, proportionately taken, of thing to thing. I say proportionately taken, that is, if there is question of distributive justice, corresponding to the capacity, merit, and so forth of the part; if there is question of legal justice, corresponding to the requirements of the whole, or the common good.

Commutative justice, and it alone, if it has been violated, brings with it the obligation of restitution. It is said:

a) Commutative justice brings with it the obligation of restitution. The reason is that commutative justice regards those things which, by force of a special connection, are peculiarly destined to someone's advantage and are proper or quasi-proper¹ to him; and therefore, if they have been taken away and still exist, they must be rendered in themselves; if they have been destroyed or consumed, they must be rendered in an equivalent (St. Thomas, II-II, q. 62, a. 1; St. Alphonsus, III, 547).

b) Commutative justice alone brings with it the obligation of restitution. For legal justice regards things which are not proper or quasi-proper to society, in other words, things which are owed to society not by strict right but only by broad right, at least if the thing to be rendered is determinate. But a broad right, if it has been neglected, must indeed be rendered as long as the law persists, yet not by way of restitution, but as if the obligation were now beginning for the first time. Distributive justice likewise regards things which are not proper or quasi-proper to a member of society, but are owed only by broad right. But if that broad right has been neglected, restitution can no longer be made: not from common goods already distributed in a disorderly way, because they have become his to whom they were distributed; not from common goods yet to be distributed, because these also must be distributed according to an equal proportion; and not from proper goods, because distributive justice regards common goods only (St. Alphonsus, III, 547).

¹ By quasi-proper things I understand those things in which someone has a strict right (ius ad rem, n. 757).

n. 759.

II. Division. Commutative justice is divided into various species. The reason is that the objects of commutative justice, that is, the rights which it commands to be rendered, are of different orders, for example a right to material goods, to reputation, to honor. Hence also the sins which violate those different rights, for example theft, detraction, insult, are specifically different.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 137 passages (filed under the subtopics)

Vol. I, Pt. II, Q. I, Art. 9. The Sins Against B…, Fulfillment of the Commandments of Charity

n. 1588.

For the fulfillment of the law of charity, external acts of love are not enough; there must also be internal love or affection.

(a) With regard to charity towards God, there can be no question of external charity through acts of beneficence, as is clear; but one is obliged to signify one’s love of God, if silence would cause scandal or convey an expression of hatred of God. Mere lip-service, however, will not do, for God must be loved and served from the heart (Matt., xxii. 37; Eph., vi, 6; II Thess. iii., 5; etc.).

(b) With regard to charity towards the neighbor, external charity is commanded (see 1210 sqq. and 1551). But there must also be internal charity, for we are bidden to love our neighbor as we love ourselves (Matt, xxii. 39), as Christ loved us (John, xv. 12), from the heart (I Pet., i. 22). If a man distributed his goods to feed the poor, not out of love, but out of vanity or other sinful motives, his act would not be an exercise of charity. Innocent XI condemned the proposition that we may satisfy through external acts alone the precept of loving our neighbor (Denzinger, n. 1161).

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Objects of Commutative Justice

n. 1749.

Forms of Contract

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution

n. 1751.

Restitution

Restitution.—Justice not only commands that one pay or give back what is due in voluntary transactions, but also that one repair injury which one has caused in involuntary transactions. But the four acts of payment, restoration, satisfaction, and restitution must not be confused.

(a) Thus, payment is the lawful bestowal by one person on another person of something of value in return for some other thing of value. It is clear that payment differs from satisfaction and restitution, since it supposes no act of injustice done.

(b) Restoration is the return to another of his property of which one had just possession, as when a borrower gives back to the lender, or a depositee to the depositor. This also differs from satisfaction and restitution, since it is a voluntary transaction (see 1792, 1796).

n. 1752.

Differences between Satisfaction and Restitution

Differences between Satisfaction and Restitution.—(a) They differ as to their principle or cause, since satisfaction is due for injury to honor, restitution for injury to goods by unjust detention or unjust damage. Hence, a person who has dishonored another (e.g., by disrespect) is bound to satisfaction; a person who has injured another (e.g., by destroying his goods) is bound to restitution; a person who has both injured and dishonored another (e.g., by adding insults to robbery) is bound to restitution and satisfaction.

(b) Satisfaction and restitution differ as to their term or object, since satisfaction is chiefly concerned with the person to whom amends must be made (as by apology), while restitution is chiefly concerned with the thing which must be given back in itself or in its equivalent.

n. 1753.

When Restitution Is Due

When Restitution Is Due.—Restitution is the act by which one places another in renewed possession or ownership or chance of ownership of that which is owed to him because it is his by reason of a strict right in re or ad rem; in other words, it restores the equality that existed before an injury was done to the goods of another.

(a) Thus, restitution is not due for violation of virtues other than justice, because these virtues are not concerned with strict obligations and rights. Repentance and satisfaction are due for all sins, but they are not the same thing as restitution. Hence, one is not bound to restitution if one refused to help with alms a person in extreme need, or if, not being obliged to it by office, one neglected to extinguish a fire or to prevent a robbery. These are sins against charity, not against justice.

(b) Restitution is not due for violations of virtues that pertain to justice but do not confer strict rights, and hence it is only a violation of commutative justice that entails the obligation of restitution. Thus, if one has been surly or ungrateful, no legal right has been violated and no restitution is due.

n. 1754.

Does Distributive Injustice Oblige to Restitution?—(a) If only distributive injustice is committed (e. g., if a parent gives his children all necessaries but shows special favor to those that are less deserving), there is no duty of restitution, for there is no strict claim to special favors. (b) If commutative injustice accompanies the distributive injustice (e.g., if a ruler acts against his agreement to give the best position to the person who passes the best examination), there is a duty of restitution, for there is a strict claim to rights under contract.

n. 1755.

Distributive Justice and the Violation of Strict Rights

Distributive Justice and the Violation of Strict Rights.—Injustice in distribution is frequently accompanied by injustice in transaction on account of some strict right violated, and hence by reason of the latter injustice there will be a duty of restitution (see 1708, 1808).

(a) Thus, distributive injustice is accompanied by violation of a strict right of society when an unfair distribution is contrary to agreement made with the community (e.g., when one is appointed or paid especially to make fair distributions, or the law or contract expressly imposes this obligation), or when it causes harm to the community which one is bound ex officio to prevent (e.g., when one appoints as public physician or surgeon a person who is entirely unfitted for the post).

(b) Distributive injustice is accompanied by violation of a strict right of an individual when it is against contract (e.g., when a person undertakes to select the best statue or portrait presented in a contest, but chooses one that is inferior), or when it inflicts loss on a private person (e.g., when a tax assessor requires more than is due from some persons, or an examiner admits to a school which receives only a limited number an unworthy candidate and thus excludes a worthy one, or a board rejects a worthy candidate as unworthy).

n. 1756.

Commutative Justice and Unfair Awards of Prizes

Commutative Justice and Unfair Awards of Prizes.—Unfair awards of prizes in competitions are not violations of commutative justice unless the following conditions are present:

(a) the promise of award must be given as a contract binding in justice, for if the promisor intends only to bind himself in fidelity, the promisee obtains no strict right. Hence, an unfair distribution is not against commutative justice if a competition has not the character of a real contest or of an onerous compact to reward the person who surpasses his rivals, but is rather an opportunity to compete for the free bounty of the promisor (e.g., if the organizer of an entertainment offers a prize for the prettiest baby), or an encouragement to useful industry (e.g., a first prize for the best garden in a neighborhood). On the contrary, if the promise is part of an onerous contract, the promisor is bound in justice and the promisee obtains a strict right. This is the case when the competition has the character of a real contest, in which the contestants must undergo special labor, preparation, expense or trouble, etc., in order that the award be given to the most meritorious;

(b) the thing promised as subject of award must be the prize, and not merely a claim or right to be considered for the prize. Hence, if an examination is held in order that a number of worthy persons may be listed for future vacancies in offices or dignities, the person who passes as most worthy has no strict right to be given an office or dignity, but only to be considered for it.

n. 1757.

Has a person who passes as most worthy in an examination held in order to fill a vacant post a strict right to receive the post?

(a) According to the common opinion he has a strict right, because there is at least an implicit contract to the effect that the position will be given to the most worthy, since the examination is competitive.

(b) According to some authorities he has no strict right, because public positions are not to be regarded as rewards of merit, and the examination is not part of a contract but is only a means used by a superior to assist him in acting according to distributive justice. Nevertheless, even in this opinion an unjust award is a sin, and at times a grave sin, against distributive justice, and may accidentally be joined with commutative injustice (see 1755).

(c) Under the civil service method, or merit system, of appointment, the appointing official is bound by law to observe the rules of the civil service commission. The usual procedure is for the commission to submit the names of the three persons highest on the examination list. Position on the list is determined by competitive examination plus preferential points for veterans, experience in jobs, etc. (On the whole the preferential system does not seem to involve any injustice to those who do not receive the preference.) One of the three must be chosen for the first vacancy; for the second vacancy the remaining two, together with the next highest eligible, are proposed. Grave injustice against distributive justice would be done in not proceeding according to the legal method, and some degree of injustice might be done to an eligible who is illegally removed from a list, passed over, etc. Of the three highest eligibles no one has a strict right to the vacant post, but solely the right to be seriously considered.

n. 1758.

What should be said of a superior who would promote undeserving persons to ecclesiastical benefices?

(a) As regards guilt, it is a mortal sin to confer a benefice on one who is unworthy, or even (when there is question of a benefice to which the care of souls is attached) on one who is less worthy (see Canon 459, Sec. 1).

(b) As regards restitution, there is an obligation of reparation to the community, when it is made to suffer loss, and of compensation to an individual who is passed over in spite of his strict right (see three preceding paragraphs).

n. 1759.

The Obligation of Restitution

The Obligation of Restitution.—(a) The obligation is both of natural and divine law. Reason itself dictates that everyone should receive his due, and revelation expressly commands restitution, as when it declares that he who has injured his neighbor’s field or vineyard must restore according to the damage done (Exod., xxii. 5).

(b) The obligation is both of means and of precept, for without restitution the offender does not obtain pardon from God (Ezech., xxxiii. 13 sqq,; Tob., ii. 20 sqq.). Hence, one who has seriously injured his neighbor cannot be saved unless he actually makes restitution, if he is able, or intends to make restitution when possible, if here and now he is not able to do so. A debtor who makes no effort to make restitution (e.g., one who refuses to deny himself luxuries, to curtail his expenses, to leave restitution money in his will), cannot be said to have a sincere intention of fulfilling his duty. But it is not true that a person who dies in venial sin on account of restitution neglected must remain in Purgatory till all the restitution is made; for this would make the punishment depend on the negligence of the heirs or on accident.

(c) The obligation is grave if the damage (absolute or relative) and the fault were both grave, for restitution is an obligation of strict justice (see 1753); the obligation is light if both the damage and the fault were light, for the injury then is light.

n. 1760.

Duties of Confessors about the Obligation of Restitution

Duties of Confessors about the Obligation of Restitution.—(a) As to confession, the penitent is obliged to mention the number of sins committed against the duty of restitution, if there have been many acts of intention not to pay (see 202 sqq.); but as a rule those who have for a long time continued in sinful neglect of the duty of restitution have committed only one sin thereby, or else they do not apprehend their duty of mentioning the distinct internal acts, and hence confessors are advised not to question overmuch about this.

(b) As to absolution, the penitent lacks true contrition if he is under a serious obligation to make restitution and is wilfully opposed to the performance of this duty at all or at the proper time. Such a one may not be absolved. But the confessor should not admonish a penitent of the duty of restitution, if the penitent is in good faith and the admonition would only do harm. If the obligation of restitution is only light, absolution may not be refused, and prudence will often advise that no admonition about the obligation be given.

n. 1761.

There are a number of situations possible when damage done is grave and culpability slight.

(a) Thus, the damage may be entirely involuntary, as when the offender could not foresee it and did not wish it (e.g., Sempronius commits a venial sin by speaking harshly to Claudius, whom he likes, but the latter is so depressed at this that he commits suicide). In this case there is clearly no obligation of restitution.

(b) The damage may be voluntary only interpretatively, as when the offender could not foresee it, but would have willed it had he foreseen it (e.g., Sempronius is glad when he learns that Claudius committed suicide, but would be much surprised if he knew that a harsh word of his caused it). In this case according to some there is a grave duty of restitution, because internal guilt and external damage are present; but others, with greater probability, deny the duty of restitution, for the damage was not caused by the internal sin of hate, which is not effective of itself, nor by the external harsh word, which was an occasion rather than a cause (see 1447, 1763).

(c) The damage may be voluntary directly, as when the offender wills it in itself (e.g., Titus steals a considerable sum from Balbus, but he is invincibly ignorant and thinks that the wealth of Balbus makes the sin only venial), or the damage done is voluntary indirectly (e.g., Caius is guilty of slight carelessness in guarding his cattle, and they get into a neighbor’s garden and cause great damage to crops; Caius foresaw some damage, but he could not have foreseen the actual grave damage that was done). About these cases there are various opinions, which will be given in 1765.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Roots of Restitution

n. 1762.

The Roots of Restitution

The Roots of Restitution.—The roots or sources of restitution are usually reduced to two, according to the following two general kinds of injury inflicted on others:

(a) unjust damage, which is the loss inflicted, on the goods of another, without advantage to the offender, as in murder or incendiarism;

(b) unjust possession, which is the loss inflicted on another by the possession of his goods without his consent or against his will, to the advantage of the offender, as when a murderer steals from his victim, or an incendiary gets the insurance from the house he destroyed.

n. 1763.

Unjust damage that obliges to restitution is only an act (or omission) that is both injurious (being a guilty violation of another’s strict right) and productive of loss. Hence the following conditions:

(a) the act must be objectively unjust, a contravention of a strict right in re or ad rem (see 1695 sqq.), for example, stealing or keeping back the wages due an employee. But it is objectively unjust to deprive another of a non-strict right (e.g., the right of a beggar to an alms) by unjust means, such as force, fraud, calumny, etc. If a neighbor is not hindered from his strict right and unfair means are not employed, there is no objective injustice (e.g., when a merchant improves his place of business and thus draws away customers from a rival merchant);

(b) the act must be efficaciously unjust or the true cause of the loss which another suffers, for one is not responsible for what does not proceed from one’s act. An act is not efficaciously unjust, therefore, if it is only the occasion of damage (e.g., Titus steals and Balbus imitates him; Claudius steals, and on account of circumstantial evidence not arranged by Claudius, Sempronius is arrested and sentenced to prison), or if it is only a conditio sine qua non (e.g., Caius gives whisky to Julius, who needs its stimulation to nerve himself for a crime), or if it is only an accidental cause (e.g., Titus steals a small sum of money from a miser, and the latter, to the great surprise of Titus, becomes insane);

(c) the act must be subjectively unjust, that is, culpable and imputable; for one is not bound to satisfy for acts that are inculpable or not imputable (see 97 sqq.). There must be either theological culpability, that is, the intention to harm another, which is sinful before God (e.g., he who purposely sets fire to his neighbor’s barn), or juridical culpability, that is, carelessness which causes injury to the legal right of another (e.g., he who lights a fire near his neighbor’s buildings and by his absent-mindedness permits the buildings to catch fire).

n. 1765.

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful

Restitution for Damages That Are Only Venially Sinful but Seriously Harmful.—(a) When one injurious act is committed (as when through slight carelessness one sets fire to one’s neighbor’s chicken coop), some deny, but others affirm, the duty of restitution, while still others distinguish according to the full or only partial advertence to the sinfulness of what is done. Of those who hold for restitution, some think that all the damage should be repaired, since all was caused; but others think that it suffices to repair part, since the culpability was limited.

(b) If several injurious acts, which taken singly are slight but taken together are serious, were done to the same person (e.g., a waiter breaking dishes at various times while working for the same proprietor), restitution is due as soon as the sinner realizes the amount of harm he has caused; but it is disputed whether the obligation is grave or light. If the injuries were done to different persons (e.g., a boy breaking windows in many houses in the neighborhood), there is more probably only a light obligation.

n. 1766.

Restitution on Account of Law for Damages That Are Only Juridically Culpable

Restitution on Account of Law for Damages That Are Only Juridically Culpable.—(a) Before sentence of court there is no obligation of restitution, for it would be too heavy a burden to impose this in view of the absentmindedness of so many persons and the numerous distractions one encounters.

(b) After sentence of court there is an obligation of restitution, for the law which gives the court a right to impose it is reasonable, since juridical fault is often accompanied by theological fault, and moreover men will thus be led to a greater prudence in the care of their own goods and in respect for those of others.

n. 1768.

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers

Restitution for Careless Discharge of Fiduciary Duties, as in the Case of Physicians, Lawyers, Spiritual Advisers.—(a) If there was theological fault, restitution is due, unless the injured party took the risk upon himself. (b) If there was only juridical fault, it seems there is no natural duty of restitution, since no injustice was done; but a court may oblige to damages.

n. 1769.

Two Cases in Which Culpability Seems Doubtful

Two Cases in Which Culpability Seems Doubtful.—(a) When one has inculpably done or omitted something from which damage to another can be foreseen, and one has now become aware of the danger (as when Balbus lights a fire on his own property and sees that a change of the wind makes this fire dangerous for his neighbor’s barn), one must prevent the damage, if this can be done without equal or greater damage to oneself; otherwise one must make restitution.

(b) When one has culpably done or omitted something from which damage to another was foreseen, but has tried, though in vain, to prevent the damage after the cause was placed, restitution is due if the cause was physical (e.g., Claudius gave poison to Titus, and then moved by remorse gave an antidote, but Titus died), since the party who set the cause in operation is responsible; but if the cause was moral (e.g., Balbus ordered a gunman to beat up Caius, but withdrew the order, and the gunman on his own responsibility then assaulted Caius), restitution is not due when the revocation ends one’s influence upon the damage that ensues.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Restitution for Cooperation in Injustice

n. 1778.

Cooperators and Restitution

Cooperators and Restitution.—Restitution is owed for cooperation in injustice when the cooperator becomes at least partially an unjust and efficacious cause of damage to another. It should be noted that this cooperation may be of a limited kind, as when it extends only to the mode of the damage, or when it is not indispensable to the commission of the injury.

(a) Thus, he who cooperates only as to the mode of injury is probably liable only for that damage which he added to the substantial damage. Thus, if Balbus intended to steal $10, and Claudius persuaded him to steal $20, it seems that the influence of Claudius extended only to the amount of $10.

(b) He who cooperates, but whose assistance is not necessary, is bound to restitution as a cooperator, since he is an unjust and efficacious cause of damage. Thus, if Caius steals for Sempronius, knowing that, should he refuse, Mercurius would carry out the orders of Sempronius, the readiness to steal on the part of Mercurius does not excuse Caius or make his act any less harmful.

n. 1781.

The Circumstances of Restitution

The Circumstances of Restitution.—By the circumstances of restitution are understood the persons by whom and to whom compensation is to be made, the things to be restored, the manner, time and place of restitution.

n. 1783.

Cooperators in damage are bound to restitution either in solidum or pro rata.

(a) Thus, they are bound in solidum (i.e., jointly and severally) for all the loss when they are total causes of the damage, But the principal cause is bound absolutely, the secondary or equal cause only conditionally, that is, the principal must pay all the restitution himself, the others must pay all only when the principal or other associates fail to do their duty.

(b) They are bound pro rata (i.e., each one according to his share) when they are only partial causes of the damage. The obligation of restitution in solidum should not be imposed, if it is uncertain, or if the cooperator is in good faith and the admonition would only produce harm.

n. 1784.

The order of restitution among cooperators in injury is according to the priority of the obligation of one to that of another, in the sense that one is obliged to pay all and the other is obliged only in the former’s default. This order of priority in obligation is in force when many cooperators are bound in solidum and when they cooperated in different ways (e.g., one as possessor, another as advisor, another as performer, etc.). The order generally given by moralists is as follows:

(a) the possessor is bound first of all, since he has the goods of another and the goods call for their owner;

(b) the cooperators are bound next in the following order: the originator (such as a perpetrator acting in his own name, or a mandator); the perpetrator acting in the name of another; the others who aided the commission of the act (such as advisors, flatterers, etc.); those who did not prevent or resist injustice.

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, The Circumstances of Restitution

n. 1786.

The person to whom restitution must be made is the person whose strict right has been violated, or, in his absence, it is society. But the following cases should be distinguished:

(a) when the injured person is known for certain and his right is certain, restitution should be made to the injured person or his representatives or successors, or, if this is not possible, to charitable or pious causes;

(b) when the injured person is entirely unknown, if the one who is the cause of the loss is in good faith, his obligations are those of a possessor in good faith; but if he is in bad faith, the common opinion is that he is bound, at least from customary law, to make restitution by giving to the poor or to religion;

(c) when the injured person is partly unknown, the person who is the cause of the loss should make restitution to the best of his ability. If the doubt extends to only a few persons (say four or five), any one of whom may be the injured person, restitution should be divided in the best way possible among these persons; if the doubt extends to many, but the injured persons were only a few, it seems that restitution may be made by giving to charity or religion either in the place of the injury or elsewhere; if the doubt extends to many, and the injured persons were many inhabitants of the locality, restitution must be made if possible to the injured parties themselves, otherwise to some public cause of the local community.

n. 1787.

Order of Preference Among Creditors

Order of Preference Among Creditors.—The natural order of preference is to be shown to creditors when the debtor is unable to pay them all.

(a) Those who have a right in re (e.g., those whose property is held by the debtor) have precedence over those who have only a right ad rem (e.g., those who are creditors from contract).

(b) Creditors from onerous contract or delinquency, it is generally admitted, have priority over creditors from gratuitous contract.

(c) Creditors from delinquency and creditors from onerous contract, according to what seems to be the common opinion, are equal in rights and should be settled with pro rata.

(d) Debts that are certain have priority over debts that are uncertain, according to some; others deny this, but admit that the uncertain debts need be paid only in proportion to their probability.

(e) Creditors who are certain are by some preferred to creditors who are uncertain; but others think that payment to the poor, in place of the unknown creditor, is the latter’s presumed will, and that it has an equal standing with debts owed to known creditors.

(f) Poor creditors have no just claim to preference over rich creditors; but charity dictates that, when the poor creditor is in distress, he should be given the preference.

(g) Earlier creditors have a preference over later creditors in a real claim, but it is disputed whether this holds also in a personal claim.

(h) The creditor who asks for a settlement sooner has a preference, if the petition is made juridically, and perhaps also if it is made privately.

n. 1788.

The order of preference among creditors according to civil law is generally as follows: (a) proprietary creditors (i.e., those whose property is held by the debtor); (b) privileged creditors (i.e., those whose debts have a special urgency, such as judicial expenses, doctors’ bills, wages for hired help, living costs, etc.); (c) hypothecatory creditors (i.e., those who have claims against the property of the debtor, in the form of liens, mortgages, etc.); (d) common creditors (i.e., all those who are paid after the previous creditors have been satisfied). American law contains provisions in regard to dispositions of property made during the four months before bankruptcy is tiled, so as to protect the creditors of a person who is insolvent. The property of a bankrupt is placed in the hands of an assignee and allowance is made for the debtor’s needs and perfected liens (i.e., charges legally made upon property for debt). The property is then subject to levy by the creditors as follows: maintenance expenses, legal fees, costs of administration, wages of workmen, taxes, debts having priority under Federal or State law.

n. 1789.

The “Thing” to Be Restored

The “Thing” to Be Restored.—(a) In case of unjust possession, the identical object must be restored, if it has an individual value; otherwise it may be restored in its equivalent. (b) In case of contract, the identical object must be restored, if that is the agreement (e.g., in loan of a chattel, or deposit), otherwise it may be restored in its equivalent (e.g., in loan of money).

n. 1790.

The “Amount” of Restitution in Certain Cases

The “Amount” of Restitution in Certain Cases.—(a) When an Object Had Various Values During the Time of Its Possession in Bad Faith.—If the change was from an internal cause and was for the better (e.g., the calf stolen by a thief has become a cow), the return must be made in the improved state; if the change was from an internal cause, and was for the worse but would have happened in any case (e.g., the cow taken by the thief has become old), return must be made in the actual state; if the change was from an internal cause and for the worse, which would not have happened had the object remained with the owner (e.g., a cow taken by a thief has become lame on account of the thief’s carelessness), return must be made also for the deterioration. If the change was from an external cause (e.g., the wine taken by a thief has risen and declined in value several times), it seems that practically nothing more can be imposed by way of restitution than the value the object had when taken.

(b) When Unjust Damage has been Done.—If the damage was caused positively, the injured person must be indemnified entirely, if the damage was caused negatively, the injured party should be indemnified more or less according to the reasonable expectation he had of the gain of which he was deprived.

n. 1791.

The “Manner” of Making Restitution

The “Manner” of Making Restitution.—The general rule is that it should be made in such a way that the injury will be repaired and the injured person indemnified for his loss. Generally speaking, there is freedom of choice as to various forms in the modes of restitution. Thus, it may be made publicly or secretly, directly or through an intermediary, positively (by payment) or negatively (by cancellation of a debt). It may even be made without the knowledge and intention of the parties. (a) Thus, the injured party may be compensated, even though he is unaware that he was cheated or that he is being paid back; (b) the offender may restore, even though he does not know he is doing so (e.g., if he pays while intoxicated), and probably even though he has no express intention of doing so (e.g., if he makes a present of $10, and then remembers that he owed damages to the amount of $10).

n. 1792.

Second Restitution

Second Restitution.—Natural law must be applied to certain cases in which restitution sent through an intermediary perishes on the way through no fault of the debtor. (a) If the debt is owed on account of possession in good faith, the debtor is not bound to a second restitution. (b) If the debt is owed on account of contract, the goods perish to the owner. Thus, if the contract was one of loan, the loss must be borne by the lender; if it was one of sale, by the seller. (e) If the debt is owed on account of delinquency, there is an obligation to a second restitution, unless the injured party assumed the risk of transmission. It is held as probable that the choice of the confessor as intermediary for restitution has the consent of the injured party, and hence that, if the restitution perishes on the way through chance or the fault of a third party, there is no duty of second restitution.

n. 1793.

The “Time” When Restitution Must Be Made

The “Time” When Restitution Must Be Made.—(a) Internal restitution, or the purpose of restoring, must be made at once, that is, as soon as one adverts to the necessity of this resolve. (b) External restitution, or the fulfillment of the resolution, must be made at the first suitable opportunity.

n. 1794.

Unjust Refusal to Make Restitution or Pay Bills

Unjust Refusal to Make Restitution or Pay Bills.—(a) Those who unjustly refuse to make restitution or to pay their bills at the proper time are guilty of mortal or venial sin according to the damage their refusal causes to the creditor. (b) They are not worthy of absolution if there is serious bad faith on their part, as when they have many times broken their promises, or when they refuse to pay even the part or installment which is within their power. (c) They are bound to additional damages for the losses caused by the unjustifiable delay.

n. 1795.

The “Place” Where Restitution Must Be Made

The “Place” Where Restitution Must Be Made.—(a) He who is a debtor on account of injury must make restitution at the place where the thing would be were it not for the injury. (b) He who is a debtor on account of possession in good faith should notify the owner where the property is, but he is not obliged to bring it to the owner. (c) He who is a debtor on account of contract must abide by the agreement, or by the statutes that regulate the contract. Thus, in this country the place of delivery in sales is according to law the seller’s place of business or his residence.

n. 1796.

Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor

Burden of Expense or Loss When Restitution Is Sent to the Place of the Creditor.—(a) If the obligation of restitution arises from injury, the debtor is generally bound to pay the transportation and to stand the loss when the goods perish in transit. (b) If the obligation arises from contract, the expenses and losses must be borne according to the agreement.

If nothing was stipulated, it seems equitable that the expenses of transportation be borne by the party who benefits or who requested the contract. According to the Sales Act in the United States, the seller is the loser when goods perish in transit, if a place of delivery had been agreed on; but the buyer is the loser when in pursuance of the contract the goods had been delivered to a carrier for transmission to the buyer (see 1888 d).

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Causes Excusing From Restitution

n. 1797.

The Causes That Excuse Temporarily from Restitution

The Causes That Excuse Temporarily from Restitution.—These causes can be reduced to two, namely, physical and moral impossibility. (a) Physical impossibility exists when the debtor has not the means to pay and cannot secure them; and it excuses as long as it continues. One who is bankrupt is excused from restitution during the continuance of his insolvency; if he later becomes able to pay, it seems to some that the civil declaration of bankruptcy according to the law of the country releases him from further payment, unless his bankruptcy was fraudulent or due to culpable neglect. (b) Moral impossibility exists when the debtor has the means, but cannot pay immediately without incurring a loss of a higher order (e.g., if he pays the small sum of money, he will lose his own excellent reputation), or without suffering a greater loss in his own goods of the same order (e.g., if he pays the money, he will be reduced to starvation), or without surely bringing on a far greater evil than delay of restitution to the creditor or a third party (e.g., if a stolen weapon is returned to its owner, he will commit suicide or murder).

n. 1798.

The Causes That Excuse Permanently from Restitution

The Causes That Excuse Permanently from Restitution.—These causes can also be reduced to two general ones, namely, the cessation of the object and the termination of the obligation through the act of the creditor, or of the debtor, or of authority.

(a) Thus, the cessation of the object releases from the duty of restitution whenever the object perishes to its owner, as when it is lost by a possessor in good faith who has not been enriched by it, or even by a possessor in bad faith, if it would have been lost equally by the owner (see 1771, 1774).

(b) The termination of obligation through the act of the creditor occurs when the creditor freely and lawfully excused the debtor from payment. In some cases condonation may ordinarily be presumed, either on account of the affection of the creditor for the debtor (e.g., in case of debts owed by children to their parents) or on account of the familiar relationship between the parties and the smallness of the debt (e.g., in case of appropriation by servants or employees of some unimportant articles not kept under lock and key), or on account of the indigence of the debtor and the smallness of the damage (e.g., in case of trifling harm to goods of a wealthy person, if there was no great malice and the debtor is very poor).

(c) The termination of obligation is also effected by equivalent payment, which in certain cases is made by payment of the creditor’s creditor, or the cancellation of an equal debt owed the debtor by the creditor, and perhaps also by a gift made the creditor by the debtor and equal in value to the debt. Occult compensation by the creditor is the secret taking by him of what he is entitled to when the debtor will not give it of his own accord. This is lawful when the debt is certain, other means of recovery impossible, and the compensation not injurious; but it covers restitution, and hence the creditor cannot accept another payment from the debtor.

(d) The termination of obligation is also effected by the act of competent authority. Thus, judicial declaration frees from the duty of restitution a person who has lawfully and in good faith received certain goods as damages or award; prescription (see 1875) gives a clear title to property held by adverse possession over a certain number of years, and it frees from the duty of payment, at least in certain cases (though not in the United States); papal composition for good reasons exempts from their obligation those who owe restitution to pious causes or to church property injured by them.

n. 1799.

Condonation of the domestic thefts of wives and children of the family cannot be presumed in all cases (see 1903).

(a) Thus, if the things stolen are articles of food and drink (or tobacco), and were consumed by the members of the family, there is no duty of restitution, since the father or husband is then unwilling, not so much that these things should be taken, as that they should be taken furtively.

(b) If the things taken do not fall under the class of eatables and are still in the possession of the thief, they should be restored. Hence, if a son steals money from his father in order to have the means for debauchery, he must give back that money.

(c) If the things taken were not eatables, but were of great value and have been consumed or alienated, it will depend on circumstances whether restitution is obligatory or not. Thus, if the father thinks much of the son who took the money and the family does not miss it much, condonation may perhaps be taken for granted; but if the son is not on good terms with his father, or if the theft is very harmful to the family, restitution may be due.

n. 1800.

Excuse from Restitution on Account of Doubtfulness of Obligation

Excuse from Restitution on Account of Doubtfulness of Obligation.—(a) One who doubts positively and in good faith whether or not he did damage to another is excused from restitution if the doubt is about the fact of the damage (e.g., whether his competitor lost business) or about his own culpability (e.g., whether he circulated a calumny about his competitor); he is probably held to restitution pro rata of the doubt, if the doubt is about the responsibility of his culpable act for the damage that followed (e.g., whether his calumny or the poorness of the competitor’s wares caused the falling off in business); he is probably held to only his share, if the doubt is whether his culpable act was responsible for the whole or only a part of the damage (e.g., whether his calumny caused all the damage, in view of the fact that others were also spreading calumnies).

(b) One who doubts positively and in good faith whether the restitution owed by him has been paid (e.g., whether his fellows in calumny have paid their portions of restitution, whether he has paid a bill for goods or services received) is held to full payment by some, to part (pro rata) payment by others, to nothing by others. Some moralists think the presumption favors the creditor, others that it favors the debtor, others that it favors neither and that a compromise is the right solution.

n. 1801.

Doubt does not excuse restitution in the following cases: (a) when it is merely negative and the presumption is against the doubter (e.g., when a person knows that he purchased and received goods, but does not know whether or not he paid for them, and has no reason to think he did pay); (b) when it is in bad faith, that is, knowingly or intentionally produced (e.g., when two men simultaneously fire at a neighbor’s cow, knowing that it will thus become impossible to determine the author of the damage).

Vol. II, Pt. II, Q. II, Art. 3. The Subjective Par…, Some Special Cases of Restitution

n. 1802.

Special Cases

Special Cases.—There are some special cases of restitution for negative injury in thwarting another’s prospects, or for positive injury to goods of fortune, of body, of soul, or of spirit.

(a) For Frustration of Another’s Good.—Restitution is due for keeping another from a good to which he has a strict right (e.g., an office to which he has been chosen, property for which he has paid), or for using force, fraud, bribes, or other unjust means to keep another from a good to which he has a non-strict right (e.g., a position for which he has made application, a gift which another contemplates bestowing on him). The amount of restitution should be calculated according to the previous probability of success on the part of the injured party and the permanent results of the injury.

(b) For Injury Done to Goods of Fortune.—Private injuries are spoken of elsewhere (see 1762 sqq.), and now we consider only injuries that are in some way public. Commutative injustice entailing restitution to the community is committed by damage to public property, breach of contract made with the community, unjust means employed to prevent the government from obtaining its dues, unjust cooperation in any of the aforementioned acts; commutative injustice entailing reparation to individuals is committed when the transgression of a law places an undue burden on a fellow-citizen (e.g., when one unjustly escapes military or jury service and causes a substitute to be called who would not have been called otherwise, or when one unjustly evades one’s taxes and thereby certainly causes the taxes of others to be raised). If a tax law is just, it obliges in conscience, but whether as penal or preceptive, whether in virtue of legal or commutative justice, is a much debated question; and hence the question of sin and of restitution due is not easily settled. Impossibility or a general and admitted custom excuse from restitution (see 2637 sqq.).

(c) For Injury Done to Goods of Body or Personal Goods.—According to one view no restitution is due for merely personal injuries, since the damage cannot be repaired by a good of the same kind as that which was taken away (e.g., the murderer cannot give back life to his victim); but according to another view restitution is due for these injuries, since justice requires that every kind of damage be repaired as far as possible (see 1751 and 2090).

…and 97 more passages — all of them are listed on the topic page.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 648 passages

Vol. II, On the Seventh and Tenth P…, I. On Justice Considered Generally

n. 832.

What are the seventh and tenth precepts of the Decalogue? - "You shall not steal... You shall not covet your neighbor's house, nor his servant, nor his maidservant, nor his ox, nor his ass, nor anything that is his." Exod. 20:15, 17. By the seventh precept, formally negative, under the name of theft taken broadly, every injury, or unjust lesion or damaging of one's neighbor in the temporal goods of fortune, is prohibited; and consequently, by the same precept, insofar as it is virtually and implicitly affirmative, it is commanded that to each one his own right with respect to temporal goods must be rendered. Certainly it pertains to the same precept and to the same virtue both to prohibit another's right from being injured through injustice, and especially to oblige that to each other person his own right be rendered through restitution and other modes.

But as by the seventh precept the external act is prohibited, so by the tenth the internal act injurious to one's neighbor in the goods of fortune is prohibited. For by it every inordinate and unjust appetite for the goods of fortune of one's neighbor is prohibited. Therefore against this tenth precept sin not only the envious, but also the avaricious, who seek riches with excessive eagerness, and desire to increase wealth by unjust modes. Both these precepts regard the virtue of justice.

n. 833.

What is justice? - Justice is so called from iustari, or from two things being made equal to each other. Justice taken broadly imports all virtues; hence a man is customarily called simply just if he preserves every honesty in every matter. Taken strictly, insofar as it is the special virtue with which we are here dealing, it is defined: the constant and perpetual will of rendering to each one his own right. Inst. 1. 1. t. 1. "Constant and perpetual will," because there must be a firm disposition not only for one or another day, but always, of rendering to each one his own right; for otherwise it is not a perfect virtue, just as penance is not a perfect virtue unless it includes the firm purpose of never sinning. The virtue is defined from the act. Therefore it can be said otherwise that "justice is a habit according to which someone, by a constant and perpetual will, renders to each one his own right." S. Th. 2. 2. q. 58. a. 1. "Right" here is not understood as right broadly so called, which is the exigency of right reason toward something as honorable, that is, toward something to be done because of its honesty, or omitted because of its dishonesty; but right strictly so called is understood, which is a moral power toward something as one's own, that is, toward something to be done, omitted, had, retained, demanded as one's own, that is, as subject to one's own liberty, with others excluded, namely so that it may fall to one's own advantage and utility. This right is founded in the very nature of man, who by reason of his liberty must move himself toward the end and apply the means necessary for obtaining that end. C. L. 359 ff., 2167 ff., 2287, 2339, 2354; C. He. 641; C. I. 438; C. A. 362, 366; C. B. 903; Lugo d. 1. n. 6.

This right, however, is one thing as right of jurisdiction, another as right of property. The first is the legitimate power of a superior to command or prohibit something to subjects for their own good, or for the good of the whole community. The necessity and utility of administering the community is the measure of this right as to its acts. The other is the legitimate power of any private person to dispose of some thing for the advantage of his own liberty, or as his own. Hence in the right of property the thing exists for the proprietor; in the right of jurisdiction neither the Prince exists for the people, nor the people for the Prince, but each exists for the common good.

The right of property is one thing in the thing, another to the thing. The first is that by which someone has the thing itself immediately bound and juridically obligated to himself as his own. Hence a thing obligated to someone by such a right carries its obligation with it, and wherever it may come, it can be sought back by its owner and juridically claimed. The second, however, is that by which someone does not have the thing itself immediately bound and juridically obligated to himself, but rather has another person bound to hand over some thing to him. Therefore a right in the thing makes the thing already his own; a right to the thing makes the thing become his own. A right in the thing gives an immediate real action against the thing itself, so that you may take it to yourself. A right to the thing gives an immediate personal action against the person himself, so that you may compel him to hand the thing over to you, for example by the sentence of a judge. By a right to the thing someone has a just title to having it, for example by title of legacy, but he does not yet have possession of the thing. By a right in the thing someone has possession of the thing itself. For a right in the thing, therefore, there is required a title transferring ownership, of a thing determined in the individual, and its possession, at least regularly. For a right to the thing a just title for having it suffices. And thus the owner of a farm has a right in the thing as regards the existing fruits of that farm; he has a right to the thing as regards the rent of a leased farm. C. A. 307, 308; Inst. 1. 4. t. 6. Whenever a thing is sought by force of an obligation by which someone has not yet acquired ownership of the thing, the action is personal; but if a thing is sought of which he has full ownership, the action is real. Finally, an action is mixed, personal and real, and, as is said, the action is personal written upon the thing, if by the petition of the thing someone acquires ownership of the thing, and then the lawsuit instituted over it begins with a personal action and is concluded by a real action, as in the case in which, by the office of the judge, the sale made of a thing is dissolved, and the thing returns to the seller as his own. A personal action is from some personal fact, that is, from contract or from delict. A real action is from the defect of another's right. Inst. 1. 4. t. 6. section 1. Cf. Troplong, On Sale, article 1654, nn. 624-630; on article 1659, n. 698; on article 1664, nn. 728, 729; on article 1674, nn. 806, 807. "His own"; a thing can be one's own in three ways, if the person is considered in society as its member. Hence right also is distinguished in three ways: into high right, low right, and right of property. High right is that which the Prince, the republic, or the community has over the goods of the members, which it can demand as its own for the common good, by the "ownness" of the community, since whatever the part is belongs to the whole and exists for the whole. S. Th. 2. 2. q. 64. a. 2; q. 65. a. 1. Low right is in the member of the community, as such, to common goods, which the member can demand in their distribution as his own by the "ownness" of a member. The right of property, however, is in the member of the community, as such, to proper goods, which one member can demand from another as his own, by the "ownness" of property. "Of rendering to each one his own right," that is, of equating the right of another by the rendering of what is owed; for to right, as to a certain moral exigency, debt correspondingly responds. Therefore, as is clear, justice is not a virtue toward oneself, but toward another. And as charity has its foundation in the conjunction of men among themselves, so justice rests upon the distinction of one man from another. S. Th. 2. 2. q. 57, 58; Gousset 670, 674.

n. 834.

You will resolve: The Prince can indeed, if at some time this is required for the common good, take a thing from a subject, because right to the end necessarily imports right to the means without which the end cannot be obtained. But the public good sometimes requires that someone be deprived of his own thing, for example of a field for the construction of a public road, etc. But then the Prince, in so far as can be done, is bound to just compensation, because it is not equitable that one person be despoiled while others remain untouched, as is clear from natural and positive law. C. I. 438; C. G. 545; C. H. 349; C. A. 365; C. L. 2360.

But in no way can he, without a grave cause of the public good, but for his own convenience, take away by law from a subject some notable thing of his, or an acquired right, because he has no power over the goods of private persons unless the reason of the common good altogether demands it. Therefore he is then bound to restitution. S. Th. 2. 2. q. 66. a. 8.

Equity is distinguished from justice. First, equity is justice itself. And thus in L. 14. de Condict. indeb. it is said: "It is equitable by nature that no one be enriched with the loss of another." But equity proceeds further, by constituting a certain fitting measure in justice itself, and generally in all laws, namely by tempering according to various circumstances the rigor and subtlety of right and laws. Rigor, for example: "It is of the highest equity that one who has promised money, or something else, by reason of donation, should not owe interest because of delay in payment of the money." L. 22. de Donat. Subtlety, for example: "If a surety, though freed by lapse of time alone, nevertheless pays the creditor, he will rightly have an action of mandate against the principal debtor; for although he paid when already freed, nevertheless he fulfilled his pledge and freed the debtor. Therefore, if he is prepared to defend the principal debtor against the creditor, it is most equitable that by the judgment of mandate he recover what he paid." L. 29. section 6. Mandati. Cf. also L. 17. de Iniu. rupto irr. f. testam.; L. 85. de R. I.

Equity, taken in this way, is the same as epicheia, which is a part of justice commonly so called, and is a subjective part of justice; and justice is said of it prior to legal justice, for legal justice is directed according to epicheia. For legal justice follows the words of the law; equity or epicheia follows the intention of the legislator. S. Th. 2. 2. q. 120. a. 2. Equity is to be observed in interpreting laws and acts, and also in onerous contracts.

It is altogether unlawful to exercise one's right when an exercise of this sort has no other end than to inflict damage on another. Likewise it is unlawful to exercise that right against the prescription of the laws. C. B. 226, 826, 907, 908, 909, 912. Likewise it is unlawful to exercise one's right excessively, with damage to others. C. He. 679, 684. But it is not unlawful to violate the property of another in order to avoid one's own greater damage, compensation afterward being made to the other for the damage inflicted on him. C. He. 701.

n. 835.

How many kinds of justice are there? - Justice is threefold, namely general or legal, distributive, and commutative. For since justice is wholly situated in this, that it render to another his own right, it is specified and divided according to right. But right, as was just said, is threefold, namely high, low, and of property. Hence there are three species of justice, each of which renders what is owed according to equality.

Legal justice equates high right through the actions and goods which are owed to the Prince or to the republic for promoting the common good; and this is justice of the part toward the whole, or of the members toward the head and the community. It is called legal because it has for its object that which is owed to the community by reason and force of the laws, "because by it man agrees with the law ordering the acts of all virtues to the common good." S. Th. 2. 2. q. 58. a. 5.

Therefore this justice is a general and special virtue at the same time. General, insofar as it orders the acts of all virtues to the common good; special, insofar as it regards the common good as its proper object. "And thus it is in the Prince principally and as it were architectonically; but in subjects secondarily and as it were administratively." S. Th. 2. 2. q. 58. a. 6. Legal justice, insofar as it is in the Prince, inclines him to procuring the common good, for example by establishing laws necessary for it. Insofar as it is in private citizens, it inclines them to the obedience owed to the laws by reason of the common good. Illegal injustice is opposed to this legal justice, which "is a special vice insofar as it regards a special object, namely the common good, which it contemns"; and general, insofar as "through contempt of the common good man can be led to all sins," and insofar as "all vices are repugnant to the common good." S. Th. 2. 2. q. 59. a. 1.

Distributive justice equates low right through the distribution of common goods, public functions, offices, rewards, namely the right which a member of the community, as such, has to these; and this is justice of the whole toward the part, or of the head or community toward the members. "When something from common goods is distributed to individuals, each one in some way receives what is his own." S. Th. 2. 2. q. 61. a. 1 ad 2. Distributive justice is in the Prince as distributing common goods according to the dignity of persons; but in the particular persons themselves it is present insofar as they are content with what is owed to them.

Acceptance of persons is opposed to distributive justice; for in distributive justice those conditions of persons are considered which make for the cause of dignity or debt; but in acceptance of persons other conditions are considered, which do not make for the cause of dignity or debt. For whatever condition does not make for the cause on account of which someone is worthy of such a thing is referred to the person. S. Th. 2. 2. q. 63. a. 1.

Commutative justice, however, equates the right of property, or the low right of one member against another member, through the exchange of things and prices; and this is justice of part toward part. Therefore, as legal justice orders man immediately to the common good, so commutative justice orders man concerning those things which are directed to another singular person, namely concerning external actions and things by which men can communicate with one another. S. Th. 2. 2. q. 58. aa. 7, 8.

Hence special injustice is opposed to commutative justice insofar as it imports "a certain inequality toward another," according to the aforesaid actions and things owed to another. S. Th. 2. 2. q. 59. a. 1. Therefore theft and robbery are opposed to commutative justice, through which harm is inflicted on one's neighbor in exterior goods by secretly or violently taking them away. And since harm of this sort can also be inflicted in the goods of the body and of the soul, and also of the whole person, hence by reduction many other sins are opposed to the same justice: homicide, mutilation, damaging, etc.; calumny, detraction, insult, etc., whether outside judgment or in judgment through an unjust sentence, false testimony, etc.

Now if justice is not taken generally, namely insofar as it is also a certain general justice, but insofar as it is particular justice ordered to some private person, then there are only two species of justice, commutative and distributive. For there is only a twofold ordering to a private person, namely of part to part, which commutative justice directs, and of whole to parts, which distributive justice directs. The former directs the exchanges of private persons among themselves. The latter directs the distributions of the Prince to particular persons. But in them the notion of what is owed is diverse. For what is proper is owed to someone in one way, and what is common in another way.

These two kinds of justice are particular justices, while legal justice is general justice; for motion receives species from the terminus, and it pertains to legal justice to order those things which belong to private persons to the common good; but, on the contrary, to order the common good to particular persons, and those things which are done mutually between two particular persons to one another, belongs to particular justice. Therefore justice can well be divided into general and particular; and the latter into distributive and commutative. S. Th. 2. 2. q. 61. a. 1.

But in the strict sense, by the name justice, only commutative justice is meant. For general or legal justice does not regard entirely distinct persons; for each citizen is part of the community, and what is contributed to the community is contributed also to that same citizen. But distributive justice by no means includes right strictly so called, or right of property. For it supposes only dignity and aptitude in the person for receiving such common goods.

Vindictive justice, which is customarily added to the three prior species of justice, is not properly a fourth species of justice, because justice, taken generally, is specified and divided according to the diversity of the right which it regards; and this is only that threefold right just mentioned. For it would be incongruous to say that a guilty person has a right to punishment. It is a potential part of justice itself. Nevertheless, under a diverse respect it can be reduced to all those three species. Insofar as a superior provides for the common happiness of citizens by punishments, it pertains to legal justice; insofar as he decrees the punishments themselves proportioned to the gravity of crimes, it pertains to distributive justice; finally, insofar as a superior carries out the offices of vindictive justice from a certain quasi-contract entered into with the republic concerning the right administration of public affairs, it pertains to commutative justice. L. 486; S. Th. 2. 2. q. 58, q. 61, q. 80, q. 108. a. 2 ad 1.

n. 836.

Whether the mean of the thing, or equality, must be observed in the same way in commutative and distributive justice? - In commutative justice arithmetical equality must be observed; in distributive justice geometrical proportion. Commutative justice is exercised by citizen toward citizen, by private person toward private person, and has place in contracts and in other affairs pertaining to social commerce; in this only the things themselves are considered, which are the object of contracts and of the exchanges by which commerce is exercised. Therefore in it there must be preserved equality of the things themselves, namely equality of thing to thing, as if, for example, you owe one hundred, you render one hundred, considering only what is owed, so that, except in cases in which regard for persons is prescribed by the law itself, for example when minors are involved, in all other cases no respect is had for the condition or merits of the person. And this is that equality which they call arithmetical.

But distributive justice is exercised by a superior toward a subject, and has place in distributing common goods, dignities, offices, honors, burdens, rewards and punishments; and therefore it must not have regard of thing to thing, but of condignity, merits, and condition of persons, for example their capacity or need, with respect to imposing taxes, or granting subsidies to a person, whether physical or moral. For so much more of common goods is owed to someone, the greater principality he has in the community. And likewise so much more is owed, for example, to some community from common goods, the greater its need may be, for example for hospitals to be erected, schools, etc. From this arises and is constituted what is called geometrical proportion, which namely is not equality of thing to thing, but proportion of thing to person, that is, to the merits and quality of persons, so that just as one person exceeds another, so also the thing which is given to one person exceeds the thing which is given to another. Hence equality is considered not according to quantity, but according to proportion; or, what is the same, equality not of things but of ratios is considered. Therefore if to him who has merits as five there are given, for example, ten coins, to him whose merits are as ten, twenty must be given. S. Th. 2. 2. q. 58. a. 10; q. 61. a. 2; Inst. 1. 4. t. 4. sections 7, 8; Gousset 670.

n. 837.

What is the obligation of justice? - Both commutative justice and also distributive, vindictive, and legal justice oblige per se under grave sin. For the violation of commutative justice, as is clear from several places of Sacred Scripture, is to be punished with eternal punishment, 1 Cor. 6:10. Besides, it is per se, or from its nature, repugnant to charity, which moves one to will the good of another; for it itself consists essentially in inflicting harm on another. Therefore per se and from its genus it is a mortal sin. But a lesion of distributive, vindictive, and legal justice induces per se a grave disorder, since it gravely harms the necessary order of society. Per se, because in this matter smallness of matter is admitted. S. Th. 2. 2. q. 59. a. 4.

n. 838.

What is ownership? - Among the three species of justice, as has already been said, commutative justice alone is strictly and properly justice altogether. For in legal justice there is lacking distinction toward another; for every citizen is part of the community. But in distributive justice there is lacking right strictly so called; for in the distribution of common goods, toward obtaining a part of them, there is given only mere dignity, and in no way property. But since commutative justice is exercised only between private persons, and renders to each one what is his own proper thing, hence it alone is strictly and properly justice altogether, and it is chiefly treated in this treatise. But since commutative justice regards equality of thing to thing, it is concerned only with the right of property, which is customarily called property and ownership.

Ownership is: the moral power of disposing at will of some corporeal thing as one's own, unless nevertheless it is prohibited by law, agreement, or the will of a testator. "Moral power," and thus it is distinguished from physical power; moral power, and therefore legitimate. "Of disposing of a thing," and thus it is distinguished from jurisdiction, which is also called ownership of jurisdiction, so that it may be distinguished from ownership of property: for jurisdiction is the moral power of governing; nor is it exercised immediately over a thing, but over a subject person. "Corporeal," because of incorporeal things one does not have ownership, but rather a right. "At will," that is, by selling, donating, or even destroying without cause, which although otherwise prohibited, because God permits ownership to each one only for this purpose, that it may serve his own necessity and utility and that of his own people, nevertheless does not violate the right of another and is not against commutative justice. "As one's own," for ownership properly is a right in the thing, and not precisely a right to the thing, which tends to that right and is perfected and completed by it. Much less is ownership mere possession of a thing. "Unless prohibited by law": by natural law, if one cannot dispose of his own thing without injury to anyone; by positive law, and thus alienation of their things is not permitted to minors except from a just cause and with certain solemnities observed, though in this case ownership is not taken away, but only its use is impeded. "By agreement": this would be, for example, if it were agreed between seller and buyer that the buyer is not to use the thing bought except after a certain day. "By the will of a testator": this would be, for example, if the testator had bequeathed a farm to someone on this condition, that he not use it except after a year. C. I. 436; C. G. 544; C. H. 348; C. A. 353, 354; C. B. 903; C. He. 641; C. L. 2167 ff.; S. Th. 2. 2. q. 66; Gousset 673; E. M.

n. 839.

How many kinds of ownership are there? - Ownership of property is immediately divided into perfect ownership and imperfect ownership. Perfect ownership of property, or full ownership, is the legitimate power of receiving in one's own name every advantage of one's liberty from some thing, by disposing of it and using it. Imperfect ownership, however, is the legitimate power of receiving from a thing some advantage, yet not every advantage, of one's liberty.

Imperfect ownership is immediately subdivided into direct ownership and useful ownership. The former is the legitimate power over the substance of a thing without the fruits. The latter is the legitimate power of receiving fruits and emoluments from another's thing, while its substance remains intact. Useful ownership, according to the various advantages of things to be received, is divided into various species, principally into use, habitation, surface right, usufruct, servitude, possession, emphyteusis, fief, and census. Each ownership, however, is either perpetual or revocable. By its nature ownership is full and perpetual. Here it will be necessary to speak of the first six species; of the last three it will be necessary to speak below, when there will be discussion of contracts. C. G. 543; C. He. 641 ff.; C. L. 2187-2189; L. 487.

n. 840.

What is use? Use is defined: The right of using another's things, their substance being preserved both as to matter and also as to form. "Right" signifies the faculty which belongs to a competent user, for thus the one to whom use belongs is called; but the one to whom the property or ownership of the thing belongs is called the proprietor. Therefore use here is not taken generally for the actual exercise of any ownership whatever, but specially for a certain special power. "Right," and therefore there is question of use of right, not of use in fact, which is the actual use of another's thing, revocable at the will of the one granting it. "Of using" signifies that the faculty belonging to the user extends only to those things which are necessary. C. I. 521; C. G. 630; C. H. 524; C. A. 504; C. L. 2254. This necessity, however, is to be measured according to the condition, state, and dignity of the user himself and of his family, with servants included, and with children born after the exercise of use not excluded. C. I. 521, 523; C. G. 630; C. H. 524, 526; C. A. 505, 506. Yet use of a thing can be granted to a person for daily personal necessities, C. L. 2254, and from mere agreement altogether limited to some act, for example if someone grants to a friend that he may walk through his forest, hold a banquet in his house, or pluck apples from the trees of his field. "Another's things" indicates that use cannot consist in one's own things; for each one is said to have in his own things not use only, but also ownership. "Their substance being preserved"; otherwise it would not be use but abuse. From this it follows that the user cannot change the thing whose use he has obtained even into a better form; and therefore those words are also added: "both as to matter and also as to form." C. A. 507. And this is the principal obligation of the user; hence he is also bound to ordinary repairs and taxes, yet in proportion to the fruits, so that the thing may be preserved whole for its owner. C. I. 537; C. G. 635; C. L. 2259, 2260. Cf. C. A. 508; C. H. 527.

Use is acquired and ceases in the same modes by which usufruct is acquired and ceases. C. I. 529; C. G. 625; C. H. 529; C. L. 2255; Inst. 1. 2. t. 5. sections 1, 3, 4; L. 487. Cf. here 848, 849.

n. 841.

Hence it is clear: that under use, as also under usufruct, there do not come things consumable by one act, such as wine, oil, bread, etc., because through such use the substance of the thing does not remain preserved. In the case of destruction of the thing, one is bound to repay an equivalent price. Therefore prior security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 525; C. G. 626; C. L. 2256. Cf. C. A. 520.

Considering the nature of use itself, the user cannot lease, sell, or donate his right to another. For use consists in this, that someone uses a thing according to the measure of his necessity. C. I. 528; C. G. 631, 634; C. H. 525; C. A. 507; C. L. 2258. Make exception, unless it clearly appears that this faculty also was granted to them by a special agreement, or if the use would be altogether useless unless it could be alienated. A user of a fruitful thing, such as a garden, fields, vineyards, etc., cannot justly collect more from the fruits than is required for necessary support; hence if he collects more fruits, he is bound to restore them to the direct owner. C. I. 821; C. G. 630; C. A. 505, 506; C. L. 2257.

n. 842.

What is habitation? Habitation is: The right of inhabiting another's buildings, their substance being preserved. And thus to noble widows there is often granted by husbands the right of dwelling for the days of life in the house of the heir. He to whom habitation of a house has been granted can dwell in it with his family, although at the time when he acquired the habitation of the building he was not married, and can receive guests in it; nevertheless he cannot transfer his right to another by selling it, or by leasing the building and acquiring for himself the price of the lease. One who inhabits the whole house is bound to all necessary and ordinary expenses and taxes; one who inhabits only part is bound only according to the proportion of the thing.

Habitation begins and ceases as use, with which it is almost confused according to more recent laws. C. I. 521 ff.; C. G. 625 ff.; C. A. 521-522; C. H. 524, 525, 529; C. He. 776, 777; C. L. 2254, 2259, 2260. Cf. C. A. 508; C. H. 527; C. B. 1093. C. I. 1415; C. G. 1570: besides clothing, habitation is owed to a widow from the inheritance of her husband for the year of mourning. C. B. 1969: the heir is bound for one month to permit use of the house to members of the family of the deceased, from the inheritance devolved to him. Inst. 1. 2. t. 5. sections 2, 5.

842bis. What is surface right? - With use, surface right also is almost confused. Surface is said to be whatever has been placed upon the soil and stands above the ground, such as a building, tree, plant, vine, etc. Hence there is right of surface; and the one having it is called the superficiary, and the thing itself is called superficiary. Dig. title 18, book 43. The surface yields to the soil. The right of surface can be limited only to occupation of the surface, and only to ownership of the superficiary thing, whether it be above the soil or beneath the soil. C. He. 675, 779.

n. 843.

What is usufruct? - Usufruct is: The right of using and enjoying another's thing, by receiving fruits from it in that very mode by which the proprietor himself would receive them, while nevertheless its substance is preserved, both as to matter and also as to form, as in use. C. I. 447; C. G. 578; C. H. 467; C. A. 509; C. B. 1030; C. He. 745; C. L. 2197, 2202; L. 487.

It differs from use in this, that it extends more broadly; for simply to use is to receive only necessary fruits, but to enjoy is to receive them as the proprietor himself would receive them. Thus, for example, if someone has the use of some garden, he can indeed take fruits from it for himself and his own, but he cannot alienate them and bestow them on outsiders; but he can do so if he has usufruct of the same. Those words, "of using and enjoying," are not added in vain; for usufruct, insofar as it regards a fruitful thing, is the right of using; but insofar as it regards the fruits, it is the right of enjoying, or of receiving fruits from it. And thus, if the revenues of some estate are bequeathed, it is not judged to be a usufruct, but a legacy of revenues, which is a personal burden, not a burden of the estate. And therefore it is said, "the right of using and enjoying another's thing, by receiving fruits from it," etc. Hence it is a real right constituted in the thing, and thus it differs from lease. "Another's thing," because usufruct is a servitude. The owner uses his thing by right of property. The one to whom usufruct belongs is called the fructuary. Inst. 1. 2. t. 4. section 1.

n. 844.

What is fruit of a thing, and how many kinds are there? Fruit is what a thing bears or produces. For fruits are so called from bearing; and some are natural, which are produced from the thing itself and by the benefit of nature alone, such as grass, apples, nuts; likewise the offspring of animals and the things which come from them, since they are held as a part of the entrails. Others are industrial, which are acquired by industry alone, and it is the profit which is received from money exposed to trade, or from improvements made to a thing. Others, however, are those in which, besides nature, the labor and industry of man also has a part, such as, for example, grain and crops; theologians call these mixed, because they are produced partly by nature, partly by the benefit of human industry. Finally, others are civil, which arise only on occasion of the thing and by force of a particular obligation founded in civil law, for example the price of a leased house, rents of a farm, interest of money given as a loan, etc. C. L. 495.

But fruits are not understood except after expenses have been deducted. The natural and industrial fruits themselves are divided into those to be born and those born; these likewise are customarily divided into pending and received, and these still into existing and consumed. C. I. 444, 445, 480, 494; C. G. 547, 548, 583, 584, 585, 598; C. H. 354-357; C. A. 330, 405; C. B. 99, 100, 102; C. He. 643; L. 609, 610.

n. 845.

How many kinds of usufruct are there? - There is a threefold division of usufruct. The first is into proper and improper usufruct. The former is constituted in things which are by no means consumed by use, such as, for example, a house and a garden; the latter, however, is constituted in fungible things, as they are called, namely those which are consumed by use, such as linens and household furnishings. Improper usufruct is also called quasi-usufruct. C. I. 483, 484; C. G. 587, 589; C. H. 481, 482; C. A. 510; C. B. 1031, 1032, 1067.

The second division is into singular usufruct, that is, of certain things in species; particular usufruct, that is, of some part of goods; and universal usufruct, in which all goods are contained. C. G. 612; C. H. 469; C. B. 1038.

Finally, the third division is into usufruct of things and of rights, as, for example, usufruct of a life annuity, which brings a right of receiving even past and unreceived fruits. Thus from C. G. 588. Cf. C. I. 482; C. H. 469; C. A. 510; C. B. 1068 ff., 1085 ff.; C. He. 745; Inst. 1. 2. t. 4. section 2.

n. 846.

What are the rights of the usufructuary? - These in general are, apart from a special agreement:

Since the usufructuary is judged to act as the person of the proprietor with respect to useful ownership, his first right is that he can receive all fruits, whether natural, industrial, or civil, and make them his own, whether he has collected them by himself or through others. But they are understood to have been collected when they have been separated from the soil or from the thing. Hence, if the fructuary dies, fruits indeed mature but not yet separated from the soil or the thing do not belong to the heir of the fructuary, but to the proprietor of the thing, without the burden of paying for cultivation or seed, etc.; for fruits, as long as they adhere to the farm, are judged one with it. But if that heir, when the fructuary is already near death, has collected immature fruits, he is bound to restore them to the proprietor; for just as the fructuary could not collect immature fruits, so much less can his heir. On the contrary, the usufructuary receives natural and industrial fruits pending at the beginning, also without the burden of paying for cultivation or seed, etc. But civil fruits are acquired day by day, and therefore must be divided according to the proportion of the time during which the usufruct lasted. Inst. 1. 2. t. 1. section 36; C. I. 477, 479, 480, 481, 494, 496; C. G. 578, 582, 585, 586, 588, 598, 600; C. H. 471, 472, 474, 475; C. A. 509, 511. Cf. ib. art. 519; C. H. 472, 476, 477; C. B. 1039; C. He. 755, 756, 757; C. L. 2203 ff., 2252, 2253, 495.
In addition, he has a right to all those things without which usufruct cannot be had; therefore he has right of way to the usufructuary thing through the hereditary farm, if access does not lie open from elsewhere; likewise the right of using all servitudes adhering to the farm, because they are held as qualities of the farm itself; likewise he has a right to opened mines and to the individual instruments of the farm, unless the contrary will of the testator appears; for it is not to be presumed that the testator wished the fructuary to furnish instruments for himself for a farm which he is to use only for a time. C. I. 494; C. G. 597, 598; C. A. 511; C. H. 479. Cf. ib. arts. 476, 477; C. B. 1031; C. L. 2206, 2213, 2287.
Besides, he has the right that he can sell, donate, lease, lend, and subject to mortgage the fruits and the usufructuary things, and grant them to another to enjoy; indeed even hand them over as a pledge. For one who enjoys through another is seen to enjoy by himself. C. I. 492, 493, 1967; C. G. 595, 2118; C. H. 480; C. He. 758; C. B. 1059; Inst. 1. 2. t. 1. sections 36-38, t. 4. section 1.
As the usufructuary is not bound to make improvements, so he has no right to compensation for improvements made. For he is judged to have donated them. Nevertheless, he will be able to compensate an increase of price with losses, if any followed without grave fault of the fructuary. If this compensation cannot have place, it is lawful for the fructuary and his heirs to retake additions made, if they can be removed without detriment to the farm and with the utility of the fructuary, and the proprietor does not prefer to retain the additions made for himself after paying their valuation. But it will always be lawful for the fructuary and his heirs to recover mirrors, painted panels, and other ornaments, provided all things are restored to their former condition. C. I. 495; C. G. 599; C. H. 487, 488; C. He. 753; C. L. 2217, 2220. Cf. C. A. 514-517.

n. 847.

What are the obligations of the fructuary? - These in general are, apart from a special agreement:

The burden falls upon the fructuary both of furnishing custody and of undergoing ordinary expenses, so that the thing may be preserved in its whole condition, and also of making expenditures so that he may receive natural fruits from it. He is also bound to pay the ordinary burdens by which the usufructuary thing is burdened, such as salaries, annual taxes, and similar things. He is likewise bound to notify the owner if anything happens which may harm his property. C. I. 477, 501, 504, 506, 509, 511; C. G. 605, 606, 608, 614; C. H. 500-502, 504, 505; C. A. 512, 513; C. B. 1036, 1037, 1041 ff.; C. He. 764, 765, 767, 769; C. L. 2228, 229, 2238, 2240.
The fructuary must use another's thing as a good father of a family, and must return it such as it ought to be found after good administration. But the proprietor can do nothing by which the condition of the usufructuary becomes worse, because he suffers him to enjoy. C. I. 495, 497; C. G. 599, 601; C. H. 489, 497, 503; C. A. 513; C. B. 1051 ff.; C. He. 755, 759, 768; C. L. 2223, 2227.
The usufructuary thing must be restored to the owner, when the usufruct has ended, such as it was with respect to its substance when it began. C. I. 477; C. He. 751 ff. Therefore security must be given, and the condition of immovables and an inventory of movables must be made. C. I. 496, 497; C. G. 600, 601; C. H. 491; C. B. 1034 f., 1048, 1049. From C. I. 1922 either security or pledge can be given. Cf. C. G. 2041; C. He. 760 ff. But security is not to be given by a father or mother in legal usufruct, nor by one who sold or donated the thing while reserving usufruct to himself. C. I. 497; C. G. 601; C. H. 492. Nor indeed is security to be given, nor an inventory to be made, if the one who constitutes the usufruct remits all these things. C. I. 496, 497; C. H. 493. C. I. 483, 484; C. H. 481, 482; C. G. 587, 589; C. A. 518, 520; C. B. 1034, 1035, 1050, 1055; C. L. 2221, 2224.
Things which are consumed by use are to be restored according to their valuation made, or otherwise in the same quantity and quality, or at the current price, when the usufruct ceases. But things which deteriorate by use are restored in the condition in which they are when the usufruct ceases. C. I. 483, 484; C. G. 587, 589; C. B. 1050, 1067; C. He. 772; C. L. 2208, 2209.

From Roman Law: The usufructuary of a field has a right to hay, crops, willows, and trees to be cut, but not to large and fruit-bearing trees, to stakes, to stones, or to sand. In place of trees that have died, he is bound to substitute others, and the former belong to the fructuary; nevertheless he by no means ought to substitute trees overthrown by the force of a storm without fault on his part. And if there are bees, their usufruct also belongs to him. L. 9, 11, 18, 59 de Usufr. etc. From C. G. 594; C. I. 490: fruit-bearing trees which perish, or which are overturned by some accidental event, belong to the usufructuary with the burden of substitution. Cf. C. H. 483-485.

Usufruct of a forest. "The fructuary can cut a coppice wood and a reed-bed, as the father of a family was cutting, and sell them, even if the father of a family was not accustomed to sell but to use them himself; for it must be referred to the mode, not to the quality, of using." L. 9. section 7. de Usufructu et quemadmodum, etc. Cf. C. G. 590, 591; C. I. 485, 486; C. He. 770; C. L. 2211. "But if there were large trees, he cannot cut them." L. 11. de Usufructu, etc. Cf. C. G. 590, 592; C. I. 487, 579. "Labeo says that, when trees have been torn up or thrown down by the force of winds, the usufructuary can take them up to the measure of his own use and of the villa... He thinks that the usufructuary can cut timber as much as is necessary for the repair of the villa; just as, he says, he can burn lime or dig sand or take anything else necessary for the building." L. 12. de Usufructu, etc. Cf. C. G. 592, 593; C. I. 488, 489; C. A. 511; C. L. 2210, 2213, 2226. "I think that the fruit of a nursery belongs to the fructuary, yet in such a way that it is lawful for him to sell and to sow; nevertheless, for the sake of sowing the field, he must always renew the prepared nursery as an instrument of the field, so that, when the usufruct has ended, it may be restored to the owner." L. 9. section 6. de Usufructu, etc. Cf. C. G. 590; C. I. 485, 491; C. H. 485; C. L. 2112.

The usufructuary of a flock has a right to wool, milk, and offspring. Inst. 1. 2. t. 1. section 37, t. 5. section 4. But he is bound to substitute other heads from the offspring in place of heads that have died, unless he has the usufruct of the individual heads separately, not of all the heads collectively, or of the flock, herd, or drove, that is, of the universality. L. 68. section 2, 69, 70. section 3. de Usufructu, etc. Cf. C. G. 615, 616; C. I. 512, 513; C. H. 499; C. L. 2225.

n. 848.

How is usufruct acquired? - Usufruct is acquired: 1. From law, and then it is called legal; such is the usufruct of parents from the goods of children, or of a husband from the goods of his wife. 2. From agreement or contract, and therefore it is called conventional, for example by force of donation or testament. 3. By prescription. In its acquisition, the formalities of the various laws must be observed. C. He. 746.

C. I. 478, 901, 2137; C. H. 468; C. B. 1032, 1033.

n. 849.

How does usufruct cease? - "Lest properties be useless in general, when the usufruct has always departed, it has pleased the law that usufruct be extinguished in certain ways and return to the proprietor." Inst. 1. 2. t. 4. section 1; C. L. 2251.

Moreover, usufruct ceases: 1. By the natural or civil death of the fructuary; for since both use and usufruct are personal rights, they ought to be extinguished by the death of the one to whom they belong. Hence usufruct, that is, the stable right itself of using and enjoying, neither passes to heirs nor can even be sold without the consent of the direct owner. C. I. 515; C. G. 617; C. H. 498, 513; C. B. 1059, 1061; C. L. 2250. A usufruct granted to a community or moral body is extinguished after the space of 30 years, C. I. 518; C. G. 619; C. H. 515; C. L. 2244; of 100 years, C. He. 749.

When the time has ended, if any has been established by law or constituted by agreement. C. I. 515, 517; C. G. 617, 620; C. H. 513, 516; C. A. 528; C. He. 748; C. L. 2245.
By every manner of change, for example if a meadow becomes a pond, or by the total destruction of the thing, if, for example, the whole building is demolished. Total destruction; for if the thing perishes only partially, usufruct is sustained in that which remains. C. I. 515, 519, 520; C. G. 617-624; C. H. 513, 514, 517. Cf. C. A. 525; C. He. 748; C. L. 2243, 2246.
Likewise, usufruct is extinguished when the right of the one ceding the usufruct has been resolved. For example, if Titius sells a house to Caius under a pact of redemption, and meanwhile Caius grants its usufruct to Sempronius, once the house has been redeemed by Titius, the usufruct also ceases.
By consolidation, namely when the fructuary obtains the property and ownership of the thing itself, or when the owner also acquires the usufruct. C. I. 515; C. G. 617; C. H. 513; C. B. 1063.
By renunciation of the fructuary, provided it is not done in fraud of creditors. C. H. 513.
By abuse, by which the thing is made worse through the fault of the fructuary. But the sentence of a judge is necessary. C. I. 516; C. G. 618. Otherwise, however, from C. L. 2249, and from C. H. 520, 529, which establishes a distinction between usufruct and use, which is extinguished by grave abuse of the thing.
By prescription, namely if the fructuary does not use his right for so much time that the usufructuary thing can be usucapted by another; 30 years are required so that the owner can prescribe against the fructuary. C. I. 515; C. G. 617; C. H. 513; C. L. 2241; Inst. 1. 2. t. 4. section 3; C. G. 621, 622.

n. 850.

What is servitude, and how many kinds are there? - Servitude, taken actively and generically, is a right which belongs to someone, so that the thing of another, or another person, serves his thing or himself, that is, is applied to its or his utility. But servitude taken passively is the obligation of another's thing, or of a person, corresponding to the aforesaid right. "The thing of another, or another person"; for one's own thing does not serve its owner. Therefore the advantages which the owner receives from it, he receives by right of ownership, not by right of servitude. The same must be said a fortiori of a person.

Hence servitude can be: 1. Personal, which is owed by a person to a person, and is proper to a slave toward a master. 2. Mixed, which is owed by a thing to a person, of which sort are use, usufruct, habitation. C. A. 521. 3. Real, which is owed to a thing by a thing, as a burden imposed on an estate for the utility of another estate. The thing bearing the burden is called serving; the thing receiving the utility is called dominant. C. I. 531; C. G. 637; C. H. 530; C. A. 473; C. B. 1018, 1019, 1090; C. L. 2267.

Real servitude is divided into continuous and discontinuous. The former is exercised without the act of man, such as servitude of prospect, of drip, of aqueduct, of sewer. The latter is exercised by the act of man, such as servitude of way, of drawing water, etc. C. I. 617; C. G. 688; C. H. 532; C. L. 2270. Besides, one is apparent, another non-apparent. The former appears outwardly by some sign, such as servitude of door, window, aqueduct; the latter lacks this outward sign, such as servitude of not raising a building higher, of pasturing a flock, of cutting wood. C. I. 618; C. G. 689; C. H. 532; C. L. 2270; Inst. 1. 2. t. 3. sections 1, 2, 3; Book 8 of the Digest.

Real servitude is divided into urban and rural, according as it is for the utility of a building or of a field. L. 1. Communia praediorum, etc. "The rights of urban estates are such: of raising higher and obstructing the lights of a neighbor, or of not raising higher; likewise of turning drip-water onto the roof or area of a neighbor, or of not turning it; likewise of inserting beams into the wall of a neighbor; and finally of projecting (that is, making a projection; a projection is a member of a building extending out, sporto) and protecting (or making a projection in the roof of buildings, namely of projecting the roof, fare uno sporto nel tetto), and other things similar to these." L. 2. de Servit. praed. urbanorum. "The servitudes of rural estates are these: path, driving-way, road, aqueduct. A path is the right of going, walking for a man, but not also of driving a beast of burden. A driving-way is the right of driving. A driving-way is the right of driving either a beast of burden or a vehicle. Therefore he who has a path does not have a driving-way; he who has a driving-way also has a path, even without a beast of burden. A road is the right of going and driving and walking; for road contains in itself both path and driving-way. Aqueduct is the right of leading water through another's farm. Among rural servitudes are to be counted drawing water, driving cattle to water, the right of pasturing, of burning lime, of digging sand." L. 1. de Servit. praed. rustic.

n. 851.

By what modes is servitude constituted? Real servitude can arise from a threefold source. The first is the natural position of places; thus, for example, a farm which is in a lower situation is bound to receive waters flowing down from a farm which is in a higher situation. Servitudes flowing from this source are therefore called natural. C. L. 2271. And thus owners of an estate which has no communication with public roads have a right of passage through another's estates, with damage compensated to their owners. C. L. 2309 ff.

Another source is law, under which name also comes the sentence of a judge; thus, for example, because of public or private utility, the law prescribes rules to be observed as regards the construction and repair of roads, the drawing off of waters, the building of houses, the distance of walls, passages, etc. C. He. 686, 688, 699, 702; C. L. 2325, 2338. Servitudes arising in this way are called legal. C. I. 533 ff.; C. G. 649 ff.

Besides this, a servitude can be acquired by prescription. C. I. 2137; C. A. 480, 1469, 1470. Only apparent and continuous servitudes, such as the servitude of aqueduct through another's farm, can be acquired by usucaption, and only by prescription of 30 years. C. I. 629, 630; C. G. 690, 691; but C. H. 537-539 by prescription of 20 years. Cf. C. A. 1469. But in the forum of conscience good faith is necessary, by which one namely thinks that the owner, who suffers him to use the servitude, is not unwilling. Continuous non-apparent servitudes, such as the servitude of not raising higher, and non-continuous servitudes, whether apparent or non-apparent, cannot be established except by means of title. Possession, even immemorial, does not suffice to constitute them. C. I. 630; C. G. 691; C. H. 539; C. L. 2272, 2273.

Finally, the third source is agreement: namely, the proprietors of neighboring farms can, if law or public order does not obstruct, agree among themselves that one farm serve another, and conversely, if it so pleases. These servitudes are called conventional. C. I. 532; C. G. 639. In them transcription is required. C. I. 1932; C. He. 731, 732. Likewise a servitude can be constituted by destination of the father of a family, by some act of last will, or among the living. C. I. 629, 630; C. G. 692, 693; C. A. 480; C. B. 903 ff.; Inst. 1. 2. t. 3.

But here it must be observed: 1. Servitude in the things of the Church falls under the Extravagant Ambitiosae; for it is a certain alienation of right, and therefore cannot be imposed without Apostolic beneplacit. 2. C. I. 556: the faculty of making a contiguous wall common does not extend to buildings of public use, and therefore not to churches. 3. Agreements which constitute burdensome praedial servitudes, or moderate them, must be made by public act or private writing, under penalty of nullity. C. I. 1314. But if they are constituted by gratuitous title, a public act is required, since then donation is had; and all acts of donation without a public act are null. C. I. 1056. Cf. here 1011.

n. 852.

By what modes is servitude ended? - Real servitude is extinguished: 1. When the established time has elapsed, or the condition has been fulfilled. 2. By express or tacit renunciation. 3. By consolidation, by which the owner of the dominant estate at the same time becomes owner of the serving estate, or vice versa. 4. If the thing is changed; if nevertheless the thing is reduced to its former state, the servitudes revive, unless prescription obstructs. 5. By prescription, or non-use of the right of servitude for 20 years from C. H., for 30 years from C. I. and C. G., if it is discontinuous, for example if someone has ceased to go through another's farm; or, if it is continuous, from the time when someone has done something contrary to the servitude, for example if someone on his own farm planted or built short of the legitimate distance, obstructed an aqueduct, etc. C. I. 662 ff.; C. G. 703 ff.; C. H. 546 ff.; C. A. 524 ff., 1488; C. B. 1028; C. He. 734 ff.; C. L. 2279, 2280.

n. 853.

You will resolve: Someone cannot dig a source of water on his own farm with damage to others, unless for the sake of greater public utility, and with the damage repaid, if the judge has judged this equitable. C. I. 578. Nor can he contain it on his own farm, or divert it elsewhere, if some town or suburb needs it, if another has already acquired a right to it, if it is useful to other neighboring estates and otherwise would be lost. C. I. 540, 542, 545, 578; C. G. 641, 643, 674; C. He. 709 ff.

The owner of a higher estate cannot do anything so that the flow of waters is unusually increased, with harm to the lower estate. Nor indeed can the owner of the lower estate do anything which impedes the flow of water with damage to the higher estate. C. I. 536; C. G. 640; C. H. 543, 545; C. B. 1020-1026; C. He. 689, 730, 737.

The owner of a serving estate cannot change the position of a road, of waters, or of a stream, unless the servitude has become more burdensome, or prevents repairs useful to the estate from being made; and then he is bound to bring no harm, or to compensate it for the dominant estate. C. H. 545; C. L. 2278, 2282, 2283.

No one is compelled on his own estate, whether rural or urban, to receive the dripping rainwater of a neighbor. C. I. 591; C. G. 681; C. L. 2327. All can enclose their estates, unless they are subject to a reciprocal servitude of pasturing cattle. C. I. 442, 682; C. G. 647; C. L. 2346.

If the tree of a neighbor extends roots into one's own farm, one can cut them; if its branches overhang, he can compel the owner to cut them. C. I. 582; C. A. 422; C. B. 910; C. L. 2317. But there is a question whether fruits which fall into another's field from the tree of another belong to this latter, as C. He. 687 has it; or to the owner of that field, as C. B. 911 has it. Cf. ib. 923; Gousset 983.

C. L. 2318. He is guilty of damage who prevents a neighbor from restoring on his own farm an embankment destroyed by the force of a river, C. I. 537; likewise he who digs so deeply on his own farm that the wall of the neighbor can no longer stand, C. I. 573, 575; C. He. 685. Every proprietor must permit access or passage through his farm if a neighbor's wall or another work is to be built or repaired, provided the damage inflicted is repaired. C. I. 592, 594; C. L. 2276; C. B. 867, 905 ff.; C. He. 694, 695, 700.

One who plants a hedge, vines, or shrubs is bound to leave half a meter from the neighboring estate; one who plants trees not greater, pear trees, cherry trees, etc., one and a half meters; one who plants greater trees, nut trees, elms, etc., three meters. But with a wall interposed, these spaces need not be preserved, if the trees do not rise above the wall. C. I. 579.

Flowing water belongs to those who possess estates near the banks, and they can use it. Those who possess fields at the banks of navigable rivers cannot obstruct the opening of a way necessary for the course of ships. The same must be said of those whose estates are adjacent to roads or other public works; for they are bound to suffer the servitude as long as it is necessary for the making or repair of the aforesaid works. But in each case the injured proprietors have a right to a certain indemnity, if it can be made. C. I. 534, 543; C. G. 650; Inst. 1. 2. t. 1. sections 4, 5.

To acquire by prescription the right of servitude, for example of aqueduct, that is, of leading water through another's farm, the one prescribing must exercise positive acts by which he acquires such a right, and at the same time have good faith, by which he believes that right belongs to him. Nor does the knowledge and tolerance of him against whom prescription is made suffice, if he does not have a title. But if he has a title, knowledge and tolerance of this sort are not required. C. I. 630; C. G. 691; C. A. 539; C. He. 740.

Drawing water and driving cattle to water are discontinuous rural servitudes, which cannot be constituted without title. In controversies which arise among proprietors concerning the use of waters, because this concerns the common good by reason of agriculture and industry, the judge has the right to establish between the parties what is more equitable in the case. C. I. 544; C. G. 645.

n. 854.

What is possession, and how many kinds are there? "Possession is so called, as Labeo also says, from seats, as if position, because it is naturally held by him who stands upon it; the Greeks call it detention." L. 1. de Possessione. Possession is often confused with property. Yet it differs from it, because possession is a right by which a thing is held as one's own; but property or ownership is the very right by which a thing is one's own, and someone is its owner. Possession is rather a matter of fact than of right. Nevertheless, possession is distinguished as twofold: one of fact, the other of right. C. B. 854 ff.; Troplong, On Prescription, c. 2, On Possession.

n. 855.

What is possession of fact and of right? Possession of fact is: the apprehension or detention of a thing, with the support of body, mind, and right. "Of a thing"; by this name we understand not only corporeal things, but also incorporeal things, such as censuses, patronages, etc.; these are said to be quasi-possessed, to distinguish them from corporeal things, which are said to be possessed. "Apprehension or detention"; because possession is considered either in its beginning, or in its continuation; in its beginning it is apprehension of a thing; in its continuation it is detention of the same. "With the support of body"; because, for some corporeal thing to be possessed, it must be apprehended by some bodily act, for example by hands, feet, etc. If the thing belongs to no one, true and real apprehension is required for acquiring it. If the thing belongs to someone who hands it over to another, fictive apprehension suffices, as if he hands over the keys of a house to another. Finally, if the thing is acquired by the disposition of law alone, legal apprehension suffices, as if an heir, without knowing, acquires an inheritance. From C. A. 441 legal possession is had from the fact that a document proving the right of property has been inscribed in a public book. If the thing is incorporeal, apprehension and detention are had by acceptance of the right, and by the very use or exercise of the right, or with the forms prescribed by law observed. "Of mind"; because for a thing to be possessed, it must be apprehended with the intention of having it as one's own, and retained by persuasion that it is one's own. Possession indeed is not had if someone detains a thing without any intention of receiving from it advantage and emolument as from his own. Hence if someone, while he is waiting for a friend, takes in his hand that friend's book which he found in a hall, and looks at the title, he holds the book, but does not possess it. Hence also one who by right of neighborhood or familiarity or mere tolerance enters a neighbor's farm, or draws water from a neighbor's well, is not understood to quasi-possess. Error, whether of law or fact, does not obstruct the aforesaid intention and persuasion, as is openly clear from C. I. 701; C. G. 550; C. A. 326. "Of right," that is, with right not resisting nor impeding; because for possession it is required that right or the laws not impede the detention of a thing from being judged its true possession, by rendering one incapable of possession. Thus, for example, detention by a layman of a sacred thing which belongs to a church, or detention by a private person of a public thing, cannot even be called possession of fact; because right, by rendering these persons incapable of such possession, impedes such possession. On the contrary, detention of a stolen profane thing by a thief is true possession of fact, although unjust, because right does not impede detention of such a thing from sufficing for possession. L. Qui universos de acquir. vel amitt. possess.; Inst. 1. 2. t. 1. sections 1, 3, 4; C. I. 685, 687, 688, 690; C. G. 2134, 2228, 2230-2232; C. H. 430-432, 437-440; C. A. 309-315; C. L. 474.

Possession of right is defined: the right of standing upon a thing as one's own, which is not prohibited to be possessed. "Right," by which it differs from possession of fact, which is the very occupation of a thing or its detention, by which either there is had a right, namely the right of standing upon a thing as one's own, if it is just; or it is not had, if it is unjust. Just, unjust: therefore the right itself of ownership and property does not arise and cannot arise from detention or possession; but on the contrary, just detention or possession arises from the aforesaid right. Hence in judgments there is given a twofold action: action in a possessory cause, and action in a petitory cause; in the former there is question of the right of possession; in the latter of the very ownership of the thing. Possession nevertheless carries with itself a presumption of property in favor of the possessor. C. L. 477. "Of standing upon a thing," that is, of peacefully detaining the thing against disturbers. "As one's own"; for if someone stands upon a thing in the name of another, there will not be true possession. Thus, for example, a tutor cannot be said to possess the goods of a minor, but the minor himself possesses through the tutor, because the tutor does not retain those goods as his own, but in the name of the minor. "Which is not prohibited to be possessed," that is, with no law resisting and impeding, as was said above concerning possession of fact. But for possession to be legitimate, besides this, the formalities prescribed by law must be observed. C. I. 686, 701; C. G. 540, 550, 2229, 2268; C. H. 430-432, 437-441; C. A. 316, 329.

From C. He. 919, 922; C. B. 854-857, possession is acquired by the fact of obtained power over a thing; this power, for retaining possession, can also be exercised through another. But when power over the thing has ended, possession ends; nevertheless it passes over to heirs and successors, and can be continued in them.

If a possessor has handed over a thing to another, so that the latter may exercise some limited real right, or a personal right, both are possessors. The one who possesses as proprietor has original possession; the other has derived possession. C. He. 920.

Acts of mere tolerance and facultative acts, as also violent and clandestine acts, cannot constitute the beginning of legitimate possession. C. I. 688, 689; C. L. 474. Only those things can be possessed which can be the object of property. C. L. 479. Or at least possession of things whose property cannot be acquired has no juridical effect. C. I. 690. Troplong, On Prescription, c. 2, On Possession, n. 253 ff.

n. 856.

What is natural and civil possession? Possession is divided into natural, civil, and most civil. Natural possession is that by which the thing possessed is retained by body and mind as one's own, namely when someone bodily stands upon the detention of a thing as his own; this is done by one who is so near to a thing placed within sight that he can be present to it immediately. Civil possession is that by which a thing apprehended by body and mind is retained by mind alone; thus he possesses his own house who is absent from the house, as long as he has the intention of retaining it for himself. Likewise the owner of a thing possesses civilly what a thief retains with himself. Finally, most civil possession is that which is retained by the disposition of law alone, without any support of mind and body; this happens, for example, in a little child to whom some inheritance has come; he possesses the inheritance of the deceased without any act of apprehension, indeed even without any cognition of intellect. C. L. 483.

Natural and civil possession are also distinguished insofar as merely natural possession is called the mere detention of some thing, or the mere use of some right, such as is the possession of one who detains a thing in another's name; but civil possession is called this same detention of a thing, or use of a right, but together with the intention of having the thing or right as one's own. Therefore someone possesses not in another's name, but in his own name, namely with the mind of an owner, whether indeed he detains the thing, or uses the right, by himself or through another, through a farmer, tenant, fructuary, etc. And thus a borrower for use, depositary, and lessee possess naturally; the owner possesses civilly. C. I. 685, 687, 688; C. G. 2134, 2228, 2232; C. H. 430-432, 438, 441; C. A. 309, 310, 313, 352; Inst. 1. 4. t. 15.

From C. B. 868 ff., if someone possesses a thing as usufructuary, lessee, depositary, or in another similar way, by force of which he himself has a right or obligation of possession with respect to another, this one also is a possessor, but by indirect possession. This indirect possession can be transferred to another by cession of the right to restitution of the thing to himself. He who possesses a thing as its proprietor is a possessor in his own name. Natural possession by body and mind altogether prevails over civil possession by mind alone. Thus, for example, Titius, lessee of a field, sells the field to Sempronius, who, buying it in good faith, cultivates the field for 10 or 20 years and receives fruits from it in good faith as his own. During that space of 10 or 20 years, Titius, from the interest of the price received, pays to Caius, the owner of the field, the rent owed for the lease. After 10 or 20 years Caius visits his field, and when he finds in it not the farmer Titius but the owner Sempronius, he claims his property, but in vain, because Sempronius opposes prescription, his natural possession in good faith prevailing. C. I. 2117; C. G. 2239.

n. 857.

What are the rights of a possessor? The rights and juridical privileges annexed to juridical possession are the following: 1. By taking possession of a thing belonging to no one, its ownership is acquired. C. A. 381. Likewise a possessor in good faith, after a certain time has elapsed, can prescribe against the direct owner of the thing and acquire ownership of it.

Nevertheless it always confers the right of standing upon the thing; and no one can by private authority deprive another of possession of a thing, and possession obtained in this way is defective. C. B. 858. Possession is continued by the law itself in the person of a successor by universal title. A successor by particular title can unite to his own possession the possession of his author, namely so that he may obtain the effect of it. C. I. 693; C. B. 221, 858, 943, 944; C. He. 941.

Possession in good faith, if it is immemorial, or if its beginning exceeds the memory of men now living, regularly supplies all defects from which otherwise legitimate ownership would not exist, as is clear from C. Quibusdam de Verb. signific. Cf. C. I. 530. From more recent laws a possessor in good faith makes his own the fruits received. Cf. here 1337. But possession itself stands in place of title as regards movable things, C. G. 2279, acquired from one who is not the owner, by onerous title, C. A. 367, because things by their nature movable, and as regards unnamed bank notes, not as regards a universality of movables, and in relation to third parties, C. I. 707. Movable things; not rights, such as credits, excepting the aforesaid unnamed bank notes from C. I. As regards found and stolen things, cf. here 893. "From one who is not the owner," as regards third parties; and therefore the owner can prove that the possessor possesses the thing in his name, for example a thing leased, deposited, given to him in pledge, etc. From C. He. 930 ff., the possessor of a movable thing is presumed to be the proprietor. But a possessor in good faith is not bound to restore bearer securities and money, although the preceding possessor had been unwillingly deprived of them.
A possessor who begins possession of a thing which no one possesses begins possession legitimately, although he doubts whether it belongs to another, but apprehends it with the intention of inquiring about the owner, whether he truly exists. But a possessor who begins possession of a thing which another possesses, while doubting whether it is truly his own, begins to possess illegitimately. A possessor in good faith, when doubt arises whether the thing is his own or another's, if the contrary cannot be shown certainly, can with a safe conscience retain the thing; and the judge, while such doubt stands, ought to adjudge the thing to him. In the external forum good faith is presumed. Likewise, by legitimate possession of a thing, property itself is presumed. But in whatever name, whether another's or his own, he began to possess, in that same name he is now presumed to possess. And thus one who at the beginning possesses a thing deposited with him by an unknown traveler, who left it from forgetfulness and could always return to seek it back for himself, cannot thereafter begin to possess it as though lost or abandoned. C. I. 687, 691, 694, 700, 702; C. G. 2230, 2231, 2268; C. A. 446, 459; C. A. 323, 324, 328; C. B. 1006; C. L. 477, 478.
A possessor in good faith can, by the sole title of possession in good faith, use the thing possessed according to his will, and he can even consume and destroy it, without responsibility. Nevertheless, no possessor of another's thing can further retain it by title of another debt. C. A. 329, 471; C. He. 938. But retention of goods belongs to him by reason of improvement made and existing in them, if indemnity is not sought in judgment without proof. C. I. 706.
A possessor at the time of contested litigation is to be defended by the judge in possession, unless he drew that possession to himself by force, secretly, or by sufferance; for then he would have to be deprived of possession. C. H. 446; C. I. 694; C. B. 861, 862; C. He. 933.
If a possessor has been driven from possession by private violence, before all things restitution of the despoiled person must be made, nor is the occupier first to be heard when he alleges title and wishes to prove the thing to be his own. C. In litteris de Restit. spoliat. Cf. C. I. 694, 695, 697, 700; C. A. 339, 346; C. He. 927; C. L. 484 ff.
A possessor in good faith can defend the thing possessed even with arms against an invader, provided this is done immediately and with the moderation of blameless defense, that is, defensively and not offensively. And he can immediately retake for himself a thing violently taken from him. L. 3. ff. de Vi et de vi armata; C. A. 344; C. B. 859; C. He. 926 ff.; C. L. 486.
If someone is successively obligated to donate or hand over the same movable thing to two persons, the one who first obtains possession of that thing also has its property, although his title is later, provided he is in good faith. C. I. 1126; C. G. 1141; C. H. 445, 1473; C. A. 322; L. 1. 3. n. 927, 1. 4. n. 210; Inst. 1. 4. t. 15.

n. 858.

Does man have ownership of himself? - Having explained the intrinsic nature of ownership, we now proceed to explain the object and subject of ownership. Man does not have direct ownership of his soul and its faculties, nor of his body and its members, but only useful ownership.

Proof of the first part. For ownership imports a certain superiority; but man is not superior to himself, and to his members, or to another man as regards the very nature of man. Therefore. Besides, direct ownership belongs by natural right over other sublunary creatures because these are ordered by their nature to man, that they may serve him. Therefore, since man by his nature is not ordered to serve himself nor another man, but God, direct ownership of property in man, and in his faculties and members, belongs to God alone. Hence in Wis. 16:13 it is said: You are, O Lord, who have power of life and death. And in Deut. 32:39 God says: I will kill, and I will make alive.

Proof of the second part. For man can not only freely and licitly use his body and members for very many functions, but also through these, aided by divine grace, can merit eternal life. Therefore. Lugo d. 10. nn. 9, 17; Molina t. 4. d. 1. n. 1.

n. 859.

You will resolve: Suicide and mutilation, speaking per se, are not only against charity, but also against justice, or against divine right of property; for a user has the obligation of preserving the substance of the thing granted to him for use. But homicide of another person is not only against charity and divine right of property, but also against human useful right. Cf. 710, 715.

n. 860.

Does man have ownership of another man? One man can be under the ownership of another not only by jurisdiction, but also by property, but imperfect, or useful. Imperfect, or useful; for perfect ownership of property belongs to God alone, as is clear from the preceding proposition. The reason is that every man is owner of his own labor; and therefore he can alienate it for his own utility, and hand it over into the ownership of another. For an owner can dispose at will of the object of his ownership. S. Th. 2. 2. q. 57. aa. 3, 4; E. M.

n. 861.

From what titles can servitude be introduced? From the four following titles:

From pact, or one's own renunciation. For it is not repugnant that someone renounce his liberty in order to relieve his own need, etc.
From the right of war. For it is not repugnant that the victor sometimes inflict this penalty. For sometimes he could kill captives for the security of the nation; therefore a fortiori he could reduce them to servitude.
From delict, or from condemnation. For if a guilty person can be condemned to death, a fortiori to servitude, since deprivation of life is deservedly judged the greatest of all punishments.
From birth in a state of servitude, since by law those are slaves who are born from slaves. Thus from the law of nations, according to the common opinion. Inst. 1. 1. t. 3. sections 3, 4; Lugo d. 6. nn. 10-17; E. M.

n. 862.

Is the trade in Black persons lawful? It is altogether unlawful by every law, whenever Black persons are unjustly despoiled of liberty, and in crowds are transported from their regions like cheap cattle and sold, as happens in the nefarious commerce in them. Against so savage a trade various Apostolic Constitutions have come forth, namely of Paul III, Urban VIII, Benedict XIV, Gregory XVI, In supremo apostolatus, 3 Dec. 1839. Cf. the Letter of Leo XIII to the Bishops of Brazil, In pluribus, 5 May 1888, and the Letter Catholicae Ecclesiae, 20 Nov. 1890.

Those who have perpetrated so great a crime are bound at their own expense to vindicate them into liberty; and those who have bought them for a price must, even if they cannot recover the money, freely release them, insofar as this can be done without graver danger; for by retaining them they would continue the injury. But if there is question of Black persons or others existing in legitimate servitude, per se it is not absolutely unlawful, because once servitude has been admitted as legitimate, the master has a true right over slaves, or over their works, and therefore can transfer that right to others. Per se; for circumstances can obstruct, for example if a spouse would have to be separated from a spouse, or if civil laws forbid it, just as in fact servitude is generally forbidden in Europe. But a slave could flee if the master compelled him to unlawful things or treated him cruelly. Collectan. S. C. de P. F. nn. 2103, 2104, 2105, 2107; E. M.

n. 863.

Note: From C. I. 1628; C. G. 1780, someone cannot obligate his own labor into the service of another except for a determinate time and a determinate object. From C. H. 1583, someone can obligate his own labor without a fixed time, for a certain time, or for a determinate thing. Lease for one's whole life is null. From C. B. 624, lease of service for one's whole life is permitted. Nevertheless it can be rescinded after five years, with notice having been given before the last six months.

The Supreme Pontiff Pius X, in the Encyclical Letter to the Archbishops and Bishops of Latin America, Lacrimabili statu, 7 Jun. 1912, exhorts them to undertake paternal care for the miserable condition of the Indians, against whom cruel crimes and evils are committed. "This first," he says, "we earnestly exhort you, that whatever things have been instituted in your dioceses for the good of the Indians you most zealously promote, and likewise that you see to the instituting of those things which seem likely to be useful for the same matter. Then you will diligently admonish your peoples concerning their own most holy duty of assisting the sacred expeditions to the indigenous people who first inhabited that American soil. Therefore let them know that they ought to benefit this matter especially in a twofold way: by contribution of money and by the suffrage of prayers.... We condemn and declare guilty of a savage crime whoever dare or presume to reduce the aforesaid Indians to servitude, sell, buy, exchange, or donate them, separate them from wives and children, despoil them of their things and goods, lead and transport them to other places, or in any way deprive them of liberty, retain them in servitude; and also those who under any pretext and sought color furnish counsel, aid, favor, and assistance to those doing the aforesaid things, or preach or teach that this is lawful, and otherwise cooperate in any way with the foregoing." Therefore we will that the power of absolving penitents from these crimes in the sacramental forum be reserved to the local Ordinaries.

n. 864.

What about one's own reputation? Man simply has ownership of his own reputation. For it is something really distinct from the man himself, since it comes to him from without, and man acquires it by labor altogether dependent on his own free will through the exercise of virtue, and therefore through his own acts, which reputation follows as a natural effect. Moreover, it is not necessary for its own sake, but only for the edification of one's neighbor. L. 1. 3. n. 983; Billuart d. 3. art. 2.

n. 865.

You will resolve: Man, from a just cause, and with scandal and the defamation of others set aside, can licitly defame himself, for example to seek counsel, to restrain his own pride, to commend divine mercy, to restore another's reputation, etc. "From a just cause"; for if someone squanders his own reputation without a just cause, he sins venially. But he would sin gravely if the infamy would obstruct the execution of his own office, for example of pastor, teacher, rector, etc. "And with scandal set aside"; for if someone, by revealing some wholly hidden crime of his own, would give scandal to others, he would sin by scandalizing others. "And with defamation of others set aside"; for otherwise man would sin by injuring the reputation of others, for example of an accomplice, family, or community. Thus a religious cannot reveal to outsiders his crimes committed in religion, because in this way he would in some measure injure the reputation of his religion and community. Struggl 9; L. 983; S. Th. Quodl. 10. a. 13.

n. 866.

What about things; what is their division? - R. To the first: Man can have useful and direct ownership in external goods of fortune legitimately acquired. For irrational creatures were immediately created for man, so that he might use them for his own advantage and utility, and might serve God. Nor indeed was any restriction placed by God upon this use; indeed, it was granted without limit with respect to the aforesaid end, as is clear from the words of Gen. 1:28: Have dominion over the fishes of the sea and the birds of heaven, etc.; and Ps. 8:8: You have subjected all things under his feet. Therefore God granted to man useful and direct ownership of these external things. Aristotle, Politics 1. 2. c. 2; S. Th. 2. 2. q. 66. aa. 1, 2.

But since all things of this sort necessary for human life were given by God to all in common, property and division of them in particular was made by the first occupation of them, namely of those things which men first apprehended for relieving their own necessities, with others excluded; otherwise sufficient provision would not have been made for their own necessities, and there would be continual discord and strife among men. Hence the maxim and principle of law: a thing belonging to no one becomes the property of the first occupier.

And hence it is clear why, in extreme necessity of life, notwithstanding the division and property of things, all things remain common, so that anyone can relieve his own necessity from the goods of the earth, although already occupied and acquired by another, and the owner of these goods cannot impede one who, being in extreme need, provides for himself from his goods.

Concerning the ocean and the sea, it has been disputed whether they can be subject to the ownership of someone. Moreover, the ocean and great seas are subject to the ownership of no one, since their uses are inexhaustible, by which all can enjoy them without detriment to anyone. But parts of the sea adjoining the continent, as also gulfs and straits, can well be subjected to the ownership of some nation, since this is expedient for the utility of the aforesaid nation, of which otherwise it would be deprived, both because of fishing, and because of the security of commerce, and because of the defense of the fatherland.

R. To the second: A thing, in law, is everything which is not a person, and which can be of use to man. By the name thing is signified both that thing which is in our patrimony, and that which is outside our patrimony, but can be among our goods. L. 5. de Verbor. significatione. Goods are called those things which bless or profit, L. 49. de Verbor. signific., and in law they signify things which can be the object of public or private property.

Corporeal things are those which are subject to the action of the senses, such as houses, fields; incorporeal things are those which are apprehended only by the intellect, such as all rights and all actions. Public goods are those which belong to the people or the city, L. 15. de Verbor. signific. Private goods are those which belong to a particular moral body, or moral person, or some individual person.

Goods, whether public or private, are some immovable, others movable, and these latter precious or not. Immovable goods are immovable either by nature, or by destination, or by the object to which they are referred. C. I. 407. By nature: those which cannot be moved from place to place, such as rural and urban estates, surfaces or whatever is planted or built upon the soil, mines or whatever is found beneath the soil as a part of the soil, estimable by price. By destination, namely of the owner, for example rural instruments, animals prepared for cultivating the farm, statues placed in their shrines or bases, mirrors and other things enclosed or built into walls. By object, when they are referred to immovables, as, for example, use, usufruct, and servitude of immovables. But incorporeal rights, for example mortgages, are generally reckoned sometimes among immovables, sometimes among movables, from the object; and those rights are customarily called simply rights.

Movable goods are movable either by nature or by law. By nature: those which are moved from place to place by their own force or by another's, such as animals and inanimate things which are moved by an exterior force. By law: such as ships which are not stationary, mills which are not fixed, censuses, etc. Movable things, if they are consumed by use, are called fungible, such as wheat and money; otherwise, non-fungible, such as books and clothing. Precious things are those which excel by antiquity, art, or value. C. I. 406 ff.; C. G. 516 ff., 1874; C. H. 333 ff.; C. A. 285 ff.; C. B. 90 ff.

n. 867.

What is the subject of ownership? - It is certain that every and only intellectual substance is capable of ownership. Ownership is the legitimate faculty of disposing according to one's will of some thing as one's own, for one's own advantage and utility. But every and only intellectual substance can have this faculty, since it alone is endowed with free will.

Indeed, to God alone belongs supreme, absolute, and independent ownership over all created things. But particular ownership, subject to the supreme ownership of God, also belongs to men, even to infidels and sinners; indeed even to little children and the insane. For the use of reason is indeed necessary for disposing of goods, but not for having possession and habitual ownership of them; otherwise those sleeping and drunk would not have true ownership, and would wholly lose it by the act by which they sleep, or by which they are overwhelmed by drunkenness. By the very necessity of natural law and by the disposition of positive law, ownership can be acquired and retained even without any positive act of one's own will. Lugo d. 3. n. 16; S. Th. 2. 2. q. 12. a. 2; q. 66. aa. 1, 2; L. 725.

Capable of ownership are individual physical persons, and also moral persons, whether these consist of several singular persons, such as Colleges, Chapters, etc., and are called moral bodies, or not, such as hospitals and ecclesiastical benefices, and are rather called moral entities. They are called moral because they are persons not in reality, but by fiction of law. But for these moral persons to acquire ownership in reality, it is necessary that they have been legitimately constituted, namely by the due authority of the Prince, civil or ecclesiastical. As regards ecclesiastical moral persons in Italy, cf. Laws 7 Jul. 1886, 15 Aug. 1887, by which some were suppressed and some preserved. To the suppressed only civil rights were taken away. The preserved cannot alienate their goods without approval of the Government, nor can they acquire other goods, C. I. 434; Law 19 Jun. 1873, arts. 27, 28, likewise by civil law.

n. 868.

What about ownership of children under paternal power and of wives? - A child under paternal power is one who is still subject to paternal power. But although "the woman is equal to the man in the act of marriage, nevertheless in those things which pertain to the disposition of the house, the husband is the head of the woman, according to the Apostle, 1 Cor. 11." S. Th. 2. 2. q. 32. a. 8 ad 2. Moreover, "he who is constituted under the power of another, insofar as he is such, ought to be regulated according to the power of the superior. For this is the natural order, that lower things be regulated according to higher. And therefore it is necessary that in those things in which an inferior is subject to a superior, he dispense no otherwise than has been permitted to him by the superior." S. Th. ibid. c.

Hence it is clear that although children under paternal power and wives can well have ownership of things, nevertheless this ownership is not independent, speaking per se, from the power of the father of the family and of the husband; but it is subject to their power as regards administration, and also as regards usufruct, for sustaining the expenses of education and the burdens of marriage. Cf. 667 ff., 677 ff.

The ownership of children under paternal power regards things given to them by any title transferring ownership, or acquired by their own industry. For as regards paternal goods, children have no strict right to paternal goods while the father lives. Hence, if children under paternal power take anything from these goods, they are per se bound to restitution. Per se, namely unless there is question of a thing of less importance, and it is prudently presumed that the father remits that obligation.

Likewise ownership of wives is understood in their own goods, not in the goods of the husband. Hence a wife also, if she takes something from the husband from his goods, is per se bound to restitution. Again per se, namely unless there is question of a thing of less importance, and it is prudently presumed that the husband consents. Likewise a wife would be excused if, not having paraphernal goods, she took something from the common goods, or from the fruits of her dowry, to relieve the necessity of parents or children who had been received from a first marriage. For she is bound to this by the law of nature, and the husband ought to consent to it. But since the husband does not have direct ownership of the goods of the wife, if he dissipates them, he is bound to restitution. Cf. 667 ff., 677 ff.; 1 Kings 25; S. Th. 2. 2. q. 57. a. 4; L. 539, 542-544; H. A. 33.

The question is raised here only concerning common goods, whether the husband is bound to restitution if he dissipates them; and it must be affirmed if there is question of the capital and common goods themselves, since if these goods are common and consequently belong to the husband and wife in common, it is clear that the right of the wife is injured in this matter, and therefore is to be repaired. If there is question of the revenues of the same goods, when these are assigned to the husband by the laws, he is excused from restitution as regards those badly spent; but when they enter the common goods and constitute goods of the community, he is bound to restitution, as when the profits themselves enter the community and constitute common goods. And this is had indeed in C. G. 401, 1421, 1422; C. I. 1433, 1435, 1436; C. H. 1392 ff. For although the husband alone has administration of the goods of the community, nevertheless he does not have usufruct except only for the good of the family, C. G. 1409, and of the community itself, C. I. 1436; C. H. 1401, 1408, 1409, 1413, 1415.

From C. He., in the regime of union of goods, the revenues of the wife and the natural fruits of the goods brought by her are the property of the husband, 195. In the regime of communion of goods, all goods and all revenues belong undividedly to each spouse, 215. From C. B., in the regime of universal community of goods, the goods of the husband and wife are the common goods of each, and among these are also reckoned those things which the husband and wife acquire during the community, 1438. The husband administers them; but he cannot freely dispose of them, 1443 ff., especially to the detriment of the wife, 1456. From them, however, the expenses of marriage are to be made, 1458. And almost the same holds in the regime of community of acquisitions, 1519 ff., and in the regime of community of movables and acquisitions, 1549 ff. Cf. here 677, 1237; L. 539, 542; Lessius 1. 2. c. 25. d. 4. n. 37.

What about the ownership of the Church? - The Church has ownership of civil jurisdiction, such as is the temporal ownership of the Roman Pontiff. Besides, the Church has ownership of property in goods, whether movable or immovable. But the right of the Church in this matter is by its nature independent of the power of the civil State; and therefore it cannot be limited or narrowed by this. Direct ownership of these goods belongs to the universal or Catholic Church itself. Hence they are called goods of the Church, and simply ecclesiastical goods.

Hence, when the immediate subject of these goods ceases, for example a pious Institute, Monastery, etc., their goods do not become the goods of no one, but continue to belong to the Church; and consequently the Supreme Pontiff can dispose of them in favor, for example, of another pious Institute, Monastery, etc. For indeed the Supreme Pontiff has plenary and supreme administration and disposition of all ecclesiastical goods. C. Licet 2. de Praeb. et dignit. in the Sixth; S. Th. 2. 2. q. 100. a. 1 ad 7; Suarez, Def. Fid. 1. 4. c. 18. n. 8; L. 1. 3. nn. 591, 615.

But the immediate administration and usufruct of these goods per se respectively belongs, by transfer of right, to those persons, places, etc., to whom they have been donated or left by the faithful. For, since donations of this sort by the faithful are made altogether voluntarily, it must be whole and free to the offerers, just as to make them or not make them, so also, when they make them, to transfer the right of them to whomever they have preferred, while nevertheless the power of the Supreme Pontiff in this matter remains intact for the good of souls and of the Church. Per se, since the Supreme Pontiff could by his power change this administration and usufruct, as also condone due fruits, etc.

Offerings of this sort made to churches or other religious places are customarily destined for certain uses. If the will of the offerers is certain, it must altogether be obeyed. The immediate administration of these offerings belongs to the Bishop, pastor, or rector of the church, under dependence on the Bishop, but by no means to laypersons, unless the works are works of merely lay beneficence. Nevertheless laypersons can be employed in the administration of ecclesiastical goods as pure ministers. For since the right of administration of this sort is something spiritual, laypersons cannot possess it. Clem. Quia contingit de Religios. dom.; Trid. sess. 25. C. 8. de R.; Ithur. Cas. 45. n. 47; A. S. S. v. 8. p. 174. "Administrators, both ecclesiastical and lay, of the fabric of any church, even a cathedral, of a hospital, confraternity, alms, mount of piety, and of whatever pious places, are bound each year to render an account of administration to the Ordinary, with any customs and privileges whatsoever to the contrary removed, unless perhaps otherwise had been expressly provided in the institution and ordering of such church or fabric." Council of Trent, sess. 22. C. 9. de R.

Hence it is easily understood why ecclesiastical goods cannot be alienated without Apostolic beneplacit. Extravagant Ambitiosae de Reb. Eccl. non alienand.; S. Th. 2. 2. q. 86; Collectan. S. C. de P. F. nn. 1622-1626; E. M.

66. On Ecclesiastical Goods · 67. On the Co-ownership of Things · 68. On Occupation

What about the ownership of clerics? The goods of clerics are distinguished into four kinds:

Patrimonial goods, which come from paternal inheritance, or from any other profane cause, for example from donation, succession, etc. To these patrimonial goods are to be equated pensions which are allotted by the Government to infirm priests, or to religious formerly ejected from monasteries, as aids given for their support and in compensation.
Quasi-patrimonial goods, which are acquired on the occasion and in view of sacred functions, for example by celebrating Mass, preaching, etc. They are also called quasi-ecclesiastical, or casual. To this class also belong the uncertain revenues of pastors, which are called stole-fees, and the daily distributions of canons because of service of choir, as though a stipend of the person.
Ecclesiastical goods, which are received from benefices of the Church, that is, from the revenues of benefices. To this class also belong goods which are paid by the Government to pastors and canons by title of supplement, S. Poenit., 19 Jan. 1819, and also tithes. Therefore, by the name ecclesiastical goods, there are not understood here farms, which clerics certainly cannot alienate, since ownership of them is with the Church and clerics are simple usufructuaries, but only the revenues proceeding from them are understood.
Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably. L. 490, 491.

A cleric has perfect ownership of patrimonial goods. The reason is that a cleric is per se truly capable of ownership, nor is he prohibited by any law from freely disposing of the aforesaid goods. Indeed that right is supposed in six hundred places of canon and civil law. L. 491.

A cleric has perfect ownership of quasi-patrimonial goods, or quasi-ecclesiastical or casual goods. The reason is that these goods are not fruits of a benefice, nor the price of a sacred office, but a certain stipend, as it were, of his own labor, to which the cleric is not bound, or also a certain largess given by the faithful for the support of the cleric. It is also clear from the response of the Sacred Penitentiary, 9 Aug. 1824, by which it declared offerings of the faithful not to be ecclesiastical goods. L. 491; Lugo d. 4. n. 23; Gousset 694.

A cleric can use the fruits of a benefice for honorable support; but he is bound to expend all that is superfluous on the poor, or on other pious works. The first reason is because one ministering to the church can live honorably from the goods of the church, since benefices were established especially for this end. The second reason is drawn from the precept of the Church, which is manifest from innumerable decrees of Councils and Sacred Canons. For the canons of the Church impose this obligation upon clerics, or suppose it imposed, says Benedict XIV, de Syn. 1. 7. c. 2. n. 4. Trent, sess. 25. C. 1. de R.; L. 491.

Under the name of pious use comes whatever pertains to divine worship. Under the name of the poor, however, come not only those begging door to door, but also those who otherwise cannot preserve their own state. Blood relatives also come under this name, if they are truly poor, so that otherwise they cannot sustain their own state. And this is clear from Trent, sess. 25. C. 1. de R. But a cleric can prefer these needy blood relatives to other poor persons, even those more gravely in need, because assistance of needy relatives also pertains to preserving the proper state of the cleric, since their poverty redounds to his disgrace. Although it is more fitting, nevertheless it is not necessary in an equal case that the poor who are in the place of the benefice be assisted, because the canons indistinctly prescribe that alms be given whether to citizens or to outsiders. L. 491.

Although this special and grave obligation radically and occasionally proceeds from the virtue of charity and religion, nevertheless formally it arises only from the precept of the Church, and from positive law and the virtue of obedience, with every obligation from justice excluded. Thus with Lessius 1. 2. c. 4. dub. 6, commonly others. The reason as to the first part is: because nowhere is a special precept imposed on clerics from charity of expending superfluous revenues on the poor; but they are bound only by the general precept of giving alms, although somewhat more strictly than laypersons. Nor likewise is a special precept imposed on clerics from religion of expending the superfluous on pious causes. But the reason as to the second part is: because founders did not assign ample revenues to clerics under this formal obligation, but only by hope and intention. But the Church simply commands that the superfluous from the fruits which they make simply their own be expended on pious causes or for relieving the poor. Therefore. Thus Struggl 27. St. Alphonsus 491, 492, although he admits at least probably that this obligation does not arise from justice, nevertheless admits that it arises from a precept of the Church from the motive of the virtue of religion, but more probably from justice. Schmalz. 1. 3. t. 25. n. 35. "It has been dispensed with clerics living in the City and its district to 10 miles, that they might dispose freely of benefice goods, just as of their own and patrimonial goods, as is had in the Constitution of Sixtus IV, Etsi diversis, Kal. Jan. 1474, the Constitution of Julius III, Capientes, Ides of May 1549, and the Constitution of Paul V, In eminenti, 18 Apr. 1608." Schmalz. l. c. n. 36. The privilege, besides clerics of the City, was also granted to conclavists from the Constitution of Gregory XV, Romanus Pontifex, 15 Mar. 1621, section 14.

A cleric enjoys perfect ownership of parcimonial goods, and therefore can dispose of them as a true owner. The reason is that a cleric has a strict right to honorable support; therefore whatever he takes from it by living more sparingly belongs to him, and remains in his free power, since that right is altogether absolute. Trent, sess. 24. C. 12. de R.; C. Consuetudinem de Cler. non resid. in the Sixth; L. 491; S. Th. 2. 2. q. 185. a. 7; Quodl. 6. a. 12 ad 3; Lessius c. 4; Benedict XIV, de Syn. 1. 7. c. 2. n. 12.

It is lawful for secular clerics to make a testament concerning their patrimonial, quasi-patrimonial, and parcimonial goods; but concerning superfluous benefice goods they themselves cannot by common law make any testament, even for pious causes. C. Ut unusquisque 3. de Pec. cler.; C. Si quis 5. ib.; C. 7, 8, 9, 12 de Testam. By common law; for a special case of privilege or custom must be excepted. Struggl 28; Schmalz. l. c. n. 33; S. Th. Quodl. 6. a. 12; Kenrick tr. 10. n. 35 ff.; E. M.

n. 871.

Are clerics badly spending the superfluous goods of ecclesiastical goods bound to restitution? R. Negatively, probably, because although the precept of the Church is certain, nevertheless the obligation from justice is not certain. Indeed, from Trent, sess. 24. C. 12. de R., it is gathered that they make the fruits their own, although with the obligation of expending the superfluous on alms or other pious works. For the Council says concerning non-resident clerics: Let them not make the fruits their own.

Nevertheless others probably affirm, because clerics are only administrators and stewards of ecclesiastical goods; or at least because the Church does not grant them ownership of those goods except limited, with this burden imposed from justice. The first opinion, that is, the negative, says St. Liguori in Retract. qu. X, seems no less probable in practice, notably because of the authority and reason of S. Th. 2. 2. q. 185. a. 7. But as regards the fault of violating the precept of the Church, for grave matter there is required a quantity much greater than in theft. L. 491. IV. 492; S. Th. Quodl. 6. a. 12. Since each opinion is probable, heirs also of these goods can probably retain them without injustice and sin.

But whether one who receives these goods sins by cooperating with the sin of the donor, many affirm; but it must more probably be said that "the receiver does not sin, neither against religion nor against charity, unless he asks, or induces to donating." L. 492.

…and 608 more passages — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 701 passages

66. On Ecclesiastical Goods

Ioannes a Deo, a most pious physician, partly from his own patrimony, partly from donations spontaneously made to him, partly from donations made to him at his request, founded an immense hospital, in which a thousand poor persons are admitted and cared for altogether gratis. That the good of souls also might be promoted, Ioannes was accustomed to call the Capuchin Fathers from a neighboring convent, that they might hear the confessions of the sick and have a sermon for them on Sundays and feast days. Then also, from the neighboring house of the Sisters of Charity, he often called Sisters, that they might offer help to the sick women. But behold, Ioannes dies, and his son receives the hospital by inheritance from his father. Since he also is a physician and equally pious as his father, he undertakes to continue the pious work. But the pastor of the place brings suit against him, contending that the hospital is a good ecclesiastical from its institution, and parochial, since it is situated in his parish; and therefore that it pertains to him.

Q. 1. Whether the Church has dominion of goods? 2. What as to the case?

R. To the first. Cf. I. M. 869. - To the second. The pastor in the case seems altogether deceived. For from the fact that this sort of work was instituted from a pious end and with the purpose of charity and mercy, it certainly does not follow that that hospital is an ecclesiastical good. Otherwise, if a layman in his own house received poor boys, that he might teach them the rudiments of the Christian faith, and if he destined the whole house or a part of it to this pious work, by that very fact he would then lose the dominion and ownership of the house, which is absurd. But from the fact that Ioannes called the Capuchin Fathers and the Sisters of Charity, that in the aforesaid hospital they might exercise works of mercy, whether corporal or spiritual, neither does it thence follow that the aforesaid hospital is an ecclesiastical good. Finally, this certainly cannot be drawn from the fact that the aforesaid hospital was founded from the patrimony of Ioannes himself. Perhaps the pastor can affirm that only from the fact that it was founded from offerings and donations of the faithful spontaneously made to Ioannes, or at the instance of Ioannes himself. But even this foundation is altogether weak. For, the offering and donation having been made to Ioannes, the thing offered and donated was now Ioannes's; although the offering and donation was made under a mode, or burden, of founding a hospital, and for the pious purpose of helping the poor. For from this head it follows only that Ioannes could not dispose at will of the accepted offerings and donations; but it does not follow that the founded hospital is not his, but is an ecclesiastical good, proper to the pastor of the place.

A sacred place is indeed distinguished, first, and it is a church, which becomes sacred either by the solemn consecration of the bishop, or even by the simple blessing of a priest. A cemetery is also a sacred place, which becomes sacred by blessing. Second, a religious place, in which, by the authority of the bishop, works of piety and mercy are exercised. Places of this sort are subject to the authority of bishops, and enjoy the immunity of asylum. Hence, for a religious place it is required that in it a work of religion or charity be exercised, and that it be erected by the authority of the Supreme Pontiff or of the bishop, as, for example, a monastery or a confraternity of laymen, which are destined to a work of religion; an orphanage or a hospital, which serve for a work of charity. C. Ad haec 4, de Relig. domib. Wherefore a sacred place, a religious place, is not an orphanage or hospital erected by laymen, with the bishop's authority in no way intervening, nor a private oratory in a private house; and for this reason these are rather accustomed to be called pious places from their destination to a pious work; and consequently they are not subject to the jurisdiction of the Ordinary, nor do they enjoy the immunity of asylum. Schmalz., l. 3, t. 36, n. 24; t. 40, n. 19.

The bishop can visit sacred and religious places, Trent, s. 22, c. 8, de R., s. 25, c. 8, de R., with the exception, however, of the houses of regulars, by privilege of exemption. But truly pious places he cannot visit, except in the cases expressed in law. S. C. C. apud Fagnan., C. Ad haec 4, de Relig. dom., n. 54. Nevertheless, the founder having died, he can inspect whether all things proceed according to the will of the deceased, C. 7, de Testam., and therefore require the accounts of administration yearly, unless either they are under the immediate protection of kings, Trent, s. 22, c. 9, de R., or something else was provided on the threshold of the foundation, from Clem. 2, pr., de Relig. domib., Trent, l. c.; Schmalz., l. 3, t. 40, n. 18.

Therefore the hospital erected by Ioannes, although it can be held as a pious place, is by no means a sacred place, a religious place; and as a private oratory, although it is a pious place, nevertheless does not cease to be private property, so also the hospital of Ioannes is altogether private property, and neither the pastor nor the bishop can claim in it any right of dominion and ownership, apart from the other rights altogether distinct which have already been indicated, by which the bishop, and not the pastor, enjoys. The pastor has only the right and obligation of administering the sacraments there, since it is situated within the boundaries of his own parish, and the place is not exempt. Therefore let him hear the confessions of the sick and of the dying, let him minister viaticum and extreme unction, let him offer assistance to the sick in the last agony of life; and both Ioannes a Deo and afterward his pious son, and also the Capuchin Fathers, and also the Sisters of Charity, will rejoice altogether over this zeal of his, and will congratulate him. - Cf. I. M. 869.

Polydorus, a pastor, neglecting the poor, gathered a notable sum of money from stipends of Masses and other honoraria, from a benefice, from a certain pension received from the Government, from the revenues of his patrimony, and from sparingness in food; he distributed it partly among various relatives and friends, and partly reserved it for old age. But seized by sudden death, he was taken from the living without a testament. Wherefore all those things which are left by Polydorus are divided among the heirs.

Q. 1. What sort is the dominion of clerics? 2. Whether and how did Polydorus sin? 3. Whether the heirs are held to restore that reserved money to the poor?

R. To the first. Cf. I. M. 870. To the second. Polydorus did not sin of himself by spending among relatives and friends the money received from stipends of Masses and other honoraria, and likewise from the sparingness employed in his own sustenance; for these goods are his, nor as to their use does he have any special obligation. Likewise he did not sin by distributing the money proceeding from that Government pension. For, since this pension, as appears sufficiently from the case, is not by title of benefice, but by another title, which in the case is not indicated, it also is his, nor of itself does it bring any special obligation. The same must be said a fortiori about the revenues of his patrimony distributed among friends and relatives. But he sinned gravely of himself by spending similarly the revenues of the ecclesiastical benefice while neglecting the poor. For a beneficiary indeed has perfect dominion of these revenues, so that he can use them freely for honorable sustenance; nevertheless he has a grave obligation, but at least probably not from justice, of spending the surplus on the poor, or on pious causes. I. M. 870; Lugo, Resp. Mor., l. 5, d. 11.

To the third. They are not held. For Polydorus at least probably did not sin against justice by not spending on the poor the surplus of the revenues of the benefice, concerning which alone there can be question. Therefore much less can the heirs be held from justice. For the obligation of Polydorus was not real but merely personal; but the heirs do not have this personal obligation. Besides, in the case there is truly the greatest difficulty of knowing whether the money left by Polydorus proceeds from the surplus revenues of the benefice, or from other goods. And although this perhaps can be affirmed of some quantity, it is very difficult that it be established that Polydorus did not also secretly give sufficient alms. I. M. 871; G. 508, 509.

67. On the Co-ownership of Things

Titus, Sempronius, and Caius possess a house, of which the lowest part is Titus's, the middle Sempronius's, the upper Caius's. The roofs having been destroyed by the force of hail, a controversy arises among them, and Titus and Sempronius compel Caius to repair it, since he himself is the owner of the upper part of the house. Caius then begins not to repair the roof, but to construct another story, piano; but again Titus and Sempronius rise up against Caius.

Q. 1. What is co-ownership of things, and by what laws is it governed? 2. What as to the case?

R. To the first. Cf. I. M. 1241, 1242. - To the second. If there are various owners of different parts of the same house, the repair of the great walls, muri maestri, and of the roofs is common, according to the proportion of the value of the story of each owner. The same is true for halls, anditi, gates, wells, cisterns, aqueducts, and other things common to all the owners. But latrines are common, as to repair, according to the proportion of the number of openings, aperture, of immission. The owner of each story is held to repair the pavements on which he walks and the vaults, volte, by which he is covered, and also the ceilings and panels, soffitti, which cover places pertaining to him. - Stairs are to be built by the owner of the story which they serve, according to the value of each story. Wherefore, if the same story is common to several, each is held according to the value of his part. And the repair of those stairs which provide access to the first stories is to be made proportionately by all; but the repair of those which provide access to the higher stories is to be made only by the owners of those stories. - Underground cells, cantine, floors, palchi morti, rooms, soffitte o camere a tetto, are considered as stories of the house. - The same is to be observed for the repair of terraces and roofs. If their use is not common to all, he who has their exclusive use contributes for a fourth part of the expenses, and the other three parts are to be furnished by him and by the other owners according to the value of each part. The owner of the last upper story cannot raise it higher without the consent of the others. He can construct only the coping of the terrace, parapetto, if it harms the others in nothing. C. I. 562-564. Cf. C. G. 664.

Hence it is clear that the repair of the roofs in the case does not pertain to Caius alone, but to Titus, to Sempronius, and to Caius according to the value of each part. But Caius cannot raise his apartments, appartamento, higher without the consent of the others, since this can well harm the others.

Amelius constructs a cabinet in the common wall of his house, since that wall is very deep. Likewise he places an aqueduct within it, since that wall is much nearer the public road through which the public water canal passes. Is this by right?

R. A wall between two houses, gardens, or courtyards, cortili, is presumed common, C. I. 546; C. G. 653; C. A. 854. - In a common wall no one can open windows, C. I. 583; C. G. 675, nor build against it an oven or chimney, C. I. 574; C. G. 674, nor make a hollow, incavo, in it, C. I. 557; C. G. 662, nor, generally, do anything which harms the common wall itself or the co-owner; yet it is permitted to insert beams in it. C. I. 551, 552, 558, 573; C. G. 657, 674.

Someone can raise a common wall higher, provided he does this at his own expense, does not harm the co-owner, and repays him damages, if he has brought any upon him; and the latter can compel him to cede to himself a part of the wall superimposed.

And generally the owner of any estate contiguous to a wall can make that wall common to himself, provided he does this over its whole extension, public buildings excepted. C. I. 553-556; C. G. 658-661. Someone can demand the communion even of a wall which has been built within a half-meter. C. I. 571.

Finally, someone can compel the co-owner to repair the common wall at common expense. C. I. 559, 561; C. G. 663.

It is clear from these dispositions of the law that Amelius could have done neither thing without the order of the other co-owner; and if he refuses, the necessary means are to be defined by experts, lest the work harm the rights of the other. C. I. 557; C. G. 662.

Sedulus and Sedulius move a dispute between themselves concerning the ownership of trees which are placed on the common boundary of their own fields. Sedulus says they are his, because they are nearer his own field. Sedulius contends they are his, because the hedge in which they are situated is his.

Q. What as to the case?

R. A hedge between two estates is presumed common and is preserved at common expense, unless one estate alone is enclosed by it, or there is a boundary marker, or proof to the contrary. C. I. 568; C. G. 670; C. A. 854. Trees which arise in a common hedge are common; and each of the two owners can always demand that they be cut down. Always, because division of a common thing is never prescribed. Trees arising on the boundary of two estates are presumed common when there is no title or proof to the contrary. Of them there belongs to each a part as great as he has in the land. Trees which mark the limits of fields cannot be cut down except by common consent, or with judicial authority approving. C. 569; C. G. 673; C. A. 421; L. 83, Pro socio.

Therefore the trees placed on the boundary of the two fields of Sedulus and Sedulius are common; namely those which are in the hedges are so in equal parts, although they are nearer Sedulus's estate. Hence the fruits belong to each from the region of each one's estate; trees uprooted or cut or torn away are common and are equally to be divided between the two owners. Wherefore what Sedulus says, that the trees are nearer his own estate, has no value, just as what Sedulius says, that the hedges are his, has no value, unless he proves this positively. For unless this is shown by some title, the hedge is presumed common and the trees situated in it are presumed common.

From a certain mountain water is flowing forth most abundantly, which until now was being dissipated, since all the surrounding fields were uncultivated. The owner of one of those fields, deciding to cultivate his field and to establish in it a large workshop, constructed a new course of the water at his own expense, and directed all the water to his own field and workshop. But the other owners of the neighboring fields, seeing this and wishing now also themselves to cultivate their fields and to build other workshops, bring suit concerning the aforesaid derivation of the water.

Q. What as to the case?

Water flowing naturally, and without manufactured works, except that which belongs to public right or to the right of some private person, can be used by him who possesses an estate near its bank, whether for irrigating his own estate or for exercising his own industry; but he must restore the remaining water to its ordinary course, which accordingly cannot be disturbed. And, if the water passes through the estate itself, likewise the owner of the estate can use it, but he also must restore it to its ordinary course when it leaves his estate; and therefore its course can be disturbed on one's own estate. C. I. 543; C. G. 644. Where a controversy arises, the water is to be divided by the judge, equity being preserved, according to the measure of the possessions and at the same time of the utility of agriculture and industry. C. I. 544; C. G. 645. If someone having a right to divert to his own estate the water of a river, torrent, stream, canal, lake, or water deposit must use a manufactured work, he is held to pay the expenses of this, and to repay all damages of other estates. C. I. 613.

It is clear from what has been said that the aforesaid owner altogether exceeded in appropriating all the water to himself and in changing its course, neither of which he could do. Hence by right the other owners of the neighboring fields protest. The water, its natural course having been changed, is to be divided among them according to the ownership of each one's estate, and then that which is left over, when it leaves one's own estate, must be restored to its ordinary course. Namely, just as the owners of lower fields receive the inconveniences, so also they should receive the advantages of waters flowing nearby.

68. On Occupation

City P., during a war, was pressed by siege and was harassed by the throwing of fire-bearing balls. Hence the palace of a certain rich man, the flames immediately increasing immensely, was set on fire. All the servants, altogether despairing of extinguishing the fire, fled away. Chrysophorus then secretly entered the house, and there carried off a little chest full of gold, and at once escaped, rejoicing over his happy lot. Moreover, he keeps the aforesaid money without any scruple, as the fruit of his extraordinary and audacious industry.

Fortunatus, after a city had been captured and sacked by enemies, bought from some soldier certain precious garments at an altogether trifling price. Then, examining these garments, he found in one of them various banknotes sewn in, each of which is of the value of 10,000 lire. Attributing this to divine providence, he keeps this whole sum for himself.

Q. 1. What is occupation? 2. What as to the cases?

R. To the first. Cf. I. M. 882 seqq. - To the second. Chrysophorus in the first case cannot keep the thing for himself. The reason is that that little chest full of gold belonged to the owner of the house, as the house itself belonged to him. Wherefore, just as, if the house itself had been preserved entire by the extraordinary and audacious industry of Chrysophorus extinguishing the fire, it would not have ceased to belong to its own owner, so also the little chest of gold, snatched from the fire, continues to belong to the former owner, and must be restored to him. La-Croix, l. 3, p. 2, n. 112; Elbel 172; I. M. 888.

Fortunatus is not held to return to the soldier the banknotes found in the garments. The reason is that, although that soldier in a just war and justly had occupied those garments and acquired dominion of them, nevertheless those banknotes, lying hidden in the garments beyond all his opinion, he neither occupied, nor consequently acquired dominion of them. But if the owner of the garments and of those banknotes can be known, to him indeed those banknotes are to be restored, since he did not cast aside the intention of possessing his own thing and of retaining its dominion. But if the owner can no longer be known, then he can keep the aforesaid banknotes for himself. Elbel ib.; I. M. 883; G. 510, 511.

Ambrosius has a garden open on every side. Hence the hens of Augustinus, the neighboring owner, freely enter his garden and devastate it. To prevent so great a loss to himself, Ambrosius kills the hens of Augustinus at night. Did Ambrosius act rightly?

R. Negatively. For hens are not wild animals, but tame and domestic. Nor is there present in the case a sufficient reason for preventing loss to himself. For he can easily remove this by closing his own garden, or by warning Augustinus that the hens not go out from his field and enter the neighboring garden; and, if he acts otherwise, by seeking reparation of the damage. Hence they also commonly say that it is not licit to kill another's doves, if they do not bring grave damage to one's own field, or can easily be driven away, for example, by setting up scarecrows, or by warning their owner. But it is otherwise if they gravely harm the estate and the damage cannot be avoided in another way. For it is licit for each one to preserve and defend his own thing, although equal damage indirectly follows to another. But doves are not presumed to harm gravely, unless in the time of harvest or of sowings.

Iacobus, a building craftsman, while working in a certain old house which had several times been sold by its owners and inhabited by several persons, found a huge sum of gold money of the seventeenth century, hidden between two neighboring walls, which appeared to be one wall. He hid half of this money and kept it for himself; the other half he yielded to the owner of the house.

Philippus, a servant, found a great quantity of money in a certain old and large chest, already placed for a long time in some room of the castle of his lord. In this room the old furnishings of the house were accustomed to be placed, and were preserved with great care in memory of the antiquity of the family. Rejoicing, Philippus took all that money to himself.

Blondina, a maidservant, bought fish. In gutting one of them she found an old gold coin; in another, however, she found a precious gem. Blondina keeps the gold coin and the gem for herself.

Praxedes, maidservant of a certain deceased priest, asked from his heirs for a certain chest which was found in his room. The heirs gladly gave it to the most faithful maidservant. Observing the chest, the maidservant notices that it contains a certain secret part, which she herself opens not without difficulty, and in it she finds 30,000 lire. It is unknown whether the priest knew of the thing; it is known only that he received a certain inheritance from a certain deceased blood relative of his.

Vol. I, Treatise On the Precepts o…, On the Seventh and Tenth Precepts of the Decalogue · Vol. I, Treatise on Justice and Right

Q. 1. What is treasure? 2. What as to the various cases?

…and 661 more passages — all of them are listed on the topic page.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 4 passages

Vol. I, Treatise On the Precepts o…, On the Seventh and Tenth Precepts of the Decalogue

You shall not steal. - You shall not covet your neighbor's house, nor servant, nor maidservant, nor ox, nor ass, nor anything that is his. Exod. 20. 15, 17.

The seventh precept of the Decalogue prohibits every external injustice in the goods of fortune of the neighbor. - But the tenth also forbids internal sins of concupiscence, that is, of desire for the goods of the neighbor and for unjust action. Concerning the various sins of injustice about the goods of fortune we shall speak in the particular Treatise on Justice and Right.

Vol. I, Treatise on Justice and Right

So great is the necessity of the treatment which we are undertaking, concerning justice and right, that it is deservedly to be placed among the principal parts of moral theology; but so great is the difficulty that, unless clarity and order lighten the labor, scarcely anyone can extricate himself in the very many things pertaining to this matter. For justice extends most broadly, and embraces very many rights and offices by which the members of human society are mutually bound. But how great the importance of this treatment is, is plain from the fact that especially in these times one may see many men squander their own goods, invade the goods of others, and overturn all rights, so that they may glut the continual hunger of pleasures. In order that ministers of the Church may heal these most hostile evils of the Republic, they ought to know exceedingly well the rules of justice and right. For it is theirs to recall those wandering away to right principles, and to take care with the highest zeal for the equity of rights and duties. Wherefore in handling this treatment most of all, fervent prayer and assiduous study must be used.

We must treat, 1. of the nature and principles of justice and right; 2. of the violation of right, or of injury; 3. of the repair of right, or of restitution.

Bucceroni, Moral Enchiridion (4th ed., 1905)

Gennaro Bucceroni, S.J. — 147 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion (4th ed., 1905), On the Seventh Precept of the Decalogue

n. 838.

On the Lawfulness of Ownership of Property

“1. This blessed, indeed more than blessed, law of love removes all property and ownership.” — False, erroneous, heretical. “2. The actual renunciation of the cordial will and of the temporal power of dominion or authority manifests and effects the most perfect state.” — Understood universally, false, erroneous, heretical. Conclusions concerning poverty of Dionysius Soulechat, a Minorite of the sect of the Fraticelli, condemned by Urban V in 1368.

n. 860, 861, 862.

On Slaves

Urban VIII, Brief Commissum nobis, 22 April 1639, § 2, prohibits “reducing the Indians to slavery; selling, buying, exchanging, or giving them; separating them from their wives and children; despoiling them of things and goods; leading and transporting them to other places; or depriving them of liberty in any manner whatsoever; retaining them in slavery; and also furnishing counsel, assistance, favor, and labor to those doing the aforesaid things, under any pretext and specious appearance whatsoever; or preaching or teaching that this is lawful; and otherwise cooperating in any manner whatsoever in the aforesaid things.” Cf. the Letter to the Bishops of Brazil of Leo XIII, 5 May 1888; C. 2107. “1. It is lawful to capture by force or fraud Negroes and other uncivilized persons who are hostile to no one. 2. It is lawful to buy, sell, and make other contracts concerning Negroes and other uncivilized persons hostile to no one who have been captured by force or fraud. 3. When Negroes and other uncivilized persons unjustly captured have been mixed with others who can justly be sold, it is lawful to buy them all, or, as they say, the good and the bad. 4. Buyers of Negroes or other uncivilized persons are not bound to inquire into the title of their servitude, whether they are slaves justly or unjustly, although they know that very many of them were unjustly captured. 5. Possessors of Negroes or other uncivilized persons hostile to no one who were captured by force or fraud are not bound to manumit them. 6. The captors, buyers, and possessors of Negroes and other uncivilized persons hostile to no one who were captured by force or fraud are not bound to compensate their injuries. 7. It is lawful for possessors to expose Negroes and other slaves by private authority to manifest danger of death, to wound, burn, or kill them. 8. It is lawful to baptize Negroes and other unbelievers capable of the doctrine of faith without instruction in the mysteries of faith necessary for salvation, and likewise to leave them without such instruction after they have been baptized. 9. Masters of Negroes and other slaves are not bound to prevent them from living in concubinage. 10. It is lawful to retain captives in slavery after baptism, whether or not they are slaves justly. 11. It is lawful to buy Negroes from heretics mediately or immediately, and after the purchase or gift, or any other contract, for them to remain their slaves, and likewise to sell them to heretics. Resp. To 1. It is not lawful. To 2. It is not lawful. To 3. It is not lawful. To 4. They are bound. To 5. They are bound. To 6. They are bound. To 7. It is not lawful. To 8. It is not lawful, except at the moment of death. To 9. They are bound. To 10. In the negative, if unjustly enslaved. To 11. In the negative, when bad faith exists.” Holy Office, 20 March 1686; C. 2100.

n. 860, 861, 862.

“For a long time Cambodian Christians have bought Laotians and others from neighboring peoples for their service, and they do this even if there is a founded doubt, or sometimes they know with certainty, that those slaves were carried away by theft in their own country. — Resp. First it must be distinguished whether the Laotian captives who are offered for sale by kidnappers were taken from their legitimate master, or rather, though free and their own masters, fell into the unjust slavery of the kidnappers. In the first case it is not lawful to buy them; for although they are unjustly detained by the kidnappers, nevertheless it is wicked to buy another’s goods carried off by theft against the owner’s will. In the second case it must again likewise be distinguished whether the Laotians refuse to sell themselves to the Christians or consent to it. If they refuse, they can in no way be bought, for the captives themselves are masters of their own liberty, although it was unjustly taken from them by theft through the kidnappers. But if, after they have been fully instructed that the right to liberty belongs to them, from which they fell only through the injury of others, they voluntarily and of their own accord and from their own free will, as masters of their own affairs, offer themselves to the Christians so that they may be received by them and retained in slavery, with the prudent design that, freed from the graver and harsh slavery of the kidnappers, from which it was not granted to them to free themselves in another manner, they may obtain a milder slavery among Christian buyers, among whom they can also easily persuade themselves that they can come to knowledge of the worship of the true God and profess it with an inestimable advantage to their souls—in these circumstances it can indeed be permitted to Christians, regard also being had for the favor of the faith, that they may acquire captives of this kind for themselves at a just price and reduce and retain them in their own servitude, provided that they have this intention: to treat them according to the precepts of Christian charity and to take care also that they be imbued with the rudiments of the faith, so that, if it can be done, through their conversion to the true faith they may be freely and happily brought into the liberty of the children of God, which is in the Catholic Church alone, no coercion, however, being employed, but only opportune persuasions and exhortations.” Holy Office, 12 September 1776; C. 2101.

On the Ownership of the Church

“34. Likewise, whether he believes that it is lawful for ecclesiastical persons without sin to have possessions and temporal goods of this world.” Articles concerning which those suspected of the errors of Wycliffe and Hus are to be questioned, from the Bull Inter cunctas of Martin V. Cf. no. 498.

“25. Besides the power inhering in the episcopate, there is another temporal power attributed by the civil government, expressly or tacitly conceded, and therefore revocable by the civil government whenever it pleases. — 26. The Church does not have a native and legitimate right of acquiring and possessing. — 27. The sacred ministers of the Church and the Roman Pontiff are altogether to be excluded from every care and ownership of temporal things. — 75. The children of the Christian and Catholic Church dispute among themselves concerning the compatibility of the temporal kingdom with the spiritual. — 76. The abrogation of the civil dominion which the Apostolic See possesses would conduce especially to the liberty and felicity of the Church.” Propositions condemned by Pius IX in the Syllabus.

“10. It is contrary to Sacred Scripture that ecclesiastical men should have possessions. — 16. Temporal lords can at their own discretion take temporal goods from the Church when those possessing them habitually transgress, that is, transgress by habit and not only in act. — 32. To enrich the clergy is contrary to the rule of Christ. — 33. Pope Sylvester and Emperor Constantine erred by endowing the Church. — 36. The Pope with all his clerics who have possessions are heretics because they have possessions; and those consenting to them, namely all secular lords and the other laity, are heretics. — 39. The Emperor and secular lords were seduced by the devil to enrich the Church with temporal goods. — 44. Augustine, Benedict, and Bernard are damned unless they repented of this: that they had possessions and instituted and entered religious orders; and thus, from the Pope down to the last religious, all are heretics.” Propositions of John Wycliffe condemned at the Council of Constance.

“Moreover, according to the decree of the most blessed Pope Stephen, We establish that laymen, although religious, have no faculty whatsoever of disposing of ecclesiastical things; but according to the canons of the Apostles, let the Bishop have the care of all ecclesiastical affairs and dispense them as though God were beholding. Therefore, if any prince or other layman should claim for himself the administration of ecclesiastical things or possessions, let him be judged sacrilegious.” First Ecumenical Lateran Council, canon 4.

Tithes to Be Paid to Clerics

“We believe that alms, sacrifice, and other benefits can profit the faithful departed. We confess and believe that those remaining in the world and possessing their own goods, giving alms and other benefits from their goods, and observing the Lord’s precepts, can be saved. We believe that tithes, first fruits, and offerings are to be paid to clerics by the Lord’s precept.” Profession of Faith prescribed to the Waldensians by Innocent III.

“18. Tithes are pure alms, and parishioners can at their own discretion take them away on account of the sins of their prelates.” Proposition of John Wycliffe condemned by the Council of Constance.

Concerning the recent suppression of tithes in Italy, cf. Letter of the Sacred Penitentiary, 25 August 1887; A. S. S., vol. 20, p. 205 ff. Cf. also nos. 701, 704, 1331.

On Government Salaries

“Whether the salaries which are paid in Belgium by the Government to pastors and canons take on the character of benefices or ecclesiastical goods, and have annexed to them the obligation inhering in these goods, namely, the strict and canonical obligation of expending the surplus upon the poor or pious causes, and of residence under the penalty of not making the fruits one’s own? — Resp. It has already at another time been answered in the affirmative by the Holy See, upon the advice of a secret Congregation.” Sacred Penitentiary, 19 January 1819.

“The Sacred Penitentiary, having been consulted whether that response should be applied to the salaries which are paid by the Government to pastors and Canons of the Kingdom of France, judged that the response should be: In the affirmative.” 19 August 1821.

“Whether the response for Belgium of 19 January should be applied only to the fixed salaries of 1,000 livres for Parish Priests and 750 livres for Administrators, or whether it should be extended to the offerings of the faithful? — Resp. In the affirmative as regards the first part; in the negative as regards the second.” Sacred Penitentiary; Gury-Ballerini, no. 563.

n. 913, 921.

Prescription in Criminal Causes

Cf. On Particular States, no. 7.

n. 916.

On Possession in Prescription

“Without possession prescription does not proceed.” Rule of Law 3 in the Liber Sextus.

n. 925.

Good Faith Required in Prescriptions

“Because all that is not of faith is sin, We define by synodal judgment that no prescription, whether canonical or civil, is valid without good faith, since generally every Constitution and custom which cannot be observed without mortal sin must be derogated. Hence it is necessary that he who prescribes have at no part of the time consciousness that the thing belongs to another.” Fourth Lateran Council, 1215, Decrees, chapter 41, On Prescriptions.

n. 970.

On an Oath in Contracts

“We lately received your questions, that certain usurers make those to whom they give money at interest take an oath that they will not seek the return of the interest and will raise no question concerning the interest they have paid. We therefore answer that, every appeal being removed, you are by ecclesiastical censure to compel the usurers themselves, before payment of the interest, to desist from exacting it, or to restore it after it has been paid, lest it happen that they carry away advantage from deceit and fraud.” Chapter Tuas dudum 13, On Usury.

n. 972.

On a Condition in a Contract Contrary to Law

Whether a simple condition added in a written instrument, that restitution (of the money) is not to be made otherwise than in coined money, loses its force even in the forum of conscience through a subsequent civil law invalidating it? — Resp. Regularly in the affirmative, unless particular circumstances stand in the way, concerning which recourse must be made in particular cases, those circumstances being diligently explained.” Sacred Penitentiary, 21 January 1783; A. S. S., vol. 7, p. 209 ff.

n. 1030, 1033.

On Trusts for Pious Causes

“Eudorius, a bachelor destitute of necessary heirs and gravely ill, in order to provide for his soul determined to expend part of his goods upon pious works. For this purpose he instituted Boniface as universal legatee by a testament furnished with the required forms. He delivered to Boniface, however, a private writing in which he manifests his pious will and asks him to execute it faithfully. But after Eudorius died, Boniface kept the whole inheritance, on the ground that he possessed it by a valid testament. It is asked whether he can be safe in conscience. — Resp. In the case set forth, Boniface is bound in conscience to fulfill the will of Eudorius, certainly known in the forum of conscience.” Sacred Penitentiary, 23 June 1844. Cf. no. 1057.

n. 1037.

Capacity for Making a Testament with Respect to Secularized Religious

“General responses…. 1. A monk, even one furnished with a perpetual and absolute Apostolic Indult of secularization, cannot dispose of goods without the special good pleasure of the Apostolic See. 2. If he lacks the faculty of disposing in the said Indult, or has not legitimately used it, a distinction must be made among the goods left by him: namely, goods which belonged to the monastery and which he himself brought with him on leaving the cloister, or which came to him in any manner, as also goods, if he had any, proceeding from them, remain with his monastery. But concerning other goods acquired by such a monk outside the cloister otherwise than from goods belonging to the religious order, judgment is to be made according to the Constitution Officii nostri of Gregory XIII, where the said Constitution is in force. 3. The right of succeeding to the inheritance of a professed monk who dies outside the cloister, who obtained an Apostolic Indult of remaining outside the cloister for a time, retaining the habit or laying aside the garment of his Order, belongs to his monastery.” Sacred Congregation of Bishops and Regulars, 4 January 1862. The cited Constitution of Gregory establishes that the goods of regulars living outside the cloister, from whatever source they came, belong under the name of spoils to the Apostolic Camera. Cf. the following number.

n. 1038, 1042.

On the Succession of Religious

“1. To whom belongs the right of succeeding to the inheritance of a professed regular who dies outside the cloister, who obtained an Apostolic Indult to remain outside the cloister for a time, retaining the habit or laying aside the garment of his Order? — 2. To whom belongs the right of succeeding to the inheritance of a professed regular who, in the unhappy time preceding, was expelled from the Monastery by public force and stripped of the garment of his Order, and whom reasonable causes prevented from returning to his Monastery and reassuming the garment of his Order during the subsequent time of tranquility? — 3. To whom belongs the right of succeeding to an inheritance and legacy, and of disposing of the same acquisitions, especially if the disposition was for pious causes and in favor of the religious order? — Resp. To 1. Such an inheritance is to be judged according to the provisions of common ecclesiastical law, namely, that it belongs to the deceased’s own religious order. — To 2. If the religious of whom there is question did not enjoy an absolute Indult of perpetual secularization, as in the preceding response. But if he did enjoy it, a distinction must be made among the goods left by him: namely, goods which belonged to the religious order and which he himself brought with him on leaving the cloister, or which came to him in any manner, as also goods, if he had any, proceeding from them, remain with that religious order. But concerning the other goods acquired by such a religious outside the cloister otherwise than from goods belonging to the religious order, judgment is to be made according to the Constitution Officii nostri of Gregory XIII. — To 3. If the said religious has legitimately used an Apostolic Indult of disposing of goods, as in the case, namely, by making an altogether legitimate disposition of the same goods, the right in question belongs to the one in whose favor the disposition was made.” Sacred Congregation of Bishops and Regulars, 26 June 1829. Cf. nos. 1037, 1047.

Right of Succession with Respect to Pensions of Regulars

“1. Whether pensions which are paid from the public treasury to regulars living outside the cloister are to be regarded as ecclesiastical pensions, so that by their nature they are subject to spoil? And insofar as the answer is negative: — 2. To whom, after their death, belongs the right of receiving the unpaid installments of the said pensions, if the professed regulars have obtained an Apostolic Indult to remain outside the cloister either for a time or perpetually? — 3. To whom does the same right belong if regulars of this kind have obtained an Indult of making a testament and disposing? — 4. To whom does the aforesaid right belong if there is question of regulars who emitted only simple vows? — Resp. To 1. In the negative. — To 2. If the Indult was temporary, they belong to the deceased’s own religious order; if perpetual, to the Sacred Congregation of Spoils, according to the Constitution Officii nostri of Gregory XIII. — To 3. The right in question belongs to the one in whose favor the disposition was made, if the regular legitimately used the Apostolic Indult of disposing of goods; insofar as he did not legitimately use the same Indult, the resolution given in the second response is to be observed. — To 4. They belong neither to the religious order nor to the Sacred Congregation of Spoils, but to his heirs, whether coming by intestacy or by testament.” Sacred Congregation of Bishops and Regulars, 6 June 1836.

Sacred Utensils Owed to the Cathedral Church upon the Death of a Bishop

“…In order to cut off all causes of doubt and controversy concerning this matter, by the counsel of Our Venerable Brethren, the Cardinals of the Holy Roman Church placed over the affairs and consultations of bishops and regulars, by Our Apostolic authority We decree and command the following. I. Cardinal Bishops are bound, with respect to sacred utensils, by the law enacted in the Constitution of Saint Pius V beginning Romani Pontificis, with the exception, however, of the suburbicarian Cardinal Bishops, and likewise with the exception of Cardinal Abbots Nullius who dwell in the Roman Curia, whose sacred utensils, regard being had for the cited Constitution Aequum est of Urban VIII, Our predecessor, will belong to the pontifical sacristy. II. The derogatory clauses of the Constitution of Saint Pius V beginning Romani Pontificis providentia, customarily appended in Letters in the form of a Brief beginning De benignitate Sedis Apostolicae, remaining in force, in the other Brief beginning Cum fel. rec. Urbanus VIII let the clause by which the same Constitution of Pius is declared saved be removed, and let the following be substituted in its place: If you shall have presided over abbatial, cathedral, metropolitan, or patriarchal churches, or if by Apostolic concession and dispensation you shall have obtained any others in title, administration, or commendam, We vehemently exhort you, just as Benedict XIV, Our predecessor, already exhorted Cardinals in his Constitution beginning Inter arduas, that in disposing of the aforesaid things you keep those churches before your eyes and prefer them to the others. What We have prescribed in this article We extend to each Cardinal who, before the publication of these Letters, obtained the aforesaid faculty of making a testament and disposing, just as if it were expressed in the respective Indults. III. We declare that the sacred utensils which, by force of the Constitution of Saint Pius V beginning Romani Pontificis, are owed to cathedral churches are these: namely, miters, chasubles, copes, tunicles, dalmatics, sandals, gloves, albs with cinctures, linen amices, and similar things; likewise missals, graduals, books of plainchant and music, pontificals, and the other book entitled Canon of the Mass; likewise chalices, patens, pyxes, monstrances, thuribles, a vessel for holy water with an aspergillum, a basin with a ewer, vessels for the sacred oils, and cruets together with basins and a bell, hand candlesticks, pax-bredes, archiepiscopal crosses, candlesticks with a cross for the use of the altar, a pastoral staff, a faldstool, and other sacred things, whether vestments, ornaments, or vessels, even if any of them by their nature are suitable for profane use, provided that they have been destined not accidentally but permanently for divine worship and sacred functions; with the exception of rings and pectoral crosses, even with sacred relics, and all utensils of any kind which are legitimately proved to have been acquired by the deceased Bishops with goods not belonging to the church and which are not established to have been donated to the church. Therefore We will that Bishops are bound and ought to draw up in authentic form an inventory of sacred utensils, in which they shall state, according to the truth of the matter, when they were acquired, and by a special notation describe those which they acquired for themselves from the revenues and proceeds of the church, lest otherwise all those things have to be presumed to have been acquired from the revenues of the church. But as regards the sacred utensils of Cardinals of the Holy Roman Church which belong to the sacristy of the chapel of the Supreme Pontiff, We will that no account be taken of the quality and nature of the revenues with which they were acquired; and besides those which are specifically enumerated in the Constitution of Urban VIII beginning Aequum est, We will that the following, expressed only by general words, be understood: sandals, gloves, linen amices, albs with cinctures, likewise pyxes, monstrances, vessels for holy water with an aspergillum, vessels for the sacred oils, and cruets with basins and a bell, finally a pastoral staff, a faldstool, hand candlesticks, pax-bredes, a thurible, and similar things, with the exception of rings and pectoral crosses, even with sacred relics. IV. When a Bishop has successively governed two or more churches, We will that the sacred utensils be divided proportionally among the cathedral churches, account being taken of revenues and time, according to the Constitution of Saint Pius V beginning Romani Pontificis. V. But where any Bishop has simultaneously presided over two or more united churches, or churches granted in perpetual administration, which have their own proper and distinct chapter and cathedral church, We declare that the sacred utensils are to be divided in equal shares among each of the cathedral churches, insofar as the revenues of those same churches united or granted in perpetual administration are not divided but perpetually constitute one episcopal mensa; but if the revenues have been divided and separated, We will that the division be made among the individual cathedral churches proportionally according to revenues. VI. But if it is established that a Bishop who through translation successively presided over two churches acquired for himself all the sacred utensils from the revenues of only one church, there will be no place for division, but the same sacred utensils will belong only to the cathedral church of that diocese from the proceeds of whose episcopal mensa they were acquired.” Pius IX, Brief Cum illud, 1 June 1847.

Relics of the Most Holy Cross to Be Transmitted by Bishops to Their Successors

“By command of Our Most Holy Lord Leo XIII, We wish it to be earnestly commended to the Most Reverend Bishops that they take care that the particles of the most holy wood which, enclosed in cases, they carry suspended before their breast be transmitted to their Successors, so that after their death, by the zeal and labor of the cathedral chapter or of him who, while the see is vacant, has discharged the functions of the Bishop, they may come to these Successors by the legitimate right of inheritance. In this manner new Bishops will have no necessity of seeking others elsewhere, not without difficulty, but all will have them ready at hand as things assigned and destined to themselves and to their office, to be transmitted in due time to the others who shall follow.

“This is to be understood only of the relics of the Cross. For concerning the cases skillfully fashioned from precious metal in the form of a cross, they shall determine what seems more opportune; after the particles of the most holy wood have been removed, these may freely be given or bequeathed to whomever they please, and even be divided and sold by private heirs, every appearance of unseemly or profane commerce being removed. For they are estimable by price.” Letter of the Cardinal Vicar, 25 March 1889; A. S. S., vol. 21, p. 696 ff.

n. 1057.

Pious Legacies

“Peter, recently deceased, in a testament concerning profane causes left a legacy of one thousand florins in favor of a pious cause. That testament, as lacking a certain extrinsic solemnity required by civil law, is altogether null. The testament having been rescinded, John, who entered upon the inheritance as heir by intestacy, altogether refuses to furnish the pious legacy of one thousand florins, appealing to the opinion of His Eminence D’Annibale: ‘So long as the Holy See has not spoken, I think that those outside the Pontifical territory who do not fulfill legacies for pious causes in a testament invalid under civil law ought not to be disturbed.’ Can and ought I bind John, under denial of absolution, to discharge this pious legacy? — Resp. The Sacred Penitentiary, after maturely considering the matters set forth, responds: The practice of this Sacred Tribunal in similar cases is that pious legacies are generally regarded as valid and obligatory in the forum of conscience; nevertheless, heirs are readily admitted to a composition with the Church or the pious cause to which the legacy was made.” 10 January 1901. Cf. no. 1030.

n. 1059.

On the Duration of an Annual Legacy

“43. An annual legacy left for a soul does not last more than ten years.” Proposition condemned by Alexander VII, 18 March 1666.

On Usury and Its Unlawfulness

“That is the proper interpretation of usury, namely, when from the use of a thing which does not produce, without any labor, expense, or risk, gain and profit are sought….” Leo X at the Fifth Ecumenical Lateran Council, Bull Inter multiplices, issued in Session 5 on 4 May 1515.

“If anyone should fall into that error so as to presume pertinaciously to affirm that to practice usury is not a sin, We decree that he is to be punished as a heretic.” Clementine, sole chapter, On Usury, § 2.

“Moreover, We condemn that detestable and disgraceful insatiable rapacity of moneylenders, repudiated by divine and human laws through Scripture in the Old and New Testaments, and We sequester them from every ecclesiastical consolation, commanding that no Archbishop, no Bishop, no Abbot of any Order, or anyone in an order or among the clergy presume to receive usurers except with the greatest caution; but throughout their whole life let them be regarded as infamous, and unless they repent, let them be deprived of Christian burial.” Second Lateran Council, 1139, canon 13.

Cf. Leo IX at the Synod of Reims; Third Lateran Council, canon 25; Gregory X at the Second General Council of Lyons, in the Liber Sextus, book 5, title 5, chapters 1 and 2. Many appear to have regarded this sanction of the Council as only a positive prohibition. Hence Alexander III, chapter Super eo 4, On Usury, declares that no dispensation can be made for receiving money at usury, not even so that the poor who are held in Saracen captivity might be freed by that money, just as Sacred Scripture prohibits lying to save the life of another. In the same title, chapter Cum tu 5 rejects the exception of certain persons that only those usuries received after the Decree of the Second Lateran Council are to be restored. Finally, chapter Tua nos 9 of the same title establishes that the heirs themselves, whether sons or strangers, are bound to restitution. By many Decrees in the same title Innocent III also urges the observance of these Decretals.

“Your devotion consulted Us whether, in the judgment of souls, he ought to be judged as a usurer who, being unwilling otherwise to give a loan, lends money with this purpose: that, although every agreement ceases, he nevertheless receive more than the principal; and whether he is involved in the same guilt of crime who, as it is commonly said, does not otherwise grant the pledge of an oath until, although without exaction, he receives some emolument therefrom; and whether a merchant ought to be condemned to a similar penalty who sells his merchandise for a much greater price if a longer delay is extended for making payment than if the price is paid to him immediately. But because what is to be held in these cases is clearly known from the Gospel of Luke, in which it is said, Lend, hoping for nothing thereby, men of this kind, on account of the intention of gain which they have, since every usury and excess is prohibited in the law, are to be judged as acting wickedly and are efficaciously to be induced in the judgment of souls to restore the things thus received.” Chapter Consuluit 10, On Usury.

“One lending a certain quantity of money to a man sailing or going to a fair, because he has taken the risk upon himself and is to receive something beyond the principal, is to be judged a usurer. He also who gives ten solidi so that at another time the same number of measures of grain, wine, or oil may be returned to him—concerning which, although they may then be worth more, it is reasonably doubtful whether at the time of payment they will be worth more or less—is not for this reason to be reputed a usurer. By reason of this doubt he also is excused who sells cloth, grain, wine, oil, and other merchandise so that at a fixed term he may receive more for them than they are then worth, provided, however, that he was not going to sell them at the time of the contract.” Chapter Naviganti 19, On Usury. — He has taken the risk upon himself: “It is condemned that, since a loan ought to be made gratuitously, to lend only by binding the borrower to a contract of insurance or partnership is usury…. By force of the loan he cannot compel another who perhaps did not need insurance. For perhaps no danger threatened there, but it was feigned.” Soto, On Justice and Right, book 1, question 4, article 2.

“41. Since money counted out is more valuable than money to be counted out, and there is no one who does not value present money more than future money, a creditor can exact something beyond the principal from the borrower and by this title be excused from usury. — 42. It is not usury when something beyond the principal is exacted as due from benevolence and gratitude, but only if it is exacted as due from justice.” Propositions condemned by Innocent XI.

n. 1095–1098, 1100, 1103.

“Is usury contrary to every law, even natural law? — Resp. In the affirmative.” Holy Office, 9 May 1821; C. 2130.

n. 1093.

Obligation of Delayed Restitution

“42. It is lawful for one who lends to exact something beyond the principal if he binds himself not to seek the return of the principal until a certain time.” Proposition condemned by Alexander VII.

n. 1094.

On Mounts of Piety

“The Mounts of Piety instituted by commonwealths and thus far approved and confirmed by the authority of the Apostolic See, in which, for their expenses and indemnity, something moderate is received beyond the principal solely for the expenses of the ministers and of other things pertaining to their preservation, only for their indemnity and without profit to the same Mounts, neither present the appearance of evil nor furnish an incentive to sin, nor are they in any manner to be disapproved; rather, a loan of this kind is meritorious and ought to be praised and approved, and is by no means to be regarded as usurious.” Leo X, Constitution Inter multiplices, 4 May 1515.

n. 1094.

“Whether the increase which has long been received is to be permitted so that it may be expended upon the said pious uses; or whether it ought rather to be reduced to what is sufficient for the expenses and preservation of the same Mount? — Resp. In the negative to the first part, in the affirmative to the second, and according to the mind.” The mind of the Sacred Congregation was as follows: “That the principle of not exacting an increase upon the loan given should remain firm, except for that which is necessary for the expenses and preservation of the Mount; that the Bishop, a calculation having been made, should determine the proportionate portion to be paid beyond the principal on this title. But as to that which beyond this portion was received according to a custom long introduced, to be expended for pious uses and especially for the maintenance of the church of a very poor village and for relieving the hunger of the poor, insofar as could be done in the dearness of grain, the Bishop could permit the same custom to be observed, yet in such a manner that a book should be established in which the proportionate portions would be noted under distinct headings: those which belonged to the Mount, and those which belonged to other uses, so that it could be known what sum is given under a title of justice and what is received as a gratuitous and pious offering. The Bishop shall take care that the people are informed of this matter by a prudent explanation, whether through the parish priest or in another manner, according as the Bishop himself shall judge prudently.” Sacred Congregation of the Council, 20 December 1838; A. S. S., vol. 4, p. 27 ff.

On Profit from a Loan

“It very frequently happens that questions concerning profit from a loan are referred to the Apostolic See, for which provision in similar cases has been made by a resolution given by the Roman Congregations. Therefore, in order that the superiors of the missions may have at hand the necessary knowledge of the things thus far decreed concerning this matter, it seemed opportune to the Sacred Congregation for the Propagation of the Christian Name to publish all the aforementioned resolutions together with the Constitution Vix pervenit of Pope Benedict XIV; and it pleased the same Sacred Congregation that they be sent to all Bishops, Vicars, and Prefects Apostolic dependent upon it.

n. 1095–1098, 1100, 1103.

I

Sacred Congregation of the Holy Office, 13 January 1780, to the Most Reverend Lord Vicar Apostolic N. N. — “Since equality is required in contracts in order that they be just, nothing is to be received in a loan by force of the loan, as has often been defined, beyond the principal sum. But if it should happen that profit ceases for the lender, or loss emerges, or danger of losing the principal threatens, or unusual labors must be undertaken for its recovery, compensation for these things can indeed be sought, with two conditions, however, always kept before one’s eyes: the first, that some new title from among these actually concurs; the second, that nothing more be exacted than it truly demands. Therefore, all contracts in which either an interest is feigned which is to be compensated, or more is sought than an adequate compensation requires, depart from the rule of justice and are subject to restitution. It is therefore evident that those act imprudently and unlawfully, and commit themselves to the manifest danger of injustice, who, because the danger which We have indicated commonly occurs in such a place, always demand profit, and always the same profit, as though danger always intervened and, when it was present, always demanded the same remuneration. Nor are they excused because they receive a lesser usury than that which is permitted by the law of the kingdom; for a thing is not therefore right because it departs less from justice unless it is altogether conformed to the form of right, and human actions are to be weighed not by human law but by divine law and natural law, which holds fast to equity. Only those conduct themselves rightly who, attending to individual cases, seek compensation only when danger truly intervenes, and then seek no other compensation than that which corresponds to the gravity of the danger, which is therefore to be estimated by the judgment of upright and prudent men.”

…and 107 more passages — all of them are listed on the topic page.

Bucceroni, Moral Enchiridion

Gennaro Bucceroni, S.J. — 120 passages (filed under the subtopics)

Bucceroni, Moral Enchiridion, On the Seventh Precept of the Decalogue

N. 539. 541. - On Slaves

"1. It is lawful to capture by force or fraud Blacks and other savages who are hostile to no one. 2. It is lawful to buy, sell, and make other contracts concerning Blacks and other savages hostile to no one, captured by force or fraud. 3. When Blacks and other savages unjustly captured are mixed with others who can justly be sold, it is lawful to buy all, or, as they say, the good and the bad. 4. Buyers of Blacks or other savages are not bound to inquire concerning the title of their servitude, whether they are slaves justly or unjustly, although they know that very many of them have been unjustly captured. 5. Possessors of Blacks or other savages hostile to no one, captured by force or fraud, are not bound to manumit them. 6. Captors, buyers, and possessors of Blacks and other savages hostile to no one, captured by force or fraud, are not bound to compensate their damages. 7. It is lawful for possessors of Blacks and other slaves by private authority to expose them to manifest danger of death, to wound, burn, or kill them. 8. It is lawful to baptize Blacks and other Infidels capable of the doctrine of faith without instruction in the mysteries of faith necessary for salvation; likewise to leave the same baptized persons without that instruction. 9. Masters of Blacks and other slaves are not bound to prevent them from living in concubinage. 10. It is lawful to retain captives in servitude after Baptism, whether or not they are slaves justly. 11. It is lawful to buy Blacks from Heretics mediately or immediately, and after purchase or donation, or any other contract, for them to remain their slaves, and likewise to sell to them. To 1. It is not lawful. To 2. It is not lawful. To 3. It is not lawful. To 4. They are bound. To 5. They are bound. To 6. They are bound. To 7. It is not lawful. To 8. It is not lawful, except in the article of death. To 9. They are bound. To 10. In the negative, if unjustly. To 11. In the negative, with bad faith existing." S. I. C. 20 March 1686.

"From olden time Cambodian Christians have bought Laotians and others from neighboring peoples for their service, and they do this even if there is a founded doubt, indeed sometimes if they know certainly, that those slaves were stolen away in their own country. First of all a distinction must be made whether the captive Laotians who are sold by kidnappers were taken away from their legitimate master, or rather, being free and of their own right, have fallen into the unjust servitude of kidnappers. In the first case it is not lawful to buy them; for although they are unjustly held by the kidnappers, nevertheless it is wrong to buy the goods of another taken by theft, against the master's will. In the second case, again and likewise, a distinction must be made whether the Laotians refuse to sell themselves to Christians, or consent. If they refuse, they can by no means be bought, for the captives themselves are masters of their own liberty, although it has been unjustly stolen from them by kidnappers. But if, after they have been fully taught that liberty belongs to them by right, from which they have fallen only by the injury of others, voluntarily and of their own accord, and from their free and proper will, as masters of their own affairs, they offer themselves to Christians, that they may be received by them and detained in servitude, with this prudent plan: that, freed from the more grave and hard servitude of kidnappers, from which it had not been given to them to emancipate themselves in another way, they may obtain a milder servitude among Christian buyers, among whom also they will easily be able to persuade themselves that they can come to the knowledge of the worship of the true God and profess it with inestimable advantage to their souls; in those circumstances indeed it will be possible to permit Christians, with regard also had to the favor of the faith, that they can acquire captives of this kind for themselves at a just price, and reduce and retain them in their own servitude, provided that they have this mind: that they treat them according to the precepts of Christian charity, and take care also to imbue them with the rudiments of faith, so that, if it can be done, they may be brought over freely and happily into the liberty of the children of God, which is in the Catholic Church alone, with no coercion however being made, but only by opportune persuasions and exhortations, through their conversion to the true faith." S. I. C. 11 Dec. 1776.

N. 559. - On the Alienation of Ecclesiastical Goods

In the Instruction of the S. C. de P. F., 30 July 1867, these things are established:

"1. In the sale of ecclesiastical goods, let an estimate of the same first be made in writing by upright experts; let all those having an interest be heard; let there be certainty concerning the evident necessity or utility of the Church. Let them be sold in favor of the higher bidder and not for a lower price than that which was estimated by the aforesaid experts. Let the price be paid in full by the buyer in the act of stipulation, and let it be placed in a productive, safe, and lawful investment; but if this is not at hand, let the price be deposited in some public chest, or with some person of proven uprightness and suitability, with security nevertheless received and drawn up in writing, to be most carefully kept by the Patriarch or Bishop of the church to which the goods sold pertain.

In exchanges, let an estimate of the properties first be made in writing by upright experts; let all those having an interest be heard; let there be certainty concerning the evident utility of the Church; and in the stipulation of the contract let a return on both sides to the original rights be expressly reserved in case of eviction. But if the value of the ecclesiastical property exceeds the value of the property which is received by the church in exchange, that amount of money which is necessary for equalizing the contract is to be paid to the church in the act of stipulation, and placed in an honorable, safe, and lawful investment; and meanwhile let it be deposited, as above, in a public chest, or with a person of proven uprightness and suitability.

In entering emphyteutic contracts, let an estimate of experts first be made; let all those having an interest be heard; let there be certainty concerning the evident utility of the Church; let the canon to be paid by the emphyteuta not be less than that which was established by the experts; let the stipulation be committed to writing, to which a description of the property and a topographical map of the same are to be added; let the emphyteuta furnish a mortgage inscription upon another suitable property of his own, or at least, this failing, the surety of suitable persons for the security of the canons of three years; and in the stipulation itself let him issue an obligation valid for himself and his heirs and successors, never to use any present or future law or privilege of redemption of the canon, and that all improvements cede to the soil.

If there is question of pledging the goods of the Church, or of contracting debt, it is necessary that first all those having an interest be heard, and that there be certainty concerning the true and grave necessity of the Church. If this truly intervenes, care must be taken that that debt, as soon as it will be able to be done, be discharged by the church itself; and for this reason there is to be imposed on it, in individual cases, the obligation of extinguishing the contracted debt by annual installments to be predefined by the Bishop himself. To that effect certain determinate revenues of the same church will have to be assigned, and on each occasion deposited in a public chest, or with an honest and suitable person, so that they can be invested at their time.

But when it happens that money of the Church is to be invested, two things must first most diligently be taken care of: first, that any usurious stain be far distant from contracts to be entered; second, that provision be made for the indemnity of the Church. Therefore let its money not be placed except with honest and suitable persons, who furnish a mortgage inscription, or at least suitable surety; and let all contracts of this kind be committed to public records according to the received custom of the regions.

Finally, in leases of ecclesiastical goods, care must be taken that the aforesaid leases be made at a just price, and that the payment of the annual return not be made in advance to the prejudice of successors. But it will not be lawful to lease ecclesiastical goods beyond three years; yet the Ordinary, if he has obtained from the Apostolic See a special faculty concerning the alienation of ecclesiastical goods, can permit the aforesaid leases to be made even beyond the aforesaid time, provided that it does not exceed nine years." Cf. Zephyrinus Zitelli, Apparatus Iuris Eccles., Rome, 1866, p. 53.

"Whether goods belonging to a religious family or to another pious Institute, which nevertheless in the civil forum are registered as the property of a private person, can be alienated without previous permission of the Holy See? Resp. In the negative." S. C. EE. and RR. 17 Feb. 1866. Cf. Commentary on the Constitution Apostolicae Sedis, nn. 83, 84.

N. 672. - Case Concerning Restitution

"Whether a Christian faithful person who knowingly and willingly destroys and ruins the walls, doors, and implements of an idol temple, and for that reason is seized by the Heathens, ought or can repair the damage, at least under another title? - Resp. He is bound to restitution, under the title of justice." S. I. C. 21 Sept. 1842.

N. 708. - On Restitution in Sound Money

"Whether a simple condition added in a promissory note concerning restitution of money to be made in no other way than in sound money loses its force even in the forum of conscience through a subsequent civil law invalidating it? - Resp. Regularly in the affirmative, unless peculiar circumstances stand in the way, concerning which recourse must be had in particular cases, with the same diligently set forth." S. Poenit. 21 Jan. 1873. Cf. Acta S. Sed. Vol. 7, p. 209 ff.

N. 750. - On the Recent Usurpation of Ecclesiastical Goods in Italy; on Protestation, Inventories, Pensions, Absolution, and Reparation of Damages

"It is necessary to hold as a basis that Churches, monasteries, convents, as well as ecclesiastical properties, must not be guarded more castrorum; if consequently material resistance cannot be opposed to force, nevertheless moral force can be opposed to it, and the aforesaid things can be protected with analogous protests, according as the Sacred Canons prescribe in similar conjunctures; to keep oneself in a merely passive manner, and to yield only to imminent coercion..." S. Poenit. 20 July 1855.

"Whether Ordinaries, Parish Priests, Beneficiaries, and the other administrators of Ecclesiastical Goods, if they are required under grave penalties, can hand over to the Government an inventory of the respective revenues? - Resp. It is permitted, but with a protestation put forth in writing in the individual acts by the respective administrators concerning the necessity of the handing over in order to avoid greater evils, and for the protection of the rights of the Church. But the mind of the Most Holy Lord is that Ordinaries, before or after the handing over, if it can be done, make a collective protestation concerning the foregoing, reverently indeed, but with evangelical liberty." S. Poenit. 10 Dec. 1860.

"Whether Parish Priests and other Ecclesiastics, to whom damage has been inflicted by the abolition of Tithes made by the Government, can accept compensations proposed by that Government? - Resp. They can, according to the oracle of the Most Holy Lord, under the title of mere compensation for the damage inflicted on them by the Government because of the impeded exaction of Tithes, receive pensions assigned by the Government; nevertheless with a protestation first made, either by the Ordinary of the place in common, or by any one of the said Parish Priests or Ecclesiastics in particular, that by a receiving of this kind the abolition of Tithes made by the Government is in no way recognized or approved, and with the debtors of the same Tithes cautiously admonished that by force of the law enacted by the Government they are not freed from the burden of paying the same." S. Poenit. 10 Dec. 1860.

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"Whether those who seek absolution ought, before they are absolved, to repair those damages which the Pontifical Government has suffered in the present vicissitudes of affairs? - Resp. It suffices that in mind they be prepared to stand by the commands of the Holy See to be issued concerning this." S. Poenit. 10 Dec. 1860. Cf. Gury-Ballerini, Vol. 2, n. 1092 ff.; Scavini, bk. 4, App. 32, Milan, 1874.

n. ¶17.

N. 822. - On the Succession of Religious

"1. To whom belongs the right of succeeding to the inheritance of a professed Regular dying outside the Cloisters, who obtained an Apostolic Indult of remaining outside the Cloisters for a time, retaining the habit or having laid aside the clothing of his Order? 2. To whom belongs the right of succeeding to the inheritance of a professed Regular who, having in the unhappy time passed been cast out of the monastery by public way, and stripped of the clothing of his Order, was prevented by reasonable cause from returning to his monastery and reassuming the clothing of his Order in the subsequent time of tranquility? 3. To whom belongs the right of succeeding to the inheritance of a professed Regular who obtained an Apostolic Indult of acquiring inheritances and legacies, and of disposing of those acquired, and especially if the disposition was for pious causes and in favor of Religion? - Resp. To 1. Concerning an inheritance of this kind judgment must be made according to the dispositions of common Ecclesiastical Law, namely, that it belongs to the proper Religion of the deceased. To 2. If the religious of whom there is question did not enjoy an absolute Indult of perpetual secularization, as in the preceding case. But if he did enjoy it, a distinction must be made among the goods left by him: namely, the goods which belonged to the Religion and which, leaving the Cloister, he himself had brought out with him, or which had come to him in any way, as also the goods, if he had any, coming from those, remain with the same Religion. But as regards the other goods acquired by such a Religious outside the Cloisters otherwise than from goods belonging to the Religion, judgment concerning them must be made according to the Constitution Officii nostri of Gregory XIII. To 3. If the said Religious legitimately used the Apostolic Indult of disposing of goods, as in the case, namely with a disposition everywhere legitimate of the same goods having been made, the right about which there is question belongs to him in whose favor the disposition was made." S. C. EE. and RR. 26 June 1829.

n. ¶18.

"... General Responses... 1. A monk, even furnished with an Apostolic Indult of perpetual and absolute secularization, cannot dispose of goods without the special good pleasure of the Apostolic See. 2. If he lacks the said Indult of disposing, or has not legitimately used it, a distinction must be made among the goods left by him, namely, the goods which belonged to the Monastery and which, leaving the cloister, he himself had brought out with him, or which had come to him in any way, as also the goods, if he had any, coming from those, remain with his Monastery. But as regards the other goods acquired by such a Monk outside the cloisters otherwise than from goods belonging to religion, judgment concerning them is to be made according to the Constitution Officii nostri of Gregory XIII, where the said Constitution is in force. 5. The right of succeeding to the inheritance of a professed Monk dying outside the cloisters, who obtained an Apostolic Indult of remaining outside the cloisters for a time, retaining the habit or having laid aside the clothing of his Order, belongs to his Monastery." S. C. EE. and RR. 4 Jan. 1862. The cited Constitution of Gregory establishes that goods of Regulars living outside the cloisters, from whatever source they came, under the name of spoils, pertain to the Apostolic Camera.

n. ¶19.

"1. Whether pensions which are paid from the public treasury to Regulars living outside the Cloisters are to be held as Ecclesiastical pensions, so that by their nature they are subject to spoil? And, in the negative, 2. To whom belongs after their death the right of receiving unpaid installments of the said pensions, if professed Regulars obtained an Apostolic indult of remaining outside the Cloisters, whether for a time or in perpetuity? 3. To whom belongs the same right, if professed Regulars of this kind obtained an indult of making a will and disposing? 4. To whom belongs the aforesaid right, if there is question of Regulars who emitted only simple vows? - Resp. To 1. In the negative. To 2. If the Indult was temporary, it belongs to the proper Religion of the deceased; if perpetual, to the S. C. of Spoils according to the Constitution Officii nostri of Gregory XIII. To 5. The right about which there is question pertains to him in whose favor the disposition was made, if the Regular legitimately used the Apostolic Indult of disposing of goods; insofar as he did not legitimately use the same Indult, the resolution given in the second is to be observed. - To 4. It belongs neither to the Religion nor to the S. C. of Spoils, but to his heirs, coming either ab intestato or from a testament." S. C. EE. and RR. 6 June 1836.

n. ¶20.

N. 825. - Sacred Utensils Which Are Owed to the Cathedral Church When a Bishop Dies

"... In order to cut off all causes of doubt and controversy concerning this matter, by the counsel of Our Venerable Brothers, Cardinals of the Holy Roman Church set over the affairs and consultations of Bishops and Regulars, by Our Apostolic authority we decree and command these things which follow. I. Cardinal Bishops are bound, as regards sacred utensils, by the law enacted in the Constitution of St. Pius V beginning Romani Pontificis, except however suburbicarian Cardinal Bishops, and likewise except Cardinal Abbots Nullius who dwell in the Roman Curia, whose sacred utensils, in view of the cited Constitution Aequum est of Urban VIII, Our Predecessor, will pertain to the Pontifical sacrarium. II. The derogatory clauses of the Constitution of St. Pius V, whose beginning is Romani Pontificis providentia, remaining firm, in the Letters in the form of a Brief beginning De benignitate Sedis Apostolicae, customarily to be appended, in the other Brief, which begins Cum fel. rec. Urbanus VIII, let the clause be removed by which the same Pian Constitution is declared saved, and in its place let those things which follow be substituted: But if you have presided over abbatial, cathedral, metropolitan, patriarchal churches, or any others which by Apostolic concession and dispensation you have obtained in title, administration, or commendam, we vehemently exhort you, just as Benedict XIV, Our Predecessor, in his Constitution beginning Inter arduas, exhorted Cardinals, that in disposing of the aforesaid things you have those churches before your eyes and prefer them to the rest. But those things which we have prescribed in this article, we extend to individual Cardinals who before the publication of the present Letters obtained the announced faculty of making a will and disposing, just as if they had been expressed in the respective indults. III. The sacred utensils which, by force of the Constitution of St. Pius V beginning Romani Pontificis, are owed to cathedral churches, we declare to be these: namely, miters, chasubles, copes, tunicles, dalmatics, sandals, gloves, albs with cinctures, linen amices, and things similar to these; likewise missals, graduals, books of plainchant and music, pontifical books, another book whose title is Canon of the Mass; likewise chalices, patens, pyxes, monstrances, thuribles, vessel of holy water with sprinkler, basin with ewer, vessels of the sacred oils, and cruets together with basins and bell, candlesticks, images of peace, archiepiscopal crosses, candlesticks with cross for the use of the altar, pastoral staff, faldstool, and other sacred things, whether vestments, ornaments, or vessels, if there are any, even those by their nature suitable for profane use, provided that not accidentally but permanently they have been destined for divine worship and sacred functions; except rings and pectoral crosses, even with sacred relics, and all those utensils of whatever kind which are legitimately proved to have been acquired by the deceased Bishops from goods not pertaining to the church, nor is it established that they were donated to the church. Therefore we will that Bishops are held and bound to make, in authentic form, an inventory of sacred utensils, in which, according to the truth of the matter, they express when they were acquired, and by a special note describe those which they acquired for themselves from the revenues and proceeds of the church, lest otherwise all those things be presumed to have been acquired from the revenues of the church. But as regards sacred utensils of Cardinals of the Holy Roman Church pertaining to the sacrarium of the chapel of the Supreme Pontiff, we will that no account be taken of the quality and nature of the revenues by which they were acquired; and besides those things which are enumerated specifically in the Constitution of Urban VIII beginning Aequum est, we will that the following be understood as expressed only by general words: sandals, gloves, linen amices, albs with cinctures, likewise pyxes, monstrances, vessel of holy water with sprinkler, vessels of sacred oils, and cruets with basins and bell, finally pastoral staff, faldstool, candlesticks, images of peace, thurible, and things similar to these, except rings and pectoral crosses, even with sacred relics. IV. When a Bishop has ruled two or more churches successively, we will that the sacred utensils be divided proportionally among the cathedral churches, account being taken of the fruits and the time, according to the Constitution of St. Pius V beginning Romani Pontificis. V. But where some Bishop has presided at the same time over two or more churches united, or conceded in perpetual administration, which have a Chapter and their own distinct cathedral church, we declare that a division of the sacred utensils must be made in equal parts to the individual cathedral churches, insofar as the revenues of the same united churches, or churches conceded in perpetual administration, are not divided, but perpetually constitute one episcopal mensa. But if the revenues have been divided and separated, we will that the division be made to the individual cathedral churches proportionally by reason of the fruits. VI. But if it is established that a Bishop, who by translation presided over two churches successively, acquired for himself all the sacred utensils from the revenues only of one church, there will be no place for any division, but the same sacred utensils will pertain only to the cathedral church of that diocese from whose episcopal mensa's proceeds they were acquired." Pius IX, Cum illud, 1 June 1847.

n. ¶21.

N. 853 ff. 863 ff. - On Profit from a Loan

"It often happens that questions concerning profit from a loan are referred to the Apostolic See, for which provision has been made by an appended resolution from the Roman Congregations in similar cases. Therefore, so that the Superiors of Missions may have at hand necessary knowledge of those things which thus far have been decreed on this matter, it seemed opportune to the Sacred Council for the Propagation of the Christian Name to publish all the mentioned resolutions together with the Constitution Vix pervenit of Pope Benedict XIV; and it pleased it that they be sent to all Bishops, Vicars, and Apostolic Prefects depending on the same Sacred Congregation.

n. ¶22.

n. ¶23.

S. C. S. O. under date of 13 Jan. 1780, to the Right Reverend Lord Apostolic Vicar N.N. - "Since equality is required in contracts in order that they be just, nothing in a loan, by force of the loan, as has often been defined, is to be received beyond the principal sum. But if it happens that profit ceases for the lender, or damage arises, or danger threatens of losing the sum, or of assuming unusual labors for its recovery, compensation for these indeed can be sought, yet with two conditions always placed before the eyes: the first, that some new title from these actually concur; the other, that nothing more be exacted than it truly demands. Wherefore all contracts depart from the rule of justice, and are liable to restitution, in which either an interest is feigned which is to be compensated, or more is sought than adequate compensation requires. Therefore it is evident that those act imprudently and illicitly, and commit themselves to manifest danger of injustice, who, from the fact that the danger which we indicate generally occurs in such a place, always require profit, and always the same profit, as if danger always intervenes, and, when it has been present, seek always the same remuneration. Nor are they excused because they receive a usury smaller than what is permitted by the law of the kingdom; since a thing is not therefore right because it departs less from justice, unless it is composed entirely to the form of right; and human actions are to be weighed not by human law but by divine law and natural law, which holds fast to equity. Those alone conduct themselves rightly who, looking to individual cases, then only demand compensation when danger truly intervenes, and then seek no other compensation than that which corresponds to the gravity of the danger, which is to be estimated by the judgment of upright and therefore prudent men."

n. ¶24.

II.

n. ¶25.

Sacred Roman Inquisition, year 1784, March 18, to the Apostolic Vicar D. D. M., on the question of a loan. - "And that first of all is certain, that by reason of the loan immediately and precisely nothing is to be received beyond the principal sum. But if something is received by reason of a probably imminent danger, the lenders are not to be disquieted, provided that account be had of the quality of the danger and of its probability, and that proportion be observed between the danger and that which is received. In these very words it was thus defined by the Sacred Congregation de Propaganda Fide on 12 September in the year 1645, whose decree issued for the Chinese Missions is joined here. But the following doubt was:

n. ¶26.

In the aforesaid kingdom it was sanctioned by law that in a loan thirty per cent be received, without regard to ceasing profit or emerging damage. It is asked whether it is lawful for the Chinese, for the loan of their money, although ceasing profit or emerging damage does not intervene, to receive the aforesaid quantity of thirty per cent fixed by the law of the kingdom; and the cause of doubting is because in recovering the money there is some danger, namely, that he who receives the loaned thing may flee, or that he may delay in paying, or that it may be necessary to seek recovery before a judge, or because of other things of this kind.

n. ¶27.

The Most Eminent Fathers judged that by reason of the loan immediately and precisely nothing is to be received beyond the principal sum. But if they receive something by reason of a probably imminent danger, as in the case, they are not to be disquieted, provided that account be had of the quality of the danger and of its probability, and proportion observed between the danger and that which is received.

n. ¶28.

At the supplication of the same Congregation, Our Most Holy Lord, in order to preserve uniformity in preaching and in its practice, strictly commanded and ordered all and singular Missionaries of whatever order, religion, and institute, even of the Society of Jesus, existing for the time being, or to exist, in the kingdoms of the Sinas or of China, under penalty of excommunication latae sententiae specially reserved to His Holiness and to the Holy Apostolic See, that they diligently observe the aforesaid responses and resolutions, use them in practice, and cause them to be observed and practiced by those to whom it will pertain, until His Holiness or the Holy Apostolic See shall have ordered otherwise.

n. ¶29.

It can now be asked what the danger ought to be, and what its character and nature, so that, this title concurring, the lender can receive something beyond the principal. But in this question it is to be held as certain that not just any danger whatever is to be judged sufficiently apt and suitable so that some profit can be received from a loan. For since the title from which a just and legitimate cause arises that something more beyond the principal due from the loan be rightly exacted must always be extrinsic, and not joined and innate to the nature of the loan, hence it plainly follows that if the danger proceeds only from those circumstances which are common there to all lenders and cannot be separated from the nature itself of the loan, then certainly any profit whatever which is taken from the loan can by no means be purged from the stain of usury. Therefore, since plague, fires, persecutions of the Turks, and other misfortunes of this kind, although they are more frequent at Constantinople, nevertheless always threaten lenders in any city whatever, great care must be taken lest because of this common danger, which the force and nature of the loan itself carries, something beyond the principal be exacted in a loan. It seems rather to have greater inquiry when danger of losing the principal threatens either from the fault of the borrower himself, because he is crafty, deceitful, sly, because by flight or by malicious evasions he can deceive the creditor; or when, apart from the fault of the borrower himself, other dangers threaten the creditor from circumstances of place, time, and persons, which keep him very anxious and solicitous in recovering the principal. But although dangers which proceed from the fault of the borrower ought always to be held as more important, nevertheless in all these cases whether, how, and at what value such danger can be estimated, from which a legitimate title is furnished to the lender for taking profit above the principal, is indeed very difficult to establish generally. Let the skill and doctrine of Confessors be incumbent on estimating each matter and weighing it by its own moment. Let them weigh individual cases, inquire concerning the quality and probability of the danger, see whether by the security of a pledge every danger is absent, observe proportion between the danger and that which is permitted to the lender to gain above the principal, consult approved authors, and especially adhere to the opinions and principles approved by this Apostolic See, both in the above-praised decree of the Sacred Congregation de Propaganda Fide of the year 1645, and in the Encyclical Letter of Benedict XIV, Vix pervenit, issued in the year 1745, an example of which is alleged here."

n. ¶30.

Encyclical of Benedict XIV of Holy Memory — On Usuries and Other Unjust Gains

"It scarcely reached our ears that, on account of a new controversy, namely, whether a certain contract ought to be judged valid, certain opinions were being spread through Italy which did not seem consonant with sound doctrine, when at once we judged it part of our Apostolic office to bring an opportune remedy, lest an evil of this kind acquire more strength by length of time and silence; and to block its access, lest it creep more widely and shake cities of Italy still unharmed.

n. ¶31.

§ 1. Wherefore we undertook that method and plan which the Apostolic See has always been accustomed to use. Indeed we explained the whole matter to some of our Venerable Brothers, Cardinals of the Holy Roman Church, who are much commended by their knowledge of Sacred Theology and by their zeal and skill in Canonical Discipline. We also called several Regulars excellent in both faculties, some of whom we selected from Monks, others from the Order of Mendicants, and finally others from Clerks Regular. We also employed a Prelate endowed with the laurel in both laws and long versed in the forum. We appointed the fourth day of July, which recently passed, that all these should come together before Us; to them we declared the nature of the whole matter, which we found had been known and perceived by them beforehand.

n. ¶32.

§ 2. After these things we commanded that, freed from every party zeal and every desire, they accurately weigh the whole matter and write out their opinions. We did not, however, ask from them that they render judgment concerning the contract which had initially given cause to the controversy, since several documents were not available which were necessarily required for this; but that they establish certain doctrine concerning usury, to which those things which recently began to be spread among the people seemed to bring no slight detriment. All carried out the commands: for they openly declared their opinions in two Congregations, the first of which was held before Us on 18 July, but the other on the first day of August, months which have recently elapsed; and finally they handed the same opinions in writing to the Secretary of the Congregation.

n. ¶33.

§ 3. Moreover, with unanimous consent they approved these things.

n. ¶34.

I. That kind of sin which is called usury, and which has its proper seat and place in the contract of loan, is placed in this: that someone, from the loan itself, which by its own nature demands that only as much be returned as was received, wishes more to be returned to himself than was received, and therefore contends that some profit beyond the principal is owed to him by reason of the loan itself. Therefore every profit of this kind which exceeds the principal is illicit and usurious.

n. ¶35.

II. Nor indeed, to purge that stain, will any assistance be able to be fetched, either from the fact that that profit is not excessive and too much, but moderate; not great, but small; or from the fact that he from whom that profit is demanded because of the loan alone is not poor, but rich; nor that he is not going to leave idle the sum given to him as a loan, but is going to expend it most usefully for enlarging his fortunes, or for buying new estates, or for carrying on profitable businesses. Indeed, against the law of loan, which necessarily turns on the equality of what is given and what is returned, he is convicted of acting, whoever, once the same equality has been posited, still does not fear to exact something more from anyone by force of the loan itself, to which satisfaction has already been made by an equal amount. And therefore, if he has received it, he will be liable to restitution, from the obligation of that justice which they call commutative, and whose office it is, in human contracts, both to preserve holily the proper equality of each one and exactly to repair it when not preserved.

n. ¶36.

III. By these things, however, it is by no means denied that sometimes, together with the contract of loan, certain other titles, as they say, can perhaps concur, and these by no means universally innate and intrinsic to the nature itself of loan, from which an altogether just and legitimate cause arises of rightly exacting something more above the principal due from the loan. Likewise it is not denied that many times money belonging to each person can rightly be placed and expended through other contracts entirely different in nature from the nature of a loan, whether for obtaining annual revenues for oneself, or also for exercising lawful commerce and business, and for receiving honorable profits from the same.

n. ¶37.

IV. But just as in so many diverse kinds of contracts of this sort, if the equality proper to each is not preserved, whatever is received beyond the just amount, if it pertains less to usury, because every loan, both open and disguised, is absent, yet certainly is known to pertain to another true injustice, likewise bringing the burden of restitution; so, if all things are rightly performed and are exacted according to the scale of justice, there is no doubt that a manifold lawful mode and reason is available in the same contracts for preserving and carrying on human commerce and fruitful business itself for the public advantage. For let it be far from the minds of Christians that they think profitable commerce can flourish through usuries or similar injuries against another; since, on the contrary, from the divine oracle itself we learn that justice exalts a nation, but sin makes peoples miserable.

n. ¶38.

V. But this must diligently be observed: anyone will falsely and rashly persuade himself that there are always found, and everywhere at hand, either other legitimate titles together with a loan, or, even with loan excluded, other just contracts, by whose support of titles or contracts, whenever money, grain, or anything else of that kind is credited to any other person, it is always lawful to receive a moderate increase beyond the whole and safe principal. Thus if anyone should think, he will without doubt be opposed not only to divine documents and to the judgment of the Catholic Church concerning Usury, but also to common human sense itself and natural reason. For no one at least can be ignorant of this: that in many cases a man is bound to help another by a simple and bare loan, especially Christ the Lord Himself teaching: From him who wishes to borrow from you, turn not away; and that likewise in many circumstances, besides the one loan, there can be place for no other true and just contract. Therefore whoever wishes to consult his conscience must first diligently inquire whether truly with the loan another just title occurs, or truly another just contract different from the loan occurs, by whose benefit the profit which he seeks may be rendered free and immune from every stain.

n. ¶39.

§ 4. In these words the Cardinals, Theologians, and men most skilled in the Canons, whose counsel we requested in this most grave matter, comprise and explain their opinions. We also applied our private study to the same cause before the Congregations were held, and while they were being held, and even after they had been completed; for we most diligently went through the votes of the outstanding Men whom we have just mentioned. Since these things are so, we approve and confirm whatever is contained in the opinions set forth above; since plainly all Writers, Professors of Theology and of the Canons, several testimonies of the Sacred Scriptures, Decrees of Our Predecessor Pontiffs, and the authority of Councils and Fathers seem to conspire well for proving the same opinions. Furthermore, we have most clearly known the Authors to whom contrary opinions must be referred, and likewise those who foster and defend them, or seem to provide an opening or occasion for them. Nor are we ignorant with how much wisdom and gravity Theologians neighboring those regions where controversies of this kind had their beginning undertook the defense of truth.

n. ¶40.

§ 5. Therefore we have given these Encyclical letters to all Archbishops, Bishops, and Ordinaries of Italy, so that these things may become known to you, Venerable Brother, and to all the rest; and as often as it happens that you celebrate synods, speak to the people, and instruct them with sacred doctrines, nothing at all alien from those opinions which we have reviewed above should be brought forward. We also vehemently admonish that every solicitude be spent, lest anyone in your dioceses dare to teach the contrary in writings or sermons. But if anyone refuses to obey, we declare him liable and subject to the penalties proposed by the Sacred Canons against those who have contemned and violated Apostolic commands.

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Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Prolegomena: On Justice and Right

Object and Division of the Treatise.

Among the moral virtues Justice stands out, by which there is rendered to each one his own right; for the other moral virtues directly and immediately perfect only the subject, while justice orders man to another, and therefore promotes the good not only of the subject himself, but also of others.¹

¹ In explaining the virtue of justice, we shall by that very fact declare how far the fifth, seventh, eighth, and tenth precepts of the Decalogue extend, which forbid the rights of others to be injured with respect to bodily life, external goods, and truth: "You shall not kill. - You shall not steal. - You shall not speak false testimony against your neighbor. - You shall not covet your neighbor's house" (Exod. XX, 13-17).

Justice is one of the cardinal virtues, which are so called because they are, as it were, the hinges around which the other moral virtues turn. Of the others we have already spoken in the Treatise on the Virtues; but justice is treated in a special Treatise; for since it embraces manifold rights and duties by which men are bound to one another, both the breadth of the object and the difficulties with which this matter abounds demand a fuller exposition. For the rights and duties of each man cannot easily be defined and measured, especially since they not rarely seem to be in conflict with one another, and, moreover, in our days the relations among the members of the human family have become more frequent and more intricate.

At the very threshold of the Treatise it must be accurately explained what justice is, and consequently what right is, about which justice is concerned.

On Justice and Right. — I. The Notion and Species of Justice.

1. The multiple meaning of justice. Among sacred authors² the word justice obtains a multiple signification: (a) often it designates the whole complex of all the virtues: "Blessed are they who hunger and thirst after justice";³ hence St. Joseph is called "just,"⁴ because, namely, he was endowed with all virtues; (b) sometimes it also signifies any act of virtue: "Take heed that you do not your justice (i.e., good works) before men";⁵ or the habit of virtue: "Unless your justice abound more than that of the scribes and Pharisees, you shall not enter into the kingdom of heaven";⁶ (c) since, moreover, the Christian virtues are infused in justification itself, justice is also taken for justification: "Abraham believed God, and it was reputed to him unto justice";⁷ (d) finally, it signifies the special virtue of justice, by which to another his own right is rendered: "He has appointed a day wherein he will judge the world in equity,"⁸ dikaiosyne, which is the Greek word for justice. Therefore, whenever that word is found in Scripture, the sense must be defined from the context.

¹ St. Thomas, 2. 2., q. 58; Lugo, disp. I; Soto, lib. III, q. 2; Lessius, lib. II, cap. 1; Carriere, n. 2-7; Pottier, diss. II; Vermeersch, n. 12-76.

² In Hebrew justice is expressed by a double word: yoscher, which sounds the same as rectitude, which avoids crooked ways; and tsedaqah, which designates firmness, inasmuch as justice is a norm in no way flexible according to which human actions ought to be performed. - In Greek dikaiosyne arises from the root dike, by which custom, or the accustomed manner of acting, is signified, because among the Greeks that which was customarily done was held as just. - In Latin justitia is derived from the word jus, which, according to many, arises from the word jussum; but much more probably jus is a root akin to the Sanskrit word jaus, which signifies something religious and sacred, because right is something sacred. Cf. Breal and Bailly, Dictionnaire etymologique latin, Paris, 1898, p. 144.

³ Matt. V, 6.

⁴ Matt. I, 19.

⁵ Matt. VI, 1.

⁶ Matt. V, 20.

⁷ Rom., IV, 3; and so throughout the whole Epistle to the Romans.

⁸ Acts, XVII, 31. - We have found no place in the Vulgate where the word justice certainly designates the virtue by which to each one his own is rendered.

1. The genuine definition of justice. (A) Inasmuch as it is a special virtue, justice is usually defined: the cardinal moral virtue inclining the will to render to another his own right according to equality.

It is called: (a) a moral virtue, that it may be distinguished from the theological virtues, whose material object¹ is God Himself, and whose formal object or motive is one of the divine attributes; that is to say, the object of justice is not God, but something created, namely, the right to be rendered to another; but the motive is not one of the divine attributes, but that special uprightness situated in this, that we revere the right of others. - It is also called cardinal, because among the moral virtues it holds a principal place, and is one of those four virtues to which the others are referred.

¹ The material object is that about which the virtue is concerned; the formal object or motive is that which moves the power to act according to this virtue. - Concerning the cardinal virtues, cf. On the Virtues in General, n. 587-590.

This virtue, considered in itself, can be natural, since many precepts of justice can be known by reason and fulfilled by the will, with the assistance of the divine concurrence alone as natural; but in fact, since we have been raised to the supernatural state, it must be supernatural in us, namely inasmuch as we must use at once the light of faith and of reason to know rights and duties, and be helped by actual grace and impelled by a supernatural motive to exercise acts of justice.

(b) Inclining the will: by these words is signified the faculty of the soul in which justice resides; for the intellectual moral virtues, such as prudence, are in the intellect, while justice is situated in the will and immediately perfects it.

(c) To render to another his own right: for the proper object of this virtue is to render to each one his own right, i.e., that which is strictly owed to him, not however from mere fittingness or charity. Hence justice is a virtue toward another; for no one, properly speaking, has rights toward himself, but rights and duties are so coordinated that to the right which inheres in some man there corresponds a duty in another. - Under this aspect it is distinguished from temperance and fortitude, which are cardinal virtues, but regard the subject himself, not other men. - Justice inclines us to render to each one his own right; for he cannot be called just who inflicts injustice even on one person; and constantly, or perpetually; for it does not suffice that someone wish to observe justice for an hour or a day, or only in some business, but it is required that he wish to cultivate it always and in all things.

(d) According to equality, so that as much is rendered as is owed; e.g., if you owe one hundred coins, you must render one hundred, neither more nor less: if less is rendered, justice is not preserved, since something owed remains; if more, the excess belongs not to justice, but to charity or liberality.¹

¹ Hence justice properly so called especially includes two things: alterity or distinction of persons, since it is a virtue toward another, and the rendering of what is owed according to equality. - Concerning the virtues annexed to justice, the reader will find a few things below, p. 438.

Corollary. From this definition the distinction between justice and the other cardinal virtues already appears; for prudence resides in the intellect, and in any business dictates what is fitting according to right reason; fortitude moderates, rules, and strengthens the irascible appetite according to the prescriptions of reason; temperance restrains and moderates the concupiscible appetite with respect to the pleasures of taste and touch. Prudence indeed orders man both to himself and to another, but temperance and fortitude only to himself. Therefore those virtues differ from justice, which is situated in the will, and inclines it to render to another his own.

Justice likewise differs from charity. Each indeed is a virtue toward another: but charity regards other men as brothers, who share the same human nature and the same supernatural life, pursue the same end by the same means, and are members of the same mystical body; and therefore it rests upon the intimate union of all men; - while justice rests upon the distinction of one man from another, inasmuch as each man, although a member of the human family, is truly distinguished from the other men, has rights proper to himself, and can vindicate them. - Charity is indeed in itself more excellent than justice, since it is a theological virtue; and also more universal, inasmuch as it extends itself to many more things than justice. But when the duties of charity and justice concur, these latter generally ought to precede the former, since they are stricter.

Species of justice. Since various divisions are proposed by various authors,² we select this one, which seems to us more comprehensive and more logical. Justice, inasmuch as it flourishes among private men, is called particular; as it is between society and its members, or conversely, it can be called social; insofar as it presides over relations among various Nations, it is called international.

² Commonly the older Theologians acknowledge a threefold justice: commutative, by which a private person renders to a private person what is owed to him; distributive, by which the Government distributes favors and burdens among citizens with equitable proportion preserved; general, or legal, which inclines citizens to render to the Republic or State what is owed to it.

(A) Particular justice is that by which a private person renders to a private person what is owed to him from strict right; therefore it primarily regards the particular good; it is also called commutative, because it is concerned chiefly with exchanges and various contracts. To this, according to all, certainly belong the conditions enumerated above in the definition of justice.

(B) Social justice, as it is here understood, is that by which citizens are ordered to society and society is ordered to citizens, for promoting the common good. It can be threefold: legal, distributive, and vindicative. (a) Legal justice is that which inclines individual citizens to render to society what is owed to it for procuring the common good. This virtue must be found both in the prince or president and in subjects: it inclines the former to command those things which contribute to the common good; the latter to carry them out, e.g., to pay taxes, to perform military service. It is called legal, because it is situated chiefly in establishing and observing laws; also general, insofar as it orders to the common good all acts which it commands.

(b) Distributive justice inclines the rulers of society to distribute common goods and burdens among citizens according to the common good and therefore according to the talents, capacities, and merits of individuals. In this matter arithmetical equality cannot be observed, but only a certain proportion, inasmuch as subsidies ought to be proportioned to needs, burdens to capacities, offices to talents, and rewards to merits; otherwise there will be respect of persons, by force of which, in the distribution of goods, attention is not given to that quality of the person which makes him worthy, but to something else, for example, consanguinity, gifts, friendship, and other things of this kind.

(c) Vindicative justice is that which moves superiors to inflict due and fitting punishments upon guilty subjects. This indeed is most closely allied to distributive justice, but nevertheless seems to be distinguished from it in this, that it immediately regards the reparation of the injured order.¹

¹ According to some, it is referred to distributive justice, because it inflicts punishments proportioned to offenses; according to others, to legal justice, inasmuch as the common good requires that superiors punish crimes; according to some, to commutative justice, because superiors are bound from a quasi-contract to punish the guilty.

It is controverted whether social justice is a species of justice properly so called, or a special virtue analogous indeed to commutative justice, but nevertheless truly distinct from it. (a) According to Lugo and not a few others, commutative justice alone attains the perfect notion of justice, because it alone is perfectly toward another, inasmuch as it exists between terms equal and independent of one another; - it alone preserves perfect arithmetical equality; - it alone obliges to restitution when it has been violated; but social justice, since it exists between society and its members, regards terms not wholly distinct nor independent; - it preserves only proportionate equality; - nor does it bind to restitution, except when commutative justice is at the same time injured.¹ (b) Yet not a few² contend that these differences are accidental rather than essential, and therefore that legal and distributive justice truly share in the notion of justice, and are, as it were, the lowest species of this virtue. - The former opinion seems to us more probable.

¹ Lugo, disp. I, n. 47-54; Crotty, n. 36-85; Cathrein, Philosophia Moralis, n. 142; Pottier, diss. II, n. 11-31. - The mind of St. Thomas seems doubtful; for in the body of the article (2. 2., q. 61, a. 1) he indeed teaches that there are two species of justice, distributive and commutative; but in the reply to 5 he adds: "Distributive and commutative justice are distinguished not only according to one and many, but according to the diverse nature of the debt"; these words seem to signify an essential difference.

² Thus Vermeersch, n. 21-25.

n. 14.

(C) International justice is that which exists among diverse Nations, and moves them to render to other nations, or to private citizens of other nations, what is owed to them; it therefore embraces the Law of Nations, namely the rules to be observed by various Nations in time of peace or war, the agreements entered into for fostering commerce among different peoples, for defining the rights and duties of citizens who dwell among foreign nations, for determining what is permitted or prohibited in time of war, etc. For Nations can be regarded as moral persons, among whom justice of the true name can intervene, so that even sometimes there may be place for restitution.

In this Treatise there is question especially of commutative justice; nevertheless we shall briefly touch in the course of the Treatise the principal questions which regard social justice; likewise we shall say a few things concerning international justice, where we speak of war.

n. 15.

Corollary. From this it is rightly inferred how necessary the virtue of justice is; for if it is observed both by citizens and by States, the rights of private persons and of Nations remain safe and sound, and therefore order and tranquility reign everywhere; but when the rights of citizens or of Nations have been violated, lawsuits, dissensions, and wars soon arise, most hostile to right order and peace,¹ as will appear more clearly from the things to be said below.

¹ Bossuet, Sermon sur la Justice, ed. Lebarq, Paris, 1892, t. V, p. 157-190; Card. Perraud, Les Vertus Morales, Paris, 1903, p. 35-90.

II. The Nature and Divisions of Right.

Since the object of justice is right, we must explain its nature and species, so that the very notion of justice may be better understood.

² St. Thomas, 2. 2., q. 57; Lugo, disp. II, n. 1-9; Soto, l. III, q. I; Lessius, l. II; Carriere, n. 8-19; Crotty, n. 123-176; Pottier, disp. I; Vermeersch, n. 4-11; Marres, t. I, Preliminary Notes.

n. 16.

1. The multiple acceptation of the word right. By this name is signified: (a) that which is just, or is owed to someone; thus it is said: to render to someone his own right, to violate the right of someone;

(b) the rule by which the right to be rendered to someone is determined; in this sense right is divided into natural, divine, canonical, written or non-written; hence, by extension, the whole complex of laws, e.g., the science of law, the Corpus juris, etc.;

(c) the sentence of a judge, by which right is authentically rendered to someone, e.g., to pronounce judgment; and consequently the place in which right is pronounced;³

³ Thus Cicero, lib. I, De Oratore, says: "To fly about in the forum, to remain in the court."

(d) the moral faculty of having, doing, or exacting something, e.g., the right of property, the right of preserving one's reputation, etc. Concerning right, understood in this last sense, we are chiefly treating; for this is the primary and chief notion of right: for nothing is owed to another unless that other has a right, or legitimate faculty, of obtaining or possessing something.

n. 17.

1. The true notion of right.⁴ Right, inasmuch as it is a moral power, can scarcely be defined, because it is one of those notions which seem clearer than the definition itself; nevertheless it can be described: a moral and inviolable faculty of having, doing, or exacting something. - It is called:

⁴ That false notions of right are handed down by many philosophers, both ancient and modern, is clear from those things which we said in the Treatise on the Last End, where we treated of the norm of morality, n. 21-64; for those who are unwilling to place the norm of morality in the wisdom and will of God say that right is nothing else than force, - or private or social utility, - or human liberty itself, which can perform whatever does not harm others. Cf. Fouillee, L'idee moderne du droit, Paris, Hachette, 1904.

(a) a moral faculty; therefore it is not a mere fact (in French, le fait), without any relation to the rule of morals; nor a merely physical power, which is sometimes opposed to right; for here there is no question of physical power (in French, force), by which obstacles of material forces are overcome or an operation is validly accomplished; but of a moral, or legitimate, power, which is according to nature and laws, and can be licitly exercised, according to the dictate of right conscience;

(b) and inviolable, i.e., which cannot licitly be prevented by others; for right in one person carries with it an obligation in others not to impede the exercise of this right; and which therefore subsists, even if its exercise is prevented by force;

(c) of having, doing, or exacting something; by these words the object of right is declared, which can especially be threefold: the power of having external things as one's own; the power of doing something, by exercising one's own faculties; the power of exacting something, that is, of obtaining from others either that they furnish something useful to us, or that they abstain from those things which would be harmful.¹

¹ Concerning the notion of right and duty and the comparison between the two, see P. Janet, La Morale, 5th ed., Paris, 1898, p. 266-281.

n. 18.

1. The divisions of right. Passing over the right of jurisdiction, which belongs to the prince for ruling subjects unto the good of the subjects, we are treating only of right which is for one's own advantage.

(A) Right is commonly divided into strict and non-strict:

(a) Strict, or perfect, right is that which is determined in itself and with respect to persons, and can be exacted by way of coercion, for one's own advantage. Suppose, for example, that one hundred coins are owed to me by Peter, by force of a contract of sale: I have a strict right of exacting from a determinate person, namely Peter, a determinate thing, namely one hundred coins, by legal coercion,² that is, by recourse to the tribunals. To this strict right there corresponds in others a strict obligation, or an obligation of justice. This is right properly so called, about which the virtue of justice is concerned.

² Coercion can be diverse according to diverse circumstances: where no public authority exists, or in a case of necessity, when recourse cannot be had to magistrates, private persons can use force to vindicate their rights, as will be explained below; but in the social state, and outside the case of necessity, it is permitted to use only legal coercion.

n. 19.

(b) Non-strict, or broad and imperfect, right is that which is not sufficiently determined with respect to the thing or the person, so that it cannot be exacted by way of coercion; such is the right to alms, with which the poor who are living in common necessity are endowed: for although the rich in a general way ought to give something from their superfluous goods to the poor, they are not bound to give to this poor person, nor to bestow such a sum of money; therefore this poor person cannot exact this sum of money from this rich man. Hence such a right can be compared with strict right only analogically.

n. 20.

Lugo¹ declares in this way the reason why strict right is so determined that it can be exacted by way of coercion: this right is to be placed in a moral preference by which, in the use of such a thing, this man ought to be preferred to others; namely because, on account of the peculiar connection which the thing has with him, the whole of it ought to be referred and ordered to his utility; this ordering indeed is chiefly signified when something is called mine or yours; e.g., if a hunter has caught a wild animal, this has a special connection with him, so that the captor can say: this wild animal is mine, because I first occupied a thing belonging to no one.

¹ Lugo, disp. I, n. 5-6.

n. 21.

(B) But the strict right of property is subdivided into jus in re and jus ad rem. (a) Jus in re is that which someone has in a determinate thing already his own. For this three conditions are required:² that the thing actually exist; - that it be determined in the individual; - that it be bound to someone by a legitimate title, by force of which he can say: this thing is mine. He who has jus in re can vindicate it wherever it is, and by whomever it is detained; therefore to him belongs a real action, which directly touches the thing itself.

² Other conditions can indeed be required by positive law; but by natural law the aforesaid suffice.

n. 22.

(b) Jus ad rem is that which someone has so that a thing may become his own. For this two things are required: that the thing be owed from a title of justice; - that the title, by force of which it is owed, not be such that the thing is actually attached to us for our own advantage; which occurs whenever one of the three conditions stated above is lacking.

The matter is made clear by an example: if someone has bought a horse and has paid its price, he has jus in re in it, so that he can vindicate it from whomever it is detained; but if Titius has promised Caius that he will sell one of the four horses which he has, Caius indeed has jus ad rem, inasmuch as he can exact from Titius that he sell the promised horse, but he cannot seize one of these four horses wherever he may find it.

n. 23.

(C) Again, jus in re, which is also called dominion,¹ is divided into full and semi-full: (a) the former can be defined as the exclusive right of enjoying and disposing of a thing as one's own, for one's own advantage. It is called exclusive, inasmuch as it involves the faculty of forbidding to others whatever could disturb the owner in the use or disposition of his thing; of enjoying, i.e., of using the thing itself and its fruits for one's own utility;² and of disposing, i.e., of destining it to all uses, of giving, selling, exchanging, etc.; of a thing as one's own, so that certain possessions which do not imply dominion may be excluded; thus a depositary detains a deposited thing, but not as his own.

¹ Certain persons by the name of dominion understand only full jus in re; but more commonly dominion and jus in re are taken in the same sense, and each is divided into full and semi-full.

² Some add, with those learned in Roman law, that dominion also implies the right of consuming or destroying (jus abutendi), that is, of destining a thing to a use which cannot be renewed, or of destroying it; which indeed, understood in this sense, is legitimate. But not a few today by the right of consuming or destroying also signify the faculty of dissipating useful goods; in which sense he who abuses his own thing indeed does not sin against justice, but injures charity, prudence, or other virtues.

In the definition itself we purposely do not add the words "for every use not prohibited by law or agreement," which are read in the French Civil Code (a. 544), and in certain authors; for, even if someone violates some law, he does not by that fact injure justice, nor is he bound to restitution; thus, for example, a minor selling certain things from his goods, without the legal forms, acts illegitimately, but not unjustly. Nevertheless all admit that the exercise of some right can be restricted by law; but this ought not to be included in the definition, since the same restriction is extended to all things.

n. 24.

(b) The latter, i.e., jus in re, or semi-full, or imperfect, dominion, is that which does not embrace both faculties of enjoying and disposing, but only one or the other, i.e., the faculty of enjoying only, or of disposing only. He who has the right of enjoying, without the right of disposing, is said to have indirect, or useful, dominion (la jouissance); he who is able only to dispose of a thing, but not to enjoy its fruits or advantages, has direct dominion, or bare ownership (nue propriete).

n. 25.

Corollary. The right of property, of which we have treated, differs from eminent dominion, which belongs to the prince for disposing of the things of citizens in certain cases, when the public good requires it. For such a power: (a) is not exercised for one's own good, but for the common good; (b) insofar as necessity demands it; (c) with equivalent compensation given, and without respect of persons; and therefore it is rightly referred to the power of ruling, which sometimes demands that the private good yield to the common good.

n. 26.

Division of the matter. Those things which regard the virtue of justice are set forth in a twofold part:

I. concerning Justice itself;

II. concerning Contracts.

For contracts are nothing else than one of the modes by which the right of dominion is acquired, and therefore they are referred to the first chapter concerning Justice, as will be explained below; but, since the questions concerning Contracts are manifold and intricate, it is necessary to treat of them in a special part.

n. 27.

In this first part, we shall treat:

I. Of the existence of the right of property, or dominion;

II. Of the violation or injury of right;

III. Of the reparation of injured right, or of restitution.

The reason is that in the first place it must be weighed whether and what rights exist; then, since these rights are often injured, it must be explained in how many ways they are violated; finally, since violated right must be repaired, last of all restitution must be discussed. We declare this more fully in the following table.

I. Of the existence of right.	Of the object of right.
	Of its subject.
	Of the modes of acquiring right.
II. Of the violation of right.	Preliminary matters concerning crime or injury.
	Of injury concerning the goods of the body.
	Of injury concerning the goods of the soul.
	Of injury concerning goods of fortune.
III. Of the reparation of injured right, or restitution.	Of the roots of restitution.
	Of the manner of making restitution.
	Of the causes excusing from restitution.

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part I — Chapter I: On the Existence of Right

n. 28.

On the Existence of Right.

State of the question. 1. In Natural Ethics, and also in the Treatise on the Last End, n. 25, it has already been demonstrated that God is the primary font of right: for He is the supreme Creator and Lord of all things, and possesses all rights in Himself. Now, when He creates certain beings, He at the same time assigns duties and rights to them. Since He Himself is the ultimate end of all beings, the duty of tending toward God as ultimate end is incumbent upon all; but they cannot fulfill this duty unless at the same time they have the right not only of existing, but also of exercising their faculties. Therefore, if there is question of the priority of right and duty, these things can be established: (a) if the rights and duties of men are compared in relation to God, right in creatures primarily flows from duty, inasmuch as creatures ought to serve God before they can vindicate any rights for themselves. Nevertheless rights often extend more widely than duties; for, once it is posited that the right of exercising our faculties inheres in us, we can legitimately do certain things to which we are by no means bound; thus, for example, besides the knowledge of divine and human things which we are bound to acquire for salvation, we can know many other things.

(b) But if the rights and duties of men among themselves are compared, they are indeed correlative, inasmuch as some duty corresponds to some right; nevertheless in the same order right is logically prior to duty, since duty has been instituted in favor of right: for if I have a right of doing something, by that very fact the duty is incumbent upon other men not to prevent that right.

n. 29.

1. Sometimes rights and duties seem to be in conflict with one another, e.g., the rights of creditors and debtors, or the rights of debtors among themselves, the rights of owners and workers, etc. The collision is only apparent, since rights and duties flow from one sole font, namely God, and moreover there can be no contradiction in things established by divine ordering. Therefore the question is which right or duty prevails. Now the order of rights and duties must be determined according to the demands of the last end, according to that saying: in all things look to the end.¹ Therefore, in an apparent collision of rights, that right prevails which, other things being equal, is more excellent, or more necessary or useful in relation to the last end. And so a more certain right prevails over a more uncertain right, since it is more necessary; a particular right, other things being equal, yields to a universal right, or to the public good, since this is more excellent or more necessary.

¹ This is treated in the Treatise on the Last End, n. 31.

n. 30.

1. Division. In this chapter we shall treat: 1. of the object of right, weighing what rights men have or can have; 2. of the subject of right, namely who can acquire rights; 3. of the various modes of acquiring rights.

Of the object of right.	Of internal goods or goods closely pertaining to the person.
	Of external goods of fortune.
	Of servants.
Of the subject of right.	General principle.
	In particular: of children under paternal power.
	Of wives.
	Of clerics.
	Of moral persons.
Of the modes of acquiring right.	Of occupation.
	Of accession.
	Of prescription.
	Of contracts, concerning which in the special Treatise on Contracts.
	Of testaments.
	Of succession.

n. 31.

Art. I. On the Object of Right.

There are three kinds of goods about which the dominion of man can be exercised: 1. the internal goods of man, or those closely pertaining to his person; 2. the external goods of fortune; 3. services to be furnished by other men.

Vol. V, Pt. I, Ch. III, Section 3: The Duty of Restitution Arising From Calumny and Detraction · Vol. V, Pt. I, Ch. V, Section 3: Nature and Division of Contracts · Vol. V, Pt. I, Ch. V, Section 4: The So-Called Gratuitous Contracts

§ I. On Internal Goods or Goods Closely Pertaining to the Person.

Goods of this kind are: 1. the goods of body and soul; 2. reputation, which has been acquired by good works; 3. the products of one's own talent.

n. 32.

I. On the Goods of Body and Soul.

The goods of body and soul are of a twofold kind: some which are not distinguished from man himself, such as life (soul and body), the faculties of the soul, and the members of the body; others which are distinguished from man himself, inasmuch as they proceed from him and from his faculties, although they inhere in him, such as actions (not their external effects), both natural and supernatural, and habits, whether acquired or infused. - Concerning these goods let the following propositions be given.

n. 33.

Thesis: Man has useful dominion, but not direct dominion, over the internal goods which are not distinguished from himself.

The first part is proved (as to useful dominion). It is certain. For man has all those rights which God has granted to him; but God, by the very fact that He created and conserves man, and assigned to him a supernatural end, granted to him useful dominion over the goods internal to him, as altogether necessary for attaining his end.

The second part is proved (as to direct dominion). Thus commonly. The right of disposing of his own life cannot be attributed to man unless he has received it from God, either absolutely, so that he can use it in all cases and at will, or relatively, that is, for certain determinate cases and grave causes. But neither can be said to have been granted to man by God.

Not an absolute right. For the primary end of divine creation is that man promote the glory of God, and the secondary end is that he perfect himself and serve other men; and to obtain this end God assigned to man duties from the execution of which the whole harmony of the moral world ought to result. But that end would be endangered if it were permitted to each one at will to leave the course of life, since the possibility of greater perfection would vanish and society would suffer grave harm.
Not a relative right. For the express consent of God is lacking, nor can tacit consent be invoked; for, from the things to be said in nn. 297, 298, 299, 300, where we speak of suicide, the reasons alleged have no force.

Therefore man cannot, whether at will or for grave causes, dispose of internal goods which are not distinguished from himself.

Hence it is seen how the texts are to be interpreted: "I will kill and I will make to live,"¹ "For You are, O Lord, He who has power of life and death,"² and especially the precept of the Decalogue: You shall not kill.

¹ Deut. XXXII, 39.

² Wis. XVI, 13-14.

n. 34.

Thesis: Man has full dominion over internal goods which are distinguished from himself.

For from the things said in the preceding proposition, man has useful dominion over his faculties, whose actions and the goods acquired by them can be regarded as fruits; but each one has full dominion over those things which he acquires by his own industry, or produces by his own activity: therefore man can dispose at will of internal goods which are distinguished from himself, without violating justice toward God.

With regard to supernatural habits, it must be noted that they are infused gratuitously, and therefore that they and their acts are less perfectly subject to the dominion of man, although it cannot be said that a man is unjust who disposes of them, e.g., by losing them through sin; otherwise it would have to be said that he who has lost grace is immediately bound by justice to penance (which no one asserts).

n. 35.

Corollary. Princes do not directly have true dominion over the life or members of subjects, but indirectly, inasmuch as, from the right of jurisdiction, they are able to dispose of these for the public good, insofar as they act in the place of God.

(A) Not directly indeed, because the right of life and death directly belongs to God alone, from the things said; nor can it be proved that it was directly delegated to Princes.

Nevertheless indirectly they enjoy this privilege; for, by force of the power of jurisdiction with which they are endowed, they can do all those things which the public good truly demands; but the common good of society sometimes requires that the Prince be able to dispose of the life and members of subjects; thus, in the case of a just war, he can order soldiers to expose their life in order to defend the rights of the fatherland; likewise he can punish certain criminals with the death penalty, so that others may be deterred from similar crimes, when the public good requires it. Then he acts as bearing the place of God: "For he does not bear the sword without cause: for he is the minister of God, an avenger unto wrath against him who does evil."³

³ Rom. XIII, 4.

n. 36.

II. On the Good of Reputation.

Principle: Man has direct and useful dominion over his own reputation, although limited. It is certain as to useful right; it is commonly held as to direct dominion.

The first part is proved, namely that he has direct and useful dominion, inasmuch as we can not only use a good name for our own advantage, but also renounce it for a higher good.

For we have not only useful but also direct dominion over those things which we acquire by our own labor, or legitimately obtain from those who have acquired the same things by their own labor; but so it is with good reputation: for we acquire or increase this by our own labor, namely by the upright exercise of our faculties; or we have received it from our parents by quasi-hereditary right; therefore we have true dominion over reputation. - Therefore we can protect it against unjust aggressions by our neighbor; and when taken away, reclaim it before judges as our own thing. - This indeed will appear even more manifestly if it is observed that reputation is truly estimable by price: for he who is engaged in commerce, or in an art or industry, conducts his affairs with a more prosperous outcome the more distinguished the reputation he has acquired for himself; therefore injury to reputation often also injures fortune, and therefore can oblige to pecuniary compensation.

Moreover, since reputation is truly ours, we can permit the loss of it in order to obtain a greater good, e.g., to cultivate humility, to seek counsel, to restore reputation to another, etc.; for, between two goods, it is permitted to choose the more excellent.

n. 37.

The second part is proved. Nevertheless that right is limited by a manifold obligation, namely (a) by duties toward oneself, inasmuch as it is no more permitted to defame oneself without cause than to dissipate goods of fortune, nor to sin or falsely impute sin to oneself for the sake of humility: for evils must not be done that goods may come. Hence rightly it is read in Scripture:¹ "Have care of a good name: for this shall continue with you more than a thousand precious and great treasures; the number of days of a good life is limited, but a good name shall continue forever." (b) By duties toward the neighbor: inasmuch as we cannot bring infamy upon ourselves if the infamy redounds upon the neighbor, e.g., upon one's family, convent, or community, or upon an accomplice; or also when reputation is necessary to someone for furnishing to the neighbor a duty which is owed to him by strict right, as it is necessary to a bishop or pastor for rightly fulfilling his duties; finally, when it is required for furnishing a duty which is prescribed not by justice, but by charity. In the first and second cases there is injustice, because of harm unjustly inflicted upon the neighbor; in the third, charity is injured.

¹ Ecclus. XLI, 15-16.

n. 38.

III. On the Products of One's Own Talent.

Besides the goods of body and soul, and also one's own reputation, man is able to make his own the products of his talent. Under this name come: books published by authors; paintings or other artistic works; various inventions by which the industrial arts are advanced, etc.

¹ Lugo, disp. XXVI, n. 171; Carriere, n. 55-62; Marres, l. I, n. 23-25; Lehmkuhl, n. 904-905; Meyer, II, n. 213-216; Ball. P., n. 53; Vermeersch, n. 246-253.

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Antony Koch; adapted and edited by Arthur Preuss — 448 passages (filed under the subtopics)

Vol. V, Pt. I, Ch. III, Section 3: The Duty of Restitution Arising From Calumny and Detraction

Detraction, calumny, and other like sins violate justice, and therefore involve the duty of making restitution, as far as possible, for the damage inflicted, and of seeking reconciliation with the person injured.

An insult or contumely wilfully committed against a fellowman calls for an apology (deprecatio). However, a formal apology is, as a rule, demanded only of subjects; among equals an act of extraordinary benevolence will serve the same purpose; on the part of superiors in their relation to inferiors, a special sign of good will or amiability will suffice.¹

¹ St. Alphonsus, Theol. Mor., l. III, n. 986–987 (ed. Gaudé, II, 373).—St. Augustine, Epist., 211 (al. 109), n. 14: "Whichever nun has injured another by abuse or cursing or even by charging her with a crime, let her remember to take care as quickly as possible, by making satisfaction, of what she has done, and let the one who was injured forgive without dispute. But if they have injured each other, they ought mutually to forgive the debts owed to each other, on account of your prayers, which you certainly ought to have holier in proportion as you have them more frequently. Better is she who, although often tempted by anger, nevertheless hastens to obtain forgiveness from the one whom she acknowledges that she has wronged, than she who is slower to become angry and is more reluctantly inclined to ask forgiveness. She who does not wish to forgive her sister should not hope to receive the effect of prayer; but she who never wishes to ask forgiveness, or does not ask it from the heart, is in the monastery without cause, even if she is not cast out from it. Therefore, for your part, refrain from harsher words; but if they have issued from your mouth, do not be ashamed to bring forth remedies from the same mouth from which the wounds were made. When, however, the necessity of discipline compels you to speak harsh words in restraining those younger than you, even if you feel that in those very words you have exceeded due measure, it is not required of you that you ask forgiveness from them, lest, while excessive humility is observed toward those who ought to be subject, the authority to govern be broken; nevertheless, forgiveness must be sought from the Lord of all, who knows with how much benevolence you love even those whom perhaps you rebuke more than is just." (Migne, P. L., XXXII, 964).

If the insult was committed in actions, it should not merely be apologized for, but restitution must be made for the material damage inflicted.

The duty of making restitution ceases when the victim has obtained satisfaction either by a judicial sentence or by self-help, e. g., by returning the insult.

A calumny can be repaired by an unconditional retraction of the falsehood uttered (retractatio). This must be made orally or in writing in a way which men of good judgment deem sufficient. Public calumnies,—such as have appeared in newspapers, for instance,—must be publicly retracted by him who started them and in the same manner (verbo vel scripto) in which they were circulated. This obligation admits of no exception, and the claim of inability does not avail against it. The calumniator must ascribe all injurious consequences of his act to himself and, consequently, is bound to make restitution even when his own honor is at stake, for "melior est conditio innocentis quam nocentis," that is to say, the right of the innocent goes before that of the guilty. Besides, to retract a calumny, is not only a confession of the wrong committed, but likewise a proof that the sinner recognizes his fault and is willing to correct it.

The duty of retracting a calumny rests also upon those who have helped to spread it. In the event of their failure the obligation devolves upon the originator of the calumny. The latter is bound also to make good all the temporal or material damage arising from his sin, even that which results from the fact that the calumniated person can regain the confidence of his fellowmen only for a considerable time after the retraction of the calumny.

A person guilty of calumny may be excused from the duty of retraction for one or other of several reasons: (a) the unimportance of the matter involved; (b) the voluntary renouncement on the part of the victim of his right to a retraction;—this reason will hold, if the victim is in a position freely to dispose of his honor and good name, as, for example, members of a religious community are not;—(c) if the victim has in the meantime regained his good name by other means, as, for example, by a judicial sentence; (d) if, in consequence of the length of time that has elapsed, the matter has fallen into oblivion or those influenced by the evil report can no longer be reached.

In case of detraction restitution may be made indirectly by excusing the faults of the victim as much as possible and emphasizing his good qualities, in order to enable him to regain the good reputation necessary for his social position, and by accusing oneself of having made unwarranted or unconsidered statements. In regard to the material damage done, the same rules apply as in the case of calumny. Though a retraction cannot always be strictly demanded, it will as a rule go far towards effecting a reconciliation.

The duty of restoring the good name of an injured neighbor is personal; that of making restitution for material damage caused by calumny or detraction falls also upon the heirs.² To protect one's good name, as has been explained in a previous volume, is a duty, especially when a whole class of persons is involved. When this is not the case, a man may go far in humbling himself for Christ's sake,³ whose noble example encourages us not only to forgive our enemies, but also to suffer detraction and calumny in silence.⁴

² Gury, Comp. Theol. Mor., I, n. 473.

³ 1 Cor. VI, 7; IX, 13–15; 1 Pet. IV, 14–16.

⁴ Matth. XVIII, 21–35; XXVI, 62 sq.; XXVII, 12; John XVIII, 19–21; cfr. Ps. CVIII, 14; Prov. XII, 16; Matth. V, 44; XXIII, 34.—Seneca, Epist., 94, 28: "Iniuriarum remedium est oblivio."

"There are those who deem it weakness to forgive insults," says a modern writer; "if this view were correct, God would be the weakest Being in Heaven and on earth, for no one forgives as much as He."

The saintly Bishop Sailer said: "I would rather allow myself to be innocently calumniated for ten years, than spend one day in defending my honor."

READINGS.—St. Alphonsus, Theol. Mor., l. III, n. 986 sq. (ed. Gaudé, II, 373 sqq.).—J. Kutschker, Die Lehre vom Schadenersatz, Olmütz 1851, pp. 521 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 672 sqq., 680.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 245 sqq.

Vol. V, Pt. I, Ch. V, Section 3: Nature and Division of Contracts

DEFINITION.—A contract (contractus, pactum) is a mutual agreement between two or more parties, recognized by law as creating an obligation to do or to omit a particular thing, and productive of a permanent claim in one or both parties.

CONDITIONS NECESSARY FOR VALIDITY.—To be morally valid and binding, a contract must comply with certain conditions, both on the part of the contracting parties and as to matter and form. With due regard to the properties which belong to a contract by natural law, positive legislation may and does regulate the details with regard to conditions as well as concerning different forms of contracts, in conformity with natural justice and the common welfare.

a) The parties to a contract (subiectum contractus, contrahentes, paciscentes) must be naturally and legally capable of entering into an agreement, and they must enjoy the use of reason and freedom of action, because a contract is a human act.

b) The matter of a contract (materia sive obiectum) must be something morally and physically fit to form the object of an agreement.¹ Hence an agreement which violates an inalienable right of one of the contracting parties, or of a third party, or the laws of morality, or which demands something impossible, is immoral and therefore invalid. If, however, a man has performed an evil deed in conformity with a contract into which he has entered, he may, without committing an additional sin, receive and keep the reward due to him, though it would be better to devote it to some good purpose (ad pias causas).²

¹ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 726: “A contract is an agreement by which one or more persons bind themselves toward one or more others to give, do, or omit something.” Idem, ibid., n. 727: “The matter of a contract generally consists of things and deeds, or all those things which can fall under human dominion and over which contracting parties have full ownership and free administration. The matter of a contract must possess various conditions; namely, it must be possible, existent, honorable, proper to the contracting party, and certain. 1. Possible, both physically and morally, because no one can be bound to the impossible; 2. Existent either in fact or at least in a certain hope, or probably going to exist, otherwise no right over it could be had; 3. Honorable and lawful, that is, prohibited by no law, because an obligation concerning a dishonorable and forbidden thing cannot be given, as is evident; 4. Proper to the contracting party, as is evident from the definition, for no one can transfer to another a right which he himself does not have; 5. Certain and determined, whether as an individual thing or in quantity and quality, for otherwise the contract would be illusory.” Cfr. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1240 sqq.

² St. Thomas, Summa Theol., 2a 2ae, qu. 32, art. 7, ad 2; qu. 62, art. 5, ad 2; qu. 87, art. 2, ad 2.—St. Alphonsus, Theol. Mor., l. III, n. 712 (ed. Gaudé, II, 176).—J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 730.—S. Poenit., d. d. 23 Apr. 1822: “A penitent woman is not to be compelled, but is to be exhorted to expend the price of prostitution for pious uses, according to the judgment of a prudent confessor.”

An immoral contract is per se invalid and binds no one. But since the matter or object may be separated from the motive, one who has demanded and received an immoral act from another, may be obligated to perform his part of the bargain, provided the act demanded of him is possible and honorable. A man who hires another to set fire to the house of a third, enters into a contract which is per se invalid. If the hireling lives up to his part of the agreement, is the hirer obliged to pay him the promised sum, and may the hireling keep the money? The answer is yes, regardless of what may be said of the disproportion existing between the sin and its reward. The reward is paid not on account of the sin involved in the undertaking, but on account of the material performance, which is not in itself sinful, since the malice lies not in the deed itself, but in its form and motive. The reward is given for the labor performed, for the care involved in the choice of the proper means, and for the risk assumed in the undertaking. That the hireling is thereby encouraged to commit other similar crimes aggravates the sinful character of the contract, but is not a sufficient reason for withholding the contractual reward, to which he has a right. He may retain the wage for his labor, even if that wage exceeds the one usually paid for similar material labors, because the risk involved is exceptional. From the moral point of view, money thus received is rated as ill-gotten gain, and whatever portion of it is not needed for the sustentation of life, is subject to restitution, though it need not be given back to the person from whom it was received, but may be donated to charity.³

³ F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sq.

If a man has made a present to a woman with the intention of seducing her, she may keep the gift, even though she did not commit the sin demanded of her. The reason is that there was no pactum de peccato patrando.⁴ But, as Göpfert observes, “the acceptance or retention of such a present may involve the sin of scandal, namely, in so far as the donor may thereby be encouraged in his evil purpose by the hope of fulfilment.”⁵

⁴ Gury, op. cit., Vol. I, n. 731: “It is asked whether, if a man has given something to a woman in order to seduce her, she may retain the thing after refusing consent? The answer is affirmative, because no agreement concerning the commission of sin intervened, and therefore the donation is to be regarded as entirely gratuitous.” Cfr. Lehmkuhl, Theol. Mor., Vol. I, n. 1248–1251.

⁵ F. A. Göpfert, Moraltheologie, Vol. II, p. 152.—Cfr. J. Kelleher, “Immoral Contracts,” in the Irish Theol. Quarterly, Vol. IV, (1909), No. 15.

c) Formally, a contract demands a mutual, serious, and perfectly free internal consent (consensus internus,) manifested by some external sign or signs (consensus externus). Extremely vague terms, a lack of express acceptance of the promise given, or any essential error with regard to the object or nature of a contract, render that contract invalid, because in such cases there can be no true agreement of the will between the parties concerned. A non-essential error, on the other hand (e. g., concerning an accidental quality of the matter), does not affect the validity of the contract, unless the contract was caused by this very mistake. If this was the case, the contract, if it was a gratuitous one, is null and void because gratuitous contracts presuppose free consent. Grave fear, unjustly caused, so long as it does not deprive the subject of the power of clear thinking, does not, ex iure naturali, render a con- tract invalid, but gives the party who acted under the influence of fear the right to renege the obligations incurred.⁶ Force, which deprives one of the contracting parties of his liberty, renders a contract null. A signature obtained by force is, therefore, legally worthless and does not bind the signer in conscience.

⁶ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 737, 740–747; J. E. Ross, Christian Ethics, p. 297; M. Cronin, The Science of Ethics, Vol. II, pp. 305 sqq.

The so-called gratuitous contracts (vide Sect. 4, infra) are not affected in their validity by a non-essential or an accidental error, for consent to its substance is sufficient to make a contract valid. Accidental errors easily occur in legal affairs, and it would give rise to numerous inconveniences if contracts were invalid or could be declared void because of a non-essential error. If, however, the error was substantial and caused by intentional deceit on the part of one of the contracting parties, and the other party was induced by it to make the contract, the deceived party has the right, upon discovery of the error, to rescind the agreement. Some authorities regard the contract as invalid in such a case. Most others consider it valid as long as the deceived party does not demand its dissolution. The latter, consequently, has it within his power either to let the contract stand, if he wishes to do so after he has discovered the error, or to have it revoked, i. e., to demand of the other party that it be regarded as null and void.⁷

⁷ V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., pp. 355 sq.

Slight fear⁸ does not by natural law invalidate a contract, for if it did, every contract would be doubtful, as there are people who seem to be in a constant state of dread and can be induced to make a promise or sign an agreement only if inspired by fear or placed under moral pressure. Slight fear, even if unjustly inspired, does not destroy freedom of decision. On the contrary, fear often makes a man cautious and teaches him to give special attention to the business in hand. Hence it would not be right to say that slight fear invalidates gratuitous, or even onerous contracts (the latter if fear was the principal reason for, or the occasion of, making the contract) in foro conscientiae, but such fear may be a reason for demanding the dissolution of an otherwise valid contract.

⁸ See this Handbook, Vol. I, p. 116.

DIVISION OF CONTRACTS.—Contracts are commonly divided as follows:

a) With regard to the effects or the obligation involved (α)—into unilateral (unilaterales) and bilateral (bilaterales), according as they give rise to an obligation of justice in one of the parties only or in both; (β) into gratuitous (gratuiti) and onerous contracts (onerosi), according as one of the contracting parties receives a utility without a corresponding burden, or the burden is distributed between both; (γ) insurance or social contracts, which aim not at profit, but at securing rights of property.⁹

⁹ F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 535 sq.

b) Distinguished according to form, contracts are divided into (α) solemn, (β) public, (γ) private, depending upon the legal formalities by which they are accompanied.

c) With reference to their object, contracts may be ecclesiastical or civil, and they may or may not affect property rights.

d) Distinguished according to the law by which they bind, contracts are divided into natural contracts and contracts of civil obligation.

Other divisions are of minor importance.

The division of contracts evolved by the casuists, says Linsenmann, does not flow from their internal nature. Some of them are merely the product of a legal fiction, which cannot be carried to its logical conclusions in the ulterior development of the law. The distinction between unilateral and bilateral contracts, for instance, is opposed to the very nature of contracts. The distinction between gratuitous and onerous contracts is purely extrinsic and not quite accurate. In Moral Theology, at least, every contract is not only bilateral, but also onerous, though the consideration involved does not always consist in a definite, material quid pro quo enforceable under the law, but at times is purely ethical and ideal. But even in regard to the material quid pro quo jurists and casuists cannot determine sharply which species of contracts naturally postulates it and which does not. It does not lie in the nature of a loan contract that it is sometimes (commodatum and mutuum) rated as gratuitous and sometimes (locatio, conductio, etc.) as onerous.¹⁰

¹⁰ Linsenmann, op. cit., p. 536.

n. ¶17.

READINGS.—Th. Meyer, S.J., Inst. Iuris Nat., Vol. II, pp. 210 sqq.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 631 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 707 sqq. (ed. Gaudé, II, 174).—J. Schwane, Die theologische Lehre über die Verträge, Münster i. W., 1871, pp. 8 sqq.—J. E. Pruner, Lehre vom Recht, Vol. I, pp. 336 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 533 sqq.—V. Cathrein, S.J., Moralphilosophie, Vol. II, 5th ed., pp. 352 sqq.—A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 363 sqq.—M. Cronin, The Science of Ethics, Vol. II, pp. 298 sqq.—J. E. Ross, C.S.P., Christian Ethics, pp. 294 sqq.—T. Slater, S.J., in the Catholic Encyclopedia, Vol. IV, pp. 332 sq.

Vol. V, Pt. I, Ch. V, Section 4: The So-Called Gratuitous Contracts

Gratuitous contracts, so called, are: promises, gifts, deposits, loans, and the agreements known in Latin as mutua, for which we have no precise equivalent in English.

A promise (promissio) is merely a free and sincere declaration of one’s willingness to do something gratuitously for another. It is, therefore, not strictly a contract, but rather a preliminary to a contract. English law will not enforce a simple promise for which no valuable consideration was given and which was not entered into by deed,¹ but in the forum of conscience a promise imposes an obligation, either of fidelity or of justice, as the intention may be.

¹ T. Slater, S. J., A Manual of Moral Theology, Vol. I, p. 496.

“There is a dispute among theologians concerning the kind and quality of the obligation imposed by a simple promise. An onerous promise for which consideration is given by the other party, and mutual promises bind in justice, and consequently under pain of grievous sin in serious matter. Similarly, where the promisee has been led to rely on a promise, and would suffer serious loss unless the promise were fulfilled, the promisor will be under a grave obligation to fulfil it. Apart from these circumstances the obligation of a simple promise will depend on the intention of the promisor. If he intended to give the promisee a strict right to what was promised, he will be bound in justice; otherwise he will only be bound by the virtue of fidelity, which is a self-regarding virtue, and imposes an obligation to make the fact agree with one’s word. The virtue of fidelity of itself only binds under pain of venial sin. A promise will cease to bind if some event takes place or becomes known subsequently which would have prevented the promisor from making the promise if it had happened or been known beforehand. For a simple promise is essentially conditional; the promisor binds himself to do something under certain suppositions and in certain circumstances; if those suppositions are not verified, or if the circumstances become changed, the promise no longer obliges. All the more will a promise cease to bind if what was promised becomes unlawful and wrong, or useless, or impossible.”²

² Op. cit., p. 497. Cfr. M. Cronin, The Science of Ethics, Vol. II, p. 313.

A gift (donatio) is a contract by which a man (donator) gratuitously transfers an object or a right to another (donatarius). For a gift to be valid, the donor must be free to give away the object or right in question, and the receiver (donatarius) must be free to accept it. A gift is called inter vivos if the ownership in the property is transferred by the donor while he is still alive; it is called mortis causa if made in view of death, i. e., with the intention that the donatarius shall receive the property only after the donor’s demise.³ The difference between these two kinds of gifts lies in this, that a donatio mortis causa may be revoked at any time, and becomes void with or without a cause, if the donatarius dies before the donor, unless indeed the latter expressly ordained the contrary. A donatio inter vivos, on the contrary, can be voided only for definite reasons determined by law, e. g., if an heir is born to the donor, if the beneficiary proves grossly ungrateful, or if the donor becomes poor and needy without any fault of his.⁴ Gifts of immovable objects or movable ones of considerable value must be legally approved to be valid. Catholic Moral Theology demands of the donor that he shall not injure his family or creditors nor give his property away to unworthy persons in order to gratify his own passion or that of another; and of the beneficiary, that he shall not obtain a gift by deception, intrigue, or other undue influence, that he shall refuse to accept a donation unjustly made, and that he shall show himself duly grateful for gifts, both in word and deed.⁵ The civil law may add other conditions, for instance, that there should be some public record of the transaction.

³ J. P. Gury, S. J., Comp. Theol. Mor., Vol. I, n. 761: “A donation in general is the gratuitous grant of some thing. It can be made in two principal ways, namely, between the living and by testament.” Ibid., n. 770: “A donation between the living is an act or contract by which the donor actually and irrevocably deprives himself of some thing in favor of the accepting donee.” Ibid., n. 797: “A donation in contemplation of death is one which is made in view of death; it is necessarily revocable by its nature. This concerns the common law. A donation in contemplation of death is valid, provided it is clothed with the due conditions, namely: 1. It must be made in view of death, otherwise it would be considered a donation between the living; 2. It must be accepted before the donor’s death by the donee himself; 3. If the donee predeceases the donor, it is revoked by that very fact and does not pass to his heirs.”

⁴ Gury, ibid., I, n. 773; Göpfert, Moraltheol., Vol. I, pp. 162 sqq.

⁵ Col. III, 15; 1 Thess. V, 18; 1 Tim. II, 1; cfr. Prov. XVII, 13.—J. E. Ross, Christian Ethics, p. 300.

In most countries gifts are hedged about with many legal provisions intended, first, to exclude undue influences and, second, to prevent donations to persons and institutions which the State does not wish to be so favored. When the lawmakers really have in view the common welfare, these limitations are wholesome. There may be undue weakness shown in giving and there are always persons ready to exploit such a defect of character for their own benefit. In view of this fact the public authorities have a right to protect the weak in their property and to limit extravagance in the form of immoderate and unjust giving. Take the case of a man who disinherits his wife and children and leaves his property to a concubine. Here surely the law ought to interfere. Christian moral teaching, therefore, obliges us to respect the civil laws in this regard. No gift should be made except for some adequate reason, and the beneficiary should realize that he assumes certain obligations with the gift.⁶

⁶ Linsenmann, Moraltheol., pp. 548 sq.

A deposit is a contract by which a man (deponens) entrusts to another (depositarius) an object (depositum), to be guarded for him until he demands it back.⁷

⁷ Gury, Comp. Theol. Mor., Vol. I, n. 806: “A con- tract by which a thing is entrusted and accepted for safekeeping, to be restored intact whenever the depositor wishes.”

a) The depositary is bound in conscience to take reasonable care of the object entrusted to him. He is not allowed to make use of it or to appropriate its fruits; he must return the object to its lawful owner upon demand, and make restitution for any damage or injury it may have suffered ex dolo et culpâ latâ seu levi while in his care. If the object entrusted has decreased in value by accident, the depositary is not responsible for the damage, for “casum sentit dominus.” If the damage was done through his fault, the question of indemnification must be decided by the terms of the contract. If there was no definite agreement, the depositary is responsible not only for grave neglect on his own part, but also for moderate neglect, provided he receives some compensation for the custody of the object or has freely offered his services. If he has used the entrusted object without the owner’s permission, he is responsible for all damage or depreciation, even though it may have occurred accidentally. If the deposit turns out to be ill-gotten, or the depositary has a just claim against the owner, or reason to fear that the owner will abuse the object, he is not bound to give it back.⁸

⁸ St. Ambrose, De Offic., l. II, c. 29, n. 149: “Faith with respect to deposits must be kept; diligence must be employed.” (Migne, P. L., XVI, 143).—Gury, Comp. Theol. Mor., Vol. I, n. 806: “Obligations of the depositary: 1. He is bound to keep and guard the deposited thing with the care and diligence which diligent men are accustomed to employ in preserving a similar thing of their own; for he has undertaken custody of the thing handed over. If the deposited thing perishes through fraud or through his theologically culpable negligence, he is bound to restitution; 2. He may exact nothing for custody of the thing, unless the owner has expressly promised him compensation, because a pure deposit redounds to the advantage of the depositor alone. But if an agreement concerning compensation has intervened, the deposit then passes into a hiring of service, namely, for the safekeeping of the deposited thing; 3. He is forbidden to use the deposited thing without the owner’s express or tacit consent, or at least consent prudently presumed, for it is not lawful to use another’s thing without consulting the owner; 4. He is bound immediately to return the deposited thing to the person requesting it, for otherwise he would possess another’s thing against the reasonable will of its owner. Except when the depositor requests it to his own or another’s injury, or when the thing is stolen and its owner requests it, or also when the depositary has a just cause for compensation. The deposited thing must be returned in the state in which it is found at the time of restitution, together with the fruits received from it. If, however, it has deteriorated through the fault of the depositary, he is bound to repair the damage.”

When a deposited object (depositum) must be restored to its owner, depends upon the will of the latter, even in those cases where a time limit is fixed in the contract, because the nature of this sort of contract makes it necessary to interpret its provisions in favor of the owner. If the place to which the object is to be returned is determined in the contract, this stipulation should be observed by the depositary, but the depositor must pay the costs of transportation. If the depositary changes his place of residence, he is not bound to take the deposit with him, but may leave it in custody of a court, if the depositor will not send for it after being duly notified, or he may, in this latter case, take the object along with him at the expense of the owner.

b) The duties of the deponens or lender flow from the nature of the contract. He is above all obligated to receive back the deposit when the depositary wishes to return it for some good reason, for instance, because he can no longer keep it without danger to himself. When a compensation has been agreed upon between the parties, the owner need not pay it in full if the object is returned before the term agreed upon in the contract, but may make reasonable deductions, and eventually charge the depositary with the cost of entrusting the object to another. But he must indemnify the depositary for all necessary expenses incurred and for whatever damage the latter may suffer through the keeping, preservation, or rescue of the deposit, and likewise for accidental damage. In case of danger the depositary may save his own property first.

c) A special kind of deposit is sequestration, which is defined as the deposit of property made with a third person either by agreement (sequestrum conventionale) or by judicial order (s. iudiciarium), by parties having claims against such property, till the question of ownership can be decided. The person with whom such property is deposited is called sequester, umpire, or referee. Sequestration is an act of public administration. If sequestration is the result of a mutual agreement between the parties concerned, it may be either gratuitous or not; in the last-mentioned case, the consideration to be paid the sequester should be determined by the terms of the contract. If it is gratuitous, it is subject to the same rules as a deposit and is not rescinded except by mutual consent of the parties or by a legal action. In judicial sequestration the referee or umpire is bound to take good care of the property entrusted to him and the claimants must pay him the fee fixed by law.⁹

⁹ Gury, Comp. Theol. Mor., Vol. I, n. 807: “Sequestration is a species of deposit by which a disputed thing is deposited with a third party, so that after the judgment of a judge or arbitrator it may be handed over to the victor. A twofold sequestration is distinguished: conventional, which is made by the mutual agreement of the contending parties, and judicial, which is decreed by the judgment of a judge. It will suffice to indicate the following concerning both: 1. The object of both conventional and judicial sequestration can be movable or immovable property; 2. Conventional sequestration can be non-gratuitous, and then it is a hiring of service and is subject to the laws of that contract. But if it is gratuitous, it is subject to the same rules as a deposit. It is not dissolved, however, unless mutual consent of the parties or a legal cause supervenes; 3. In judicial sequestration the custodian must exercise the care of a good head of a household, while the person committing the thing to custody is bound to pay the depositary the compensation established by law. Thus concerning natural and positive law.”

Vol. II, Bk. II, Tractate V: On Justice, Section I: General Notions Concerning the Virtue of Justice · Vol. II, Bk. II, Tractate V: On Justice, Ch. II, Article IV: On Religious · Vol. II, Bk. II, Tractate V: On Justice, Chapter IV: On the Modes of Acquiring Rights in General · Vol. II, Bk. II, Tractate V: On Justice, Ch. VI, Article I: Generalities Concerning Contracts

Deposits now-a-days are mostly entrusted to banks. If a deposit consists of stocks or bonds or other valuable papers, the bank is per se not allowed to sell them or use them as collateral, particularly when there is danger that the owner may sustain losses through such action. Deposited money may, however, be loaned out or invested with due precautions, provided the owner is given adequate guarantees that he can withdraw his funds within a reasonable time after giving notice.

…and 408 more passages — all of them are listed on the topic page.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 151 passages (filed under the subtopics)

Vol. II, Bk. II, Tractate V: On Justice, Section I: General Notions Concerning the Virtue of Justice

Very great utility will be in this brief section if it should happen to us to correct the less accurate but very common notion of right, and to dissipate the confusion under which several labor in distinguishing the three virtues of justice.

n. 340.

Definition. Justice, a special cardinal virtue, is a moral virtue by which we are inclined to render to each one his own right.

n. 341.

The Various Notion of Right. 1. Right in the definition is taken objectively, and it is that which belongs to another as his own, i.e. what is owed to someone according to the formal rights which he has as another person coordinated to the same ultimate end.

Formal or subjective right is the inviolable autonomy of a person, or of a being existing for itself, in pursuing the proper end on account of which it exists, and the inviolable relation of prevalence or quasi-dominion over things which are destined to the end or good of that person. For the need of the person demands, and the nature of things permits, that certain things be referred to the good of the person as means. These things, understood in the broad sense, are both certain substances, and actions freely to be done by a person, and the performances of others owed to this person as such. To the autonomy of the person corresponds the word I; to the destination of things toward the good of the person, the word Mine; yet we also call our members, body, and own soul mine.
Moreover, the nature of the person and of things demands that among these things there be active faculties ¹, to be exercised toward the end of the person, which, by the same title by which the other things of each person are his own, are morally inviolable. Not a few today think that subjective right is defined by an inviolable active faculty, as if by the first essential mark; whence the common description by which subjective right is described: the morally inviolable faculty of a person of having, acting, exacting something (according to the threefold object of right). But those faculties are not always in the persons whose matters are being treated: for several persons (the impubes, moral persons) cannot direct themselves toward the end. They are then in the persons by whom they are directed, as consequences of the office by which they must direct those persons ².
Right is also taken for the rule of right, or law; indeed for some whole system of laws: natural, positive, civil, canon law; an expert of law.
Indeed it is taken for the very place where law is pronounced: to appear in court.

¹ For my subjective faculty can indeed be an inviolable object to another.

² Some say that faculties are in those incapable persons but are not exercised by them. Certainly, when there is question of a physical faculty, that distinction between potency and act is well understood, nor then does the faculty reside in another. But when the faculty is wholly moral, a faculty without exercise is a faculty which is not had but which would be had if the person were capable. Besides, a moral person never exercises those faculties; and those faculties are possessed by certain physical persons. Shall we say that those faculties exist twice?

n. 342.

Threefold Right in Species, Threefold Justice. Besides physical persons, which are as many in number as there are rational supposits, there exist moral persons, which are constituted by physical persons conspiring into one end and reduced through that end to a certain unity. Two of this kind are perfect: the Church, which exists as an institution of positive divine law; and civil Society, which exists as a natural institution. In relation to those societies, physical persons, not as persons, but through the things which they have, are parts, while societies are the whole. But parts as such are on account of the whole; and the whole in turn is on account of the good of the parts; which is more true here, since those Societies exist on account of the perfection of physical persons.

Now, if a part is on account of the whole, that which is (by right) of the part is of the whole; and similarly, that which is of the whole is of the parts; not immediately, however, but by mediation of the right of the parts or of the whole of which they are immediately.

Therefore right can be immediate right and mediate right; and this latter is of a twofold ratio: for mediate is both that right which the whole has to those things which belong to the parts, and the right which the parts have to those things which belong to the whole.

But as many rights as there are in species, so many justices there are. Therefore there is a justice by which immediate right is rendered: this exists among persons who are, or are considered as, coordinated or equal, and is called commutative. There is also justice by which mediate right is rendered; this, however, is again divided into two species. In one species the parts render what is owed to the community as such, and it is general or legal justice; in the other, the community renders what it owes to the parts, and it is distributive justice.

n. 343.

Right of the Public Order or of Jurisdiction, and Right of the Private Order. The morally inviolable faculty which is found among rights, and is often taken for formal right itself, exists in one way on account of private persons, in another on account of Society. This latter ratio of right is of the public order and is called jurisdiction. Therefore jurisdiction is the public power of ruling a perfect Society, or of directing it to the common good. It is called jurisdiction because it contains the faculty of commanding the members, on account of the common good, various acts of virtues which constitute the necessary cooperation of the members toward the common good: by exercising such a faculty rights are spoken, i.e. defined.

n. 344.

These are the properties of all justice: 1. that it be toward another, i.e. that it satisfy a title which is in another insofar as he is a distinct person; - 2. that it do what it ought, not what it could honestly omit. For its formal honesty is that it satisfy the exigency of right; - 3. that it render the debt to equality, i.e. that it furnish as much as it owes.

On account of the first property, those things must accurately be distinguished which joined persons, e.g. father and son, owe one another insofar as they are joined, and insofar as they are persons. The former offices, in the example brought forward of father and son, will pertain to piety; the latter alone will be ruled either by justice alone or by justice concurring with piety. And in a more general way, those things which I owe to my neighbor insofar as he is another self pertain to charity; insofar as he is a distinct person, they enter the province of justice.

n. 345.

Division of Rights. 1. Looking to the proximate foundation, some rights are absolute, i.e. loosened in their origin from every special relation of persons, or relative, which are founded in special relations of persons ¹.

Looking to the order in which they are found, rights are of the public or private order. Rights of the public order are political rights, or rights of jurisdiction, which give a share of public power; others are called civil or private rights. These again are common rights of the person and citizen in Church and State, public rights; or family rights, which distinguish persons in the family; finally patrimonial rights.

Patrimony is a being of reason by which is designated the sum of rights and obligations which can be estimated by price and consequently have economic value. These are either rights in a thing, which give immediate power over some thing, or rights of credit, which affect the obligation of another, or rights of doing something; e.g. of accepting an inheritance, a donation, of making a will.

A correlative obligation of credit can be something of doing (furnishing work), omitting (not building, not planting), or paying some thing, i.e. of bringing it about that the dominion of some thing be transferred to the creditor. The creditor is then said to have a right to a thing.

Concerning these things cf. Colin and Capitant, I, p. 101-106; Pacifici-Mazzoni, II, n. 1-6. Therefore it is seen that the division of right into right in a thing and right to a thing, even if you attend to merely patrimonial rights, is by no means adequate, although it is very useful. Compared among themselves, right in a thing has an immediate termination in things; right to a thing has an immediate termination to another's action by which the thing becomes mine. By right in a thing I preserve what is already mine; by right to a thing, I exact from another that it become mine, and consequently I acquire. Wherefore right to a thing is called personal right or credit. What is mine is always now determinate in body and can be shown in the individual; what is owed to me can be a thing determined only by genus, e.g. 100 kilograms of wheat, 5000 lire. He who has right in a thing, of itself excludes all others, competes with no one, vindicates the thing everywhere as his own, by an action which is called in rem; he who has right to a thing can exact it by a merely personal action from him who owes, nor is he who is prior creditor necessarily preferred to those posterior.

Looking to the perfection of dominion, some are alienable, others inalienable. Alienation causes the right to pass to another or to be extinguished; and it must especially be distinguished from non-use of right, or from non-opposition of right. He who has a right can always validly effect by his consent that the note of injustice against himself be removed from another's act, even an illicit one, so that this always holds: "No injury is done to one consenting." But if the right is inalienable, that consent is always validly revoked, so that the note of injury is restored.

¹ Rather than, with Colin and Capitant, from the persons by whom they are circumscribed, we prefer to divide rights from their proximate foundation. For there is also an office incumbent upon all of not impeding the exercise of rights which from contract oblige Titius to furnish various things; and we would have to distinguish a third, mixed genus. For the family rights of father, husband, and tutor must be observed by all, and at the same time induce special relations between parents and children, between husband and wife, between tutor and ward.

n. 346.

Summary

I. Justice, a special cardinal virtue, is a moral virtue by which we are bent to render to each one his own right. In that definition right is taken objectively, or signifies what is owed to another on account of some formal right of his.

II. Formal or subjective right is the inviolable autonomy of the person in the pursuit of his end, and the inviolable relation of prevalence or dominion over things which are ordered to the good of that person. Those things can be substances (which man calls his own), actions freely to be done by a person, and performances of others; and also active faculties to be exercised toward the end of the person. Hence, by the more common but less accurate description of right, subjective right is called the morally inviolable faculty of a person of having, acting, exacting.

Under the name of objective right there also comes the rule of right or law; indeed the whole system or complex of laws: natural law, civil law, an expert of law; and the very place where law is pronounced: to appear in court.

III. In the present order, physical persons, or rational supposits of this world, actually pertain, or ought or can pertain, as parts to two perfect societies (moral persons): the Church and some civil society. But parts, as such, are on account of the whole, while in this case personal dignity is preserved; and the whole in turn is on account of the parts. Hence those things which are of the part are also of the whole, and that by reason of the parts; and those things which are of the whole are also of the parts, by reason of the whole. That is, the parts are on account of the whole with the rights which they have, and similarly the whole is on account of the parts with the rights which it possesses. Therefore those things which immediately are of the parts or of the whole are mediately (because they are of the parts or of the whole) of the whole or of the parts.

Thus it happens that right can be immediate and mediate; but mediate right is of a twofold ratio: the right which the whole has to those things which are of the parts, and the right which the parts have to those things which are of the whole.

But as many rights as there are, so many justices there are. Therefore there is justice which renders immediate right, among persons who are, or are considered as, coordinated or equal: it is called commutative; there is justice which renders the mediate right of the community: general or legal justice; and justice which, residing in the community, renders the mediate right of the parts: distributive justice.

IV. What is owed to the community as such is exacted by a right (taken for an active faculty) of the public order, which is called jurisdiction. This is the public power of ruling society or directing it to the common good.

V. All justice is toward another: satisfying a title which is in another as he is a distinct person; it does what it ought, satisfying the exigency of right, so that all its acts are properly necessary; it equals the debt: as much as it owes it furnishes, neither more nor less.

VI. Division of rights. 1. Looking to their proximate foundation, some rights are relative, others absolute, according as they are, or are not, founded in a special relation of persons.

Looking to the order in which they are found, they are of the public order: political or jurisdictional; or of the private order: private or civil rights, whether they define the common condition of citizens in Church or State, as public rights; or their proper condition in the family: family rights; or affect their proper economic condition: patrimonial rights. The complex of rights and obligations of that order is called patrimony.

Patrimonial rights are either rights in a thing, which confer immediate power over some thing; or rights of doing, and rights of credit: these oblige another to do or omit something, or to transfer the dominion of some thing, in which case the creditor is said to have right to a thing. Right in a thing is protected by action in rem; right to a thing, by action in personam (a condiction) against the debtor, and can be removed by a more powerful right of another, e.g. in the thing itself.

Looking to the perfection of dominion, some rights are alienable, others inalienable. Alienation, which transfers a right, must especially be distinguished from mere non-use or non-opposition of right, which gives place to the proverb: "No injury is done to one consenting."

Vol. II, Bk. II, Tractate V: On Justice, Ch. II, Article IV: On Religious

n. 381.

General View. From the religious state itself, as such, no incapacity flows. And of themselves religious preserve their rights entire, to reputation, members, body, soul, but they must satisfy the special obligations of obedience.

As to goods of fortune, solemnly professed religious, by common law, can neither keep the goods which they possessed nor acquire other goods for themselves (cc. 579, 581, 582). The incapacity which follows solemn profession had its first origin civilly. Simply professed religious must, before profession, cede the administration of their goods to whom they wish, and, unless the constitutions provide otherwise, they can freely dispose of the use and usufruct of the same goods (c. 569). In a religious Congregation, before the profession of temporary vows, the novice must freely make a testament concerning present goods or those perhaps to come, which testament he cannot lawfully change after the vows without the license of the Holy See or, if a cause urges, without the license of the Superior. Nor is it lawful for those professed in religious Congregations to abdicate dominion of their goods by gratuitous title through an act between the living (cc. 569, 579, 583). - Finally, it is common to professed religious that whatever they acquire by their industry or in view of religion, they acquire for the religion (c. 580, § 2).

n. 382.

Summary

— I. The subject of right can be physical persons and moral persons, i.e. beings which indeed do not subsist physically, but which, on account of a true unity perceived by us, participate in the character of person in our moral estimation. And this fully indeed, if there is question of the Catholic Church and the Apostolic See, which by positive divine law, or of perfect civil society and the State, which by divine-natural law, exist inviolably for themselves on account of their end or the common good, and therefore have rights; less fully, if there is question of inferior moral persons, whose personality is either created or completed by formal recognition of public power. It is completed, if there is question of associations which of themselves have a certain unity; it is created, if there is question of certain things or patrimonies which are assigned to some end in such a way that they seem to exist quasi-separately.

II. The rights of inferior moral persons are often greatly restricted by public law.

Today indeed all physical persons of this earth are capable of dominion; but the capacity of certain persons is circumscribed by positive law for various causes. Thus:

Children under family power, as long as they are incapable of human acts - no otherwise than the demented - acquire and possess goods through those who represent them. And afterwards also, by various dispositions of law, they are protected against the weakness of age. Generally they do not administer their goods; indeed often some usufruct of their goods and whatever they gain conjointly with their parents is attributed to those exercising paternal power. Parents, from piety, owe support to them, at least when they are in need, and they cannot be unwilling that a son, in necessity, take for himself as much as is owed to him from this title. A son of himself is held to compensate reasonably the expenses made for him and to bear help to needy parents.

It must be estimated from the express or tacit will of the parents what a son can or cannot do concerning the goods of the parents: thus what has been given for a certain end he cannot, with justice preserved, apply to another end, especially a less useful or reasonable one. Likewise, from the circumstances it must be estimated what labor the son is judged to render gratuitously to his parents: as if they are poor, or if the gain is modest, if he cooperates together with others, if the labor gives him skill. - On account of a proportionate cause, it will be lawful for the son himself to seize some administration of the family property. - Even things which have been done unjustly will not rarely, because of tacit condonation, induce an obligation of restitution. - Finally, an occult compensation already made can more easily be excused than permitted beforehand. But it is desirable that by clear agreements the occasion of compensations of this kind be avoided.

The wife's patrimonial regime is defined very much from nuptial pacts. Often the husband administers the wife's goods and must give the consent of his wife in several juridical acts. She, as subordinated to the husband and, by presumption, less fit, must admit this. But as companion she is permitted to give modest alms and can reasonably presume several things.
Secular clerics possess and administer their patrimonial goods, indeed, of themselves, those which they gain on the occasion of a sacred function, just as other goods. Nevertheless, beneficial fruits which are superfluous to honorable support, if you except Cardinals, must, at least from religion, be deputed to the poor or to pious works. Which oblations freely made by the faithful fall to them must be judged from the intention of the faithful, which received usage declares. Today only oblations made during Mass at the altar, or for certain ministries, are presumed to fall to the pastor.

And now, on account of c. 1410, it must further be observed whether perhaps oblations have been constituted in dowry of the benefice.

Religious, by positive law alone, become incapable of certain acts and are obliged to do or omit certain things, as is explained in tome III, n. 125-134.

Vol. II, Bk. II, Tractate V: On Justice, Chapter IV: On the Modes of Acquiring Rights in General

n. 386.

I. What They Are. Modes of acquiring rights are the proximate causes of property, whether of a thing or of a right.

II. How many they are. 1. Some modes are original or originary, others derivative. Derivative modes contain formal succession into another's right; while through original modes a thing (or right) is possessed for the first time or quasi-first time. For the first time, when a thing which belonged to no one becomes someone's; quasi-first time, when a thing which was situated in someone's dominion is acquired by another through a title or cause in no way connected with the prior right. Thus by the original mode of usucaption a thing of another is procured.

Succession itself is universal or particular, according as it affects either the whole patrimony or a part of it, or a particular thing.

Some modes are natural, which have force from nature itself, as true occupation and donation; others civil, which have force from law, as treasure, and, as most hold, prescription. In another use, as many modes of acquiring as are sanctioned by civil law can be called civil. For the most part the mode of acquiring is of mixed origin, insofar as a natural mode is sanctioned by law, as for example occupation, to which of itself something is lacking. The contract itself is a mixed mode. Since by law you can hold a thing either as quasi-first or as quasi received from another (succession from law), law, for various causes, is numbered among original or derivative titles.

The modes of acquiring are occupation and treasure, accession, prescription, contract, inheritance, testament. To these, as causes of rights, there accede offices and delicts or quasi-delicts.

n. 387.

Summary

General Notions. Modes of acquiring, or proximate causes of property: a) some are original, by which things are possessed for the first or quasi-first time; others derivative, by which one formally succeeds into another's right. Succession is universal if it affects a patrimony or its aliquot part; it is particular if it affects a thing as particular;

b) Some are natural, which have force from nature itself, as true occupation and donation; others civil, which have force from law, as treasure and prescription; although all modes of acquiring, sanctioned by positive law, can be called civil. Most are mixed: thus contracts themselves. Besides these, causes of rights are offices, delicts, and quasi-delicts.

Vol. II, Bk. II, Tractate V: On Justice, Ch. VI, Article I: Generalities Concerning Contracts

n. 408.

I. Notion, Division, Elements in General

What a Contract Is. A contract is the consent of two or more persons in the same juridical agreement (cf. l. 1. Huius § 2. l. De pactis, II, 14). - Many things to be said concerning contracts are valid concerning a quasi-contract, which is an honest fact, existing by authority of law or by the voluntary will of someone, which produces a certain obligation of justice. Such is the management of affairs.

A contract can be considered in fieri, or in its constitution, and in facto esse, or in the permanent juridical effect which it produces.

n. 409.

How Manifold It Is. A contract is divided under various respects. 1. From the intention of the contracting parties, or the end of those operating, contracts are gratuitous or onerous, according as the stipulation is made from an intention of benefiting the other party, as for example in donation, or the utility of both is intended. A mixed contract is one in which only a partial price is demanded; but it remains gratuitous if it is annexed to donation. Analogically onerous is that on the occasion of which something must be paid under another title, for example of support. - An onerous contract is commutative, if what must be furnished is certain from the beginning; it is aleatory, if this depends on an unknown or uncertain event, for example in insurance.

From the end of the work, every contract changes rights: but some contracts immediately change real rights, as, in our law, donation; others beget a personal right, insofar as they generate an obligation of justice. Yet observe that it is not admitted by every law that a real right is transferred by consent alone; and that for the most part, in order that a juridical change affect persons extraneous to the agreement, a certain inscription in a register or tablets is required, or another solemnity is commanded, whereby knowledge of the matter can be had by those whose interest it is.

Moreover, an obligation of justice is distinguished from an obligation of fidelity. In this latter, mere faith is interposed; and its obligation is light in kind. In the former, a right is granted, which of itself is grave. An obligation of fidelity does not pass to heirs, unless the one promising wished efficaciously to impose on them the burden of a real promise, while an obligation of justice affects the patrimony. (Cf. Quaestiones de iustitia, n. 290.)

From effect or efficacy: a) Some, if substance or stability is attended to, are in general valid, firm, or in various degree infirm, invalid: which are either plainly non-existent and lacking the very figure of a contract, as a civil marriage without an official and witnesses; or are simply null, which are invalidated by sentence of the judge. More properly, those are called rescindable which, because of lesion, or excessive detriment of one party, can be invalidated.

b) Others, as regards the effect of obligation, are unilateral or bilateral (synallagmatic), according as an obligation is imposed immediately on only one party or on each party. A unilateral contract can be onerous: thus a loan for consumption with a stipulation of interest.

c) There are also, if juridical efficacy is attended to, naked or clothed contracts, according as they produce only an obligation of conscience or also a civil action. Naked contracts are not always devoid of every civil effect: for example, it can happen that what has been paid from a naked agreement cannot be sought back.

By reason of form, some are consensual, which are perfected by consent alone; others real, which have their beginning from the handing over of the thing (pledge). - Some are solemn and simple, according as positive law has imposed certain forms to be observed or not. Most today are simple. - They are express or tacit. Thus, from the fact that an accused man approaches an advocate who undertakes his cause, a tacit contract is had between them.
By reason of appellation, they are named, which have a special name, or unnamed, such as the four real contracts (which are called regular): I give that you may give; - I give that you may do; - I do that you may give; - I do that you may do.
By reason of subsistence, they are principal, which stand by themselves, or accessory, which accede to another principal contract: pledge, hypothec.

n. 410.

— 1. The constitutive elements of a contract are distinguished as essential, natural, accidental. Essential elements cannot be excluded without the contract becoming null or another contract. Thus, if the price is suppressed, sale becomes donation. - Natural elements, as it were of themselves, accompany the contract, so that unless they are positively excluded, they are considered, from law or custom, to be contained in the contract by the tacit consent of the parties: thus, in purchase-sale, the guarantee against eviction, in favor of the buyer. - Accidental elements are not included in the contract unless they have been agreed upon in express words. Thus a day given so that the buyer may more easily pay the price.

The essence of a contract is always composed of the thing or matter, by which is designated the remote or proximate object about which the agreement turns: a horse, a horse to be sold; and of consent, or the conspiring of the wills of persons who are capable by law. Conspiring supposes wills of the parties which agree concerning a substantially identical thing. Must cause besides be added? This today is rather much disputed and is denied by many jurists. By the name of cause there are by no means designated the various reasons which could have led each party to consent; but there is understood the proximate motive which, proper to each contract and therefore always the same, enters into the agreement itself. In gratuitous contracts, the cause will be the intention of beneficence; but here, in moral estimation, the subjective motive itself by which the intention has arisen will have to be considered. In onerous exchanges, one party does, gives, promises, on account of the performance or promise of the other: the seller yields the thing on account of the promise of the price; the buyer promises or pays money on account of the promised or accomplished handing over of the thing. Some defend the utility of distinguishing cause from object, for cause is essentially required to be licit, and it can turn upon an illicit object. Thus a delict is an illicit object; reparation of the delict makes a licit cause. Others think the distinction useless, for cause is confused with the proximate object.

n. 411.

II. Concerning Object and Cause, in Particular

I. Concerning the Object of a Contract. The object of a contract, if it is a thing, must exist at least in hope; under the respect under which it is considered, it must not be outside commerce; and it must be estimable by price: such is not a simple showing of the way made by anyone, nor anything which is already owed from justice. But nothing prevents you from receiving a price for an obligation undertaken, although by accident, on account of a similar obligation already undertaken, you fulfill it without new inconvenience: thus a messenger who, on account of another cause already present, must go to a certain city, can of himself demand solid compensation for making the journey. - If a contract is made concerning an action, this must be possible, physically and morally; useful to him for whose sake it is done; honest. Indeed, moved by their liberal prejudices, many jurists of France and Belgium have denied that a contract can be made concerning an object of the moral order, but say that it is required that the stipulator, at least from a penal clause or from an added stipulation for his own advantage, of which the other is made accessory, perceive an economic or pecuniary utility. That opinion is founded neither on the text of the Code nor on the authority of tribunals. Wherefore effort must be made that that prejudice be abolished. Cf. Colin and Capitant, II, p. 293, 1.

If the thing exists only in part, or the action has been possible only in part, it will have to be estimated from the nature of the thing and the intention of the parties whether partial performance is to be made or not.

Thing and action ought of themselves to be proper to the one promising. Yet someone can promise another's deed; nor does anything prevent that, by selling another's thing, someone immediately oblige himself first to acquire the same thing for himself. This frequently happens in commercial business.

Jurists also deny that a stipulation in favor of a third person will be civilly efficacious, unless, for example from an added penal clause, you have created for yourself some economic utility. For otherwise the right could be urged by no one: not by the contracting party, since it does not interest him; not by the third person, to whom nothing has been promised.

Certain objects are excluded by various laws. Thus liberty cannot today be alienated indefinitely (art. 1780, French Code); public functions, and not rarely a future inheritance, cannot be objects of contract (art. 1600 F.C.).

What forensic usages bear concerning objects of a higher order must be carefully attended to; as for example, concerning the religion in which children are to be educated; concerning religious or merely civil funerals; concerning cremation, etc.

n. 412.

II. Concerning the Cause of a Contract. This must be true and licit. By positive law many causes are prohibited which are opposed to the law of nature. A contract of base cause is void both by the law of nature and by positive law. Yet once the base deed has been fulfilled, the indifferent price which is paid can be retained, indeed, according to the common opinion, can be demanded. But it must be seen whether by positive law a condictio (i.e., a personal action) for what is not owed is granted. By the Code of Germany, art. 817, it is denied.

It also happens that, because of a certain reason of the common good, the legislator sanctions the transfer of a right, with consideration of cause neglected. To this kind can be referred the disposition of art. 707 of the Italian Code, 2279 of the French Code. They are called in German Abstrakte Rechtsgeschafte.

n. 413.

— It can be asked whether or not a cause which of itself does not appear must be expressed in the contract. Is it, for example, enough that someone promise the payment of money, or must he besides indicate the cause of the debt? Art. 1192 of the French Code does not require the expression of cause. But practically, at least in the law of Belgium and France, beware lest the debtor sign merely by name a document in which his debt is stated, but let him acknowledge the debt in at least a few words written by his own hand. Let him write, for example: "Good for 1000, owed by me" (Bon pour 1000. dus par moi). Otherwise juridical proof may be lacking.

n. 414.

III. - Concerning Contracting Parties, in Particular

1. Notions. In the matter of contracts, it is necessary to distinguish parties, third persons, author, successor, or one having the right, one having the cause. Parties are the contracting parties themselves, who by themselves or through representatives effect the agreement itself; and the one offering or promising is called the promisor, the stipulator, the one who acquires the promise or the right. Third persons are those who are extraneous to the juridical business. The one who gives origin to someone's right is the author (thus a testator, a seller); the one who succeeds in the right is the successor, or also the one having the right, having the cause. (In French, he concerning whose inheritance there is question is often called, as a substantive, le de cuius.) Frequent, also for conscience, is the use of the principle concerning a thing done between others, by which the effects of agreements are circumscribed to the parties and cannot bring prejudice to third persons. Yet successors in the patrimony receive that patrimony burdened with all its burdens; and a right which someone has from another cannot be received except such as it existed with the author, therefore affected by the same qualities and defects.

In order that a contract be valid, the contracting parties must be capable. By the law of nature every physical person, and also every moral person legitimately constituted, is capable so that he may contract by himself or through others (Cf. Slater, A manual, etc., I, 486).

One who enjoys the use of reason is capable of contracting by himself.

But with moral persons omitted, concerning whom different laws establish things differently, by modern laws physical persons are capable, except those who are affected by legal incapacity. By such incapacity there have customarily been protected minors by age, persons of infirm mind and spendthrifts, and, in still many laws, also wives. Acts which they perform are sometimes declared null, with relative nullity concerning which only the incapable person and those who represent him can act; sometimes they are merely rescindable because of lesion. Various laws must be consulted. In the forum of conscience, the persons protected can use these laws. Yet if they have acted deceitfully in the contract itself, it indeed does not therefore oblige them more than is established by positive law, but they will be held for damages. Thus a minor who sincerely, or with the intention of returning it, has received money as a loan, and then dissipates it prodigally, is held to nothing by either law, civil or natural. But if he contracts fictitiously, with the intention of dissipating and not returning, he will have at least a natural obligation of restitution.

Nevertheless, that by which an incapable person has been made richer from the contract which is invalidated must always be restored. Finally, not rarely today the capacity of a minor by age is increased by special laws which favor deposits in public savings banks.

While the law protects a minor against his weakness, it by no means thinks of rendering him immune from the effects of his delicts.

Besides general incapacities, special ones are established for restraining abuses, by which, for example, physicians can validly receive nothing, by gift or testament, during that illness, from a non-consanguineous sick person whom they cared for in his last illness.

n. 415.

2. Minors by Age from Positive Law. I. Norms rather common. From rights which regard things, personal rights must first of all be separated. For in various laws, personal rights find and also make an adult minor more capable. They find him, for example, capable of validly contracting marriage, of acknowledging illegitimate offspring (which the Code of Holland (337) always grants to the mother, to the father if he is 19 years old); they make him capable: for, at least with the assent of those who must consent to the marriage, capacity for nuptials will bring with it capacity for making nuptial pacts, at least where those pacts cannot be celebrated except before the nuptials; and most laws admit emancipation by marriage.

In the order of things itself, a minor is often more capable of making a testament than of contracting.

In the present place, however, there is question only of the capacity of contracting. These things, then, are almost common to positive laws.

As long as minors by age are not at least emancipated, they themselves generally cannot firmly contract obligations: but, with the cautions prescribed for graver acts observed, either parents or tutors act for them. Yet some laws permit them contracts by which they receive goods without obligations; they also permit them to deposit their own money as if adults in a public savings bank, and they establish the mode by which they can lease their labor.
After they have been emancipated, in graver acts a curator must be present for them, or in a similar way care is taken lest in these things they act imprudently.
The nullity of agreements which an incapable minor has made is not absolute but relative, insofar as it can be opposed by the minor or by him who represents the minor, but not by the other contracting party.
Because the legislator intends to protect minor age, not to patronize frauds, a minor who has deceitfully feigned himself older by age either is held for damages or can no longer allege age for the nullity of the contract. But what is required that that deceit be had juridically is defined differently by different laws.
Ratification by which an infirm act is healed is generally admitted by law, but only from the time when the contracting party has become an adult.

II. Certain things proper to some laws. 1. In Latin law, the incapacity by which minors by age are protected coheres with paternal power, insofar as those who exercise paternal power act for minors or with minors, and insofar as that representation directly affects only legitimate or legitimated children. Yet by legal tutelage, which confers a similar paternal power, even natural children are protected.

By the Austrian Code, there are distinguished infants, who have not yet completed seven years; impuberes, who have not yet completed fourteen years; pubescent minors, who have not yet completed twenty-four years. Yet free disposition concerning the fruits of one's own industry is permitted to a minor who is not nourished by parents; but one twenty years old can obtain from the judge a declaration of majority (252) and free administration of revenues which exceed annual expenses. Moreover, the leasing of labor made by a minor cannot be invalidated by a tutor without a grave reason. - By the Codes of Austria (241), Switzerland (19), minors can acquire goods without obligation. By the Brazilian Code (5, 6) absolute incapacity is sanctioned, without exception for deceit, until the age of sixteen years: afterward it becomes relative. - From the Code of Holland, a minor eighteen years old can obtain partial emancipation from the judge, if the parents are not unwilling (480-485); he alone deposits money in a public savings bank; with the consent of the one by whom he is represented, he is permitted to lease his labor. It is proper to the Code of Spain that even contracts made by a tutor, within the scope of his power, can be rescinded because of lesion or damage which exceeds the fourth part of the value of the object.

By Italian law an action of nullity is prescribed in five years (after majority). Acts clothed with the due solemnities are firm no less than acts of one older by age.

The Latin laws agree in sum, except that for the most part the prescription of the action is reduced to four years. Yet the Code of Portugal has preserved prescription of five years. - Besides, the Code of Spain gives an action by which acts themselves made by a tutor, within the limits of his power, nevertheless can be rescinded because of lesion (or damage) which exceeds the fourth part of the value of the object.

A less simple regime has been introduced by the Code of France (and of Belgium), whereby some acts are merely rescindable, while others are invalidated by relative nullity. a) A contract, whatever one the minor has made, can be rescinded if it has been even a little injurious: provided the damage has flowed not from a fortuitous event but from the agreement itself. Therefore this is valid: the minor is restored not as a minor, but as one injured. b) But if he has made acts which the tutor himself could not make alone, or if he alone has received payment of a debt, those acts are null with relative nullity. - Concerning an emancipated minor, there must be distinguished: a) acts which he can make alone: they are firm, yet in such a way that if they oblige him to excessive expenses, they can be reduced by the judge to just terms; b) acts which he could but had to make with the assistance of the curator: they are rescindable because of lesion; c) acts which were besides subject to other solemnities: they are affected by relative nullity. - Actions concerning nullity and rescindability are prescribed in ten years from majority.

By the law of the German Code, a minor, even alone, can make acts which merely profit him without burden: but acts which can be damaging to him he cannot make firmly without the authority of the one who represents him, or also, sometimes, of the tribunal of tutelages. These can ratify such acts. But unless ratification has intervened within two weeks, the acts are null. Acts, however, which are made with the due solemnities are firm, as if made by one older by age.
By English law, a minor can make certain contracts profitable to himself or reasonable and congruent with his state or condition. Other contracts, however, are absolutely null and cannot be ratified. But a minor never obtains the benefit of fraud.
In the U.S.A., the principle formerly admitted, by which all acts of minors were null or subject to annulment, is reasonably tempered. Nothing more definite seems able to be said.

n. 416.

3. Wives from Positive Law. I. More general indications. A greater variety of laws is perceived here. For some laws admit no incapacity of contracting proper to the wife; others, merely for firming the authority of the husband, require his assistance; while others intended also to provide for the weakness of the weaker sex. But a judge can generally supply the denied license of the husband. Moreover, the inclination of modern laws is toward restoring general capacity. Indeed, certain laws have begun to acknowledge the wife's right of managing the family business, imputing expenses to the common goods. But a wife who is permitted to exercise a separate art or business has already long enjoyed full capacity in these matters. Modern laws also are accustomed now to make the wife capable of administering the moneys which they have entrusted to public savings banks. The nullity of contracts, however, can sometimes be opposed by only the other spouse, sometimes by the husband and his heirs, sometimes by the wife, indeed also by her heirs. By permitting this to the wife herself, the legislator demonstrates the intention of protecting her infirmity.

II. Things proper to various laws. 1. Latin law. Neither in Austria, nor in Switzerland ¹, nor in the republic of Costa Rica is a special incapacity of the wife sanctioned. Moreover, by the recent law of 17 July 1919 it was suppressed in Italy.

By the Swiss Code, not only the husband, but also the wife, for daily expenses, represents the community (168). But by the Brazilian Code, whatever the nuptial pacts may have been, the husband cannot make graver acts concerning the goods of the wife without her assent; indeed he needs her consent in order to make notable donations from the common goods (285). Again, however, the wife also needs the general or special license of the husband for acts which touch her own goods (242). The nullity of an act unduly made without the husband's consent can be opposed by the husband (252); but an act which the husband has unduly made without the wife's consent, the wife and also her heirs can impugn (239).

Nevertheless, among most Latin nations, a certain incapacity continues to subsist: thus in Spain, Holland, Portugal, Romania.

In France the severity of the Civil Code has been tempered by more recent laws: for example, by the law of 13 July 1907, completed by the law of 8 June 1923, the wife is permitted to manage freely the gains and goods which she has obtained in exercising a profession distinct from the husband's profession; - by the law of 12 March 1920 she can freely enroll in a syndicate; she can have and administer deposits in a savings bank; and she obtains full capacity when separation of bed has been obtained.

Even with these things omitted, except for the capacity which she draws from nuptial pacts according to the various regime of goods, she needs the authority of the husband for contracting. And the license must be special and of itself written, unless there is question of exercising a profession or of acts which are not customarily written.

The license of a husband who refuses to consent or who is incapable can be supplied by a tribunal.

Acts made without the due license are vitiated by relative nullity, which the husband, the wife, and the heirs of each can use within ten years (art. 225). Acceptance of a donation is absolutely null.

The Code of Germany establishes no incapacity of the wife. Yet the husband can seek rescission of an obligation which demands the wife's personal labor.
By the law of England and the U.S.A., the wife long labored under absolute incapacity. But by the Act of 18 Aug. 1882, she was made fully capable; and even in the U.S.A. incapacity has been so suppressed that she can make all contracts not expressly excluded by statute.

¹ Yet she needs the consent of the husband in order that she may renounce an inheritance.

n. 417.

IV. - Concerning Consent in Particular — A. - What Consent Is Required and What It Effects

The Necessity of Consent. 1. A contract, which must be well noted, denotes a voluntary exchange of rights; moreover, no one unwillingly acquires a right, at least definitively, while the one offering wishes to transfer some right, not simply to lose it. Wherefore true internal consent is required, and mutual consent, so that what one offers, that very thing the other expressly or tacitly accepts. For in favorable matters the proverb easily obtains: "he who is silent seems to consent." In order that consent be mutual, it is necessary that both wills be formally joined, and therefore that the one offering intimate his will to the other, either by himself or through a procurator.

This consent is not impeded by the will not to fulfill the obligation; but it is impeded by the will not to bind oneself. But if the negation has been partial, i.e. if someone rejects, from among several obligations of the contract, some one which he did not know to be conjoined, the prevailing will must be investigated, and according to it judgment must be made concerning the matter.
Positive laws sometimes require that consent be expressed in a certain form, either for the very value of the act, or so that the contract can be proved. In the former case there is had a solemn contract, such as marriage is in ecclesiastical law; such as, in civil law, are nuptial pacts and a testament. In the other case the agreement is valid, but cannot be juridically demonstrated. Thus no agreement concerning a thing which exceeds 500 lire in value can be proved by witnesses, according to the Italian Code, art. 1341.

n. 418.

Concerning the Beginning of the Obligation. A twofold question is moved here.

Can, and for how long can, either the one promising or proposing a contract efficaciously revoke the promise, or the one accepting revoke the acceptance?

The question is scarcely practical when a consensual contract is made between those present; and such also is judged to be the case when the parties make an agreement by telephone. For a response is at the same time given and intimated by one present, and when the response has been given immediately the contract is perfected. But unless it is given immediately, the one promising can retract his consent; nor is that retraction judged harmful to the other.

But when an agreement is carried on between absent parties, by letters, by telegram, by messenger, the matter, because of the damage which retraction can bring to the party who was ignorant of it or did not fear it, becomes less clear; and even among jurists themselves it is controverted, when positive law does not explicitly define the matter.

The classical doctrine, received for a long time, alleged the very essential nature of a contract in order to permit to the one promising revocation before the acceptance of the other, unless he had manifested a different intention of binding himself, and this had been accepted by the other party. Thus still Pacifici-Mazzoni, op. cit., IV, § 47, who nevertheless bind the one retracting to pay damages, if the one accepting the promise, whose revocation he was ignorant of, had thereby been injured.

Today, however, not a few contend that the one promising, at least implicitly (unless he expressly says otherwise), by the promise itself, is obliged to await a response given in due time. This, unless a day is fixed, must be given immediately between those present, but among absent parties during the time of normal expectation. (Cf. Colin and Capitant, op. c., II, p. 270 ff.). Observe, however, that a promise is not reputed perfect before it has reached the other party, so that by a telegram which arrives sooner, or even with letters which arrive at the same time as others containing the promise, the promise can be made null or be revoked.

Many also in the same way permit to the one accepting that, before the message has arrived, he may efficaciously revoke the acceptance. Otherwise one must say, of itself, if the contract is judged perfect from the acceptance once dispatched.

When absent parties make an agreement, the Austrian Code, § 862, saving an express stipulation, obliges the one promising to await within 24 hours the response of the other party who is in the same place; but if he is in a different place, for twice the time necessary for sending the response. But the Brazilian Code (1081-1086); the German (130 and 145); the Swiss (C. obl. 3-10) explicitly sanction the opinion which we were calling modern.

n. 419.

2. From what moment is a contract judged perfected?. Does it suffice for the perfection of the contract that acceptance has been made, or is it further required that it become known to the one promising; indeed, that it be suggested or intimated to him by the one accepting or by a mandatary?

I. That merely internal acceptance does not suffice is clear of itself, since merely internal consent cannot change juridical relations of men.

But, from the law of nature, from acceptance expressly or tacitly manifested (which, among absent parties, can be understood of acceptance dispatched, e.g. through the postal service), a contract is of itself perfected. (Concerning this matter, Carriere, De Contractibus, I, 31-34.) Of itself, I say; for the parties can defer the mutual obligation, e.g. until they have signed the instrument. They will rather easily have this will if from the beginning they wished to write the contract. Wherefore the Code of Germany, art. 154, declares that in doubt parties who have agreed about drawing up an instrument are not bound before the instrument has been made.

n. 420.

II. What Positive Laws Establish. 1. In Latin law, at least of Italy and France, controversies are not lacking which ought to make a theologian cautious in responding. Nor do the laws themselves agree. Omitting, however, certain contracts for which, as for donation, in French law the intimation of acceptance is explicitly required, they are accustomed to distinguish unilateral agreements, which are perfected by acceptance (Pacifici-Mazzoni, IV, p. 161), and bilateral agreements, which are not judged perfected until the very intimation of acceptance has reached the one promising. In this matter they adhere to the opinion of C. de Lugo, Iust., d. 22, n. 27. The Code of Spain, art. 1262, explicitly establishes this. But one must also attend to commercial laws and usages, which are accustomed to order a more expeditious conclusion of transactions. By the Brazilian Code, a contract is perfected from the acceptance once dispatched; nevertheless a retraction is useful which arrives at least together with the acceptance (1086).

German law agrees with Brazilian law (130, 151); yet it explicitly excepts the case if there was a usage of notifying the acceptance.
By English law the signification of acceptance is judged necessary for perfecting the contract. Yet if the one offering has expressly or tacitly admitted that the other may accept through letters committed to the postal service, that service is considered as the mandatary of the one offering, so that from the moment at which the letters of the one accepting have been handed over to it, the contract is perfected; nor does delay of dispatch or loss of the letters affect the condition of the agreement. - 4. The same holds in the U.S.A., but one who offers orally is not judged to have given such a mandate to the postal service. Wherefore, then, the contract will be perfected only from the moment at which the written response has arrived.

A real contract, however (loan for consumption, loan for use, pledge, etc.), has its beginning from the thing handed over or the performance made. But even before this the promises of making a loan, etc., will be valid, if they are contained in a true agreement.

n. 421.

What Does Supervening Death or Incapacity Effect?. If either the one offering or he to whom the contract has been proposed, before acceptance, either dies or becomes incapable, what is the law concerning the heirs or concerning those who represent the incapable person?

From the law of nature, the heirs of the one offering, no less than the one offering himself, can revoke the proposed contract. But what they have done expressly or tacitly must be examined. From the intention also of the one offering one must estimate whether the heirs of him to whom the matter had been proposed can perfect the contract by their acceptance, or whether the transaction must be wholly begun anew.

The canonical Code establishes nothing expressly concerning the matter. Therefore we are sent back to the law of nature and, according to c. 1529, to the civil law in force in the region where the question arises. Civil positive laws which deny that an obligation flows from the promise itself, as such, will generally establish that the transaction is ended by the death or incapacity of either party: thus Pacifici-Mazzoni, IV, p. 160, respond concerning Italian law; while by the Code of Germany, acceptance is not impeded of itself by the death or intervening incapacity of the one offering (i.e. unless a contrary will of the one promising is demonstrated).

n. 422.

Corollaries for Conscience.

Credence will have to be given to the party who wishes to use a positive law by which retraction is permitted or denied. Cf. also Ball.-Palm., Op. theol., III, 639.
He who by letters offers something, even by a gratuitous title, if he explicitly or implicitly awaits a response, is not judged to have wished to oblige himself before it is certain to him concerning the acceptance (Ball.-Palm., III, 638).
Since a contract is of itself an act concluded between the parties, if either party, unfaithful, contracts with a third party, he will be able to use a positive law which confirms the later agreement.
Goods which are publicly available for sale in shops are judged to be perpetually offered for the price indicated there. Wherefore a buyer entering the shop has a right that the goods be handed over to him for the proposed price.

It is not so certain that the same must be said about notices by which books or instruments are offered for a definite price, so that a contrary notice would not be sent usefully except before acceptance. Therefore in these matters one must act cautiously.

Although certain authors, especially before the Code, said that promises or donations made to a Church or to a pious cause were valid before acceptance, the contrary opinion, already before the Code, was more probable; and this holds much more now, since civil laws concerning contracts can of themselves be applied in ecclesiastical matters. Wherefore he who, before acceptance, has revoked a donation of this kind will practically be held to nothing.

What if the promise or donation is made immediately to God for a Church?

God is not for that reason judged to have wished to have the thing in His dominion as a man would, but a promise or offering of this kind is valid as a vow; nevertheless, before acceptance, this vow is not reserved, since there is no acquired right for anyone. Cf. Ball.-Palm., III, 634, who adds that donations of this kind in doubt are judged to have been made to God.

n. 423.

I. Concerning the Defect of Error. 1. How manifold error is distinguished. a) Principle. Consent is especially vitiated by error, so that of itself, as it were in the first sign of reason, every error by which consent has been determined invalidates the contract. For it takes away the voluntary, and a contract is a voluntary exchange of rights. Yet the very security which a contract ought to give to each party forbids that every error be attended to; so that the contracting parties are judged, by a virtual ratification, to renounce the benefit of many errors, and they ought to renounce it. Which errors are to be considered, and which are to be neglected, we are taught by various distinctions.

b) Distinctions. Substantial and accidental error are distinguished. The former affects the essence of the contract: whether its nature (a donation instead of a sale), or its cause (you return money as if received in a loan, and it was not given as a loan), or its object, which, of itself or because of the definition of the parties, is essential. Wherefore a quality which is principally intended pertains to the essence so understood (it is said to redound into the substance). Thus if you seek wine for sacrifice, aptitude for sacrifice will be essential. Another error is accidental. Yet it can give cause to the contract, if without such error consent would not have been given.

What error effects of itself. Substantial error of itself annuls the contract; not likewise accidental error (even if it gave cause to the contract), unless consent has been expressly or tacitly subjected to the quality which is falsely thought to be present, as to a condition without which not (I contract if such a quality is had).

Yet if that error gave cause to the contract, and flowed from the deceit or fraud of one party, the other party can rescind the contract at his own choice.

Indeed, even if no fraud has been committed, as soon as error was truly the cause of contracting, Lessius, Iust. c. 17, n. 33, and St. Alphonsus, L. 3, n. 715, give to the party who erred the power of withdrawing from the contract, provided, as Genicot, I, 589, III, aptly adds, that he keep the other party unharmed.

If the error was vincible, the damages thence arising will have to be repaired according to the degree of fault.

What error effects from positive law. Positive laws by no means ignore the distinction of substantial and accidental error, but describe it variously, and because of substantial errors they render the contract void either by full right or at least after the sentence of a judge. But modern jurists are accustomed to distinguish an error by which all consent is so excluded that the contract is absolutely null, as if one party thinks that he is receiving as a gift what the other wished to yield only for a price (error in negotio); an error which begets only relative nullity, which is pronounced or admitted by the authority of a judge, as if there is error in a quality altogether necessary for the destination of the thing; and an error with which the contract subsists. Cf. e.g. Colin and Capitant, I, 68; II, 277 ff. For the most part the error of one party suffices for invalidating the contract; yet it happens that only mutual error is attended to from equity, or that rescission is not granted to the one erring except with the obligation of paying the damages which he has brought upon the other party by erring rashly. (Cf. Pacifici-Mazzoni, II, § 137; IV, 49-54.) Some errors, especially errors of law, will seem less excusable to the judge. In the U.S.A. an error concerning the law of a foreign nation is equated with an error of fact.

Concerning error, canon 101 establishes these things: "Error renders an act void, if it concerns that which constitutes the substance of the act or falls upon a condition sine qua non; otherwise the act is valid, unless something else is provided by law; but in contracts error can give place to a rescissory action according to the norm of law."

Of what law? Of the civil law in force in the region, unless we are mistaken, because of c. 1529, by which, in ecclesiastical matter, those things are said to be observed, unless divine law or a different disposition of canon law stands in the way, which the civil law establishes in the territory. But before this canon 16, § 2 warned these things: "Ignorance or error concerning a law or penalty or concerning one's own fact or concerning a notorious fact of another, generally is not presumed; concerning a non-notorious fact of another, it is presumed until the contrary is proved." Yet these things do not directly regard contracts. It also helps to recall this from the law of the U.S.A.: if, because of mutual error, or the fraud of one party, the contract does not agree with the true intention of the parties, the tribunal will, from equity, reduce the contract to the true intention of the parties.

What the individual civil laws have disposed concerning the effect of error does not seem to be ours to pursue at greater length ¹. The chief point is that we keep these few things in mind for conscience. It is lawful to estimate the effects of error according to natural law. It is also lawful for him who is not guilty of blameworthy fraud to use the protection of civil law, whether for invalidating or for confirming the agreement. And the sentence of a legitimate judge must be obeyed.

¹ Cf. e.g. the French Code, 1109-1110; Italian, 1108-1110; Austrian, 871-875; Swiss (Code of Obligations), 23-26; Netherlandic, 1357, 1358, 1485; Portuguese, 656-665; Brazilian, 86-91; Code of Germany, 119-122. Notable is this provision of the German Code: that damage must be repaired by him who erred to the other party who was without fault and suffered damage thereby (art. 122).

n. 424.

II. Concerning the Defect of Fear. 1. Distinction. A contract is said to be made from fear, if without fear there would not have been agreement; it is made directly from fear, if fear has been instilled in order to extort consent; it is made indirectly from fear, if fear has been introduced for another end, so that the contract in itself is just ¹.

Effects, with the law of nature considered. Omitting fear which so disturbs the mind that it takes away essential deliberation, and fear from within, or from without but just, by which a contract is not vitiated, all first oblige the author of unjust fear to repair damages. Then, if the contract is made directly from fear from without and unjust, some now permit him who has suffered fear to rescind the contract, provided the fear was comparatively grave (with respect to the trembling person), or, if light, nevertheless gave cause to the contract and there is question of a gratuitous contract or one which, like betrothal, requires greater liberty. They establish this from equity. Others deny that the contract is invalidated, unless the other contracting party was himself to be blamed for the crime, at least as an unjust cooperator. If he was to be blamed, they make the contract rescindable at the will of him who has been affected by fear; indeed some, at least, make it null, provided the fear was at least comparatively grave. - Fear which was neither a sufficient nor a necessary cause of the contract does not vitiate it, but obliges to repairing damages. - Finally, if a contract is made indirectly from fear, the contract is not rescindable unless the other contracting party was to be blamed.

Those solutions rest upon this principle, that the voluntary is not taken away by fear; but that equity requires that the juridical effects of an unjust action, as far as can be done, be restricted.

Positive laws.

a) What fear effects in canon law, we said in I, 81-84. Here it will be enough to recall that a vow emitted from grave and unjust fear is invalid; likewise a renunciation of an office or benefice made from grave and unjust fear; a marriage which someone had to choose in order to free himself from grave and unjust fear; admission into the novitiate and religious profession made from grave fear. Cf. c. 185, 542, 1°; 572, § 1; 1307, § 3. Nor is the obligation of celibacy and of the canonical hours contracted by him who, compelled by grave fear, received a sacred order, unless, with the fear removed, he ratified the ordination (c. 211, § 1).

b) Latin civil law. The Italian and French Civil Code render contracts entered from respectively grave and unjust fear null or rescindable. They do not attend to the person who brought in the fear. Nor do they judge reverential fear grave of itself. Cf. art. 1108, 1111-1114 Cod. Ital., 1111-1115 Cod. Gall. Similar are the laws of Latin America, e.g. the Brazilian Code, art. 98-101; Portuguese Code, art. 666; the laws of the Netherlands (1359); of Switzerland (Code of Obligations, 29). Yet this Code, if the other contracting party was in no way to be blamed, obliges the party who suffered fear and wishes to withdraw from the contract to keep the other contracting party unharmed. But the Austrian Code (870-875) does not invalidate a contract made from fear, if the other party neither was an accomplice nor manifestly ought to have known the force inflicted.

c) The Code of Germany, omitting the distinction of grave and light fear, grants to those who have suffered fear an action by which, within a year, from a judge, if he estimates that the parties were moved by unjust fear, they can obtain the nullity of the act (arts. 123, 124, 318).

d) In the U.S.A. contracts from fear (duress) are rescindable.

e) By English law, contracts are rescindable at the will of the party who suffered fear, if the fear was instilled by the other party acting or as accomplice. If the other party is not to be blamed, attention is paid only to fear by which reason is disturbed. Contracts which favor the party having authority over another can, when this other petitions, be annulled, unless the father or Superior or physician, etc., demonstrates the full liberty of the other party.

¹ E.g. in order to placate a father, gravely offended and threatening on account of another matter, someone offers himself as spouse to the daughter.

n. 425.

III. Concerning the Defect of Fraud. 1. Notion. Labeo defines fraud: every cunning, deception, contrivance employed to circumvent, mislead, or deceive another (l. 1, § 2 D. De dolo malo, IV, 3).

Effect from the law of nature. Fraud does not touch a contract unless it begets error; then at least it induces the obligation of repairing damage.
Effect from positive law.

a) Canon law, c. 103, § 2, establishes concerning fraud the same thing as concerning fear.

b) Latin civil law. The Austrian Code (871-875), adhering to the law of nature, establishes concerning fraud in proportion to the error effected and to the other party being blameworthy.

By Italian law (1115) and French law (1116), fraud renders an agreement null when the other contracting party is to be blamed, and it gave cause to consent. In juridical acts which are not bilateral, e.g. in acceptance or repudiation of an inheritance, they admit that an act is vitiated by determining fraud, whoever is guilty. If both parties have used fraud of the same efficacy, "fraud is compensated between each party." (Colin and Capitant, I, p. 70; Pacifici-Mazzoni, II, § 138.) Similar things are had in the Swiss Code of Obligations, art. 28; of Holland, 1361; and in the laws of Latin America. Yet attention must be paid to whether or not fraud effected by either party is required.

For art. 969 of the Code of the Argentine republic bears this: "Fraud affects the validity of acts inter vivos, whether it was effected by the contracting party or by a third party."

Therefore observe that because of grave fraud a juridical act can be invalidated even if no substantial error has been admitted.

c) The Code of Germany establishes concerning fraud the same thing as concerning fear.

d) In the U.S.A. the right of withdrawing from the contract is granted to the party who has been deceived by the fraud of the other party.

e) The law of England gives the option of nullity to the party who has been induced to contract by the fraud of the other. Indeed, in certain contracts which are called of the utmost good faith (e.g. insurance, sale of land, attribution of shares of an industrial society), mere concealment or reticence concerning a notable matter, which the other party had a right to know, confers the faculty of rescinding the act (Slater, Manual, I, p. 482).

n. 426.

Concerning Lesion. 1. From the law of nature. Lesion, or the damage which a contract brings upon another, easily follows error, but does not constitute in itself a defect of consent.

From positive law, can. 1681, § 2, an action for two years is granted to him who has suffered from a contract a grave lesion beyond half by reason of error, for obtaining rescission of the contract. - Civil laws often are silent concerning lesion, or, in only a few agreements, especially in sale and division of inheritances, grant rescission, because of enormous lesion, for some time, in favor of the seller or the heirs. In the law of the U.S.A. lesion is not of itself a cause of rescission. Yet in a case of extraordinary damage, joined with the miserable condition of the injured party, the judge will be able, from equity, to grant rescission.

n. 427.

C. - How a Contract Is to Be Interpreted

— Natural reason counsels that an equitable interpretation of contracts is to be made, and the laws confirm it by their sanctions. Wherefore more than the letter, the intention of the parties must be attended to; - those making agreement are judged tacitly to have admitted whatever things, according to usages or laws in force, individual contracts carry with themselves: whether they knew them, or at least foresaw in a confused way that consequences of this kind pertain to the legal ambit of the contract: thus the obligation of providing eviction, which holds the seller; - because laws are more inclined to loosening than to binding, in doubts, regularly one must respond for the debtor against the stipulator. Cf. Cod. Italicum, art. 1131-1139; Gallicum, 1156-1164; Germanicum, 157, 242.

n. 428.

V. - Concerning the Obligation of Contracts — A. - Concerning the Principal Obligation

I. Who Are Obliged. 1. Contracts of themselves oblige only the contracting parties and those who hold their place: representatives and successors. - Yet an obligation can be strictly personal, which does not pass to heirs. That which passes is called real, and affects the patrimony. By the law which we use in Belgium, France, and Italy, any leasing of labor, and the obligation of a contract of society and mandate, is judged personal.

When a contract transfers the ownership of a thing, from it there follows for all a general obligation of preserving to each one his own. Nevertheless, a third party who in good faith receives from a donor or seller a corporeal thing or an anonymous title promised to another but not yet handed over, is preferred to him; and a contract concerning an immovable thing, before its registration, effects nothing except between the parties. Thus modern laws are accustomed to establish.

II. From what moment. The obligation arises from the moment at which the contract is perfected (cf. above n. 419). Although, however, a consensual contract is perfected from the moment of consent given and accepted, even before a writing is drawn up for proof of it, nevertheless the parties can defer the mutual obligation until that writing. Therefore one must see whether or not they wished to contract before that. In doubt one must respond rather for liberty. And when the instrument has been made, the obligation must be estimated rather from the instrument than from verbal declarations which were made before or afterward. Indeed, the Austrian Code, § 887, orders these to be disregarded.

n. 429.

B. - Concerning Various Secondary Stipulations

I. Concerning an Added Condition. 1. Notions. Contrary to other stipulations often added to contracts, a condition affects the very substance of consent. For this is the intention of the parties, that they subordinate a juridical change, which is the object of the contract, to some future and uncertain event. Yet the contract itself is perfect; neither party, against the will of the other, can withdraw from it, or make worse the conditional right acquired for the other. Often, though not always (as if you have promised money to someone if he is reduced to poverty), it contains a virtual promise of not impeding the effect. A properly so-called condition signifies a future and uncertain event; and it is suspensive, if the obligation depends upon it; resolutory, if the extinction of the obligation depends upon it. Suspensive: I will give you one hundred if you obtain the prize; resolutory: every year I will pay you one hundred unless my revenues have decreased below ten thousand. - It is called casual when its fulfillment is not in the choice of the one making agreement; to this is opposed the potestative. It is purely potestative: if I shall will; simply potestative, when it is necessarily bound to the voluntary deed of the one making agreement: if I shall have gone to Paris; mixed, when its effect depends both on the will of the contracting party and on the will of another person: if I shall have bought such a house. - A possible condition is one which can be done physically and juridically. Otherwise it is impossible. A condition concerning a forbidden thing is impossible when made in such a way that from it the agreement becomes one of base cause. Here distinguish a reward promised for sin and a penalty promised after sin.

In broader usage a condition signifies a present or past fact unknown to the parties, or even a future certain fact.

Effects. a) A purely potestative condition effects nothing. - b) A condition concerning a present or past thing immediately destroys or firms the obligation. - c) A condition concerning a future necessary thing, of itself, is held as not added. Sometimes, however, from the intention of the parties, it will have force as a day. "If father shall die" often signifies: "after the death of father." - A condition concerning a base or impossible thing of itself invalidates the juridical act to which it is opposed. Nevertheless, if the parties were ignorant that the thing was impossible, and were so disposed in contracting that, with the error discovered, they would have contracted absolutely, the contract will be, in the internal forum, simply valid.

From Roman law the Codes of Italy and France borrowed the norm by which impossible or illicit conditions, added to testaments, would be held as not added (art. 849): which French law also extends to donations. But many modern laws have by no means imitated Roman law. Therefore one must see what the individual laws of the country establish concerning conditions which are judged illicit or impossible. Thus the Brazilian Code, art. 116, holds physically impossible conditions as not written, while it establishes that juridically impossible conditions invalidate the act to which they are added. Nor must one attend less to what conditions are held morally impossible: suppose the condition "provided that the widow shall not have contracted other nuptials."

The disposition by which a condition is held as not added can be observed in conscience, since the law can supply consent itself. Yet if the contrary mind of the testator is established, execution can probably be denied, as something commanded from a false presumption. - What has been said thus far holds in canon law, because of c. 1529. Yet the Code disposes special things, outside the matter of contracts, concerning conditions in rescripts (c. 39-41); in elections (c. 169); in election by compromise (c. 172, § 3); in marriage (c. 1092, 2319); in the resignation of a benefice (c. 1486); in foundations (c. 1492); in renunciation of a parish (c. 2150).

d) A properly so-called condition which is suspensive: before the event, suspends the principal obligation, obliges one to await the event and to abstain from acts which would render the object of the obligation impossible. Wherefore, e.g., a thing conditionally promised cannot be alienated absolutely. Nor can the event itself be unjustly impeded. Here the intentions of the parties must be consulted. He who has unjustly impeded the event is held for damages. - When the event has followed, the contract passes into the absolute. In some Codes, e.g. of Italy and France, it is then judged to have been such from the beginning, yet in such a way that the parties, by their mutual consent, can impede that consequence. But that retrotraction is by no means commanded by the nature of a condition. Wherefore the more recent Codes of Germany (art. 158) and of Switzerland (Code of Obligations, art. 151-156) did not admit it, so that the parties themselves must explicitly declare the will of retrotraction; nor by that will can they prejudice the rights of third parties (cf. Colin and Capitant, II, p. 164-167). - e) A condition which has been resolutory impedes no effect of an absolute contract; but when the condition has been fulfilled, the obligation is destroyed, and the contract is resolved as if it had not been. Therefore that condition suspends not indeed the first esse, but the resolution of the contract.

Fulfillment of a condition. Of itself a condition must be fulfilled in its proper species or form. An equivalent does not suffice, unless the mind of the one placing the condition bears a different interpretation. Thus once they judged the condition "if you marry" to be fulfilled if the girl became a nun. He who owes conditionally can remit the condition.

In our positive law, in bilateral contracts this resolutory condition is understood: "if the other party does not stand by his promises"; so that the first party can either urge the contract or juridically obtain its resolution from a judge (who can grant a delay) (art. 1165, Cod. Italicus; 1184, Gallicus). The Portuguese Code, art. 709, establishes the same; and the Brazilian Code, art. 1092, gives a similar faculty, yet conceived differently.

n. 430.

II. Concerning an Added Day or Term. 1. Notion. A day or term is a future and certain event (at least certain as to whether, although not always as to when), from which not indeed the obligation but the necessary execution takes its beginning, or after which it ceases.

Distinctions. There is distinguished a day from which and a day to which; a day established in favor of the creditor, in favor of the debtor, in favor of each. It is presumed to have been added in favor of the debtor. A debtor who does not pay when he ought is said to be in delay.

A day is established for ending and a day for urging the obligation, so that, when the day arrives, the debtor is not freed but is to be blamed.

Effects. A day does not render the bond itself uncertain or future, but merely influences the beginning or end of necessary execution.
Renunciation or loss. He in whose favor it was established can renounce the day. Indeed, sometimes it is lost by the law itself, and payment can be exacted before the day, as if someone is compelled to make cession in court.

N. B. - In no law, after the day has arrived, is the day judged to be drawn back to the moment at which consent was given. Wherefore laws which do not even in conditions admit retrotraction of itself equate the day from which with a suspensive condition; the day to which with a resolutory condition. Thus art. 162 of the Code of Germany. It also has, in arts. 186-193, norms concerning the computation of time which are sufficiently similar to the norms afterward added in the canonical Code, c. 31-35.

n. 431.

III. Concerning an Added Mode. 1. A mode is a certain burden or charge imposed on him who acquires a right from the contract. E.g. I give you a thousand, but you will take care that every year five Masses are celebrated for me.

The effect must be measured both from the mind of those making agreement and from positive law. For a burden can sometimes be constituted without obligation of conscience: "I give you one hundred, but for honorable recreation"; sometimes under the obligation of mere fidelity: "I give you one hundred, but you will study." When from the intention of beneficence something is promised or given, with a mode added which is for the utility of the promisee, he will for the most part be held by no obligation, at least of justice. - Sometimes there is a strict obligation of justice of observing the mode, yet in such a way that, when it has been violated, the principal stipulation nevertheless stands, and, for the mode neglected, satisfaction merely must be made. - Sometimes, when the mode has been violated, the principal act itself is judged to be revoked: then the mode ceases in a resolutory condition of the donation, legacy, etc. Cf. Molina, Iust., I, d. 208; Lugo, Iust., d. 23, n. 111. - One must see what the laws bear, what the parties wished.

An accessory mode which is base or impossible, unless it is imposed as a condition, considered under natural law, is held as not added, and the act is simply firmed.

This is very worthy of note for conscience: that a donation or legacy made under a mode which is not fulfilled can be valid, indeed of itself is not invalidated. This more absolute firmness distinguishes a mode from a condition.

n. 432.

IV. Concerning an Added Cause. 1. Notion. A contract is said to be made under a cause when the end on account of which something is given or promised is explicitly added: "I give you one hundred so that you may buy books, because you are poor."

The juridical effects are to be estimated as in a mode. The principal intention of the stipulator under the cause must be attended to.

Thus a prince who gives money to a servant so that the servant can sit upon a horse, if he sought for himself the adornment of a servant riding, will be judged to have obliged the servant to have a horse; otherwise if he wished merely to consult the convenience of the servant. Hence he licitly keeps for himself money given for taking a carriage for carrying on business in a distant place, who, depriving himself of that convenience, made the journey on foot. But the vow of poverty will stand in the way so that a religious, using similar reasoning, may not expend otherwise the money which he thus saves.

n. 433.

V. Concerning an Added Demonstration. 1. Notion. A demonstration is had when, besides the necessary indication of the object, a more accurate description of a quality of the thing, of quantity, is added. E.g. I sell you this field, which consists of one hundred jugera.

Distinction and effects. According to the mind of those making agreement, the description can be demonstrative or taxative. If it was demonstrative, neither will falsity harm the contract, nor must a defect be supplied or an excess removed. If it was taxative, the error at least must be corrected, or the contract falls, if from this it appears that consent toward the same object was lacking.

A designation is judged to have been made taxatively by him who promises the thousand francs which are contained in such a chest; but demonstratively by him who sells such a field and describes it as consisting of so many jugera. But attention must be paid to positive laws.

n. 434.

VI. Concerning an Added Disjunction. 1. Notion. A contract is made under a disjunction when some option between two performances is left.

Distinction. An option can be established in favor of the debtor and also in favor of the creditor. When it has been established in favor of the debtor, a facultative obligation must be distinguished from an alternative one.
Effects. An obligation is called facultative when the stipulation was made concerning one thing only, but it is open to the debtor to substitute another in place of the thing promised. Then, when the promised thing perishes, without fault and delay of the debtor, nothing is owed.

When a disjunctive stipulation has been made concerning each thing, the obligation is called alternative. Then the obligation is not destroyed unless both things have perished, without the fault of the debtor and before he has been in delay. Nevertheless, in a gratuitous promise, as also in a vow, the destruction of one thing can render the execution of the contract or vow grave or burdensome, so that the one promising can withdraw from the contract. If the option has been established in favor of the creditor, when one thing perishes, the creditor can of himself seek either the other thing or the price of the thing which has perished.

The debtor will have to repair damages for blameworthy delay according to the general rules.

n. 435.

VII. Concerning Added Confirmations. To strengthen the force of agreements, principal stipulations are fortified either by a promissory oath, or by a penal clause, or by earnest money.

Concerning the promissory oath, treatment was given above, n. 193-204.
A penal clause, or penal mode, or stipulation of a penalty, can be added to a contract: a) to urge its execution, although no damage arises from delay or omission; b) to estimate beforehand and by mutual consent the damages which either defect of execution or delay are foreseen to bring.

A penalty of the former kind is not contracted without fault: and indeed theological fault, unless the parties have disclosed another mind. According to the more common opinion, it is not owed unless it is sought, and some permit payment to be deferred until the sentence of a judge.

The other penalty, if it appears moderate, is owed in conscience as often as damages would have to be repaired; nor must one now attend to the damages truly following, since an aleatory estimation has been made.

If it was promised for omission of execution, the creditor can urge execution in place of the penalty.

Earnest money designates certain things handed over by one party to the other on the occasion of some contract, whether as proof that the contract has been made: probatory earnest money; or for firming its obligation by the sanction of losing the earnest money: confirmatory earnest money; or for giving place to repenting and withdrawing from the contract: penitential earnest money.

…and 111 more passages — all of them are listed on the topic page.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 1 passage

Vol. II, Treatise XI. On The Virtue Of Justice And The Opposed Vices

St. Thomas, S. theol. 2, 2, q. 57 sqq.; St. Alphonsus, Theol. mor. lib. 3, n. 486-961. Dom. Soto, Lugo, Molina, Lessius, Billuart, etc., also published excellent treatises on right and justice. Among modern authors worthy of mention are Waffelaert, Tract. de iust. (Bruges 1885); Marres, De iust. (Roermond 1889, 2nd ed.); Vermeersch, De iust. (Bruges 1901), and very many others, whom it would be long to enumerate.

Order Of Things To Be Said. After the treatise on the virtue of prudence, it is necessary to treat of the virtue of justice, which among the moral virtues stands out under a twofold respect, namely of subject and of object. For justice is subjectated in the nobler part of the soul, namely in the will; but the other moral virtues reside in the lower appetite, as fortitude in the irascible appetite, temperance in the concupiscible appetite. Prudence, however, which resides in the practical intellect, is not a merely moral virtue, but also an intellectual one, as was said above, I, n. 457. By reason of object, justice stands out among the other moral virtues, since they are praised only according to the good of the virtuous man himself; but justice is praised, moreover, according as the virtuous man is well-disposed toward another,¹ and therefore justice is especially necessary for human society. The most noble virtue of justice has several potential parts, whose office is to render what is due to persons joined to us in a special way, for example, to God, parents, etc. From this it follows that the virtue of justice, with its potential parts, comprises almost all things which are commanded in the whole Decalogue, except the sixth and ninth precepts. But since clarity would be little served if almost the whole Decalogue were explained under one single treatise, we divide this Treatise XI into two sections, namely:

On right and on the virtue of justice itself.
On the potential parts of the virtue of justice.

¹ Cf. S. theol. 2, 2, q. 58, a. 12.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 472 passages

Vol. I, Pt. II, Sect. II, TREATISE VII: On the Seventh and Tenth Precept of the Decalogue

You shall not steal.
You shall not covet your neighbor's house ...
nor anything that is his.
(Exod., 20, 15, 17).

n. ¶838.

Things to be noted beforehand. The seventh precept, under the name of theft, prohibits any lesion whatever of the right which one's neighbor has in goods of fortune, and commands (indirectly) that each one show himself kind and liberal toward others. - The tenth is connected with the seventh precept, by which internal sins regarding the same object are forbidden. Hence, with the Roman Catechism (n. 14), "we advert that by the law of this precept it is forbidden to us that we greedily seek riches; ... but that, content with our state, whatever it may be, whether humble or exalted, we be satisfied."

It is not of our institute, in so broad a matter, to expound the several rules of law, in which there exist many varieties according to the various regions. - It will be enough to have handed down the principles of justice, especially according to natural law, with the principal dispositions of modern law indicated, and with places added where each one, at least insofar as there is question of the principal European States, will be able to learn the proper laws of his own country.

Obligation of Conscience Arising from Civil Law. We have already said (n. 151) that civil law is divided into old and modern.

The old law, or Roman law, ruled peoples through many centuries. Today the Austrians, French, Belgians, Spaniards, Dutch, Italians, Germans, and Russians are ruled by proper Codes. The English do not have a Code, but old laws founded in the feudal system.⁰¹
Roman law, although modern legislators have borrowed much from it, now flourishes nowhere. Therefore one must beware lest in our times we apply solutions of authors older than our century, which rest solely on this Law. But that these theologians may be read through more easily, we shall touch lightly in the present treatise on notions of Roman law as there is need.

As regards modern laws, to the question whether they oblige in conscience, the response must be made thus:

a) A civil law that transfers ownership or establishes rights on account of the common good obliges in conscience. Reason: civil law can determine the obscure matters of natural law, and order what is necessary for restoring peace, even in goods of fortune. This the Sacred Penitentiary recognized on January 21, 1873 (A. S. S., vol. 7, p. 211). Therefore he who violates, for example, the right of authors (cf. n. 856), the right of him who finds a treasure (n. 883) or a lost thing (cf. German Law, 965), or a right founded on legitimate prescription, sins against commutative justice.

b) A civil law that invalidates a juridic act (i.e. a human act from which a right is conferred or removed) on account of defect of a formality prescribed by law does not oblige in conscience. - See those things which we have already said in n. 168 seqq., and which we shall say in n. 1054, 1081, 1086, where there are examples.

c) Nevertheless, it is clear that an obligation in conscience is present if civil law invalidates juridic acts for this reason, that the things essentially required in every contract are lacking in them: for example liberty in contracting, due knowledge, etc.

This civil law invalidating juridic acts also obliges in conscience if the sentence of a judge accedes. This is required by the common good. - This obligation sometimes takes its origin from legal justice, sometimes from commutative justice alone. Cf. n. 933.

d) But a civil law that, as regards juridic acts, contradicts ecclesiastical law, for example as regards the marriage contract, etc., cannot oblige in conscience. - In these matters the Church alone is competent (cf. n. 149).

Note. a) Sometimes civil law declares juridic acts invalid by natural law to be rescindable. The authors think that here anyone can licitly follow civil law, which on account of the common good grants validity to these acts, until they are rescinded by the competent party. Thus, for example, the German Law (§ 119) names contracts entered with error as rescindable. Cf. Lehmkuhl, Das bürgerl. Gesetzbuch; Noldin, II, n. 356.

b) Often also civil law invalidates onerous contracts (sale, purchase, etc.) in contradiction to the law of nature. It can sometimes be admitted that these contracts do not have force in conscience. Reason: the contracting parties are judged to offer their consent only according to the norm of civil law.

Order of things to be said. We have already expounded above (n. 720) general principles concerning right and justice; therefore it remains that here we treat: 1. concerning the right of man in external goods; - 2. concerning lesion of right, or injury in external goods; - 3. concerning reparation of right, or restitution; - 4. concerning the transfer of right by the will of private persons, or contracts.

Vol. I, Pt. II, Sect. II, Tr. VII, DISSERTATION I: CONCERNING THE RIGHT OF MAN IN EXTERNAL GOODS

St. Thomas, 2. 2, q. 58-78; St. Alphonsus, III, n. 486-962; ed. G., II, beginning; Lugo, de Just. et Jure; Lessius, de Just., l. 2; Carriere, 3 vol.; Delama; Vermeersch, de Just.; Marres, etc. - The authors who in moral theology have written excellently concerning this matter should also be consulted: Aertnys, Konings, Lehmkuhl, Noldin, Gury-Ferreres, Genicot-Salsmans, Tanquerey, Berardi, Gopfert, Schindler, etc.

The perfect right of man in external goods is of two kinds: right to a thing and right in a thing.

n. ¶839.

Right to a Thing (jus ad rem), or personal right, is the reason which someone has that some thing become his; and therefore it gives an action, not against the thing, but only against the person; namely it effects that the debtor can, by the sentence of a judge, be compelled by the creditor to hand over either the thing itself or its price; but it does not effect that the thing can be occupied before the sentence.

Right to a thing is not only a hope of acquiring a good, but is a title, a way, a debt, by which right in a thing may be acquired. Such is, for example, the right of a legatee to a legacy left to him and not yet accepted.

That right to a thing may be acquired, a just title is sufficient, which is the cause and root of the obligation itself. This is either a contract or quasi-contract, or a delict or quasi-delict, or finally the authority of law. Hence this right will be treated most of all where there is discussion concerning restitution on account of unjust damage and concerning contracts.

n. ¶840.

Right in a Thing (jus in re), or real right, is that which someone has in a thing already his own, and therefore it confers a real action, i.e. the right of exclusively occupying, retaining, and vindicating it, into whatever hands it has come. Such is the right of ownership of property, concerning which we shall soon treat.

That right in a thing may be acquired and retained, these things are required: a) Existence of the thing; for no thing can be said to be obligated which does not yet exist, and perhaps will never exist. Hence a usufructuary does not have a real right in fruits to be gathered in the following year, because they do not yet exist. - b) Legitimate title; because right in a thing presupposes right to a thing. Hence a thief does not have a real right in the goods that he possesses by theft. - c) At least for the external forum, all other conditions are required which the laws of each region attach so that ownership of the thing may be transferred. Thus, for example, in Austria and in Germany, as in Roman Law, delivery of the thing is regularly required, so that a buyer, donee, etc., may acquire a real right. Otherwise in England, France, Spain, etc., where determination or designation of the thing in the individual generally suffices, as we shall see in its place.

Right in a thing does not differ from ownership of things, taken in the broad sense. Wherefore it will be enough to have expounded concerning this ownership: 1. the nature and species or parts; - 2. the object and subject; - 3. the mode of acquiring.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, CHAPTER I: On the Nature and Species of Ownership

n. ¶841.

Definition. Ownership, taken in the broad sense, is the faculty of disposing of some thing or action as one's own. - Defined thus, it comprehends both ownership of property, concerning which we must treat here, and ownership of jurisdiction, concerning which we treated in n. 138.

Ownership of Property is the faculty of disposing of a thing as one's own, insofar as the reason of law permits.

It is said: 1. of a thing, i.e. of the substance of the thing, or of some emolument of the same, or even of both; - 2. as one's own, i.e. for one's own advantage, others being excluded; - 3. insofar as the reason of law permits; for this faculty of disposing can be restricted, either by law: thus, for example, a minor, although he is owner of his goods, nevertheless cannot alienate them; - or by the will of a private person, the law not resisting: for example if someone bequeaths land to another, under the condition that the legatee not enjoy it except after a year (Lessius, l.c., c. 3, n. 1-9).

Division. Ownership is commonly distinguished into high and low. High Ownership, or public ownership, can be defined: the faculty that belongs to the supreme authority of disposing of the goods of private persons, for example of your field for constructing a road, the public good so requiring.

It is ownership improperly so called; because the state does not dispose of the goods of a subject as its own, but only by reason of public necessity or very grave utility: and that without acceptance of persons, and ordinarily with the citizen made unharmed (cf. n. 891). See Carriere, n. 19.

Low Ownership, or common ownership, is the ownership of private persons, to which the definition properly agrees. It is divided into full and half-full: 1. Full Ownership, or perfect ownership, is that which embraces all the parts of ownership, or the special rights contained in it: namely, property of the thing, advantage from use, and the right of perceiving the fruits. - 2. Half-full Ownership, or imperfect ownership, is that which lacks one of the aforesaid rights.

One is direct, or of naked property, which regards only the substance of the thing. Another is useful, which, without property of the thing, has either use or fruit, or conjointly usufruct. - To this belong the right of servitude, by which another's thing serves our thing, the right of pledge, for the security of a thing obligated to us, and similar accessory rights. - Possession is added, which is, as it were, the garment and sign of ownership.⁰²

Note. In some regions imperfect right is divided into direct right, which regards only the substance of the thing, and indirect right, which extends itself to the substance and to the usufruct, concerning which it can dispose exclusively. Cf. Austrian Code, 360; Delama, n. 18. - This right is limited either by law, or by the will of the owner.

Therefore these things come to be explained: 1. full ownership; - 2. ownership of naked property; - 3. usufruct; - 4. use; - 5. real or predial servitude; - 6. possession.

1. Full Ownership

n. ¶842.

Full Ownership is the legitimate power of disposing of a thing as one's own, for every use not impeded by law or pact. - For every use, not only for a determined use; not impeded by law, but permitted as valid, although perhaps prohibited as illicit.⁰¹

Therefore the owner can: 1. According to his own judgment, without injustice, enjoy, use, and abuse his own thing. He indeed sins by abusing it, for example by wasting the thing or destroying it without cause; but he violates only liberality. - 2. Alienate his own thing, either in whole (by giving, selling, exchanging it, etc.), or in part, for example by leasing it, pledging it, burdening it with a servitude, and generally by ceding any real right whatever in it. - 3. Repel immediately and at once by external force an unjust invader of the thing, according to the things said in n. 735. - 4. Reclaim his own thing from any possessor whatever, even one of good faith, through a judge, by promoting in court the action that they call petitory. The law, however, on account of the common good, excepts certain cases (cf. n. 1027 seqq.).⁰²

Note. Ownership can be common to several owners, for example in an undivided inheritance, in a common wall, etc. That condominium or co-property is subject, in various States, to various dispositions of laws.⁰³

2. Direct Ownership, or Ownership of Naked Property

n. ¶843.

Direct Ownership, or ownership of naked property, is that by which the property of a thing is had, without its usufruct.

The direct owner can do those things which the perfect owner can; but with the right of the usufructuary or user preserved. - He is not ordinarily deprived of every utility of the thing. Thus the law attributes to him part of a treasure found on his land by another; certain proceeds that are not counted among fruits, such as veins of metals, etc.⁰⁴

3. Usufruct

n. ¶844.

Definition. Usufruct is the right of using and enjoying another's thing, as the proprietor himself, while the substance of the thing is nevertheless preserved. He to whom this right belongs is called the usufructuary or fructuary.

It has been said: 1. the right of using and enjoying, i.e. of taking from the thing every utility that can be renewed; - 2. another's thing, whether movable or immovable; - 3. as the proprietor himself, namely in the sense explained in n. 842; - 4. while the substance of the thing is nevertheless preserved, both as regards matter and as regards form. For the fructuary does not abuse, nor can he change the thing, even for the better.⁰⁵

Fruit is whatever can be born and reborn from a thing. Law distinguishes fruits: 1. natural, which are born from a fruitful thing, either spontaneously or with slight work of man, as grass of meadows, offspring of animals, etc.; - 2. civil, which are acquired on account of a contract entered or by means of a civil obligation: for example annual revenues, the price of a rented house, etc.; - 3. industrial, which nature brings forth with the industry of man added, as crops, wine, oil, etc. Theologians call these mixed; but they call merely industrial those that are acquired by the industry of man alone, for example profit from money handed over for business (III, n. 610).

Natural and Industrial Fruits are divided again into those to be born and those born; - and these into pending, or perceived or gathered; - and these finally into existing or consumed.

Division. Usufruct is: 1. legal or conventional, according as it is constituted by law (for example the usufruct of parents in the goods of minor children), or by contract, for example donation, testament; - 2. proper or improper, according as there is discussion of things that are not consumed by use, as a house and garden, or of things that are consumed by use, as money, fruits already gathered.

The latter is called improper, or quasi-usufruct, because things consumable by use cannot be preserved, and therefore their substance is not preserved (as the definition requires), but only their value, which, when the usufruct is finished, must be returned to the owner.⁰⁶

n. ¶845.

Effects. The rights and burdens of the usufructuary are, generally, the following:

I. Rights. 1. That from the beginning he make his own all natural and industrial fruits still pending, without the burden of paying for cultivation, seed, etc.; likewise civil fruits that then begin to be owed. But he has no right to other fruits. - 2. That he can give, lease, sell, or put under mortgage his right to another, provided the condition of the owner is not changed. - 3. That, when the time of usufruct has been completed, he himself, or his heir, alone take for himself the fruits already mature and separated; likewise civil fruits, acquired day by day according to the proportion of time, even if their payment had been delayed justly or unjustly.⁰⁷

II. Burdens. The usufructuary must use the thing as a good father of a family, and return it to the owner in a state presupposing and following good administration.

Therefore: 1. At the beginning of the usufruct, he is held to make an inventory (indeed to give security in France), unless he is exempted by law (as, for example, parents with respect to minor children). - 2. During the usufruct, he is held to minor or conservatory repairs, to annual burdens (taxes), to cultivation, to expenses for lawsuits moved concerning the enjoyment, etc. - 3. When the usufruct is finished, he indeed cannot demand compensation for himself for cultivation or a building made; but he can remove all ornaments added at his own expense, yet on this condition, that the things be restored to their former state.

Note. Usufruct ceases: 1. By natural (or civil) death; because the right of the usufructuary is personal. - 2. By the destruction of the usufructuary thing, likewise by total change, for example if a meadow becomes a pond; because from this part the right is real. - 3. It ceases when the time set by law or pact has elapsed; - by non-use, prescription acceding; by renunciation of the fructuary, provided it does not happen in fraud of creditors; - by consolidation, i.e. if the fructuary becomes owner of the thing; - by abuse, with the sentence of a judge intervening.⁰⁸

4. Use

n. ¶846.

Use, as it is taken here, is the real right of using another's thing, while its substance is preserved.

It is said: 1. Right; and thus it differs from use of fact, which is the actual use of another's thing, revocable at the nod of the one granting, such as, for example, is granted to religious. - 2. Real, i.e. affecting the thing itself, which is subject to use. - 3. Of using, which word does not sound the same as that other word, to enjoy. For to use signifies to perceive from the thing only that which necessity requires; but to enjoy means to perceive all things that proceed from the thing.

I. The rights of the user are determined by convention or law, but are restricted to personal necessity.

Wherefore: 1. The right of using extends only to those things that are necessary for the user and his family (even children to be born and guests), according to their condition, for daily use. - 2. If the user has received, at the beginning of the year, those things that were necessary to him for the whole year, and dies before the end of the year, the heirs must restore what remains to the proprietor. - 3. The user cannot transfer his right to another, unless it is clearly evident that such a faculty was granted.

II. The burdens are the same as those of the fructuary, but only according to the proportion of fruits which the user perceives. - Use can cease in the same manner as usufruct.⁰⁹

Note. To use are referred: 1. Habitation, i.e. the real right of using for one's own need some habitable part of another's house. - 2. Taking Wood (lignatio), i.e. the right of gathering dry wood (or even green wood according to the custom of places) in another's forest, for example of the nation or municipality.¹⁰ - 3. Pasturing (pastio), i.e. the right of leading cattle into another's pastures, for example after haymaking (cf. n. 910, 5).

5. Predial Servitude

n. ¶847.

Definition. Servitude, accepted generically, is a certain subjection, by which some thing or person must suffer something from another thing or person.

If a person lies subject and serves another person as a thing, there is had, in the strict sense, personal servitude, in which slaves, or bondmen, were among the Romans. - If a thing serves another person besides its proper owner, there is had mixed servitude or personal predial servitude (among moderns, simply personal), such as use and usufruct. - If finally a thing serves a thing, there is had predial or real servitude, concerning which there is discussion here.

Predial Servitude is defined: a real right constituted in another's thing, by which the owner is bound in his own thing to suffer something, or not to do something, for the utility of a third party.

Division. 1. By reason of origin, servitude is either natural, or legal, or conventional; according as it arises either from the disposition of places, as the course of water; or from law, as the right of view, of drip; or from contract, for example of donation or conditional sale, etc.¹¹

In some places, however, servitudes arising from nature are rather recalled to limitations of property.¹²

By reason of mode, it is continuous or non-continuous; according as it can endure without an act of man, as the right of view, aqueduct, etc., or cannot be exercised without it, as the right of drawing water, of passing through a field, etc.

It is called apparent if it is openly declared by some external sign, for example the servitude of a door, of a window; non-apparent, if it lacks such a sign, for example the prohibition of building the neighboring house higher.

By reason of object, it is urban or rustic; according as it tends to the utility of an urban estate, i.e. a building erected for the sake of habitation, whether in a city or in a villa, and the garden annexed to the same; or of a rustic estate, i.e. a field, vineyard, meadow, stable of cattle separated from the house.

n. ¶848.

The rights and obligations of servitudes depend on the nature of the thing, on law, on convention.

He who actively has a right to a servitude can accomplish all works that are necessary for using and conserving it. - 2. If the fund for whose utility the servitude was constituted is divided, this servitude is owed to each part of that fund. - 3. The owner of the serving estate can do nothing by which the use of the servitude is diminished; and conversely, he to whom the servitude is owed can do nothing from which the condition of the serving estate becomes more burdensome.

Note. Predial servitudes are extinguished: 1. When the appointed time has elapsed, or the condition has been fulfilled. - 2. By express or tacit renunciation of the proprietor. - 3. By consolidation, by which the owner of the dominant estate at the same time becomes owner of the serving estate, or vice versa. - 4. If the thing can no longer serve, for example if the spring from which you could draw water is dried up. If, however, the thing returns to its former state, the servitude revives, unless prescription opposes. - 5. By prescription, or non-use, through the time required by positive law (cf. n. 899).¹³

6. Possession

n. ¶849.

Definition. In the broader sense, possession is called every detention of a thing. - But in the proper sense: possession is detention or insistence upon a thing as one's own, namely by the assistance of body and law.

It is said: 1. detention, i.e. the fact of apprehension,¹⁴ first or continued apprehension, by which the thing is constituted in the power of the possessor; - 2. of a thing, even incorporeal, as of a census, benefice, servitude, and similar rights, which are said to be quasi-possessed; - 3. as one's own, i.e. apprehension must happen with the mind of having the thing as one's own, even if perhaps it is known that the thing belongs to another. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a ward; - 4. by the assistance of the body; because possession does not begin, nor is it possession, unless a corporeal act intervenes, by which, either by foot, or by hand, or by eyes, or in another similar manner, the thing is apprehended in itself or in another thing in which it is judged to be contained; - 5. by the assistance of law, not because it is necessary that the law positively approve, but at least that it not resist: i.e. that it not declare the object to be removed from human commerce, or the subject to be incapable of possessing it. Hence detention of a thing placed outside commerce, i.e. of a public thing by a private person (or of a sacred thing by a layman), is not possession, not even of fact, the law prohibiting and invalidating it; but detention of a stolen thing (profane), although unjust, is nevertheless true possession of fact, because law does not impede that the detention of such a thing suffice for possession (Polman, 2. 2, n. 356 seqq.).

Division. 1. Possession, by reason of title, is just or unjust: just, if it rests upon legitimate title; unjust, if it is destitute of such title. - 2. By reason of the conscience of the possessor, one kind is of good faith, when the possession is reputed just by the possessor, even if perhaps it is not; another is of bad faith, when the holder of the thing knows the possession to be unjust. - 3. By reason of the mode of possessing, it is natural or civil or mixed. Natural is that by which someone occupies a thing by body and soul together, knowing or doubting that he is not the owner. Civil is that which, begun by the assistance of the body, is retained by the assistance of soul alone. Thus he possesses his own things who is absent from them, and is not cast down from the right of possession by another. Mixed is when someone by the assistance of body and soul actually possesses the thing in such a way that no one else retains civil possession of the same thing: this is the most perfect possession (Schmalzgrueber, in Decr., l. II, tit. XII).

Possession is acquired by true apprehension, fictive apprehension, and disposition of law. True apprehension happens either by hands, for example, the hand

being placed upon a movable thing; or by feet, namely by standing upon land which we contend to have as our own. Fictive apprehension is completed by an act which, from a fiction of law, is equivalent to true apprehension, for example by delivery of keys or of a document. Disposition of law sometimes attributes the advantages of possession without any apprehension of the thing.

n. ¶850.

Effects of Possession. Possession attributes certain advantages from natural law, and still greater ones from civil law. Cf. Vermeersch, Quaest. de Just., n. 255; Delama, n. 15.

I. From natural law, in doubt the condition of the possessor is better. To this pertains that rule of law (l. II, ff. Uti poss.): "Any possessor whatever, by the very fact that he possesses, has more right than he who does not possess." - And the reason is that, as was said at length above (n. 44), no one is presumed evil, and therefore no possessor unjust, unless it is proved. - Besides, this privilege of the possessor conduces to public peace and stirs the diligence of citizens in guarding their own things.

Hence: 1. In a petitory judgment (i.e. concerning the property of a thing) the possessor is presumed to be owner; and therefore the burden of proving is transferred to the petitioner. - 2. During litigation, the possessor must be retained in his possession until the right of the petitioner is proved. - 3. A legitimate possessor cannot be displaced except by another certain right. - 4. A possessor is disturbed illegitimately in his possession by private authority. Wherefore he can protect possession by himself and repel force by force. - Otherwise, he has in court an action that they call possessory, i.e. he can ask from the judge either that every molestation cease, or that possession already taken away from him in fact be restored to him.

II. From civil law, the possessor has the benefit of prescription, the right sometimes of acquiring fruits, etc., as will be explained in n. 890. - If possession itself is doubtful, in a possessory judgment he will prevail who, through the whole preceding year, possessed not by force, not secretly, not precariously. But if neither possessed in such a way, possession is to be adjudicated to him who at present detains the thing, or the thing is to be divided between both (cf. n. 945, 3).

Note. Possession is lost: 1. naturally, when someone is deprived of the thing possessed in such a way that it is placed outside his custody; - 2. civilly, when the possessor, even if he retains the thing with himself, has nevertheless cast away the mind of possessing it, or when law ceases to defend him in such possession; - 3. naturally and civilly at the same time, when he renounces or abandons the thing, with efficacious intention of no longer having it as his own, whether he does this freely or under compulsion.⁰¹

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, CHAPTER II: On the Object and Subject of Ownership

Cf. Encyclical of Leo XIII, December 28, 1878 (A. S. S., 11, p. 369), May 15, 1891 (A. S. S., 23, p. 641), concerning Socialism and concerning the condition of workers; besides the authors cited, Leroy-Beaulieu, Le Collectivisme, passim; Cathrein, Sozialismus, Moralphil., II, p. 124; Pesch, Die soziale Frage, III vol.; Biederlack, same; Weiss, same; Schrijvers, Man. d'Econ. polit.; Vermeersch, o.c., n. 231 seqq. and 529, where there is discussion of moral persons.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, ARTICLE I: On the Object of Ownership

n. ¶851.

The object of human ownership is all things that are subjected to man's use. Hence Scripture: You have subjected all things beneath his feet, sheep and oxen, etc. (Ps. 8, 8). But he gave the earth to the children of men (Ps. 113, 16).

Private ownership is founded in natural law, insofar as this postulates that things belonging to no one become the things of the first occupant, and that he be able to receive the fruits of his own labor. Moreover, ownership is altogether inviolable: 1. by natural law; for, with ownership taken away, society would be overturned: each one would wish to rule over all, to serve no one, and to be free from every labor; - 2. by divine law, as is clear from the prohibition of theft; - 3. by human law, both ecclesiastical and civil, which is wholly occupied in this, that it protect for each one the right of property (Salmant., tr. 12, c. 2, n. 1).

Therefore deservedly there was reproved by Pius IX (Encyclical Qui pluribus, November 9, 1846) the doctrine of communism and socialism, as "abominable and exceedingly opposed even to the natural law itself; once it is admitted, all rights or properties and even human society itself would be utterly overturned."

n. ¶852.

The objects of human ownership are divided in many ways:

There are internal and external goods. - External goods are all sublunary things placed outside man; internal goods are those that man possesses in himself and that accompany him everywhere.

These are of a diverse kind: for either they are not distinguished from man, as life, members; over these man has only useful ownership; or they proceed from man, for example actions: over these he has full ownership; or they are mixed, insofar as he himself concurs toward them by acts, although they are external, as reputation, honor: over these also he has full ownership, but to be limited in many things (cf. n. 753, 1198).

External goods are corporeal or incorporeal. - Corporeal are those that are subjected to the senses, as garments, land, a house; incorporeal are those that are perceived only by the intellect, and consist in some right, for example the right of enjoying, of using, an obligation assumed by the Public Debt.
Corporeal goods are divided into movable and immovable. - Movable are those that, their proper form preserved, can be moved in place; immovable, those that cannot be moved in place, because they adhere to the soil or to a house.

Moreover, in the new codes, the determination of things is often made minutely; rights themselves also, according to their nature, by determination of law, are referred to one or the other species.⁰² The word movables, if it is used alone, has a restricted sense; otherwise if it is opposed to immovables. The word furniture (meubles meublants) comprehends only movables destined for the use and ornament of houses and rooms.

Movable goods are subdivided into fungible and non-fungible. Fungible are those that can function in the place of other things, and thus can be equivalently substituted for them, provided they are of the same genus and the same quality. Things of this kind are oil, wheat, wine. - Non-fungible are those that must be handed over in their own proper nature, for example a painting.

To fungible things are to be referred those that consist in weight, number, measure; - likewise counted money;⁰³ - likewise things consumable by the first use, as bread, meat, wood for burning; but not regularly things to which detriment is brought from successive use, as garments, furniture.

Finally, external goods are constituted either in commerce or outside commerce. Things are said to be in commerce that, as they can be destined for private uses, so also can be brought into obligation, and be alienated and acquired. Outside commerce are (according to Roman Law):⁰⁴ a) things of divine right, i.e. sacred things and sacred places; b) common things, namely those whose ownership belongs to no one, but whose use belongs to all, as air, light, water; - c) public things, whose use pertains to all citizens, as rivers, ports, fortified citadels, and public roads. It must be said otherwise of other goods, for example fields, forests, and public buildings, which the state enjoys after the manner of private persons (cf. n. 872).

Note. In England, where the feudal system continues to flourish in many matters, a special mode of distinguishing goods also flourishes, which must be learned from authors who have written concerning English Law (cf. Crolly, o.c., n. 253 seqq.).

These things having generally been set down beforehand, it remains to inquire specifically: 1. concerning man's ownership over other men; 2. concerning the same man's ownership over the offspring of his own genius.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 1. On Man's Ownership Over Other Men

n. ¶853.

Principles. I. Man does not have full ownership of property over another man. For this ownership belongs to God alone (cf. n. 729 and 753). In no way can it be conceded that man, as regards personality, is directed to another as to an end. Hence the commerce of Black persons is illicit. Cf. Leo XIII, Constitution In plurimis, May 5, 1888, and Encyclical Letter Cath. Eccl., November 20, 1890.

n. ¶854.

II. Man can have useful ownership over another man, i.e. there can belong to him the legitimate faculty of disposing, for his own advantage, of another man's acts and of the fruits of these acts.

The reason is that any man has ownership of his own acts and of the fruits of his own labor, and therefore he can lease them to another, as happens in the state of service, or even, unless something opposes, alienate them in perpetuity.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 2. On Man's Ownership Over the Offspring of His Own Genius

The question regards both writers and ingenious craftsmen, who illustrate the arts, whether liberal or industrial, with new inventions.

n. ¶855.

Principles. I. From natural law, full ownership of his works or inventions belongs to an author or inventor, certainly before their publication, probably also after publication.

As regards works not yet published, the thing is clear of itself. Therefore he who publishes such things is guilty of theft. And the same thing seems to have to be said concerning him who would print the public lectures of a professor or the sermons of a sacred orator; because to teach publicly, or to preach, is not to publish one's work, to hand it over publicly in such a way that anyone can subject it to the press. Except if it is certain that the author is not unwilling.
Then, as regards works already published in public, certain authors judge that after publication the exclusive right in a work of genius is lost (ap. Vermeersch, o.c., n. 246). Others contradict this, saying: ownership and the right of further publishing remain with the author, who grants only the use of the published work (Noldin, II, 379).

At least it must be admitted to be consonant with equity that to any author there be attributed a right of property in the fruit of his labor or industry, and indeed an exclusive right, so that without his consent, or after him the consent of his heirs, no one can publish those works again in public (Carriere, l.c., n. 61). Since there was question of a thing too uncertain, it belonged to public authority to determine all things more clearly.

n. ¶856.

II. From positive law, after publication (provided certain conditions are fulfilled), a monopoly belongs to the author or inventor, which attributes a strict right as regards principal things, a less strict right as regards accessory things. This privilege is conceded by reason of the common good, both for fostering industry, and for compensating the expenses that often must be made, and for remunerating labors that yield to the common utility. Therefore civil law confers on authors a strict right both in the external and internal forum (Carriere, l.c.).

We distinguished between principal and accessory things. The principal thing in these laws is the prohibition of reproduction that would be made for taking profit, by way of commerce. Those who thus violate the right of the author act unjustly. - The accessory thing is the prohibition of reproduction that would be made by help of a machine for a restricted group, the prohibition of printing and diffusion in distant regions, or of translation into another language, the insertion of many parts into another work under another form and another title, according to, for example, Noldin, II, n. 379; Ami du Cl., 1910, p. 113. These accessory things do not certainly oblige in conscience. The reason is that the author, on account of this transcription and reproduction, does not suffer so appreciable a damage; besides, the fine imposed on transgressors is disproportionate to the delict.

In France, a privilege is granted to inventors of industrial arts for 5, 10, or 15 years, at the will of the petitioner, provided he pays a proportionate sum of money. He who has received such a privilege or patent of invention can call violators of his right into judgment; and unless the accused proves either that the patent was obtained by a false title, or that imitation does not exist on his part, the inventor obtains confiscation of the adulterated objects and compensation of damages. - As regards books, paintings, musical compositions, etc., the exclusive right of reproduction (of translation into another idiom and of sale) is granted for the life of the author, and for 50 years after his death. - The conditions for books are that two copies be deposited in the public archive of the prefecture, and that the certificate of deposit be retained by the author. - But the right is alienable in whole or in part, for example to a bookseller, with the right of the heirs preserved for the legitimate portion. Law of July 14, 1866.

In Italy, a writer who fulfills nearly the same legal conditions as in France likewise acquires for himself, for the whole of life, the exclusive right of sale together with the right of reproduction. If he dies before the fortieth year from the first edition of the work, his heirs enjoy the same rights until those forty years have elapsed. But when those have elapsed or the death of the author has followed, the work can be subjected to the press by others and exposed for sale, yet under this condition, that for forty other years there be paid to him who acquired the right of the deceased five per one hundred (as they say), namely from that price which is read inscribed on the several copies, and which was reported before civil authority. - The right of reserved translation does not extend beyond ten years from the first edition of the work. Royal Decree, September 17, 1882.

In Spain, to a writer, during life, and to his heirs for eighty years after his death, an exclusive and alienable right of reproduction is attributed. The same right is obtained by those who, with the author's license acceding, abridge a book or transfer it into another language. Code n. 428, 429; law of January 10, 1879. See Gury-Ferreres, n. 566 seqq.

In Austria, from the law of December 26, 1895, the right of heirs continues as regards all works for thirty years, as regards photographs for ten years. Privileges have been abrogated.

In Germany (from the Introductory law, n. 76), the same law does not flourish in the individual kingdoms. Commonly the privilege of authors is not extended beyond thirty years after the death of the first editor. Cf. Kurschner, Lexicon des deutschen Reiches v. Urheberrecht.

In England, there is granted to the author a right either for life and seven years after his death, or for forty-two years from the first edition of the work (Crolly, t. I, n. 654).

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 1. On the Subject of Ownership in General

n. ¶857.

Principle. Every and only intellectual nature is the subject of ownership. For intellectual nature alone can enjoy the faculty of disposing at will of some thing as its own. - Besides, ownership draws with itself the right of warding off those who, against one's will, would seize what is one's own. But only an intellectual nature can be unwilling.

Hence you will deduce: Infants are not incapable of ownership, nor even the insane; for the use of reason is necessary only for the exercise of right, but not for having radical ownership, as founded in the powers of the soul, which precede the use of reason; otherwise everyone who has given himself to sleep would become incapable of ownership. - Civil law agrees, which attributes to an infant even before his birth the right of possessing. French Code, 906; German, 1923, 2, 2109, 2178.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 2. On the Subject of Ownership in Particular

Positive law, for the good both common and private, has restricted the capacity of possessing that belongs to every intellectual nature. The capacity of ownership has been restricted in children under paternal power and minors, in wives, in moral persons (for example municipalities, convents, etc.), in those civilly dead and interdicted, in religious and beneficed clerics.

There will be discussion of those civilly dead and interdicted in n. 1042, of religious and clerics in n. 2156, 2245.

1. On the Ownership of Children Under Paternal Power

The goods and rights of children under paternal power (and of other minors) vary greatly among various peoples. We shall here relate the principal laws that exist concerning this matter (recall the things said concerning distinction of persons, n. 698). Since these various laws establish rights for the common good, they oblige in conscience (cf. 838, 1).

n. ¶858.

From Roman Law, in the goods of children under paternal power there are distinguished: 1. camp goods, which the son or ward acquires for himself from military service, or on the occasion of military service; to which quasi-camp goods come nearest, which he acquires from civil service or from public offices, for example of judge, advocate, lector, physician, cleric, etc.; - 2. adventitious goods, which come to a son under paternal power either from his mother, or from the maternal line, or in consideration of his mother, or by another way, for example inheritance, donation, fortune (as if he finds a treasure), business with non-paternal goods, or in his own name, etc.; - 3. profectitious goods, which a son receives from his father, or in consideration of his father, or which he gains from the things of his father by doing business in his name (Doveri, Instit. di Diritto rom., l. 1, § 134).

n. ¶859.

From the new Codes, the goods of children are generally divided into a double class. The former comprehends goods obtained by children by labor and separate industry, or those that are given to them with the express condition that their usufruct not come to the parents. The latter embraces all other goods that come to children, for example by donation or by another similar title.

n. ¶860.

Moreover, as regards both these kinds of goods, one must diligently distinguish between direct ownership, administration, and usufruct. - 1. Direct ownership of all goods that come to children by just title pertains to them, although they are minors and not emancipated, since they are capable of such ownership. Just title is donation, inheritance, separate industry, etc. - 2. Administration of all goods is in the possession of the father or guardian, who must supply the incapacity or inexperience of the children, until they themselves are of age or emancipated. Those of age obtain full administration of their goods, but emancipated persons restricted administration. - 3. Usufruct belongs either to the children or to the parents, according as positive law establishes.

n. ¶861.

In France. Usufruct, generally, pertains to the father (or, he being dead, to the mother remaining in widowhood), until the emancipation of the children or the completed eighteenth year. From the proceeds, however, the offspring must be fed and educated according to their condition. - We said generally, because there are excepted: 1. goods that children obtain for themselves by their own labor and separate industry; - 2. goods that are given to them under the express condition that their usufruct not come to the parents. Civil Code, 384-387.

In Italy. Usufruct is conceded to the father or mother having paternal authority, until the children are of age or emancipated. It is lost by either parent who, after the death of the spouse, contracts new nuptials. Fructuary parents are held to procure for the offspring such education as is consonant with his fortune and condition. - There are excepted: 1. goods that children acquire for themselves by their own labor and separate industry; - 2. goods that are given to them with the condition annexed that the parents not perceive usufruct; - 3. goods that come to them, according to the disposition of law, while the father dissents. Code, 228-239.

In Spain. Usufruct is generally conceded to the father (or mother having paternal power). There are excepted a) goods that are given to children so that they may serve for their education; - b) goods that children acquire by separate industry, if with the father's consent they live at their own expense outside the paternal home; - c) goods of children who have been recognized or adopted; indeed the father cannot even administer the goods of these unless security has been given (Gury-Ferreres, n. 545). Code, 160-162, 166.

In Austria. Usufruct belongs to children even minors and not emancipated, the expenses of education nevertheless being deducted. And although a son not yet emancipated does not have the administration of his goods, nevertheless he can freely (and therefore also validly, if nothing else opposes from another source) dispose: 1. of goods acquired by his own industry, provided he himself does not receive support from his parents; 2. of goods that are attributed to his use, provided he is pubescent (Delama, n. 37). Code, 149 seqq.

In Germany. The new law distinguishes the goods of children under paternal power into free and not free. - Those are called free: 1. which children have obtained for themselves by their own labor and separate industry; - 2. which they have received by gift, the parents being excluded from usufruct; - 3. which, by living sparingly, they have set aside from goods that had been conceded to them in full power for living, while they lived outside the paternal home. - All the rest are called not free. The father has the usufruct of these with administration, until the time at which the son passes out of paternal power. The usufruct of free goods belongs to the son, but administration to the father or to the third person to whom the author of the goods committed it (Pelt, o.c., p. 34 seqq.). Code, 1617 seqq.; 1649 seqq.

In England. Usufruct pertains to the children. But whether the expenses of education must be refunded from the goods of the father, or from the goods of the children, the tribunals are accustomed to decide according to the circumstances of the case (Crolly, n. 456-465).

n. ¶862.

Special Questions. It will not be beside the matter here to institute discussion both concerning the right to wages that children acquire when laboring for their father, and concerning the right in small and movable goods that they receive from parents or kinsmen.

I. Concerning Labor in the Paternal Home. 1. A minor son does not have a strict right to wages for ordinary labor that he performs for the advantage of the family; but he possesses that right for extraordinary labor. Reason for the first: parents can by right require that he labor for conserving and increasing the domestic estate; this labor of minors is owed from piety. - Civil law also agrees, for example German Law, § 1617. Reason for the second: extraordinary labor (i.e. that which exceeds the expenses of living, or by reason of age or condition is not owed) is equated with labor undertaken by strangers, and therefore it merits wages. Cf. St. Alphonsus, III, n. 488, 544, 810; Lugo, o.c., disp. 5, n. 42; Delama, n. 34, q. 1.

A son of age, for labor even ordinary, of itself merits wages: for they are owed to a stranger; hence, by parity, to a son of age. But it must be considered that a son of age is sustained by his father, that by his labor he also amplifies the father's estate. From this it follows that the wage owed to the son often must be diminished, namely with expenses for food, clothing, and habitation deducted, and with attention given to the hope of inheritance.

Note. Some authors attribute to the son, even a minor, a strict right to wages; others deny that a son of age possesses a right to salary for ordinary labor. Cf. the diverse opinions apud Tanquerey, II, n. 149; Noldin, II, n. 354; Lehmkuhl, in Theol. mor. and in Cas. Consc.; Delama, l.c. ad 1. Besides, some civil Laws (for example German Law, n. 1617) in general deny children a right to wages. - From this it follows: parents do not act unjustly if they do not increase the inheritance for laborious children; but children who, before the separation of goods, have set something aside for their labor, after the fact are not to be compelled to restitution, especially if other children contributed nothing toward increasing the domestic estate. But since the right to wages for ordinary labor, on the part of children of age, is not altogether certain, before the fact there is not securely present a right of compensation (n. 917).

II. Concerning Labor Outside the Paternal Home. 1. A minor son laboring outside the home, and hired out by the father, labors in the name of the father. Therefore the profit that he acquires seems to be a profectitious good, pertaining to the father. Reason: the same debt of piety, which we indicated above, flourishes here. Nevertheless, he does not certainly sin against justice if he retains something. Cf. German Law, 1651.

A son hiring out his own labors makes the profit his own. He would be held from justice to pay something to his parents if he were living at the expense of the family; from piety if the necessity of the parents were present.
A son doing business in the name of his father makes his own only that which he has gained from special industry, even if by theft he had procured his father's money for himself. Indeed, in this last case, if namely he intends to do business in his own name, the whole profit is to be ascribed to the son (Lehmkuhl, I, n. 565).

III. Concerning the Right in Goods Received. 1. In goods that are not immediately consumable by use, as garments, books, etc., a child under paternal power possesses only useful ownership; for, from common sense, the child, as regards those things, does not receive property, but only use. Therefore he cannot without the consent of parents or kinsmen, at least reasonably presumed, sell, give, or alienate them.

In goods that are consumable by first use, as foods or money, if they have been given without any condition, a child under paternal power has perfect ownership: therefore he can dispose of them at will. - But if they have been given under some condition, for example of buying books, paying board, etc., he sins against justice by spending them for other uses.

Whether, and when, a child under paternal power is held to restitution, see n. 907.

2. On the Ownership of Wives

…and 432 more passages — all of them are listed on the topic page.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 303 passages

Vol. I, TREATISE ON RIGHT AND JUSTICE

NOTE. - Those things which in this treatise and in the following treatise On Contracts are alleged from civil laws, for the most part pertain only to the Common Law. For not all the laws of the individual States could be brought forward in this Compendium, nor even would they be brought forward with any utility, since in the individual States either derogation is made from the Common Law, or something is added to it, and they are changed equally from day to day. Therefore let the reader beware lest he think that these things, either alone or in all States individually, have force in all things; but let him also consult the laws of the places in which he is engaged in the Sacred Ministry. - Moreover let him observe that it has not been in my mind to form a Jurist, but a Moralist, for whom it is enough to know that concerning civil laws which is necessary for introducing for himself and for others a doubt, concerning which he may consult, or take care that consultation be made of, either books or jurists.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE AND PRINCIPLES OF JUSTICE AND RIGHT

That is, 1° concerning the general notions of justice and right; 2° concerning the principal species of right.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, CHAPTER I: ON THE GENERAL NOTIONS OF JUSTICE AND RIGHT

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. I, ARTICLE I: ON THE NATURE OF JUSTICE

n. ¶580.

Definition. - The name of justice is used in a multiple sense, even in Sacred Scripture, and signifies 1° the complex of all virtues; 2° charity or sanctifying grace; 3° generally a right act; 4° any good habit; 5° finally the special virtue from the four cardinal virtues, which is defined by St. Thomas¹ as "a habit according to which someone by a constant and perpetual will renders to each one his right."

It is said 1°: "a habit," or a constant and perpetual will, as the definition pursues. Cf. n. 247.

It is said 2°: "by will"; for this is the subject of justice: "for we are not called just from the fact that we know something rightly" (namely what is to be rendered to each one), "... but we are called just from this, that we do something rightly" (or that we actually render to another his own right): "but the proximate principle of act is the appetitive power"; in the present matter not the sensitive, but the rational, power, or the will.¹

It is said 3°: "his right," i.e. the very thing which is owed to each one. Hence "it is proper to justice, among" or besides "the other virtues, that it order man in those things which are toward another":² and therefore "the proper operations of justice are exterior operations according as they are ordered to another."³ For "justice imports a certain equality, as the name itself shows; for those things which are made equal are commonly said to be adjusted; but equality is toward another."⁴ Wherefore someone can be called just toward himself only metaphorically.⁵

It is said 4°: "renders": namely by conserving the right of another, or not injuring it, or, if it has been injured, by repairing it.

n. ¶581.

Division. - The subjective parts, or species, of justice are general justice, which is also called legal, and particular justice, which is divided into commutative and distributive. For in however many ways someone can be compared to another, so many species of justice must there be. But as far as the present matter is concerned, someone can be related to another in three ways: namely either as a part to the whole, as a citizen to the city; or as part to part, as citizen to citizen; or as the whole to a part, as a Superior or city to subjects. The justice which makes man right or just in the first way is called general and legal: general indeed, because it pursues and intends the good of the city or republic, which is a certain general good; but legal because it strives toward that general good through law, whose function it is to procure the common good.¹ The justice which rightly disposes man compared to man in the second way is called commutative; for it is concerned with contracts, exchanges, and commerce, which are accustomed to be exercised between private persons. Finally, that which directs man compared in the third way is called distributive, because it has place in distributions of common goods and burdens; for it effects that both goods and common burdens are distributed to private persons in right order and by right reason.² Now commutative justice observes simple or arithmetical proportion; but distributive observes comparative or geometrical proportion. Namely commutative justice brings in an equality of all things, such as is between thing and thing, so that what is rendered is entirely equal to that which had been received; for example, if someone has received four coins by loan, he is bound to repay four coins to the creditor. But the equality which is observed by distributive justice is not of this kind, except by a certain proportion, namely that one receive so much more than another as he excels him more in dignity or merit; and thus there is not equality of thing to thing, but proportion of thing to person. It is called geometrical proportion, because as merit is related to merit, so reward is related to reward, so that if one having merit as eight receives one hundred coins, one having merit as four receives fifty.¹ In like manner the distribution of burdens ought to correspond to the unequal capacity of those upon whom they are imposed. Wherefore, other things being equal, greater taxes are to be imposed on the richer than on the less rich.

Legal justice "is in the Prince principally and, as it were, architectonically," because by making law he prescribes the manner of contributing to the common good; "but in subjects secondarily and, as it were, administratively,"² because namely they execute and fulfill the law. Distributive justice likewise is principally in the Prince and electors; yet it is "also in subjects, to whom distribution is made, inasmuch as they are content with a just distribution."³

n. ¶582.

Vindicative justice. - Some add this to the three species of justice just mentioned. It is defined: "justice inclining the prince to punish the guilty with congruous penalties for the good of society." Neither does St. Alphonsus commemorate this as a distinct species of justice, nor does St. Thomas⁴ hold it as such.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. I, ARTICLE II: ON THE NATURE OF RIGHT

n. ¶583.

- Since it belongs to justice to render to each one his right, as is clear from the definition of justice handed down at n. 580, in this article what comes under the name of right must be explained.

Right is taken in various senses; for it signifies: 1) the very science of right or laws, those who cultivate which we call Jurists or Jurisconsults; 2) law or the rule of right, and thus divine right is spoken of, natural or positive, human, canonical or civil, of nations, etc.; 3) the very complex and system of laws, as when we say the Corpus Juris Canonici, Corpus Juris Civilis, Code of Law; 4) the sentence pronounced by a judge, although perhaps iniquitous, in which sense they say that a judge speaks right; 5) the very place or forum in which cases are conducted, in which sense the accused is said to be called into court.⁵

n. ¶584.

- Right, as it is taken here, is defined: "A legitimate moral faculty by which someone can do or have something in such a way that it is licit for no one to violate it without some injury."

1° It is a faculty. This, "according to the common use of speaking, signifies the power by which something is held at one's nod,"¹ or at one's own judgment.

2° It is a moral faculty, because it does not consist in physical force. Wherefore it cannot be diminished by the violence of anyone stronger. Cf. Syllabus p. XLV. n. 59, 60.

3° It is a faculty by which someone can do or have something, since the matter of right consists in actions, such as possessing, retaining, etc., and in things.

4° It is a faculty which it is licit for no one to violate without some injury; for otherwise that faculty would be vain and useless.

5° It is a legitimate faculty, because, when a just law is repugnant, nothing can be done or had by right. But law can be repugnant to a faculty in two ways, namely so that either it removes the faculty itself, for example of disposing of goods by testament, or renders the exercise of the faculty illicit, for example the prodigal squandering of one's own goods.

n. ¶585.

Title of right. - From what has been said it is understood what a title of right is: namely it is nothing other than the very reason why someone has a right or legitimate faculty of doing or having something, and why it is not licit for others to violate this faculty without some injury.

n. ¶586.

Division of right. - Right:

1° Is either objective, which others call passive, and is called the just thing, or that which is owed to another, or subjective, which others call active, and is the very faculty of doing or having something defined above.

2° It is either personal, or pertaining to a person considered in himself and immediately inhering in him, such as the right of preserving life; or real, or belonging to a person only on account of some thing which he possesses. Hence real rights can be transmitted from one person to another, according as this person succeeds that one in possession of the thing by force of which the rights exist, as, for example, the right by which a Bishop has power to make laws. - Real and personal right is also taken in another sense: namely the former for a right in a thing, the latter for a right to a thing, concerning which this number under 4° will treat.

3° One right is strictly so called, or strict without addition; another is broadly so called. The former, if it is taken objectively, is that "which is owed to another with equality of thing to thing, and which therefore cannot be violated without injury"; but the latter is that "which is indeed owed to another," but not with the said equality. Thus a seller "has a strict right in the price of the thing: therefore money is to be paid to him which equals the price of the thing; but parents indeed have a right to the obedience of children, but not a strict right; for what sort of obedience is owed to them cannot be defined by an adequate number."¹

Strict right by its nature is perfect. But perfect right is called a right which is joined with the right of coercing, namely of coercing him who would violate it, or lessen it, or disturb the use of it, so that he desist from violating it, etc.; and also of coercing him who has violated it, etc., so that he restore all things to their former state. Yet this right of coercion, if you except the right of repelling force by force, in a society rightly constituted passes into an action, i.e. into the right of reclaiming through a judge that which you think is owed to you. "In human society," says St. Thomas,² "no one has coercion except through public power." Yet it can happen that in fact no action is given from that right, for example because the proof which is required by law is lacking, or because the legislator denies an action to some special perfect right.³ Hence sometimes, as for example in hidden compensation, n. 709, 2° and n. 712, without imploring a judge, you licitly procure right for yourself.

4° Strict right is divided into right in a thing and right to a thing. A right in a thing is that which someone has in a thing already his own, or in a thing which is already bound to him in itself, and which therefore he will be able to vindicate from anyone into whose hands, against his will, it has come. A right to a thing is that by which we have not the thing itself, but the person obligated to us. Thus I have a right in a thing in my horse, and therefore I can vindicate it from any possessor into whose hands, against my will, it has come. But if I have bought a horse - where from law its handing over is required, so that it becomes mine - and the handing over has not yet been done, I can seek it only from the seller, but not from any other to whom the seller afterward sold and handed it over.

Corollary. - Since office or duty is said in order to right, duties can be divided in a manner corresponding to the division of rights. Wherefore some are personal, others real, this number under 2°; some perfect or legal, others imperfect or moral, this number under 3°.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. I, ARTICLE III: ON THE GENERAL PRINCIPLES OF JUSTICE

PROPOSITION I. Commutative justice obligates under grave sin, and with the burden of restitution.

n. ¶587.

The first part is proved. - For it is proper to justice to preserve to each one his right, and violation of another's right from its genus speaks a grave disorder. I said: from its genus, not from its whole genus; because in this matter smallness of matter is admitted, as is clear to all.

The second part is proved. - For justice regards equality of thing to thing; but an injury of this cannot be repaired except through restitution, or, as long as inequality remains, the obligation of reducing equality also remains; and the one injuring sins by preserving inequality, just as he sinned by inducing it.

PROPOSITION II.

The other species of justice, namely legal justice, distributive justice, and, if it pleases one to admit this as a fourth species of justice, vindicative justice, also obligate under grave sin, but OF THEMSELVES not with the burden of restitution.

n. ¶588.

The first part is proved. - For injury to these introduces grave disorder, and necessarily harms the order of society gravely.

The second part is proved. - For he who violates, for example, legal or distributive justice indeed acts against the common good, or does not preserve the due proportion in distributing common goods, yet he takes away from no one what is his, nor does he deprive anyone of a thing which is his. Therefore of itself he is not obligated to restitution.

I said: OF THEMSELVES not with the burden of restitution. For often commutative justice is joined to the others, and injury to it induces the burden of restitution. Thus a Superior, magistrates, and a judge are bound to restore when by grave negligence in punishing, or in assigning the unworthy to public offices, they are the cause why private persons or the community suffer grave damage; in which case they are guilty not only of not having procured the common good, to which legal justice inclines, but also of having violated the contract by which, by this very fact that they undertook the office, they tacitly obligated themselves to guarding against damages of subjects. Yet more probably he is not bound to restitution who distributes offices of society to the less worthy; because he does not violate the strict right of the more worthy, nor of the community, which by strict right cannot demand anything else except that the unworthy, from whom damage is to be feared, be kept from offices.¹ But otherwise if in a contest the Superior preferred the less worthy to the more worthy; because in a contest there intervenes a pact from which strict right belongs to the more worthy.

Nor is he bound to restitution who distributes merely honorific dignities - whether to the less worthy, or even to the unworthy; because he has deprived no one of his strict right, although he has sinned through acceptance of persons.

Here it can be asked whether and when, from the sentence of a judge, a strict obligation of justice arises?

Resp. 1° "The sentence of a judge produces an obligation of the same genus as the law itself according to which it is pronounced. Therefore ... in a penal cause it imposes an obligation of obedience, because penal laws are to be observed not from justice strictly so called, but from obedience, so that the fine or penalty imposed by a judge is to be paid not from strict justice, but from obedience."

Resp. 2° "That the sentence of a judge constitute an obligation of strict justice, it is required that the law itself, whence it has all its force, define the strict right of citizens, e.g. a just sentence of a judge concerning paying a legacy, in a singular cause judged, imposes upon the heir an obligation of strict justice, with the burden of restitution; but from the sentence of a judge rendered against parents or children according to a law which obligates from piety, an obligation of piety, without the burden of restitution, arises."

Resp. 3° "When from a certain law a certain obligation arises, the sentence of a judge does not 'wish' or at least does not 'have power' to remove it, e.g. if someone from a contract which is indeed certain but" which cannot be proved in the way prescribed by law, "owes a thing to another, the sentence of the judge which rejects the action ... of the creditor because of defect of legitimate proof in no way removes the obligation of the debtor to provide the thing agreed upon. But in a doubtful cause, whether there is doubt concerning right or concerning fact, it is licit with a safe conscience to stand by the sentence of the judge; for judges are constituted for this reason, that they may resolve doubts."¹

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, CHAPTER II: ON THE PRINCIPAL SPECIES OF RIGHT

The principal species of right are dominion, use, usufruct, and servitude.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, ARTICLE I: ON DOMINION

n. ¶589.

- Dominion is a perfect right, acquired through legitimate acts, of disposing at will of some thing and of its utility with the exclusion of others. - It is said:

1° Right (see n. 584).

2° Perfect right (see n. 586. 3°).

3° Acquired through legitimate acts. What those acts are, see below n. 638.

4° Of disposing: this word signifies three rights contained in dominion, namely:

a) The right of retaining or possessing the thing (concerning the notion of possession see n. 662): I say right, because the right of possessing a thing is to be distinguished from actual possession or the physical faculty of using and enjoying a thing; for legitimate possession can be lost while dominion and the right of possessing are preserved. Thus possession of a flooded field, or of a thing lost, or of a thing taken away by force or fraud, is lost, and nevertheless the right of possessing is retained; and this is not lost except from the express, or legitimately presumed, will of the owner.

b) The right of disposing of the thing as one pleases, so that he can change, consume, and alienate the thing; for "we are said to possess that which we have quietly and fully,"² and concerning which "we are able to do what we wish."³

c) The right of vindicating the thing, or reclaiming it, if perhaps, against the owner's will or without his knowledge, it has passed into the hands of others.

5° At will: yet this is not to be understood as if in civil society that right could not or should not sometimes be circumscribed by certain limits, as below, where there will be discussion concerning the dominion of children of a family, wives, etc., we shall see.

6° Of some thing, so that dominion of property may be distinguished from dominion of jurisdiction, which is referred especially to persons.

7° And of its utility: for the right of disposing of the utility of the thing is contained in the right of disposing of the thing itself, above under 4°. 2).

8° With the exclusion of others: therefore the object of dominion is not those things which are never exhausted by use, such as air, light, and the heat of the sun; for exclusion of others from these cannot even be imagined (n. 592).

Note. - Dominion is defined here as dominion taken subjectively and morally; understood objectively and materially, it is the thing itself of which someone is owner.¹

n. ¶590.

Division. - Dominion is principally divided into perfect or full, which in our law is called Fee simple if it is a question of immovables; if of movables, more commonly the complete and absolute ownership; and imperfect or not full, according as it is the right of disposing both of the thing itself and of its utility, or of only one of the two. But imperfect, or not full, is subdivided into direct and indirect or useful, according as it regards only the property of the thing, or only its utility. Thus an owner (the landlord) has direct dominion of an estate which he has leased to another; but the lessee or tenant has indirect or useful dominion.

They also commonly distinguish eminent dominion (the right of eminent domain) and lowly dominion. The former is called the right which supreme authority has of sometimes disposing, from a very grave cause, of the goods of private persons for the good of the community; the latter is the dominion of private persons.

The former properly is dominion only of jurisdiction, since the republic has no dominion of property in the goods of private persons, but only a right of administration, or the right of commanding when and how much from the goods of private persons is to be contributed to the common good. For the republic makes laws by which the dominion of private persons is governed not as supreme and universal owner of the territory, but as supreme administrator of the common good. "All things belong to princes for governing, not for retaining them to themselves," etc. St. Thomas, Quodl. 12. a. 24 ad 1.

That this right belongs to the supreme power is clear from this: that a right to an end necessarily implies the right to those means without which the end cannot be obtained. But the public good sometimes requires that someone be deprived of his thing, for example of a field for constructing a public road, etc.

But in the use of this right, not the utility of private persons, but only public utility is to be considered, nor is it licit to take away from someone what public utility does not require: "nor shall private property be taken for public use without just compensation."¹

We must treat 1° of the object; 2° of the subject; 3° of the acquisition of dominion.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § I. On the object of dominion

Goods, as objects of dominion, are 1° internal or external; 2° of soul or of body; 3° of reputation and honor; 4° of the person, i.e. of liberty and independence in those things in which man, as an individual, is his own right; 5° of fortune.

n. ¶591.

Principles. - I. Man has useful dominion of the goods of soul and body which are naturally inalienable; God has direct dominion.² Cf. n. 461.

II. Man has direct dominion of the goods of the person, in the sense above under 4°; likewise of the soul, insofar as they are abdicateable without legal injury, though very often not without moral injury, i.e. without sin: namely of his free acts, indeed also of habits, whether natural or supernatural, such as virtues and graces; likewise of reputation and honor in the sense explained at n. 525.

n. ¶592.

III. The proper objects of dominion are goods of fortune or external things,³ provided 1° they can be subjected to the power of man and insofar as they can; and thus things not beneath the moon, such as the sun, moon, and stars, can be subjected to it according to their effects and influences, not according to themselves; 2° they are not inexhaustible in use, such as air, wind, etc., of which only the use or particles already exhausted by someone, not the things themselves considered generically, are objects of particular dominion (n. 599); 3° they are not outside dominion by law. Van Egeren.

n. ¶593.

- Goods of fortune are distinguished in our law in this way. Property is ... divided:

Into things real and things personal. Things real include every valuable thing of a fixed and immovable nature, and pass under the general description of lands, tenements, and hereditaments, or simply realty. Things personal include every valuable thing of an unfixed and movable nature, and pass under the general description of goods and chattels, or simply personalty: "There are certain things occupying a sort of intermediate position between the two, some of which are called chattels real, others fixtures";¹ to understand which, it should be borne in mind, that "although immobility is the distinguishing characteristic of realty, an indefinite duration of interest also enters into the idea; and therefore certain determinate interests in land, as leases for years, are called chattels real, because, although they have that immobility which is denoted by the term real, yet for want of an indefinite duration, they are treated as chattels." So also "there are various articles of personalty, which become realty by being annexed thereto; and these are called fixtures."²
Real property is again subdivided into things tangible and things not tangible. Things tangible include land and every corporeal thing permanently connected therewith to an indefinite extent above and below the surface, and pass under the general description of corporeal hereditaments, or simply land. Things not tangible include certain rights, privileges, or easements, annexed to land in the ownership of another, and pass under the general description of incorporeal hereditaments.³

For Louisiana, see "Civil Code of Louisiana."⁴

n. ¶594.

Questions. - Quaer. 1° Does man have dominion of his reputation?

Resp. See n. 525.

n. ¶595.

- Quaer. 2° Can man have dominion over another man?

Resp. 1° In the negative, as to direct dominion; for that belongs to God alone, as is clear from what was said at n. 591, and men are metaphysically independent of one another; or:

Resp. 2° In the affirmative, as to useful dominion, or the works of man. The reason is that any man is owner of his own work, and therefore can alienate it and hand it over into the dominion of another. For an owner can use and abuse his own thing insofar as the character of right permits.

Hence 1° by natural right man can sell himself to another, even in perpetuity, and indeed hand himself over gratuitously as to useful dominion of himself. For if he can confer upon another useful dominion of himself for some time, he can do the same in perpetuity, since he can cede all that of which he is owner. 2° Servitude, or a perpetual state of subjection by which someone is bound to provide all his works to another for sustenance, is not of itself repugnant to the law of nature. I say: his works; for servitude in the strict sense, namely that by which slaves properly so called are counted not among persons but among things, which the master can use and abuse, can be called licit in no case.

n. ¶596.

Note. - Although servitude has been abrogated among us, nevertheless it is fitting that confessors receiving the Confession, especially general, of former masters or slaves know the sins to which they were more commonly liable. Wherefore in this place we briefly enumerate them. Therefore I. As to masters:

1° They sinned and are bound to restitution, if any exercised the so-called traffic in Negroes, or cooperated with it, or bought for themselves as slaves those whom they knew had been unjustly despoiled of liberty. - Against so inhuman a trade various Apostolic Constitutions have come forth, namely of Paul III, Urban VIII, Benedict XIV, and lately Gregory XVI, Constitution In supremo Apostolatus, 3 Dec. 1839. And rightly indeed. For although someone, either from pact or his own renunciation, or, as formerly, by the law of war, or from delict or from just condemnation, or from birth from a slave mother, can sometimes be bound to hand over his works to another in perpetuity,¹ nevertheless he is unjustly forced to this where none of these titles can be invoked. But in the traffic in Negroes none of these titles can be invoked; for through it free men, against their own will and without any delict on their part, are carried away from their own regions and sold. Therefore:

I said: free men; for if it is a question of Negroes or others in servitude legitimate by one of the aforesaid titles existing, of itself that commerce is not absolutely illicit, because, once servitude has been admitted as legitimate, the master has a true right in the slaves, or in their works, and therefore can transmit it. I said: of itself; for either circumstances or civil laws can stand in the way.

2° They sinned because of circumstances standing against sale:

a) Those who by selling separated spouse from spouse, or offspring from parents, without grave cause. I said: without grave cause; which would have been present, for example, if a slave had been wicked, whom the master had tried in vain to bring back to good fruit, and from whom he feared death or some other grave evil.¹

b) Those who by selling a slave, especially a Catholic, cared nothing about seeking for him a Catholic, humane, and just buyer; for it was not licit for a master to cast the care of a slave upon just anyone at hand. Yet those would be excused who had sold to anyone at hand slaves from whom they feared death for themselves or their own, unless they were immediately dismissed from the house, provided nevertheless that damage was not inflicted on an unsuspecting buyer.² Those also are to be excused, as is clear of itself, through whom it did not stand that slaves were sold to anyone at hand, as if they had been sold at auction in the distribution of an inheritance, or by authority of law for punishing crimes or for satisfying creditors.³

3° They sinned who did not supply them necessary food and clothing; who did not care for the sick; who did not endeavor to relieve with remedies the old, or those otherwise no longer fit for labor.⁴

4° Those who selected or retained overseers whom they knew imposed harsher burdens upon bondmen, or treated them more severely and cruelly;⁵ and likewise those who, carried away by anger, flogged slaves for a light cause, or ordered them to be flogged, especially with danger to limbs or life.⁶

5° Those who did not leave to slaves the liberty of entering marriage and of using its rights, although slaves would not on account of this be drawn away from providing the work owed.⁷

6° Those who did not take care that the children of their slaves be baptized.

7° Those who did not provide for the salvation of the slaves themselves; of this kind were a) those who did not take care that they learn the rudiments of Christian doctrine, and that a supply of priestly ministry for receiving the Sacraments be made available to them; b) those who omitted every precaution for preserving integrity of morals among them, not taking care, for example, lest they use promiscuous sleeping together; c) those who fostered corruption of morals by their very bad example and wicked solicitations; d) those who favored the delicts of a female slave because of the utility that would come to them from offspring.¹

n. ¶597.

- II. As to former slaves. They sinned 1° who neglected the work enjoined upon them, or the care of things committed to them; yet they did not violate justice, but obedience owed to the master; for the actions of a slave are not owed to the master by the law of justice, as are those of a hired man, who receives a price for them.²

2° Those who stole from the master things other than common edibles; and these are bound to restitution, if they have the means from which they may repay, and unless by their works they seem to have repaired the damage inflicted.³

3° Those who ran around at night, so that they might visit women, and this not only because of immodesty, but also because of other crimes to the danger of which they exposed themselves.⁴

4° Those who lived in concubinage, whether simple fornication, or adulterous; and this simple or double.

5° Those who, when opportunity was offered, neglected to learn the documents of the faith and to fulfill the duties of religion.⁵

n. ¶598.

- Quaer. 3° Whether and by what right does man have dominion in the fruits of his industry and talent?

Resp. In the affirmative, and indeed 1° by natural right. For if a thing bears fruit for the owner, a fortiori this must be true of internal faculties, since nothing can be more proper to man.

Hence a) it is certain that both he who steals from the inventor of some art, for example whose machine has not yet been handed over to commerce, his secret and divulges it publicly against his will; and he who prints the manuscript work of another, are bound to restitution and compensation of damages; for a work remains under the dominion of the author or inventor as long as it has not been given to public use.

b) It is disputed whether he who has printed a book has, positive law being set aside, the right of impeding lest anyone commit it to the press and sell it with damage to the author or bookseller to whom the author has transmitted his right. Those who deny bring forward this reason for their denial: that a thing handed over to the community, as a book published in print is, by that very fact becomes of common right, and for the same reason neither would those be guilty of injustice who brought to light the public lectures of some professor or the sermon of an orator. Those who affirm respond to the reason of those denying: the natural right which all attribute to the author in the fruit of his talent cannot be exercised by him unless he hand over this fruit to the community; and therefore it is absurd to say that that right is lost through that very thing without which it cannot be exercised. Practically, this question is of lesser moment; for usage today everywhere has it that works published in print are committed to the press and sold by others in the case in which either the author neglected to do those things which are required by positive law in order to provide for himself, or positive law does not assist him, whether because it does not sanction the property of some genus of books, or because it denies its protection to books edited in another region.

Resp. 2° In the affirmative, also by the positive law of almost all nations. And indeed by a law passed by Congress among us provision is made that one who wishes to claim as proper to himself the right of a thing invented by himself (Patent right) deposit a model in the public office (Patent-office) at Washington. But one who wishes to have the right of publishing his own books (copyright) ought to deposit a copy in the public office of the librarian of Congress in the same city, and on the title page of the book committed to type, or on the page immediately following the title page, to state it in the following words: "Entered, according to Act of Congress, in the year by N., in the office of the librarian of Congress at Washington." He who desires to know more should go to Kent,¹ or Wells's Every Man his own Lawyer,² or New Amer. Encycl.³

If someone violates a privilege of this kind, a civil action is given against him. But although the inventor, or author or bookseller to whom the privilege belongs, does not bring a lawsuit, nevertheless the violator is bound in conscience to repair the damage inflicted on them. The same seems to be said whenever someone, by a certain change of a new machine or book, renders the force of the law and privilege void.¹

n. ¶599.

- Quaer. 4° Can seas and the ocean be subject to someone's dominion?

Resp. with Kent:² "Navigable rivers which flow through a territory, and the sea-coast adjoining it, and the navigable waters included in bays, and between headlands and arms of the sea, belong to the sovereign of the adjoining territory as being necessary to the safety of the nation, and to the undisturbed use of the neighboring shores. The open sea is not capable of being possessed as private property. The free use of the ocean for navigation and fishing is common to all mankind and the public jurists generally and explicitly deny that the main ocean can ever be appropriated."

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § II. On the subject of dominion

n. ¶600.

- The subject of dominion is the owner of some thing, or he whose some thing is.

Hence 1° to God alone belongs supreme and absolute, and therefore independent, dominion over created things, as Scripture cries out: The earth is the Lord's and the fullness thereof, the world and all they who dwell in it.³ Indeed he can communicate this dominion to no one, because it depends on creation and conservation, from which God cannot abdicate himself. Yet this does not prevent God from being able to communicate particular dominion to rational creatures, according to that: but the earth he has given to the children of men.⁴

2° On earth every and only man is capable of dominion. It is proved. "He alone can have a right who is capable of suffering injury ... but he alone suffers injury who suffers it unwillingly; but he ought to be unwilling not indeed by a will by which he wishes a thing to be his, but by a will by which he wishes to retain right to the thing itself, or to obligate others not to take it away. But brutes cannot have such a will, since they can know neither moral obligation nor turpitude; therefore they cannot be unwilling, just as they cannot give permission or transfer dominion for the same reason, because, since they do not know moral right, they cannot yield their own right. ... Therefore only intellectual nature, which can know objects of this kind, is capable of having dominion."¹

3° Nor are infants incapable of dominion, nor even the insane; for the use of reason, of which they lack, is necessary only for disposing here and now of goods, or for the exercise of right (n. 589), but not for having dominion, which is founded in the nature of man and his powers, not in the actual exercise of the powers. (a) p. 475.

We must treat especially of the dominion 1° of children of a family, - 2° of wives, - 3° public and national dominion, - 4° of colleges or corporations, - 5° of the Church and clerics. But concerning the dominion of Religious it will be said below in the Treatise on States, where the vow of poverty is treated.

Point I. On the dominion of children of a family.

n. ¶601.

- Children of a family are properly called in this place children of either sex born from legitimate marriage, or legitimated, and still subject to paternal power.

It is said: 1° Born from legitimate marriage, or legitimated. For the dominion of illegitimate children, if and insofar as it is not defined by civil law, is governed by natural right.

It is said: 2° Still subject to paternal power, or minors, not emancipated from paternal power. For although the obligations of children existing from natural right, and which exact offices of honor, love, and reverence toward parents, can never be dissolved, nevertheless this does not have place as to those which natural right does not impose forever, such as obedience, or which draw their origin from civil right alone.

n. ¶602.

- In Roman law various goods of children of a family are distinguished;² but since these distinctions are not found in the laws which we use, we set forth here only the dispositions of these. Hence:

n. ¶603.

- Quaer. 1° How many kinds of goods of children of a family are distinguished, and what right belongs to the father in them?

Resp. Among goods which come to a child of a family, some come from his own labor, others from another title, for example from inheritance, legacy, or donation. The father has the usufruct of these if either by law of the State,¹ or by the will of the testator or donor, this is assigned to him; but he has the administration² in every case, unless perhaps goods have been given or bequeathed to the son on this condition, that custody of them be committed to others and not to the father. But if the father has administration alone, the son who uses those goods against the will of the father or without his knowledge will indeed sin against the fourth precept of the Decalogue, but not against justice strictly so called: for in this case nothing of his own thing or of the fruits of the thing perishes for the father; for both the thing and the fruits of the thing, in the supposition, are the son's, not the father's. Yet in this case the son would sin against justice if the father also had the usufruct: for he would deprive the father of the part of the fruits owed to him.

The proper labor by which a son acquires goods is either private or common with the father. It will be private, if for example he carries on trade in his own name; if he exercises an art entirely diverse from the father's art; if he labors in a workshop outside the paternal house; if as a hired man he has hired out his work in his own name. Those things which the son acquires by private labor, with law forbidding this set aside,³ or with the father's consent, whether express or tacit,⁴ supposed,⁵ he acquires for himself, yet with the burden of compensating the father for the expenses of food, clothing, and shelter.

What if the son exercises a common industry with the father?

Resp. Setting aside a contract, for example of partnership, the son lacks right both to a part of the gain procured by his labor, because in this supposition he conducts the father's affairs only as helper or mandatary, and, if at least his labor is already compensated elsewhere by a just wage, to a stipend: for a double wage cannot be asked for the same labor. I say: if his labor is already compensated elsewhere by a just wage, for example by the increase of inheritance through equal labor of the brothers, or by food, clothing, etc., provided to him. Hence, that is, because of defect of compensated labor, he has a right to a stipend; and therefore he can demand it as owed to him by strict right, or, if from reverential fear or from another cause he has not demanded it, he can procure it for himself by hidden compensation, if his labor was certainly not owed. Such would be the case if either from his condition he was not bound to such labor, or by an indubitably extraordinary and undue excess he labored more with the father than the other brothers.¹

n. ¶604.

- Quaer. 2° Does a son have perfect dominion in movable goods given to him by parents or relatives?

Resp. 1° Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, as for example money granted for amusements (pocket money). Make exception if they are given for a determined use, as money for buying clothes or books, etc.

Resp. 2° If they are not consumable by first use, such as books, clothes, etc., the son generally has, that is, outside the case of consent of the parents either express or reasonably presumed, only useful dominion of them, because parents commonly intend to confer nothing else upon them. Wherefore, if the son disposes of these things against the right granted by the parents, a burden of restitution arises.

Point II. On the dominion of wives.

n. ¶605.

- By English and American common law, the goods of a wife can be said to be of three kinds, namely dotal, paraphernal, and common.

Under the name of dotal goods (Dowry or Dower) among us comes that which, according to the laws of each State, must be left from the goods of the husband to the surviving wife, namely, by common law, the usufruct of the third part of immovables during her life.

In Louisiana dowry "means the effects which the wife brings to the husband to support the expenses of marriage."¹

That which is termed by the civilians vidualitia, though we call it also dowry or dower, in the legal sense of the word is not a dower, but only that part of the goods of which the wife, after her husband's death, is heiress ad intestato, which, according to the common law, is the third of the personalty of the husband leaving issue, or a moiety, if he dies without issue.

n. ¶606.

- Paraphernalia are called those things which have been wholly reserved in the full dominion of the wife.

What these are from common law would be said almost uselessly, since the dispositions of common law concerning this matter have been changed in almost most States. Consult, if you please, Wells's Every Man, etc.² - But see the dispositions of common law, if you please, apud Kent.³ - For the law of Louisiana see Civil Code of Louis.⁴

Everywhere the following can be held as paraphernalia: both 1° paraphernalia strictly so called, or the wife's personal apparel and ornaments, suitable to her rank and condition in life; and 2° that which is called "pin-money," i.e. a sum payable by the husband to the wife, in virtue of a particular arrangement, and to be applied by the wife in attiring her person in a manner suitable to the rank of her husband, and in defraying other personal expenses. Finally 3° those things also ought to be held as paraphernalia which either by the laws of each State, or by antenuptial agreement, are reserved to the full dominion of the wife.

n. ¶607.

- Common goods among us can be called immovables which are given simultaneously to husband and wife during the marriage, or which are bought by them together. Concerning these our law establishes: "They" (the husband and wife) "are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole."¹

Except Louisiana, where "the partnership ... of acquets or gains ... arising during coverture" (i.e. while the marriage stands) "exists by law in every marriage contract in the State, where there is no stipulation to the contrary."¹ "The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property."²

…and 263 more passages — all of them are listed on the topic page.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 18 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal Virtue of Justice and on the Annexed Virtues

n. 131.

Introduction.

131. Order of things to be said. - Besides prudence, which disposes reason itself so that it may rightly judge and command all human actions in particular, in order to the honorable good and to the last end, there are three other cardinal virtues with the virtues annexed to them, which order the other powers and place the good of reason in them, so that all the movements of our appetite may be conformed to right reason and prudence, and thus may tend to the honorable good and to the last end.

n. 131.

But movements of the appetite 1) some are those which of themselves imply an order only to ourselves, namely, the passions of the sensitive appetite, of which a) some impel toward delectable good against reason, which temperance moderates and restrains, which removes the impediments of rectitude in the concupiscible appetite; b) others decline from the good and withdraw from that which reason dictates, against which fortitude strengthens the soul, which removes the impediments of rectitude in the irascible appetite; - 2) other movements are those by which we are also ordered to others, namely, operations of the will, which justice rectifies.

n. 131.

Justice therefore also regards the good of another, so that man may have himself well toward another; fortitude and temperance regard only the good of the one operating, so that he may have himself well toward himself; whence justice is more universal. And because it immediately perfects the will, which is nearer to reason, it participates more in the order of reason, and therefore we begin to speak of the cardinal virtue of justice.

132. Division of the treatise.¹ - The treatise is divided into six parts: 1. on justice in general; 2. on legal justice; 3. on commutative justice; 4. on distributive justice; 5. on the virtues annexed to justice; 6. on the precepts of justice.

¹ Lest confusion arise, we indicate only the division according to the large lines, referring, for the subdivisions, to the several questions.

The 1st Part treats of justice in general: 1st, of justice according to itself; - 2nd, of right, which is the object of justice: a) of right in general; b) of the species of right; c) of the object of right and dominion; d) of the subject of right and dominion; e) of the acquisition of right and dominion; - 3rd, of injustice and injury in general; - 4th, of the division of justice, or of its integral, subjective, and potential parts.

The 2nd Part treats of legal justice: 1st, of pursuing the common good; - 2nd, of procuring the common good; - 3rd, of the defense of the common good.

The 3rd Part treats of commutative justice: 1st, of its proper act, namely, of restitution in general; - 2nd, of justice and injustice in involuntary commutations: a) in the internal goods of soul and body; b) in the goods of marriage; c) in external goods; d) in reputation and honor; - 3rd, of justice and injustice in voluntary commutations or contracts: a) of contracts in general; b) of unilateral contracts; c) of onerous bilateral commutative contracts; d) of gratuitous bilateral contracts; e) of aleatory contracts; f) of subsidiary contracts.

The 4th Part treats of distributive justice: 1st, of judgment, which primarily and formally is an act of distributive justice; - 2nd, of justice and injustice in distributing goods; - 3rd, of justice and injustice in distributing burdens; - 4th, of justice and injustice in public judgments.

The 5th Part treats of the virtues annexed to justice: 1st, of religion according to itself; - 2nd, of the acts of religion; - 3rd, of sins opposed to religion; - 4th, of piety and observance; - 5th, of truthfulness; - 6th, of the remaining habits annexed to justice: gratitude, vindication, liberality, affability, equity, and the gift of piety.

The 6th Part treats of the precepts of justice.

133. Importance of the treatise. - The treatise on justice excels among the others, both 1) in breadth, because it treats of the cardinal virtue which, among the purely moral virtues, is the more principal in ordering morals and upon which almost the whole moral and social life depends, since the precepts of the Decalogue, according to St. Thomas, II-II, q. 122, a. 1, all regard justice; and 2) in difficulty, because it considers questions very arduous and yet of the greatest moment, especially in our times, when the means of communicating among men have become more numerous and intricate and infinitely varied.

Bibliography. - For justice itself, the following can usefully be compared: St. Thomas, in V Eth.; in I-II, q. 59, a. 4; q. 60, a. 1-3; q. 64, a. 2; in II-II, q. 57 and following, with the commentaries of Cajetan, Victoria, Bannez, Sylvius, and Billuart. Likewise St. Raymond of Pennafort, in Summa; Dom. Soto, De Iustitia et Iure; St. Antoninus, in Summa theologica; Cajetan, in Summula casuum, and in the opuscula; Concina, Theologia Christiana, t. VII, De Iustitia et iure; Lumbreras, De Iustitia, 1938.

Outside the school of St. Thomas, among the theologians of the Society of Jesus: Molina, Lessius, and Lugo, each of whom wrote a work de Iustitia et Iure; and Vermeersch, Quaestiones de Iustitia; and Theol. Mor., t. II; - Reiffenstuel, O. M., in Theol. Mor.; and St. Alphonsus, in Theol. mor., l. III.

Among the more recent authors: Carriere, De Iustitia; De Contractibus; Marres, De Iustitia; De Contractibus; Waffelaert, De Iustitia, tom. 2; and L'Obligation en conscience des lois civiles; Sweens, Institutiones theologicae de virtute cardinali iustitiae. Besides Ballerini, Opus theol. mor., vol. III; and the best-known manuals, such as Lehmkuhl, Genicot and Noldin; Marc and Aertnijs; Van der Velden; Haine, Theologia Mechliniensis, Mulier, Pruner, Tanquerey; Prummer, Goepfert, Mausbach, Schilling.

Likewise special works: Pottier, De Iure et Iustitia; Salsmans, Gerechtelijke plichtenleer; Van Roey, De Obiectis et actibus ad iustitiam pertinentibus; van Gestel: De Iustitia et lege civili; Van Egeren, Notationes de selectis materiis moralibus; E. Janssens, Cinq lecons sur la Justice; Michel, La Question sociale et les principes theologiques: Justice legale et Charite; M. St. Gillet, Conscience chretienne et Justice sociale; Rutten, La Doctrine sociale de l'Eglise; Lachance, Le Concept de Droit selon Aristote et S. Thomas; Faidherbe, La Justice distributive.

Among philosophical works: Goudin, Roselli, and Zigliara in the manuals; Taparelli, Droit Naturel; Meyer, Institutiones Iuris naturalis; Castelein, Philosophie morale et sociale; Droit Naturel; Cathrein, Philosophia moralis; Biederlack, Die soziale Frage; De Pascal, Philosophie morale; Schwalm, Lecons de Philosophie sociale; Lehu, Philosophia moralis et socialis; De Bie, Philosophia Moralis; Beysens, Ethiek of Zedenleer; Sertillanges, La morale de S. Thomas d'Aquin.

Among orators: Janvier, Conf. de N.-D.: La Justice et le Droit.

Ch. II, Section A. Concerning Cert…, Question I: Concerning Certain Sins Against Faith · Ch. II, § B. Concerning Certain Si…, Q. IV, And Concerning Restitution Due for Them

Finally, subsidiary works: Gousset, Le code civil commente dans ses rapports avec la morale; Allegre, Le Code civil commente a l'egard du clerge; Aubry and Rau, Cours de Droit civil francais; Beaudry Lacantinerie, Precis de Droit civil; Lehmkuhl, Das Burgerliche Gesetzbuch; W. Duynstee, Burgerlijk Recht en Zielezorg. Likewise Liberatore, Principi di Economia politica; Antoine, Cours d'Economie sociale; Brants, Les grandes lignes de l'Economie politique; Schrijvers, Manuel d'Economie politique with a preface by Father Rutten; Vliebergh, Staathuishoudkunde, and generally economists such as Paul Leroy Beaulieu, de Molinari, Cauwes, Gide, V. Fallon, etc.

Merkelbach, Pastoral Questions

Benedict H. Merkelbach, O.P. — 63 passages (filed under the subtopics)

Ch. II, Section A. Concerning Cert…, Question I: Concerning Certain Sins Against Faith

n. ¶4527.

IX. What concerning Socialism? - Similar principles hold for socialism, for socialists also admit the theory of liberalism, at least political liberalism, concerning the separation of religion and the State: liberals often are such in the merely political matter, but socialists in the economic matter. Moreover:

n. ¶4528.

Socialism which is called scientific adheres to atheism and materialism, so that on this side it is heretical.

n. ¶4529.

Economic but perturbative socialism, which admits collectivism or communism and violent means (a fortiori anarchism), was also openly condemned by the Church; hence good faith will be rare. (Cf. what was said n. IV.)

n. ¶4530.

Merely reformative socialism of itself is not necessarily hostile to the Church, yet in fact in our regions it is a party which is opposed to the Church; hence concerning it those things hold which we said concerning political liberalism (n. V and VI).

n. ¶4531.

Formal cooperation toward socialism, by which someone thinks socialistically, is gravely evil; merely material cooperation and even material aggregation to works, not only political but also economic, of itself is illicit, but by grave and urgent necessity it can be lawful, provided that there is no proximate danger of perversion in faith (n. VII).

n. ¶4532.

Hence: a) Let pastors and preachers not fail in the office of admonishing concerning the fleeing of bad societies and the avoiding of evil companions and papers.

n. ¶4533.

b) Those who are imbued with the principles of scientific socialism profess materialism and atheism, and therefore are to be held as sinning directly against faith.

n. ¶4534.

c) Those following the political party of socialists from conviction commit, of itself, grave sin: namely, good faith will rarely be present, unless perhaps in regions altogether dechristianized.

n. ¶4535.

d) Those enrolled in socialist syndicates are easily guilty because of cooperation, scandal, and the grave danger to which they expose themselves. Nevertheless accidentally it can be lawful for a time, if scandal is lacking, the danger of perversion is only remote, and there is an urgent necessity from which they could not free themselves, such as if a worker otherwise would have to bid farewell to the labor of his profession and therefore to his daily sustenance. Thus, unless the bishops of some region should judge otherwise and universally prohibit any aggregation whatever to the works of socialists. Then, namely, they would have to be obeyed, as judging authoritatively concerning the necessities and dangers of religion.⁷

⁷ Cf. Tessens in Vie diocesaine, Dec. 1921.

n. ¶4536.

e) Those workers who from good faith do not perceive the gravity of the offense of cooperation are of themselves to be admonished; nevertheless accidentally they may be left in good faith for a time, in a case in which the admonition is foreseen as not going to profit and scandal is lacking. Then nevertheless a general admonition should be made concerning avoiding the proximate occasion of sin and concerning suitable remedies by which they may be morally removed, such as conversation and association with good men truly Christian and the reading of good newspapers.

n. ¶4537.

Conditions and possibilities in this matter are not everywhere the same, but most diverse. Nevertheless, as far as they can, let the bishops wish to declare that in this matter insistence is to be placed rather upon rigor than upon benignity, and that indulgence is not to be given easily. Experience shows that from that great benignity it happens that always less and less can be obtained and exacted from the faithful, and finally the indifference or defection of many follows. Here also the axiom holds: Resist beginnings! Nevertheless there are sometimes circumstances in which benignity alone, at least for a time, can be fitting.

n. ¶4538.

X. Admonition. - The pastor and priests generally must abstain from frequent visitation of those liberals and socialists who are confirmed in error. But if some intercourse is necessary, let them not begin to speak about religious and political questions or to dispute about them; but if they are asked about these things, not indeed maliciously but sincerely, let them speak boldly, yet not too much or at greater length, but briefly, clearly, and solidly.

Ch. II, § B. Concerning Certain Si…, Q. IV, And Concerning Restitution Due for Them

n. ¶4875.

I. The question to be treated. - Sins against external goods are committed by theft, robbery, fraudulence, usury, and other unjust damaging acts, which are prohibited by the seventh precept of the Decalogue and are customarily explained sufficiently in moral theology. In practice, a special difficulty usually arises in the case of restitution; therefore we judge it opportune that this be inspected, especially as regards compensation in material goods.¹ We do not indeed deny that even from injuries committed against other goods, and from other precepts toward the neighbor besides the seventh, there can arise an obligation of restitution; nevertheless in practice, even then the principal obligation is usually reduced to material compensation in real goods, or at least frequently has that joined to it.

¹ Moralists may be consulted where they treat of restitution, especially St. Alphonsus in Th. M., l. III, tr. 5, c. 2; Marc, Aertnijs, Tanquerey, Genicot, Noldin, Prummer, Vermeersch in their manuals; Waffelaert in his work De Iustitia; Reuter, Neo-conf., n. 232-235; Berardi, Praxis-conf.; Aertnijs, Th. P., n. 84-87.

n. ¶4876.

II. Principles and rules to be regarded in the case of restitution. - The confessor ought especially to have these before his eyes:

n. ¶4877.

First of all let him attend to this principle: to dispense in these matters and to concede delay does not belong to the confessor himself, but only to the owner. Hence excuse from restitution or delay is to be defined by sole and true necessity, unless the circumstances were such that the confessor could prudently presume the consent of the creditor to delay, or reasonably interpret the intention of the owner.

n. ¶4878.

Let him diligently ask what is the nature, the adjuncts, and the conditions of the case, so that he can define whether, how, and how much must be restored, how long the injustice lasted, whether it has already been declared in confession, why it has not yet been restored, etc.

n. ¶4879.

When a more difficult case occurs, let him not resolve it immediately, but ask for delay to examine the matter more deeply or even to consult others, and let him enjoin the penitent afterward to return to him. But if the penitent cannot conveniently do this, let him be ordered to consult another learned and God-fearing man; and if he promises that he will do this and shows himself prepared to execute the decision and to perform those things which would be imposed on him, he will be able to be absolved.

n. ¶4880.

If, inquiry having been made, the obligation of restitution remains doubtful or uncertain, it cannot strictly be imposed on the penitent; although sometimes a certain partial compensation to be made from equity can opportunely be advised for the various adjuncts.

n. ¶4881.

If the obligation of restoring is certain and no cause excusing from it appears, but the penitent, although able, raises difficulties, let the confessor warn him that the sin is not forgiven unless restitution is made, because it is no less evil to retain another's goods against the will of the owner than to take them away, since it is a continued taking away; and consequently that the penitent must choose between these two: whether he prefers to undergo the eternal punishment of hell, or rather to lack the thing belonging to another.

n. ¶4882.

When the debtor asserts that he cannot restore either altogether or at least immediately, let the confessor diligently examine the alleged impossibility, and let the one asserting not be believed unless he efficaciously proves it; nor let him be absolved unless he seriously promises that he will restore as soon as he will be able and will make an effort toward this. Namely only grave and ineluctable difficulty is a sufficient cause. Hence the debtor a) is bound to diminish superfluous expenses, to labor insofar as the decency of his state permits, to employ parsimony in food, clothing, and necessary expenses; b) if he objects that he will suffer gravely in reputation, let there be suggested a manner by which reputation may be cared for; c) if there is no sufficient cause of temporary delay, this cannot be conceded; but if there is a sufficient cause of delay alone, definitive remission cannot be conceded; d) if the whole cannot be restored at once, let it be returned by parts as soon as possible.

n. ¶4883.

Therefore let the confessor beware lest he be credulous as to difficulties which penitents of this kind are wont to oppose: for some pretend impotence to restore, but often it is weakness of will rather than incapacity or weakness of powers; others with every effort solicit delay; but let the confessor know that it is not in his power to concede delay, because it is not only illicit to snatch away another's goods but equally illicit to retain them.

n. ¶4884.

Namely, as moralists teach, the following are unworthy of absolution: a) those unwilling to restore when they can do this; b) those not able to restore, but neglecting to obtain for themselves the faculty of restoring; c) those delaying restitution much without an excusing reason, or committing to the heir a restitution which they themselves can do by themselves; d) those able to restore in full and restoring only a part.

n. ¶4885.

But if the penitent certainly is in good faith, either because he believes that he owes nothing, or because he thinks that he is bound only to a part, not to the whole or in solidum, or because he judges it enough that he restore by several payments, although he could do so by one, if there is no probable hope of fruit to follow from warning, which nevertheless is not easily to be presumed, let the confessor leave him in ignorance; but if the penitent doubts or asks, the confessor cannot be silent.

n. ¶4886.

In certain cases he will reasonably be able practically to presume total and absolute condonation, namely as regards children of a family and spouses who have snatched away things not of great value and have now consumed them; likewise for thefts of servants as regards edible and drinkable things, at least ordinary ones, not sold to others but consumed; indeed as regards other things if the master has rebuked or expelled the servant convicted of theft and has said nothing about restitution; likewise concerning small thefts of the poor committed against diverse persons, or against one person but not very frequently.

n. ¶4887.

Ordinarily let him not absolve one who holds another's thing with himself unless he first has restored it, namely on account of the danger in which otherwise he lives of delaying restitution, or of consuming the thing and converting it to his own use. But if someone already seems so constituted and firmly disposed that he is deservedly believed soon to satisfy, he will be able to be absolved, but by fixing for him the space of time within which he is to restore and the manner in which he is to accomplish this; for indeterminate promises easily perish.

n. ¶4888.

But one who, previously warned, did not restore, regularly is altogether to be dismissed for a time, absolution being delayed until he has restored, because although he may say that he proposes restitution, nevertheless there will easily be doubt concerning this disposition, and too much danger of relapsing and of changing the purpose.

n. ¶4889.

III. There are various practical modes or means by which restitution can be made more opportunely, namely:

n. ¶4890.

Through the public or postal course, so that, whether by means of an inscribed letter or by means of an order or check (mandat, cheque), he sends the sum under a fictitious name. But if the sum is owed to some society, it is better, for sufficient security, to write at the same time to the treasurer and to the president or syndicate.

n. ¶4891.

By testament, if the dying person without any infamy can leave a legacy to such and such a person. And if it cannot be done without infamy, it must be seen whether an heir or fiduciary legatee can be constituted.

n. ¶4892.

By a fictitious donation, provided that gifts are not compensated by gifts, and that they bring true profit or utility to the creditor, so that he is truly rendered unharmed: for it would not suffice, for example, that he be invited to drink or eat superfluously, or that sweets be given to him.

n. ¶4893.

By undue labors useful to the creditor, for example by setting vines for a farmer, making a trip with a wagon for a master, whitening either linens or other things for him, laboring beyond what is owed with the master's profit and without pay. This manner is often practical for servants or workers. Nevertheless let mere favors without true utility not be confused with labor.

n. ¶4894.

By alms, whether given to the poor or to priests who will celebrate Masses; nevertheless this is valid only for cases in which either it is impossible to restore into the hands of the creditor, or he must be presumed content with this manner of restoring. Nevertheless let the confessor beware lest he ask alms of this kind for himself or for his own convent. But if the sum is not very great and the debtor is of slender fortune, for restitution he will be able to give alms even of the kind he is otherwise accustomed to give; thus likewise he can remit to some poor debtor of his as much as he is bound to give to the poor: namely it is easier to yield that which one does not yet have than to deprive oneself of that which he now holds.

n. ¶4895.

Through a trustworthy third person. It is not opportune that the confessor spontaneously offer himself for exercising this office of mediator; indeed, when asked by the penitent, let him not easily undertake the burden, and let him attend lest the seal be violated. To avoid this, sometimes he will be able to make restitution through another priest, or transmit it from another place. Indeterminate restitutions, for example those to be performed for the poor, he should ordinarily leave to be made by the penitent; restitutions to be made to a determined person he will easily be able to undertake in a case of necessity lest the reputation of the penitent be injured, but let him require the testimony of the creditor concerning the thing or sum restored, which he may transmit to the penitent.

n. ¶4896.

Thus let the confessor himself not incur suspicion.

n. ¶4897.

Especially A. If the injured person is not certainly known, inquiry is to be made diligently concerning him. But doubt remaining after diligent inquiry:

n. ¶4898.

if the doubt is among a few, the thing or its price is to be divided among them, nor can it be given to the poor; thus, for example, money lost or taken from one of three or four persons;

n. ¶4899.

if the doubt is among several of the same place, restitution is to be made to them, if morally it can be done: thus merchants defrauding in weight, measure, or quality of goods ought to restore by increasing weight and measure, if the same buyers are accustomed to return; otherwise, if it cannot be done in another way, let restitution be made to the poor or to pious works of the same place in which the injustice was committed; thus in war, if unjust requisitions have been made and it is unknown who suffered damage;

n. ¶4900.

if the doubt is among many scattered persons or among altogether unknown persons, so that there is no probability that restitution can be made to the true owners, restitution is to be made to the poor or to any pious causes.

n. ¶4901.

B. If the injured person has died, restitution is to be made to heirs or to those having care, nor can the goods be expended for the poor or in Masses for the deceased² (who otherwise is no longer the owner of the goods), unless the heirs consent or there are absolutely none.

² Thus the Sacred Penitentiary, 7 Feb. 1899.

n. ¶4902.

C. If a community or society has been injured, restitution is to be made to this society itself, unless it is essentially evil and pursues only an altogether evil end, so that it cannot have the right of possessing. Excepting this case, therefore, restitution cannot be made to the individual members but to the administrators of the society. Nevertheless it is better to warn several of the administrators or members, lest restitution be defrauded by an unfaithful administrator. This also holds concerning an insurance society, although on account of a contract of reinsurance entered among several societies, it is impossible to know which society in fact suffered damage. In this last case certain theologians have said that restitution is to be made to the poor or to pious causes. But as Vermeersch notes,³ this is not the practice of the Sacred Penitentiary; hence Genicot says:⁴ "Practically it seems to suffice that restitution be made to the administrators when the injured person cannot be better detected, and if this is regularly done, a certain compensation among the various societies exists." Therefore restitution is by no means to be made to the poor, unless it cannot be done otherwise; nevertheless one who in good faith in this case has already restored to the poor would not seem to be disturbed.

³ Th. M., II, n. 494.

⁴ Th. M., I, n. 658, VII.

…and 23 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 1 passage

Vol. I, Tr. VI, On the Seventh and Tenth Precept of the Decalogue

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Right and Ownership, What is right, and of how many kinds? · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Ways of Acquiring Ownership · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Justice · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Justice, On the definition, object, and subject of justice · Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, On the quality and necessity of restitution

You shall not commit theft. You shall not covet the house of your neighbor, nor his servant, nor his maidservant, nor his ox, nor his ass, nor all things which are his. - Exod. xx, 15 and 17

The Seventh Precept of the Decalogue prohibits every external injustice in the goods of fortune of one's neighbor. - But the Tenth also forbids the internal sins of covetousness, that is, of desire for the goods of one's neighbor and of unjust action. Since we are going to speak of the various sins of injustice concerning goods of fortune in the particular treatise on justice and right, there is nothing that should be added here concerning these two precepts.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 37 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice

(D. Thomas, IIae IIae, a q. 57 ad q. 76.)

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Right and Ownership, What is right, and of how many kinds?

The name of right is taken in various ways: first, for that which is just. But the just is taken in two ways: generally, for everything that is consonant with law; strictly, for the equality owed to another; for those things that are equalized are vulgarly said to be justified. And right so taken is the object of justice, as we shall say below.

Secondly, right is taken for the legitimate faculty of doing something, acquiring, possessing, alienating, etc.: in which sense one is said to use his right. But right taken in this second way is the foundation of right taken in the first way. For nothing is owed to another by way of equality without a right in the other, because what is owed is owed to a right; right and debt are correlatives.

Thirdly, right is taken for law, which is the rule of the just in general. Hence right taken in the second way depends on this right; for that anyone have a right to something is attributed to him either by the law of nature, or by positive law, or at least by free concession of God or men. Wherefore

I say secondly: Right taken in these three ways can be divided, by the same division, into natural and positive right.

And as to right taken for law, it is evident; because law is one thing natural, another positive. Eternal law is not included, because this division is made into members entirely diverse; but natural law is not a thing entirely diverse from eternal law, rather it is its participation in a rational creature, as is taught in Ia IIae, q. 91, a. 2, ad 1.

Positive right is divided into divine and human. Divine is one thing of the Old Testament, another of the New. Human positive right is divided into the law of nations, canon law, and civil law. Canon law, which especially concerns us, is compounded from the canons of councils, the decrees of Pontiffs, and the judgments of the Fathers.

Right taken for the just is likewise adequately divided into natural right and positive right²⁴⁰ ; because right so taken is the just, or what is adequate to another. Now something can be adequate to another in two ways. In one way, from the nature of the thing, as when someone gives as much that he receive the same amount, and this is called natural right. In another way something is adequate or commensurate to another from the good pleasure of those who establish it, as when two private persons so covenant between themselves, or the community consents that such a thing be held as just, or the prince ordains by law that it be so; and this is called positive right. The other subdivisions are as in the division of law. ²⁴⁰ Ibid., a q. 57, a. 2, c.

Right taken for "the legitimate faculty, etc.," is also divided, on the part of the principle, into natural, which belongs by law or by the consent of nature, and positive, which belongs by positive law or by the free concession of God or men. The other subdivisions are as in the division of law. Likewise this right, on the part of the term it regards, is divided into right in a thing and right to a thing.

Right in a thing is what one has in a thing already his and obtained. Hence it gives a real action upon the very thing. Three conditions are required for it: the existence of the thing, a legitimate title, such as purchase, donation, etc., and delivery of the thing. So has right disposed, except in certain cases.

Right to a thing is what one has in order that some thing become his. For this no other condition is required than a legitimate title. It does not give an action upon the very thing, but upon the person only. Such right¹ is acquired by donation, purchase, etc., before delivery. Also by election, presentation to an office, by collation of a benefice before acceptance, etc. ¹ 1

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Ways of Acquiring Ownership

Things, with respect to dominion, are of two kinds. Some are appropriated, that is, they have a proper and determinate dominion. Some are common or quasi-common, namely such as are held to have no lord of themselves, as are wild beasts in the forests, fish in the rivers, etc. And in accordance with this diversity of things, the ways of acquiring their dominions are diverse. Of things that are appropriated to someone, dominion is acquired by the will of the lord or by the authority of the law. Of things that belong to no one, dominion is acquired by first occupation.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Justice

(D. Thomas, IIae IIae, q. 58.)

Justice is taken in two ways : 1° generally for Christian holiness or for the collection of all the virtues, in which sense Christ said, Matt., V, 20 : Unless your justice abound more than that of the Scribes and Pharisees, etc. 2° It is taken specially for the particular virtue which is second among the Cardinal virtues, by which one is inclined to render to everyone what is his, and of that we treat here.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On Justice, On the definition, object, and subject of justice

Justice is defined in law, from Ulpian : « The constant and perpetual will to render to each his right. »

By will is not understood the very power of willing, but the act³¹⁵ ; whence a habit is defined through the act : which is not unusual. It is called « perpetual », not on the part of the act, which endures perpetually, but on the part of the object, insofar as the just man wills to render to everyone his right perpetually and in all things : whence, if anyone wishes to reduce this definition to due form, let him say that justice is « the virtue inclining the will constantly to render forever to everyone his right ». Hence you have that it belongs to the reason of justice properly so called that it be toward another. ³¹⁵ Hic q. 58, a. 1, ad 1, 3 and 4.

I say 2°: The remote material object of justice are external things which are commuted or distributed. The proximate material object are the actions by which these things are commuted and distributed. Because justice differs in this from the other moral virtues, that these rectify primarily and per se man in himself, but justice in order to another³¹⁶. Now the ordination of one man to another is not attended to according to interior affections or passions, but according to exterior actions and things by which men can communicate with one another, such as, as to things, goods of fortune, money, houses, fields, grains, etc. ; as to actions, those by which these things are commuted, namely sale, payment, loan for consumption, loan for use, lease, etc. ; likewise also those actions in which no exterior thing intervenes, as honor, praise, detraction, etc. Therefore. ³¹⁶ Ibid., a. 9 and 10, c.

The formal object quod of justice is right taken for the just, or the equal owed to another³¹⁷ ; because this justice principally intends and effects, as appears from its definition, and thereby it is distinguished from the other virtues. Whence he is called just who makes or preserves this equality, unjust who does not preserve it. ³¹⁷ Hic q. 57, a. 1, o.

The formal object quo is the ratio of debt, or right in another, taken for the legitimate faculty of possessing, alienating, etc. For the reason why I render the equal to another is because I owe it to him ; I owe it however because that other has a right to it : for debt and right are correlatives.

I say 3°: The subject of justice is the will³¹⁸. For it is not the intellect, because justice is not ordered per se and primarily to direct any cognitive act ; nor is it the sensitive appetite, because the sensitive appetite follows sensitive apprehension, but sensitive apprehension does not consider the proportion of one thing to another, which pertains to justice ; for this is proper to reason. Therefore. ³¹⁸ Hic q. 58, a. 4, o.

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Act of Commutative …, On the quality and necessity of restitution

Restitution is the giving back of a thing received, or compensation for damage inflicted.

Restitution differs from payment and satisfaction. From payment: because payment requires that the thing paid be different from the thing for which it is paid, and that it has not yet been in the possession of him to whom it is paid. Restitution, however, does not require that the thing restored be different from the thing for which it is restored; rather it requires that it be the same, as far as possible, or at least equivalent, and consequently it requires, of itself, that it has already been in the possession of him to whom it is restored. Hence he who gives back a deposit truly restitutes, yet does not pay; on the contrary, he who gives money for wheat bought properly pays, yet does not restitute.

From satisfaction restitution is distinguished³⁴⁰ : 1° because satisfaction properly regards the person to whom satisfaction is made, although it does not exhibit the equivalent of the debt; restitution, however, regards the thing, which must be given back the same or the equivalent. 2° Satisfaction regards the injury inflicted or the honor violated, even if no other damage has been inflicted; restitution, however, regards the damage inflicted. ³⁴⁰ In IV Sentent., dist. 5, q. 1, a. 5, quaestiunc. 1.

I say 1°: Restitution is an act of commutative justice³⁴¹ : because it belongs to commutative justice to establish equality of thing to thing between what is given and what is received, between loss and compensation. Now this is done through restitution. Therefore. ³⁴¹ Here q. 62, a. 1, c.

You will say : The violation of distributive justice obliges to restitution. Therefore restitution is an act of distributive justice. — The consequence is evident. An act destroying a virtue is repaired by the opposite act, as the act of intemperance by temperance. — It is proved of the antecedent. He who distributes common goods badly sins against distributive justice. Now he is bound to restitution. Therefore.

I answer. I deny the antecedent. — To the proof, I distinguish the major. He who distributes common goods badly sins against distributive justice alone, I deny; at the same time also against commutative justice, at least regularly, I concede. — In this sense, I distinguish the minor. He is bound to restitution, insofar as he violates commutative justice, I concede the minor; insofar as he violates distributive justice, I deny the minor. For things owed to particular persons from distributive justice alone are not owed to them simply, as proper and their own, but only in a certain respect, by reason of condignity and of the community of which they are parts, as I said above, dissert. IV, a. 2. Whence they have no right in re to those things, nor to the thing itself, such that they could reclaim them in court as their own. Wherefore, if they are defrauded of them, from this heading they ought not to be restored to them more than those things ought to be restored which are owed from religion, or gratitude, or other potential parts of justice.

Yet it rarely happens that distributive justice has no commutative justice annexed to it. For he who distributes common goods to particular persons either is hired for a stipend for just distribution, or designated by office or pact, for which therefore he is bound from commutative justice. Whence, if he distributes badly, he sins first against distributive justice, inasmuch as he does not distribute the common goods to particular persons according to the proportion of merits; second he sins against commutative justice, not indeed by damaging particular persons in what is their own proper, or by retaining what is strictly theirs, but by omitting the appropriation or the just distribution according to merits, to which from his office, and consequently from commutative justice, he was bound.

I say 2°: The restitution of a thing unjustly taken away, or of damage unjustly inflicted, in the thing where possible, otherwise in vow, is necessary for salvation³⁴² . ³⁴² Ibid., a. 2, c.

It is proved,³⁴³ 1° from Scripture. Matt., XXII, 21 : Render therefore to Caesar the things that are Caesar's. Rom., XII, 7 : Render therefore to all men their debts. ³⁴³ Ibid., in arg. Sed contra.

It is proved 2° from Augustine, Epist. 153³⁴⁴, which is to Macedonius and is cited, c. Si res aliena, causa 14, q. 6 : « If the thing of another on account of which sin was committed is not restored when it can be restored, penance is not practiced, but feigned; but if it is practiced truthfully, sin is not forgiven unless what was taken away is restored; but, as I said, when it can be restored. » ³⁴⁴ Formerly 34.

It is proved 3° by reason³⁴⁵ : To preserve or not violate justice is necessary for salvation. Now he who does not restitute, when he can, what was unjustly taken away or damage unjustly inflicted does not preserve justice, but rather violates it, because he does not preserve equality. Therefore. ³⁴⁵ Here q. 62, a. 2, c.

It is confirmed. Not to steal is necessary for salvation. Now to retain what is owed to another has the same reason of harm as unjust reception³⁴⁶ . Therefore. ³⁴⁶ Here q. 66, a. 3, ad 2.

Diss. I, Chapter I — Propositions condemned by Alexander VII and Innocent XI · Diss. I, Chapter II — The lax opinions of several Casuists

I said, « otherwise in vow; » because where restitution in the thing is impossible, one must then have the purpose of making it when it will be possible; because it is necessary for salvation that one have the purpose of keeping all the commandments of God, among which is placed the precept of restoring, or of not retaining what belongs to another unjustly, which is reduced to this precept of the Decalogue : Thou shalt not steal. On which account restitution in vow can be said to be necessary with a necessity of means for salvation.

n. 14.

You will ask whether the precept of restoring is affirmative or negative.

n. 15.

I answer. That it is affirmative according to its form; that it nevertheless implies within itself a negative, whereby we are forbidden to retain what belongs to another, as the reason of itself³⁴⁷ . ³⁴⁷ Here q. 62, a. 8, ad 1.

n. 16.

The first part is evident; because by an affirmative precept an act of virtue is commanded, by a negative one an act of vice is forbidden. Restitution, however, is an act of virtue.

n. 17.

The second part is also evident. For the reason why restitution must be made is that what belongs to another must not be retained; not so with other affirmative precepts, which although they include a negation as opposed to the affirmation, do not include it as the reason of themselves : thus, v. g., God is to be loved, not because he is not to be hated, but because he is supremely good; and so of the rest.

Concina, Compendium

Daniele Concina, O.P. — 71 passages

Diss. I, Chapter I — Propositions condemned by Alexander VII and Innocent XI

n. I.

I. When litigants have on their side opinions equally probable, the judge may accept money for handing down sentence in favour of the one rather than the other. This is the 26th of Alexander VII.

n. II.

II. It is lawful for a lender to exact something over and above the principal, if he binds himself not to demand back the principal until a certain time. This is the 41st of Alexander VII.

n. III.

III. It is permitted to steal not only in extreme necessity, but also in grave necessity. This is the 36th of Innocent XI.

n. IV.

IV. Manservants and maidservants of a household may secretly filch from their masters in order to compensate their own labour, which they judge greater than the wage they receive. This is the 37th of Innocent.

n. V.

V. No one is bound under pain of mortal sin to restore what has been taken away by a number of small thefts, however great the total sum may be. This is the 38th of Innocent.

n. VI.

VI. He who moves or induces another to inflict grave loss upon a third party is not bound to the restitution of the loss so inflicted. This is the 39th of Innocent.

n. VII.

VII. The Mohatra contract is lawful even in respect of the same person, and with a contract of resale entered upon beforehand with the intention of gain. This is the 40th of Innocent.

n. VIII.

VIII. Since money counted down is more precious than money to be counted, and since there is no one who does not value present money more highly than future money, a creditor may exact something beyond the principal from the borrower, and on that title be excused from usury. This is the 42nd of Innocent.

n. IX.

IX. It is not usury when something beyond the principal is exacted as owed out of benevolence and gratitude, but only if it is exacted as owed out of justice. This is the 41st of Innocent.

Diss. I, Chapter II — The lax opinions of several Casuists

n. I.

I. Fr. Thomas Tamburini, Method of Confession, Book III, chap. 4, no. 5: “If the confessor foresees that the penitent will not make restitution should the nullity of the title which the penitent supposes himself to possess be disclosed to him, such nullity is not to be made plain to him by the confessor, even though this be to the prejudice of a third party who will thereby go without what is his.” How ruinous this principle is to justice, to trade, and to human society, let every man judge.

n. II.

II. Fr. Dominic Viva, question 1, article 5, no. 2: “If from a probable opinion the penitent judges that here and now he is not bound, the confessor ought to accommodate himself to the penitent's opinion, provided that opinion be truly probable, even though he himself follow the contrary judgment. The reason is that when the penitent is duly disposed, he ought to be absolved. But he is duly disposed if he follows a probable opinion, namely that he is not bound to restore. Therefore he ought then to be absolved.”

n. III.

III. Tamburini, Method of Confession, Book III, chap. 4, no. 5: “If you foresee that the penitent will not make restitution, although you likewise observe that this is to the public detriment, why should you be obliged to admonish him, seeing that you foresee that even with your admonition added he will not make restitution, and consequently that the public loss will not be removed? Assuredly such an admonition will be in vain — nay, harmful to the man admonished, and in no way favourable to the public good. … And all this proceeds also on the principles of de Lugo, when the confessor should hope that the penitent would indeed receive the admonition, but nevertheless perceives that the remedy is exceedingly difficult. Whence it is also inferred that the same must be said when the penitent is bound under mortal sin to something so difficult that he is not believed likely to receive it with an even mind at the time, but is judged likely to receive it better on another occasion: for then a prudent confessor will be able to leave him in his own good faith, which excuses him from sin, and to defer the admonition to a more opportune time, lest the penitent, being terrified, abstain from confession and suffer a greater harm. And let this be noted above all for the confessors of merchants and of princes.”

n. IV.

IV. Leonard Lessius, On Justice, Book II, chap. 14, doubt 8, no. 51: “And although the evil work for which he gave is not appraisable at a price inasmuch as it is evil, nevertheless inasmuch as it is delightful or useful to the one and detrimental, dangerous, or laborious to the other, it is appraised at a price among men: therefore what has been received on this account is not to be restored, unless perhaps someone exceed the valuation; as if a harlot, who is accustomed to grant the use of herself for one gold piece, should extort fifty from some young man as the price. This, however, has no place in her who is reckoned honourable; as if some matron or daughter should accept a hundred gold pieces for the use of her body from one who was able to give them, for he who was able to give could also retain: FOR SHE CAN VALUE HER OWN CHASTITY AT SO MUCH THE MORE. For things which have no fixed price, and are not necessary to life, but are sought for the sake of pleasure, can be appraised at the seller's discretion, and, as Peter Navarra probably teaches, at others' too.”

n. V.

V. The same Lessius, in the place cited, no. 48: “You will say: St. Augustine, Epistle 54 to Macedonius, says that it is more wicked to accept money for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored: therefore also for an unjust one. So Soto. — I answer by denying the consequence. For it is not the case that, because a thing is more wicked, it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss inflicted by the injury. But he who accepts money for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence (to the passing of which he who accepts the money has already set his mind) on account of the injury which is thereby done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust sentence than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work has been performed, since he says it was given by the willing. For to one who is willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned to be given under compulsion, from fear of an unjust sentence.”

n. VI.

VI. Fr. Lessius, Book II, chap. 19, doubt 3, no. 21: “Thirdly, if an heir ab intestato should retain the inheritance and the legacies, those to whom something had been left by such a testament may use occult compensation: for in truth the thing was theirs.” So Sylvester, under the word Inheritance.

n. VII.

VII. Fr. Dominic Viva, Course of Theology, Vol. I, part 3, question 4, article 5, no. 12: “Thirdly, many teach with Lessius, chap. 19, doubt 5, Molina, Granados, and others, that he who ought to have a legacy under a testament less than solemn may retain it for himself, or make compensation, on the ground that it is a probable opinion that by the law of nature such a testament is valid, and that consequently in the forum of conscience the legacies made in it are owed — although the contrary opinion be common enough and probable. Fourthly, Lessius teaches in the same place that an heir ab intestato may use occult compensation against him who possesses the goods of the deceased under a testament less than solemn: because it is a probable opinion that the goods are owed to the heir ab intestato, to which opinion he may conform himself.”

n. VIII.

VIII. Fr. Lessius, in the place cited, no. 50: “Thirdly, the heir ab intestato may retain it; and if another possesses it, he may sue for it at law. Fourthly, that if he cannot do so because of the power of his adversary, he may use occult compensation.”

n. IX.

IX. Fr. Antonino Diana, Vol. VI, tract 3, resolution 149: “He who ought to have a legacy under a testament less than solemn, since it is a probable opinion that those legacies are owed in the forum of conscience — although the contrary be common enough and probable — may nevertheless retain the legacy, or receive it anew, or make occult compensation, as Granado and Molina admit. Lessius adds that the heir ab intestato may also use occult compensation against him who possesses the goods of the deceased under a testament less than solemn, because the contrary opinion also is probable, to which he may conform himself.”

n. X.

X. Fr. Diana, in the place cited: “Whether in occult compensation the debt to be made good must be liquid and certain? Upon this the most eminent Cardinal de Lugo treats this question at large, Vol. I, On Justice, disputation 16, section 5, from no. 94 to no. 107, and endeavours to establish the negative opinion, with the distinctions adduced by him, forcibly and learnedly, as he always does. He asserts therefore that when an equally probable, or a more probable, opinion favours the creditor who wishes to make compensation — an opinion which turns not upon the fact but upon the right — it seems probable that the creditor may, before the matter be brought to judgment, the other conditions required above for lawful compensation being posited, secretly compensate himself for his debt. This conclusion seems to be proved by the arguments made above and the examples adduced above, in which examples the authors themselves admit compensation, although in them there proceeds only a probable opinion, as in the compensation of money for reputation taken away, and in the legatee, or the heir under a testament less than solemn, and the like. For the reason adduced above seems to prove this: because in the aforesaid case, notwithstanding the debtor's possession, the judge would pronounce sentence, or at any rate could pronounce it, for the creditor, embracing the probable, or the more probable, opinion which favours him. Likewise, when he brings forward on his own side good and qualified Doctors, who hold that in such circumstances the law favours him, and that the defendant ought to be condemned, he has already shown that, according to the judgment of those Doctors, his cause is not equal but better than the cause of the defendant. Why then shall not the creditor himself, when without grave inconvenience he cannot have recourse to a judge, be able to embrace the same opinion which the judge ought or could have embraced, and compensate himself for his debt?”

n. XI.

XI. Fr. Diana, in the place cited: “Nor is it an objection that it seems iniquitous to compensate a certain debt with an uncertain one: for he who has only probability that Peter owes him something, to whom he himself owes with certainty just so much, if he uses compensation, seems already to compensate a certain debt with an uncertain one, and thus to extinguish an uncertain debt by a certain payment. It is answered that this same argument, if it proves anything, proves not only against compensation but also against payment, namely, that one who has only a probable right to sue for a thing owed him could neither sue for nor receive it from the debtor: because it would then likewise be iniquitous to sue for a certain and entire payment, and a certain thing, for an uncertain debt. Whence it would never be lawful even in court to plead except with an evident right. As therefore it is lawful to sue for a probable debt, and to receive it from a debtor who pays; so it will be lawful, in that proximate probability of which we have spoken, to make compensation, and to receive the certain thing. For the reason in both cases is the same: namely, that those probable reasons, and the authority of the Doctors, and that opinion, although in itself it be probable, nevertheless do not have for their object a probability, but a certain payment or compensation. For it does not say that a probable payment or compensation ought or may be made; but it says probably that a certain payment or compensation ought or may be made — which suffices for suing for it, or for making it, as in other matters. For thus a probable opinion concerning fasting, or concerning the recitation of the Office, brings it about that you may take food not probable but certain, and may set down a certain omission of the divine Office. And the reason arises from the principle laid down above, that for a lawful operation proximate probability suffices, by which you probably judge that it is lawful to act in such a manner. Since therefore you have a proximate probability by which you probably judge that you have here and now a right to so great a sum of money, you will be able to take the whole of it: because there cannot be a right to take it, unless there be a right to take it with certainty. — And all these things, and many others, the most eminent Cardinal de Lugo adduces in the place above cited for the confirming of this opinion; although afterwards, at the end of no. 106, he abstains from a final judgment upon it.”

n. XII.

XII. The Fathers of Salamanca, tract 13, chap. 1, doubt 13, no. 318: “Whether one who has an opinion that a thing is owed him may use occult compensation?” They answer, no. 319: “It must be said therefore that in general and in the abstract, so to speak — that is, for all cases — it is not lawful to use occult compensation when there is given only a probable opinion for either side, that is, for the debtor and for the creditor; but in particular cases it is lawful. And it is also lawful in all cases, when there is given a greater probability on the creditor's side that such a debt is owed him.”

n. XIII.

XIII. The Fathers of Salamanca, in the place cited, no. 320: “But behold a difficult objection: for if in this particular case A, and in that other B, such compensation is lawful, therefore in all it will be lawful: because from particulars to the universal the argument holds good by induction. — By this objection (in my judgment) it is rightly proved that, speaking by intrinsic principles, either it must be said that in all cases in which there is given a probability of fact that the thing is owed, compensation is lawful, and thus that a probability of right, and a proximate one, is given; or it must be denied in the particular cases: and thus the most eminent Cardinal de Lugo rightly said that authors proceed inconstantly and inconsequently. … I confess that I do not grasp the disputant. But I do not deny that among men so learned there are some special reasons by which they were moved to assert this in one case and not in another; and that what is hidden from me is plain to them: and therefore I assert that, by an extrinsic probability drawn from the probability of the Doctors, it is lawful in those cases in which there are given classic authors sufficient to produce a probable opinion, to use compensation with a probability of the debt.”

n. XIV.

XIV. Whether one who has bound himself under oath to the payment of a debt may use compensation, and not pay the debt.

Fr. Diana, Vol. VI, tract 3, resolution 151, says: “The case is an everyday one, and I find three opinions concerning it. The first denies. … The second opinion affirms, and therefore asserts that one who has sworn to pay money may compensate without fear of perjury. … The third opinion distinguishes. … What I myself think I will say briefly. I judge all these three opinions probable. But I adhere to the second as the more probable.”

n. XV.

XV. Cardinal de Lugo, Vol. On Justice and Right, disputation 4, no. 117, embraces the third opinion with this distinction. If you promised not to use compensation, adding an oath to pay the debt, you cannot use compensation; but if you swore absolutely that you would pay the debt, you will be able to use compensation. Because, he says, although an oath added to a promise introduces a new bond of obligation, “nevertheless it does not oblige to another and new object. For it only confirms the promise; therefore it obliges only to that which was the object of the promise. But the promise to pay does not exclude compensation. For he who compensates truly pays.”

n. XVI.

XVI. Whether one may use present compensation for a future debt?

Cardinal de Lugo, in the place cited, section 3, no. 93, answers: “Sometimes, however, it is lawful for a creditor to anticipate, and to compensate himself now for that which Peter does not yet owe but will owe after a month, for example; and if the creditor prudently fears that it will not be paid him, Tanner affirms it, 2-2, disputation 4, question 6, doubt 14, no. 406; Diana, resolution 48. Yet whatever be the case in the external forum, in which the law seems to proceed otherwise, in the internal forum the opinion of the said Doctors seems probable, that the creditor may compensate himself before the time for a future debt, upon a twofold warning.”

n. XVII.

XVII. Fr. Diana, Vol. VI, tract 3, resolution 150, no. 5, confirms the opinion recounted above, which he had earlier taught, and in these words: This I formerly taught; and most recently, citing me, the most eminent de Lugo teaches it, and also, citing me, Machado.

n. XVIII.

XVIII. Whether one who by occult compensation filches what is owed him may swear that he has received nothing?

Fr. Thomas Tamburini, Book VIII, tract 2, chap. 4, § 1, no. 1, answers: “That he is not a thief in conscience, nor does he sin, nor does he incur the excommunication which perchance is imposed against thieves; and that he may swear even before a judge that he has received nothing, understanding that which was not owed him (if it be already certain to him, as today it is among all); even if the thing which he takes had been consigned to him by the debtor on deposit. See Molina, Lessius, de Lugo, and others soon to be cited, to whom add Dicastillo.”

n. XIX.

XIX. Fr. Diego de la Fuente Hurtado, disputation 25, chap. 1, no. 5: “All these things show how confusedly and indigestedly that proposition (namely the 57th, condemned by Innocent XI) had been handed down, comprehending so many diverse cases under one rule, when they are very unlike; and with how many additions, limitations, and props it needs to be shored up, that it may be safely brought back to practice.”

n. XX.

XX. Fr. Dominic Viva, in his Tract on Theology, upon this proposition 57, no. 7: “What is proscribed in this thesis is that servants may secretly compensate themselves for what they judge to be owed them in justice by way of wages. Therefore for the making of this occult compensation there is required the judgment of a man learned and at the same time expert.”

n. XXI.

XXI. The Fathers of Salamanca, tract 13, chap. 1, doubt 19, § 2, no. 416: “Likewise, if a master employs a servant either at other hours, or in other services than was agreed, the servant may use compensation, if he cannot obtain it from the master.”

n. XXII.

XXII. Fr. Patrick Sporer, Vol. II, tract 5, on the 7th precept of the Decalogue, chap. 5, sect. 2, § 4, no. 83: “A servant or official who through error, necessity, or some like cause has hired out his labour for less than the just price, since he was at least in some respect unwilling, and so had not the mind to make a gift, will be able both to exact the deficiency of his wage by right, and, if he cannot obtain it otherwise, to compensate himself secretly. And let the master lay the blame on himself.”

n. XXIII.

XXIII. Lessius, cited in Matthew de Moya, Vol. I, Select Questions, tract 6, Miscellany, disputation 4, question 3: “When a servant asks nothing by way of wage — nay, expressly rejects in his heart every intention of asking — and serves in the hope that some office or benefice will be procured for him by his master: when the master has procured it for him, even if he has obtained nothing, he cannot ask for anything, nor compensate himself. But if the master has procured nothing, because for the sake of avoiding the stain of simony he was unwilling to procure it, or for other causes, he will be able to ask for the wage customary after the manner of the country; and if the master does not give it, he may lawfully provide for himself by compensation. So Lessius, chap. 24, doubt 4, no. 26, near the end. … The second part is proved: because although he had the internal intention of asking nothing, nevertheless, since that intention is not a vow, by it he did not take away from himself the power of acquiring that to which he has a right.”

n. XXIV.

XXIV. Whether in debts of justice there can be given compensation by a gift or by gratuitous service?

Fr. Diana, Vol. VI, tract 3, resolution 152, answers in the affirmative. “When I willed by a gratuitous gift to satisfy obligations of justice which I knew myself to owe — but the difficulty is, whether, when I furnished the gift or the service in ignorance of the debt of justice, I may then make compensation? And he judges the affirmative opinion to be probable, on the authority of Rodriguez and Aegidius Trullench, On the Decalogue, Vol. II, Book 7, chap. 4, doubt 5, where he asserts thus: I owe you a hundred gold pieces in justice, and afterwards I gratuitously render a service of the same value, or confer upon you an equivalent under the title of donation: shall I remain exempt from the obligation of justice? I answer: if, when I conferred that gift, I was mindful of the obligation of justice, and did not will by that thing or gift to satisfy the obligation of justice, but to render that thing gratuitously, it is certain that I have not satisfied the obligation of justice, nor can I afterwards use compensation, because that thing was knowingly given gratuitously and liberally. … What if, when he conferred the service, he was ignorant of the debt of justice? Rodriguez, in his Summa, part 2, chap. 49, conclusion 2, asserts not improbably that afterwards, when he remembers the debt of justice, he may make compensation by that thing given under such ignorance: because it is presumed that he would not have been so liberal, had he been mindful of the debt. But Sánchez, Book 1 of his Moral Works, chap. 13, no. 1, with other probable authors, judges the contrary. … Nevertheless, as I have said, the opinion of Rodriguez is not improbable, and Layman, cited by us, favours it.” Thus far Trullench.

n. XXV.

XXV. Whether compensation is valid in the forum of conscience, even though there be prior creditors?

Fr. Diana answers in the place cited, resolution 153: “This case is much in practice, and it happened in these past days upon the death of a certain banker: then many learned men answered in the negative, because the debtor in such a case receives a thing obligated to another; and so the Doctors commonly teach. But I judge the contrary opinion probable. What if the creditor should possess the debtor's property by right of deposit? I think probably, with Tanner … who cites Navarrus and Lessius, that that law (of deposit) otherwise regards only the external forum, or at any rate is to be understood as holding if the compensation can be obtained otherwise. Whence in our case not only would the creditor justly make compensation, prior creditors existing, as has been said, but also, against Comitolus, he would lawfully possess the thing by right of deposit.”

n. XXVI.

XXVI. Fr. Dominic Viva, Vol. I, part 3, question 6, no. 9: “It follows in the fourth place that a priest who has celebrated ten Masses for money lent, if he cannot recover this money, may, when ten carolins are afterwards offered him for another ten Masses, retain this money and not celebrate the other Masses, as Pejerinus notes in Tamburini, Book 5, On the Sacrifice of the Mass, chap. 1, § 3 — provided nevertheless that he avoid the loss of a third party, namely either of a soul in purgatory, or of a sick man, etc.”

n. XXVII.

XXVII. Fr. Diego Hurtado de la Fuente, Reformed Theology, dissertation 13, chap. 5, no. 41: “Now what we have said of servants we extend to any other stipendiaries whatsoever, proportion being observed; and they have place in priests who celebrate Masses: for they too labour in the vineyard of the Lord, like other labourers, and are worthy of their hire. Wherefore, if the just hire, fixed by law, custom, or agreement, be not paid them in full, they will by the best right be able to compensate themselves, and secretly to take for themselves what is lacking to the just wage out of other moneys of him who commended the Masses to them, those things being observed which in such compensations ought to be observed by others.”

n. XXVIII.

XXVIII. The same Fr. Diego, in the same place, no. 43: “A grave difficulty, however, arises: namely, whether that priest to whom recompense was owed in justice, and the supplement of a scanty stipend, may keep himself indemnified by not offering as many Masses as he promised to the iniquitous contracting party, but fewer — only those which, the diminished stipends being taken together, correspond to a just stipend? … (After many things which for brevity's sake are omitted, he answers:) Just as other labourers unjustly injured in a contract of hire as regards the justice of the wage can provide for themselves in two ways, when other means are lacking — namely, either by exhibiting the whole labour promised, worthy of a greater stipend, and taking to themselves secretly what is lacking to the just stipend, at least up to the lowest degree; or rather by diminishing their labours, and rendering only those to which the stipend that is given corresponds in equality — so likewise it will be lawful for this priest, similarly injured unjustly as regards the stipend of Masses, to provide for himself by either of the aforesaid means: for neither is unjust, etc. … No. 45: The decrees of the Sacred Congregation, however, made by the special authority of Urban VIII, cause trouble … It may nevertheless be answered that the decree does not touch our case.” See there many things of the laxest kind.

n. XXIX.

XXIX. Fr. Leonard Lessius, Book II, chap. 2, doubt 22, no. 135: “If you have unjustly defamed another who had previously defamed you, you are not bound to restitution towards him, if he is unwilling to make restitution to you; but you may use compensation, equality nevertheless being preserved as far as may be.”

n. XXX.

XXX. The same Lessius, in the place cited, no. 136, to the question whether defamation may be compensated by the occult retention or filching of money, answers: “It is probable that this compensation may be made: because that opinion is probable which asserts that defamation is to be compensated with money, when it is not restored in its own kind.”

n. XXXI.

XXXI. Fr. Luis de Molina, On Justice and Right, Vol. IV, disputation 49, no. 5: “When one has unjustly defamed another, and is unwilling, as he was bound, to restore that reputation to him, then the man unjustly defamed, who had not inflicted a loss of reputation upon the other, could compensate in money the loss of reputation in which he stands; and that not only by not paying an old and occult debt, so far as would be judged sufficient in equality for a competent compensation of the reputation in which he stands, but also by secretly taking from what belongs to the other as much as would be enough for the same compensation: provided that no scandal intervene, and that he could not otherwise conveniently obtain the restitution of his reputation; and lastly provided that all the conditions required intervene, that occult compensation of a debt may lawfully be made in the forum of conscience.”

…and 31 more passages — all of them are listed on the topic page.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 230 passages (filed under the subtopics)

Tr. I, Disputation XXIII: On Just…, Question X: Whether distributive justice differs in species from commutative · Tr. I, Disputation XXIV: On Restitution · Tr. I, Disputation XXIV: On Resti…, Question I: What restitution is · Tr. I, Disputation XXIV: On Resti…, Question II: Whether restitution is necessary for salvation · Tr. I, Disputation XXIV: On Resti…, Q. III, Doubt II: On the indirect causes of loss

Tr. I, Disputation XXIII: On Just…, Question X: Whether distributive justice differs in species from commutative

THE DIFFERENCE between Distributive and Commutative Justice is taken from the object. I distinguished and explained both p. p. Tract. 1. disp. 19. quaest. 1. Distributive justice, therefore, establishes equality among private persons, by dividing the goods of the Community among them equally, according to Geometric proportion, the dignity of persons being considered, in such a way, namely, that with the same Geometric proportion (as double, e.g., or sesquialter, etc.) by which the dignity of one is greater than the dignity of the other, he also obtains more of the common goods. But Commutative justice establishes equality among private persons, by giving or receiving an equal according to Arithmetic proportion, such as, e.g., between five and five.

THUS, then, Distributive justice has as its formal object the mean between excess and defect, according to Geometric proportion, just as, e.g., the quintuple is the mean between the sextuple and the quadruple; and therefore to him who exceeds another in dignity, e.g. by the quintuple, there ought to be distributed from the common goods quintuple more than to that other. But Commutative justice has as its formal object the mean between excess and defect, according to Arithmetic proportion; just as five is the mean between six and four; and therefore, of two men having five each, he who has taken one from the other must restore one to him, lest he himself have six and the other four, but each have five, which is the mean. Aristotle hands down this definition 5. Eth. cap. 3. et 4, received by all. Nor is it necessary to dispute this doctrine with Geometric and Arithmetic speculations, for they would obscure the moral matter more, as Gregory of Valencia warns disp. 5. quaest. 5. puncto primo.

HE NOTES, however, that by Distributive justice an equality is established according to the relation of the Community to its parts, and by that very fact an equality is established also among the parts of the Community themselves; and in this last respect, he says, the formal reason of Distributive justice consists; for among these there is a quintuple equality, e.g., to the quintuple, a quadruple to the quadruple, which is an equality simply and properly, such as ought to be in proper justice, and this Aristotle teaches 5. Eth. chapter 2. Whence it happens that this Justice is not only in the Dispenser of the community, but also in the members of the community, in those capable of receiving this equality; for they can will it.

I ASSERT that these two Justices are specifically distinct. So Aristotle in the place cited, and the common view.

IT IS PROVED. Those virtues differ in species whose acts, from the formal reason of their object, have both a different praise and a different difficulty: such are the acts of Commutative and Distributive Justice: Therefore. The minor, as to praise, is evident; as to difficulty, however, it is proved, because by Commutative justice there is given to another what is truly his; but by Distributive justice there is given what is as it were his, inasmuch as what belongs to the whole community belongs also to the parts; but it is easier to give to another what is his absolutely, than what in another way is in some manner his.

From these things the answer to Buridan's argument 5. Eth. quaest. 7 is clear, where he contends he can prove that they are not specifically distinct, because both preserve equality. For we have already seen that the equality of each is different. See the rest in Valencia loc. cit., and Mastrius disp. 7. num. 179.

FURTHERMORE, the matter of Distributive and Commutative justice are the very things that are commuted or distributed; but the proximate matter of Commutative justice are commutations, either voluntary, as Buying, Selling, Exchange, Betrothal, Usury, Deposit, Hiring, as Aristotle says 5. Eth. cap. 2; or according to D. Thom. art. 3: Buying or Selling, which is the permutation of a thing for money; Usufruct, when someone grants gratis the use of a fruit-bearing thing, with the obligation of returning the same thing; Loan for use (Accomodatum), when the use of a non-fruit-bearing thing is granted gratis, with the obligation of returning the same thing in number; Mutuum (consumable loan), when likewise the use of a non-fruit-bearing thing is granted gratis, with the obligation of returning the same in species, not in number; Leasing and Hiring, when the use of a thing is granted for a price, with the obligation of returning the same: Deposit, when a thing is granted that it be kept and afterwards returned; Pawning, when a thing is granted to secure the obligation of satisfaction, namely that if he does not satisfy, it can be retained: Suretyship (Fideiussio), when someone simply obliges himself to satisfy for another. Add Bills of Exchange, Partnership, and other things to be discussed below.

THERE ARE ALSO Involuntary Commutations, from which some are clandestine, as Theft, Adultery, Poisoning, Pimping, the seduction of servants, Homicide treacherously committed, and false testimony. Others are violent, as scourging, Chains, Death, Robbery, Mutilation, Reviling, the infliction of Contumely. See St. Thomas.

BUT THE proximate matter of Distributive justice are the distributions of all the goods of the Republic, revenues, honors, etc. Indeed also of burdens, which ought to be distributed according to the distribution of goods and honors as well. See the same D. Thomas.

FROM WHAT has been said it seems to follow that Commutative justice does not observe Geometric equity, otherwise the species would be confused, as Valquez and Turrianus say: Yet Suarez, Card. Lugo, Poncius (in Mastrius n. 181) assert this for the case when someone, because of contracts, owes many and has gone bankrupt; and therefore cannot satisfy all equally; then he must satisfy all according to proportion; as if one creditor is owed a hundred gold pieces, another two hundred, let 150 be given to the latter, but only fifty to the former. Thus he will pay by Commutative justice, and Geometric proportion will be preserved.

YET FOR all that those equities are not confused, says Mastrius, because in Commutative justice an equity of quantity, of equality, and moreover of proportion is required; in Distributive justice, however, of proportion alone.

AMICUS, however, disp. 11. sect. 14, for that reason denies that they are specifically distinguished.

COLLECT MOREOVER that Commutative justice is a genus divided into subordinate species, as I related above; for in nearly each there is a different law, as Mastrius says num. 184; for the law concerning goods of reputation, life, fortune, etc. is different, as Amicus also says.

n. 14.

CARDINAL LUGO ALSO COLLECTS disput. 1. num. 43, on Distributive justice, that in every act it regards several persons compared, so that proportion may be preserved.

n. 15.

THIS, HOWEVER, Suarez denies, disp. de Iustitia sect. 3, as do Poncius and Mastrius, because a Bishop can confer a benefice on someone without comparison with others.

n. 16.

BUT THIS reason is frivolous; for Distributive justice to be preserved, the more worthy must be chosen, according to the decree of the holy Council of Trent; and this supposes a comparison, at least confused, or some distinct one with several; otherwise, if he confers it thinking nothing of it, he will not act according to the norm of Distributive Justice.

Tr. I, Disputation XXIV: On Restitution

AMONG the species of Justice enumerated above, none is graver, or more pressing, than Restitution; which therefore suffers grave difficulties: for to steal another's goods, a greed conscious of its own need does not disdain; but to restore, for the most part, recoils rather from disdain than from want; since it is not so much the return of what was taken away, as a kind of public confession of the crime committed. Yet nevertheless there is an obligation of compensating the injury inflicted, or the thing taken away; so that D. Augustine could say with the greatest confidence, epist. 54 ad Macedonium, that even one who persuades a man not to restore, or even does not compel him (provided the task of compelling is in his own hands), is a partner in the crime and the fraud, and will be bound by an equal bond both of punishment and of fault; and however much he be absolved from the fault by touching penitence, nothing will ever exempt him from the penalty of paying, except an impossibility of paying. For as St. Augustine says a little further on in the same place: No one is to be interceded for, that what he took away by crime he may possess with impunity for the crime; but, the injury being forgiven, let him render what he took away unjustly, provided he has what he took away, or something else from which he may restore it. Concerning this restitution, therefore, we must here treat with the usual brevity.

Tr. I, Disputation XXIV: On Resti…, Question I: What restitution is

RESTITUTION, as is gathered from D. Bonaventure in 4. dist. 15. quaest. ultima, is an act of Commutative Justice, by which, according to the equality of thing to thing, what has been taken from another, whether willingly or unwillingly, is given back to him. So also D. Thomas here, and others in Valencia disp. 5. quaest. 6. puncto 1; Caspensis disp. 1. sectione 1. de Restit. More properly, however, it is when what has been unjustly taken away is given back, as Tanner notes disp. 4. quaest. 6. dub. 1, with Bannes quaest. 62. art. 1 and others.

CASPENSIS, however, OBSERVES, from D. Bonaventure loc. cit. and Lib. 6. Compend. Theol. cap. 29, that Restitution differs from Satisfaction, as the inferior from the superior, because every restitution is a satisfaction, yet not every satisfaction is a restitution; for he who satisfies for himself is not said to restore. And so Restitution is the giving back of what was received, and pertains to Commutative justice: but Satisfaction is the taking on of some burden because of an offense inflicted on another, and pertains to Vindictive justice.

MOREOVER, Satisfaction for sins, if it is made ex opere operantis, must be by a man existing in grace: but Restitution can be fulfilled by a man existing in mortal sin. Satisfaction, too, can be a part of the Sacrament of Penance: but Restitution by no means. Finally, Satisfaction is at the discretion of a good man: but Restitution of itself must be made according to equality. Moreover, all say that Restitution is an act of Commutative Justice.

Tr. I, Disputation XXIV: On Resti…, Question II: Whether restitution is necessary for salvation

IT IS A COMMONPLACE, that saying of D. Augustine epist. 44: The sin is not forgiven unless what was taken away is restored. And cap. ult. de Iniustitiis: If damage has been given by your fault, you are bound in justice to make satisfaction. From which you have that to restore is a precept, as the Holy Doctor teaches in 4. dist. 15. quaest. ultima. But it is not necessary as a means, for we are often excused from restitution on account of incapacity, and yet we can still be saved, as I shall show from D. Augustine; but means, even when omitted without fault, impede salvation.

THERE IS, however, a difficulty: Whether this precept is negative.

OBSERVE, for distinguishing, that to recognize whether a Precept is affirmative or negative, one must attend to the matter which is commanded, not to the manner in which it is enunciated; for if the matter, or object, is something forbidden, it will be negative; but if something commanded, it will be positive.

I ASSERT it is negative in substance, although in the form of words it is affirmative: Restore what is not thine, that is, do not retain what is another's: So the Doctors who seem contrary are reconciled, in Tanner disp. 4. quaest. 6. num. 8; Bassaeus num. 4.

FOR IT IS PROVED that this grave precept is expressed positively by Matthew 22: Render therefore to Caesar the things that are Caesar's. And Romans 13: Render to all men their dues: tribute, to whom tribute; custom, to whom custom. Which the Holy Doctor pursues in Confessionali, cap. 4. partic. 2.

IT IS PROVED, secondly, by the Holy Doctor loc. cit. and in Speculo, cap. 2, toward the end, with a splendid testimony of St. Augustine, epist. 54. ad Macedonium, which is cited in Regula Peccatum, de regulis Iuris, in 6, and in cap. cum tua, extra de usuris, and in Decretis 14. quaest. 6. can. 1. For when Macedonius had written in the letter, the preceding 53rd, which is to Augustine, that some even desired the penalty of their crime to be relaxed for them, while they possessed that for which the crime had been committed. St. Augustine answering says: You mention that worst kind of men, upon whom every medicine of penance is of no profit. For if the thing of another, on account of which the sin was committed, is not restored when it can be restored, penance is not done, but feigned: but if it is done truthfully, the sin will not be forgiven unless what was taken away is restored — but, as I said, when it can be restored. For often he who takes away loses, either by suffering evil men, or by living badly himself; and he has nothing else from which he may restore. To such a one, certainly, we cannot say: Restore what you took away, except when we believe him to have it, and he denies it. From this testimony of St. Augustine, D. Thom. loc. cit. and the Disciple collect, especially Tanner disp. 4. quaest. 6. num. 7, that restitution is not necessary by a necessity of means, because the condition is added: if he can.

BUT THAT the Precept is negative is proved by Valencia with the argument of St. Bonaventure in the place cited, because it obliges forever not to retain the thing of another to the injury of its Owner, and the unjust detainer is always in unjust delay, sinning actually, as the Holy Doctor says in the place cited, and as I showed in the first part of the Summa.

BASSAEUS ANSWERS that it does not oblige forever, e.g. in necessity. But then things are common; therefore he is not an unjust detainer, and so is not subject to restitution.

YOU WILL OBJECT. If the debtor sins by not restoring, the creditor ought to give way, lest the debtor be damned; for the salvation of the soul is to be preferred to riches.

ADRIANUS de restit., Sotus Lib. 4. de Iustitia, quaest. 6. art. 2, and Valencia disp. 5. quaest. 6. puncto 2, struggle with this. But I answer easily from D. Bonaventure in 3. dist. 29. quaest. ultima, that the Order of Charity between my goods and my neighbor's requires necessity in the neighbor — a necessity, surely, which is not found in him who can, and wills not, to restore. But I am not bound to give support to his evil will; for Charity does not act perversely.

Tr. I, Disputation XXIV: On Resti…, Q. III, Doubt II: On the indirect causes of loss

THERE FOLLOW three others, namely the Silent one. He is called silent who ought to have spoken in order to prevent the damage. He can be bound either by office, as a Prelate, or by contract. I shall treat of these in the doubts below.

The SECOND is the Non-obstructor, when he ought to have obstructed, as Prince, Magistrate, and the like.

The THIRD is the Non-discloser of the one causing damage, when he was bound, as a witness in court, keepers of vineyards, woods, etc. Many doubts are raised about these.

TANNERUS disp. 4. quaest. 6. dub. 2. num. 72. requires three conditions for these persons to be bound to restitution. The first is that he was bound to procure such a good, or ward off such an evil, by a debt of Commutative or Distributive Justice. The second is that he was bound to procure it for that very person who has been damaged, whose cause he ought to have pleaded. The third is that the procuring of such a good was deliberately omitted, or omitted with proportionate fault. From this doctrine innumerable cases are resolved. See also Vasquez prim. 2. disp. 175. Lessius Lib. II. cap. 12. disput. 10. et 18.

WHETHER, THEREFORE, he who is the indirect cause of damage by not obstructing it, when he can and ought, is bound to restitution; many assert universally. So Angelus, and Cajetan in the summa, under the word Restitutio, Richard in 4. dist. 15. art. 5. quaest. 4. Valencia also, at the place cited, judges it probable.

OTHERS, however, as reported by Valencia, say he is bound only when he could and ought to have obstructed it out of justice; for instance, because he was Praetor, etc. So it seems D. Bonaventure holds in the Speculum, cap. 1. under the word Damnificatio, Sylvester V. Restitutio 3. Adrian IV, quaest. de Restitut. Soto Lib. 4. de Iustitia, quaest. 7. art. 3. Medina quaest. 9. de rebus restitutis. Alensis 4. part. quaest. 86. num 3. art. 4 §. 7. Altissiodor lib. 4. summae, tract. de poenitent. cap. de Restit. and almost Valencia; Bassaeus num. 15. citing Peter of Navarre lib. 3. cap. 4. numero 130. Lessius lib. 2. cap. 13. dub. 10. Bonacina disput. 1. quaest. 2. punct. 11. Azor 3. part. lib. 4. cap. 17. Fillucius tract. 32. num. 75. Sylvius 2. 2. quaest. 62. art. 4. quaestio 4. and art. 7.

As to the keeper of the gates of woods who connives at the carrying-off of timber, many, as reported by Diana part. 2. tract. 5. resol. 54, deny that they are bound to make good the losses inflicted.

THERE ARISES another question: Whether a Confessor, and others on whom the office of prohibiting unjust detentions rests, are bound to Restitution if they omit to admonish, etc. As to the Confessor, they affirm it: Summa Rosella, V. Restitutio 2. §. 5. Summa Angel. V. Restitutio, ultim. §. 5. Navarre in the Manuale, cap. 17. num. 22. and others as reported by Valencia disput. 5. quaest. 6. puncto 3. and Bonacina de restitut. disput. 1. quaest. 2. punct. 11. The same view is followed by Nunges in addit. ad 3. part. Tom. 2. quaest. 8. art. 4. dub. 5. Zanchus in the directorium confess. part. 2. praecepto 7. cap. 26. dub. 3. Gabriel in 4. dist. 15. quaest. 2. art. 3. Sylvester V. usura, 7. quaestio 2. and other Neoterics as reported by Diana Tom. 1. Tract. 16. resol. 1. Bassaeus num. 8.

The CONTRARY opinion is that of Bonacina and others as reported by him, Filliucius tom. 1. tract. 7. cap. 12. quaest. 7. num; 37. Lessius Lib. 2. cap. 10. dub. 6. Malderus 2. 2. tract. 5. cap. 3. dub. 24. Bartholomew of Saint Faustus in spec. confess. disp. 4. quaest. 121. num. 7. Aegid. Coninch. de Sacram. disp. 8. dub. 17. num. 144. Rebellius de oblig. iust. part. 2. lib. 17. quaest. ult. num. 12. and part. 1. Lib. 2. quaest. 14. sect. 8. num. 63. Diana limits this, provided the Confessor does not persuade the penitent not to make restitution. But the obligation to join restitution with not dissuading is one and the same. This indeed is taught also by Suarez tom. 4. in 3. part. disput. 32. sect. 6. and Rebellius at the place cited, Caspensis disp. 5. sect. 9. §. 1. num. 86. Sanchez Lib. 7. Decalogi, cap. 6. Tanner. disp. 4. quaest. 6. num. 75. referring to others, Bassaeus, V. Restit. 3. §. 7. num. 16. Crousers ad cap. 7. Reg. Min. lib. 31.

Slater, Cases I, The Seventh Commandment—Ju…, Case 1. An Ingenious Verger · Slater, Cases I, The Seventh Commandment—Ju…, Case 2. Boycotting · Slater, Cases I, The Seventh Commandment—Ju…, Case 3. A Wrongly Provident Pauper · Slater, Cases I, The Seventh Commandment—Ju…, Case 4. An Avaricious Priest

The opinion of D. Bonaventure, as I see, is this second one; for in the Confessionale, cap. 4, where he professes to teach confessors what they are bound to do, and what penalties they incur by omitting it, he says: Attendendum igitur, quod cum sint tria genera poenitentium, primis nulla potest iniungi poenitentia utilis ad salutem. Horum autem sunt sex genera. Primi raptores, Secundi usurarii, Tertii incendiarii, Quarti fures, Quinti Simoniaci, Sexti dolosi circumventores, ut sunt perversi Iudices, advocati iniqui, testes falsi, negotiatores fraudulenti, et alii huiusmodi, quibus omnibus non potest alia iniungi poenitentia, nisi illa Evangelica, Matth. 18. Redde quod debes, et illa Apostolica, Rom. 13. Reddite omnibus debita. Et illud Ecclesiastici 4. Redde debitum tuum. Quod si hanc acceptare noluerit confitens, nulla alia iniungi potest, quae valeat ad salutem; quia, ut dicit Augustinus epist. 54. ad Macedonium 14. quaest. 6. Si res aliena, propter quam peccatum est, possit reddi, et non redditur, poenitentia non agitur; non remittitur peccatum, nisi restituatur ablatum. He then enumerates the rest shortly after in part. 7. He indeed condemns confessors who omit the debt; but he imposes nothing about Restitution upon them.

…and 190 more passages — all of them are listed on the topic page.

Slater, Cases I

Thomas Slater, S.J. — 412 passages (filed under the subtopics)

Slater, Cases I, The Seventh Commandment—Ju…, Case 1. An Ingenious Verger

Titius, the verger of a certain church, lets seats to the faithful for the parish priest. Caia had rented one of the principal seats, but she passed the summer season in distant regions. According to custom, other members of the faithful occupied Caia’s seat in her absence. Julia comes to Titius seeking a seat to be rented during the summer; he denied that any was vacant except Caia’s seat, which she could have, in Caia’s absence, upon payment of a fourth part of the whole annual price and without Julia’s name being put in place of Caia’s. Titius retained for himself the money paid by Julia as the fruit of his industry, as he says. But when the parish priest discovered Titius’s transaction by accident, he proposed the theological question whether he had acted justly. Hence it is asked:

What is a right which constitutes the object of commutative justice?

How are the fruits of a thing distinguished, and to whom and by what right do they belong?

What are ecclesiastical goods, and are the offerings of the faithful to be numbered among them?

What is to be said of the case?

Solution

What is a right which constitutes the object of commutative justice ?

A right is a moral power of having, doing, or exacting something.¹

1 Manual of Moral Theology, vol. i, p. 343.

How are the fruits of property distinguished, and to whom and by what right do they belong?

Fruits of property are natural, industrial, mixed, and civil. Natural fruits of the soil, for instance, due alone to its natural fertility, belong to the owner of the soil. Industrial fruits, due to man’s labor, belong to the laborer. Mixed, or partly natural, partly industrial, should be divided equitably between the laborer and the owner of the soil or other property which produces the fruits. Civil fruits, such as rent and interest, belong to the owner of the property rented or borrowed. These rules follow from the nature of the right of property, and so they belong to the natural law.²

2 The same work, pp. 374, 401.

What is ecclesiastical property, and are the offerings of the faithful ecclesiastical property?

Property which belongs to the Church, or to a religious corporation, or to a pious institute founded by ecclesiastical authority, is called ecclesiastical property. The private property of clerics is not ecclesiastical property. Whether the offerings of the faithful are ecclesiastical property or the private property of the clergy depends partly on the intention of the donors, partly on Church law, which for Britain and the United States of America is contained in the Second Council of Westminster, d. 8, according to the constitution of Leo XIII, Romanos Pontifices, May 8, 1881.³

3 The same work, p. 363.

The case. Titius, the verger of a certain church, let out the seats to the faithful for the parish priest. Caia hired one of the first, but as she was absent in the summer months her seat in her absence used to be given to others. Julia wanted to hire a seat for the summer months and Titius let to her Caia's on condition that Caia's name was not removed and that Julia paid what was equal to a fourth part of the annual rent of the seat. Titius kept this sum for himself as the fruit of his industry.

Titius has no right to the money, and he should hand it over to the parish priest. According to the Second Council of Westminster, bench rents form a part of the property of the Church, and so whatever Caia's seat brought in either from Caia herself, or from Julia, or from anybody else, was Church property, and could not be appropriated by Titius without sacrilege.

Slater, Cases I, The Seventh Commandment—Ju…, Case 2. Boycotting

Julius, who applies himself to the study of moral theology, recently read in a certain newspaper an article which seems to defend the lawfulness of the action called “boycotting,” in order to prevent another from renting lands from which a previous tenant had been expelled by the landlord. For those who apply a “boycott” in the case do nothing violent; each indeed, as a result of a conspiracy, abstains from all association, except in a case of extreme necessity, with those who rent the lands, in which manner of acting nothing is discovered which is not conceded to physicians and others who do not associate with brethren who do not observe the rules of the profession. Hence it is asked:

What is a right, and how are rights divided?

What is the foundation of a right, or whence do human beings possess rights?

Is the saying true—It is lawful for several persons as a result of a conspiracy to do what is lawful for individuals?

What is to be said of the case?

Solution

What is a right and how are rights divided?

A right is a moral power of having, doing, or exacting something. Rights may be divided in a great many ways, but for the purposes of this case it will be sufficient to mention natural rights, such as the right to live and to hold property, rights due to positive law, such as the right of prescription, and rights arising out of contract.

What is the foundation of right, or whence do men get their rights?

The foundation of natural rights is man’s rational nature, which is ordered by God his Creator to eternal blessedness with God. The duty is imposed upon man by his Creator of working toward the attainment of the end for which he was created; he has consequently the right to fulfil his destiny unhindered by any one else. This is the ultimate foundation for all man’s natural rights. Positive law is the foundation of rights derived from that source; and voluntary agreement that of rights arising from contract.

Is the saying true: Whatever individuals are allowed to do may be done by many in conspiracy with one another?

In general it is, but sometimes it becomes unlawful because the very fact of numbers acting together in conspiracy causes hardship to others, or interferes with their rights. Thus individuals have a right to walk through a crowded thoroughfare, but it does not follow that a large number of people may form themselves into a compact body and march, so as to interfere with the traffic.

The case. Those who boycott another abstain from all intercourse with him and prevent others from having any intercourse with him with a view to compelling him to leave a place or occupation to which he has a legal right. Thus they violate his natural right of liberty to settle and employ himself as he chooses, provided that he does not violate just laws nor the rights of others. They also violate the right that he had acquired by contract with the owner of the property which he hired. Boycotting is also against charity on account of the hardship which it causes and the practical exclusion of the boycotted party from human society. It also interferes seriously with public order and peace. Doctors, lawyers, and others belonging to like voluntary associations have a right to make rules for their mutual protection, and any one who enters such profession may be required to conform to the established rules. If they will not do so, they may be professionally ostracized. Such ostracism, however, is only partial; it is applied for good reason to compel uniformity for the common good; it is very different from the ordinary boycott, which takes away rights, the enjoyment of which is necessary for human life.

Slater, Cases I, The Seventh Commandment—Ju…, Case 3. A Wrongly Provident Pauper

Caius, a very poor old man, unexpectedly received by fortune a legacy of one hundred pounds sterling, but he resolved not to spend it for his own support, but rather to hand it over to his friend Julius so that after his death the latter would take care that Masses were celebrated for his soul. Afterward Caius entered a workhouse, alleging that he was destitute of the means of supporting himself, and there lived for a year at public expense.

After his death, Julius, in order to execute the trust, handed the money to a certain priest, who nevertheless doubted whether he could accept it all or not. Hence it is asked:

Did Caius in the case offend against commutative justice?

Was it lawful for Julius to execute the trust?

What is to be said of the case?

Solution

Did Caius sin against commutative justice in the case?

No; he did wrong in giving the legacy to a trust with instructions to apply it to have Masses said for him after his death. He should have spent it on his own support during life. Still the transaction was valid, much as if he had spent the legacy on drink or other pleasures; the wasteful expenditure would have been valid. After he has disposed of the money, however wrongfully, he goes to the workhouse, and there his support is given him not conditionally but absolutely, for in truth now he has nothing to live upon.

Was Julius allowed to execute the trust?

Julius should not have undertaken the trust, for the effect of it was to throw on the rates one who might have supported himself easily for another year at least. Julius therefore was guilty of co-operating in a fraudulent transaction. We have no data for deciding whether Caius and Julius were in good faith, probably they were; but we are considering merely the objective aspects of the case. After the death of Caius, of course, Julius was under an obligation of handing over the money for Masses according to the instructions of Caius.

The case. The priest could receive the money according to the intentions of Caius, who had the power to make a valid transfer of it to him, and who did so. If Caius was in debt at his death, the debts should be paid out of the legacy, but there are no indications that this was the fact.

Slater, Cases I, The Seventh Commandment—Ju…, Case 4. An Avaricious Priest

Titius, a missionary in England and not exempt from every suspicion of avarice, is in no way content with the sum of money which, according to a custom of the diocese approved by the bishop, is offered by the faithful in consideration of the administration of the sacraments and other functions. Indeed, unless at least the richer persons pay a sum twice as large as that assessed, he reproaches them most harshly, saying that they defraud him and the Church of God. Therefore he exacts from the richer persons two shillings instead of one for a baptism, and in a similar manner increases the other stole fees. During the time of spiritual exercises, however, he begins to doubt whether he has thereby contracted any guilt, and even a burden of restitution, or not, and therefore questions the Father who gives the exercises concerning his doubts. It is asked:

How are the goods of clerics divided, and what right regarding them belongs to clerics in England?

Can stole fees in England be exacted under the title of commutative justice?

Does anyone sin against commutative justice who exacts something beyond the diocesan assessment by reason of stole fees?

Pt. III, Ch. V, Section IV. Of Contracts · Pt. III, Ch. V, Section V. Of Usury · Pt. III, Ch. VII, Section I. Of Private Property · Pt. III, Ch. VII, Section II. Of Private Capital · Pt. III, Ch. VII, Section III. Of Landed Property

What is to be said of the case?

…and 372 more passages — all of them are listed on the topic page.

Rickaby, Moral Philosophy

Joseph Rickaby, S.J. — 43 passages (filed under the subtopics)

Pt. III, Ch. V, Section IV. Of Contracts

A contract is a bargain productive of an obligation of commutative justice in each of the contracting parties. A bargain is a consent of two wills to the same object. Thus a promise, before it is accepted, is not a bargain. But even after acceptance a promise is not a contract, for the promiser may not choose to bind himself in justice, but only in good faith, while the promisee is under no obligation whatever.

There are such things as implicit contracts, attached to the bearing of certain offices, whereby a man becomes his brother's keeper. The liability contracted is limited by the nature of the office: thus a physician is officially bound in justice as to his patient's pulse, but not officially as to his purse. Where there is no explicit contract, the duties which the subjects of a person's official care have towards him are not duties of commutative justice. Thus these implicit contracts are not strictly contracts, as failing to carry a full reciprocity.

Contracts are either consensual or real, according as they are either complete by the mere consent of the parties, or further require that something should change hands and pass from one to the other. What contracts are consensual, and what real, depends chiefly on positive law. No natural law can tell whether buying and selling, for instance, be a consensual or a real contract. The interest of this particular case is when the goods are lost in transmission: then whichever of the two parties at the time be determined to be the owner, apart from culpable negligence or contrary agreement of the sender, he bears the loss, on the principle, res perit domino.

Contracts are otherwise divided as onerous and gratuitous. In an onerous contract either party renders some advantage in return for the advantage that he receives, as when Titius hires the horse of Caius. In a gratuitous contract all the advantage is on one side, as when Titius does not hire but borrows a horse. The Roman lawyers further distinguish contracts, somewhat humorously, into contracts with names and contracts without names, or nominate and innominate, as anatomists name a certain bone the innominate bone, and a certain artery the innominate artery. Innominate contracts are reckoned four: I give on the terms of your giving, otherwise than as buying and selling,—to some forms of this there are English names, as exchange and barter: I do on the terms of your doing: I do on the terms of your giving: I give on the terms of your doing.

Readings.—De Lugo, De Just. et Jure, 22, nn. 1, 2, 5, 6, 9, 16, 17. For buying and selling and the frauds incident thereto, Paley, Moral Philosophy, bk. iii., p. 1, c. vii.

Pt. III, Ch. V, Section V. Of Usury

We must distinguish use value and market value. The use value of an article of property is the esteem which the owner has of it from every other point of view except as a thing to sell. Thus a man values his overcoat on a journey as a protection from cold and rain. A book is valued that was held in the dying hand of a parent. This is use value. The market value of an article is the estimate of society, fixing the rate of exchange between that and other articles, so much of one for so much of another, e.g., between mahogany and cedar wood, considered as things to sell.

Answering to this twofold value is a twofold exchange, private exchange, which regards use value; and commercial exchange, which is founded on market value. If I part with my watch to a sailor for carrying me across an arm of the sea where there is no public ferry, that is private exchange. If I pay the ordinary fare where there is a public ferry, that is commercial exchange.

Private exchange begins in the need of at least one of the contracting parties. It is an act of charity in the other party to accommodate him by offering the thing needed. If the offer is made otherwise than as a gift, and is accepted, he who avails himself of it is bound in justice to see that the afforder of the accommodation is compensated for the loss that he suffers in affording it. Thus far the recipient is bound in justice, and no further in that virtue. However wholesome or profitable the thing be to him that gets it, the supplier cannot charge for that but only for the loss that he himself suffers, or the gain that he foregoes, in handing the thing over, or the pains that he takes, or the hardship that he endures, or the risk that he runs, in rendering the service desired. If all the labour to be undergone, or damage incurred, or risk encountered, by the sailor who goes about by private bargain to be my ferryman, is fairly met by the remuneration of a thirty-shilling watch, he has no right to stipulate for any more, not though the passage that he gives me sets me on the way to a throne. The peculiar advantage that I have in prospect does not come out of him, but out of myself. He must not pretend to sell what is not his, what attaches, not to him, but to me. He can only sell his own loss, risk, pains and labour. At the same time, if I have any gentlemanly or generous feeling in me, I shall be forward to bestow extra remuneration on one who has rendered me so timely a service: but this is matter of my gratitude, not of his right and claim in justice. Gratitude must not be put into the bill. And this much of private exchange.

Commercial exchange is conducted according to market value. Apart from dire necessity—and one in dire necessity is not fit to enter into commercial exchanges—the rule is, that a seller may always ask the market value of his article, however much that may be above what the thing cost him, or the use value which it bears to him. Thus, if one finds in his garden a rare Roman coin—so far as his tastes go, a paltry bit of metal—he may sell it for whatever price numismatists will offer: whereas, if there were no market for coins, but only one individual who doted on such things, the finder could make no profit out of that individual, the coin having neither market value with the community, nor use value in the eyes of the finder.

As there is a twofold value, and a twofold exchange, so a twofold character is impressed on the great instrument of exchange, money. Money, in one character, is an instrument of private exchange: in its other character, to mercantile men more familiar, it is an instrument of commercial exchange. In the one, it represents use value to the particular owner, more or less to him than it would be to some other owner: in the other, it represents market value, the same to all at the same time.

Leo X. in the Fifth Council of Lateran, 1515, ruled that—"usury is properly interpreted to be the attempt to draw profit and increment, without labour, without cost, and without risk, out of the use of a thing that does not fructify." In 1745 Benedict XIV. wrote in the same sense to the Bishops of Italy: "That kind of sin which is called usury, and which has its proper seat and place in the contract of mutuum, consists in turning that contract, which of its own nature requires the amount returned exactly to balance the amount received, into a ground for demanding a return in excess of the amount received." Mutuum, be it observed, is a loan for a definite period, of some article, the use of which lies in its consumption, as matches, fuel, food, and, in one respect, money. We shall prove this to be properly a gratuitous contract. (s. iv., n. 4, p. 254.)

Usury then is no mere taking of exorbitant interest. There is no question of more or less, but it is usury to take any interest at all upon the loan of a piece of property, which

(a) is of no use except to be used up, spent, consumed:

(b) is not wanted for the lender's own consumption within the period of the loan:

(d) is so lent that the lender foregoes no occasion of lawful gain by lending it.

When all these four conditions are fulfilled, and yet interest is exacted upon a loan, such interest is usurious and unjust. And why? Simply by reason of the principle that we laid down before, speaking of private exchange (n. 3), a principle that is thus stated by St. Thomas:

"If one party is much benefited by the commodity which he receives of the other, while the other, the seller, is not a loser by going without the article, no extra price must be put on. The reason is, because the benefit that accrues to one party is not from the seller, but from the condition of the buyer. Now no one ought to sell to another that which is not his, though he may sell the loss that he suffers. He, however, who is much benefited by the commodity he receives of another, may spontaneously bestow some extra recompense on the seller: that is the part of one who has the feelings of a gentleman." (2a. 2æ, q. 77, art. 1, in corp.)

St. Thomas speaks of sales, but the principle applies equally to loans. It is upon loans of money that interest is commonly taken, and of money-loans we speak. Clearly, according to the doctrine stated, the lender can claim the compensation of interest, if he has to pinch himself in order to lend, or lends at a notable risk. He is selling his own loss,—or risk, which is loss once removed. But supposing he has other monies in hand, and the security is good, and he has enough still left for all domestic needs, and for all luxuries that he cares to indulge in,—moreover he has nothing absolutely to do with his money, in the event of his not lending it, but to hoard it up in his strong box, and wait long months till he has occasion to use it: in that case, if he lends it he will be no worse off on the day that he gets it back, no worse off in the time while it is away, than if it had never left his coffers. Such is the contract of mutuum, shorn of all accidental attendant circumstances, a contract, which "of its own nature," as Benedict XIV. says, that is, apart from circumstances, "requires the amount returned exactly to balance the amount received." Not though the borrower has profited of the loan to gain kingdoms, is any further return in strict justice to be exacted of him on that precise account.

But now an altered case. Suppose land is purchaseable, and it is proposed to stock a farm with cattle, and rear them, and convey them to a large town where there is a brisk demand for meat—the supposition is not always verified, nor any supposition like it, but suppose it verified in some one case—then, though the lender has other monies in hand for the needs of his household, and the security is good, yet the money is not so lent as that he foregoes no occasion of lawful gain by lending it. He foregoes the purchase of land and farm stock, or at least delays it, and delay is loss where profit is perennial. On that score of gain forfeited he may exact interest on the money that he lends, which interest will be no usury. The title of interest here given is recognized by divines as lucrum cessans, "interruption of profit." The interest is taken, so far as it goes upon a lawful title, not upon the fact of the borrower's profit—that is irrelevant—but upon the profit that the lender might have made, had he kept the money in hand.

This latter case (n. 10) represents that putting of money out to interest, which is an essential feature of modern commerce. The former case (n. 9) is the aspect that money-lending commonly bore in the Middle Ages. In those days land was hard to buy, agriculture backward, roads bad, seas unnavigable, carrying-trade precarious, messages slow, raids and marauders frequent, population sparse, commerce confined to a few centres, mines unworked, manufactures mostly domestic, capital yet unformed. Men kept their money in their cellars, or deposited it for safety in religious houses: whence the stories of treasure-trove belonging to those days. They took out the coin as they wanted it to spend on housekeeping, or on war, or feasting. It was very hard, next to impossible, to lay out money so as to make more money by it. Money was in those days really barren—a resource for housekeeping, not for trade—a medium of private, not of commercial exchange—a representative of use value, not of market value. Apart from risk of non-repayment, to take interest for money that you had no use for but to hoard, was getting "a breed of barren metal:" it was taking up what you laid not down: it was making profit out of your neighbour's need, or your neighbour's gain, where there was no corresponding need unsatisfied, or gain forfeited, on your part: it was that "attempt to draw profit and increment, without labour, without cost, and without risk, out of the use of a thing that does not fructify," which the Fifth Lateran Council defines to be usury.

In our time, thanks to steam and electricity, the increase of population, and continued peace, the whole world has become one trading community, representing now more, now less abundant opportunities for the investment of money, and the conversion of it into other lucrative commodities. Money consequently with us is not a mere medium of private exchange for the purposes of housekeeping: it is a medium of commercial exchange. It represents, not use value, but market value. To be a thousand pounds out of pocket for a year means an opportunity of gain irretrievably lost, gain that could have been made otherwise than by money-lending. Where this is so, and so far as it is so, the lender may without violation of justice point to lucrum cessans, gain lost, and arrange beforehand with the borrower for being reimbursed with interest.

The transition from mediaeval housekeeping, with its use values and private exchange, to the mercantile society of modern times, was not made in a day, nor went on everywhere at the same rate. It was a growth of ages. In great cities commerce rapidly ripened, and was well on towards maturity five centuries ago. Then the conditions that render interest lawful, and mark it off from usury, readily came to obtain. But those centres were isolated. Like the centres of ossification, which appear here and there in cartilage when it is being converted into bone, they were separated one from another by large tracts remaining in the primitive condition. Here you might have a great city, Hamburg or Genoa, an early type of commercial enterprise, and, fifty miles inland, society was in its infancy, and the great city was as part of another world. Hence the same transaction, as described by the letter of the law, might mean lawful interest in the city, and usury out in the country—the two were so disconnected. In such a situation the legislator has to choose between forbidding interest here and allowing usury there; between restraining speculation and licensing oppression. The mediaeval legislator chose the former alternative. Church and State together enacted a number of laws to restrain the taking of interest, laws that, like the clothes of infancy, are not to be scorned as absurd restrictions, merely because they are inapplicable now, and would not fit the modern growth of nations. At this day the State has repealed those laws, and the Church has officially signified that she no longer insists on them. Still she maintains dogmatically that there is such a sin as usury, and what it is, as defined in the Fifth Council of Lateran.

Readings.—St. Thos., 2a 2æ, q. 77, art. 1; Ar., Pol., I., ix.; St. Thos., 2a 2æ, q. 77, art. 4; The Month for September, 1886; _The Nineteenth Century _for September, 1877, pp. 181, seq.

Pt. III, Ch. VII, Section I. Of Private Property

Property was called by the Romans res familiaris, the stuff and substance of the family. Property may be held by the individual for himself alone: but any large accumulation of it is commonly held by the head of a family, actual or potential, for the family; and he cherishes it for the sake of his family as much as, or even more than, for his own sake. This is to be borne in mind, for many errors in theory and in practice spring from a large proprietor figuring as an individual, and not as a sort of corporation sole in his capacity of paterfamilias.

We have seen (c. v., s. i., n. 2, p. 245) how man acquires a right over external goods, as it were setting the seal of his own personality upon them. It appears upon further consideration, that this right must extend beyond the mere making things your own for immediate use and consumption; it must extend to the storing of things for future and perennial use. Otherwise we have Communism. Communism allows men to hold property collectively in a common stock, and allows each member of the community to take for his peculiar own out of that stock whatever for the moment he needs; but it will not permit him to appropriate private means of subsistence against any notable time to come. Communism is very good in a family, which is an imperfect community, part of a higher community, the State. It is very good in a monastery, which is like a family: again, very good in the primitive Church at Jerusalem, which existed for the time on quasi-monastic lines: very good even in a perfect community, if such there be, of tropical savages, for whom nature supplies all things, bananas to eat and palm-leaves to wear, without any human labour of production; but very bad and quite unworkable everywhere else. St. Thomas, following Aristotle, puts it pithily and sufficiently: "Private property is necessary to human life for three reasons: first, because every one is more careful to look after what belongs to himself alone than after what is common to all or to many, since all men shun labour and leave to others what is matter of joint concern, as happens where there are too many servants: on another ground, because human affairs are more orderly handled, if on each individual there rests his own care of managing something, whereas there would be nothing but confusion, if every one without distinction were to have the disposal of any thing he chose to take in hand: thirdly, because by this means society is the rather kept at peace, every member being content with his own possession, whence we see that among those who hold any thing in common and undivided ownership strifes not unfrequently arise." (2a 2æ, q. 66, art. 2, in corp.)

If any revolutionist yet will have the hardihood to say with Proudhon, "Property is theft," we shall ask him, "From whom?" He will answer of course, "From the community." But that answer supposes the community to have flourished, a wealthy corporation, before private property began. Needless to say that history knows nothing of such a corporation. The saying, that in the beginning all things were in common, is not true in the sense that they were positively in common, like the goods of a corporation, which are collective property: but simply that they were negatively in common, that is, not property at all, neither of corporation nor of individual, but left in the middle open to all comers, for each to convert into property by his occupation, and by his labour to enhance and multiply. This must be modified by the observation, that the first occupants were frequently heads of families, or of small clans, and occupied and held for themselves and their people.

The saying, that all things are in common by the law of nature, must be received with still greater reserve. Really with as much truth it might be said that all men are unmarried, or unclad, or uneducated, by the law of nature. Nature unaided by human volition provides neither property, nor clothing, nor marriage, nor education, for man. But nature bids, urges and requires man to bestir his voluntary energies for the securing of all these things. The law of nature does not prescribe this or that particular distribution of goods, as neither does it join this man with that woman in marriage, nor insist on plaids rather than coats, nor set all boys to learn algebra, nor fix a ritual for divine worship; but it insists in the vague upon some worship, some education, some clothing, some marriage, and some distribution of goods, leaving the determination in each case to choice, custom, and positive law, human and divine.

All property that can ever be immediately serviceable for saving human life, is held under this burden, that a perishing fellow-creature, who cannot otherwise help himself in a case of extreme need (c. iv., n. 8, p. 243), may make such use of the property of another as shall suffice to rescue him from perishing off-hand. If he draws largely on another for this purpose, he ought to make compensation afterwards, if he has the means. This has been taken for a piece of the primeval rock of Communism cropping up from underneath subsequent human formations,—quite a mistaken notion. There is no Communism whatever in the transaction. Up to the instant when the needy man seizes the article that he requires to save him from death, that article still belongs to the owner from whom he takes it, who is bound in charity to give it to the needy party, but not in justice. Extreme need does not confer ownership, nor dispossess any previous owner: but it confers the right of taking what is another's as though it belonged to no one; and in the taking, the thing passes into the ownership of the new occupant, so that for the previous owner forcibly to resume it would be a violation of justice. English law does not recognise this right—properly enough, for with us it would be made a plea for much stealing—but refers the destitute to the parish. The law is considerately worked by the magistrates. A starving man, who took a loaf off a baker's tray, has been known to be sentenced to a few hours' imprisonment with two good meals.

As St. Paul says (2 Cor. xii. 14), "parents ought to lay up for their children," that they in whom their own existence is continued, may not be left unprovided for at their decease. The amount laid up necessary for this purpose, ought not to be diverted from it. Thus much at least Natural Law can tell us of the right of inheritance. And concerning testamentary right these natural considerations are forthcoming, that it adds to the desirability of property, that it secures deference to the wealthy in their old age, and that the abolition of it might be frustrated by an apparatus of confidential donationes inter vivos, that is to say, making the property over in trust before death. Further enlargement of the natural basis of testamentary right may be effected by the judicious reader.

Readings.—Ar., Pol., II., v., nn. 1-16; De Lugo, De just. et jure, vi., nn. 2-6; ib., xxi,, nn. 143, 144; Locke, Of Civil Government, c.v.; id., Of Government, nn. 88, 89.

Pt. III, Ch. VII, Section II. Of Private Capital

Reverting to a former section (c. v., s. v., nn. 1-5, p. 255) we lay down this distinction: Goods held for their use value are consumer's wealth: goods held for their market value are producer's wealth, otherwise called capital. Capital then is that wealth which a man holds for the purpose of gaining further wealth by means of commercial exchange. It is represented by the razors that are made, not to mow the manly beard, or youthful moustache, of the maker, but, as the Yorkshire vendor put it, "to sell."

Those economists who would allow no private ownership of capital, but would have all capital to be State property, are called Socialists. They stand distinctly apart from the Communists, whom we have been labouring to refute in the last section. The Communist forbids all private property: the Socialist allows private property, but in the shape of consumer's wealth alone. The Communist ignores the necessity of labour: the Socialist schemes to make all men work. The Communist contemplates a hand-to-mouth dispensation of all things: the Socialist locks all things up, wages in private coffers, capital in government stores. The Communist is a madman: the speculations of the Socialist are sometimes deep.

To what are we to attribute the rise of Socialism, and its growth and propagation so fast and vigorous, that, its supporters say with some colour of evidence, it is a theory destined within a measurable space of time to pass into actual practice, whether men will or no? The cause is not far to seek. There has lighted a plague upon all civilized countries, an outbreak fearful and severe: only by the great blessing of Providence, joined to drastic remedial measures on our part, can we cope with the evil. The plague is a cancerous formation of luxury growing out of a root of pauperism. It is a disease old as the world, but the increase of commerce and intercommunication has occasioned its bursting upon our generation in a peculiarly virulent form. And what is more, ours being a talking age, the disease is made the staple of speeches infinite, and the masses are clamouring for a remedy. The remedy proposed is Socialism.

Socialism in its essence is an attempt to transfer to the State, governed by universal suffrage, the wealth, and with the wealth the social duties, of what have hitherto been the wealthy and governing classes. It is not enough for the multitude that they are getting the political power out of the hands of the landlord and the capitalist: they envy the one his broad acres, and the other his investments. All must be theirs, sovereignty and wealth alike. If wealth has its duties, the people collectively with cheerful acceptance will undertake those duties. "It shall be ours, not only to be king, but to be employer, patron, landlord, educator. We will assign to the workman his wages, just and ample and perennial: we will adjust production to demand: we will be the restorers of agriculture: we will monopolise the carrying-trade: we alone will sell whatever shall be sold: we will wash the workman in public baths: his taste shall be elevated by our statues and pictures, our theatres, our music-halls, and our churches; we will gratify his curiosity with our news-agencies, feed his thought with our popular philosophy, educate his children as our own in our primary and secondary schools. Furthermore, we will provide the long desiderated career open to talents. The stupid boy, though his father was our Prime Minister, shall be made a cabin-boy, or a scavenger's assistant, an awful example to young gentlemen who fail to pass the Government examinations: while we will pick up, not the gutter child, for there shall be no more children in gutters, but the son of the woman at the mill, and testing him and assigning his career, first by school examinations, and then by his official performances, we will make him in time Poet Laureate or President of the Board of Trade, according to the bent of his genius." The astonished workman turns round upon the exhibitors of this fairy vision: "And pray who are You?" "Oh, you, we, the people, all of us together. Come put your shoulder to the wheel, and up goes our enterprise. Or rather our first motion is downwards: down with landlords and cotton-lords and lords of parliament, down with contractors and stock-jobbers and all who live on the interest of their money, and then our honourable multitude will possess and administer and govern."

If angels are to hold the collective ownership of capital and the government of men in the Socialist Commonwealth; or if every citizen, retaining in his private capacity all the follies and vices that human flesh is heir to, shall still be vested in angelic attributes, whenever he sits as legislator or judge, or acts on the executive of a Socialist commission,—then this new Commonwealth is likely to prove a blessed substitute for the rule of the higher classes, which in one way or another has hitherto obtained in civilized society. But till angelic attributes descend on earth, we shall not find a cure for the evils of cities and countries in simply doubling the functions of government, and placing all sovereign rights, and all the most important of proprietory rights and duties, in the hands of a numerical majority.

Capital, as we have seen, is a collection of market or exchange values in view of further exchange. If we call supply S and demand D, market value is a social estimate of the fraction D/S. Another definition has been given: Market value is a social estimate of the amount of socially useful labour which a given article contains. This second definition contains this much of truth in it, that directly as the demand for an article, and inversely as the supply of the same, is the amount of labour which men find it worth their while to spend upon that article for commercial purposes. Otherwise the definition is unsatisfactory and involved, and leads to endless discussion. Without entering into these discussions, we will remark an ambiguity in the term on which they all roll, the term labour, which ambiguity is at the bottom of three fourths of the sophistries of popular Socialism.

There were two pillars put at the entrance of Solomon's temple, one on the right hand and the other on the left: that which was on the right hand he called, according to the Septuagint, Direction, [Greek: katorthosis], and that on the left hand, Strength, [Greek: ischus]. (2 Par. iii. 17.) Further we are told that Solomon set seventy thousand men to carry burdens on their shoulders, and eighty thousand to hew stones in the mountains, and three thousand six hundred to be overseers of the work of the people. (2 Par. ii. 18.) The history is manifest. Strength and Direction build the Temple: Strength, or Manual Labour, represented by the hodmen and quarrymen, and the rest of the "hands:" Direction, or Mental Labour, represented by the overseers. Yet not by them alone: surely we must count in as doers of mental labour the designer of the Temple, or at least of its decorations, that "most wise and skilful man, my father Hiram;" and still more King Solomon himself and David, the two royal minds that originated and perfected the idea; and David's generals, Joab and Banaias, who secured the peace that was necessary as a condition of the building; and innumerable other men of place and power in the nation, but for whose thought and prudence the strength of the workman would have been thrown away like a river poured out in the Libyan desert. From this example, eked out with a little thought of his own, the reader may estimate the wisdom and credit of those who tell factory hands that it is their labour which produces all the wealth of their employer, and that, in the day when every man shall receive his due, the employer shall be made a workmen like themselves, and his wealth shall go to the increase of their common wages.

Certainly, it will be said, the employer should be paid for his mental labour, but why at so enormously higher a rate than the manual labourers? If we say, "because his labour is more valuable," some Socialists would join issue on the score that labour is valuable according to the time that it takes, and the employer works shorter hours than his men. But this taking account of quantity alone in labour is an ignoring of the distinction which we have drawn of two qualities or orders of labour, mental and manual; one more valuable than the other as being scarcer and in greater demand, so that a short time of one may be set against a long time of another, like a little gold against a heap of brass. Any man accustomed to both orders of labour must have observed, that while he can work with his hands at almost any time when he is well, the highest labour of his intellect can be done only at rare intervals, and that in one happy hour he will sometimes accomplish more than in a day. As the same man differs from himself at different times, so does one man from another in the average value of his mental efforts: this value is not measured by time.

Abandoning this untenable position, Socialists still ask: "But is the difference in the value of their labour quite so vast as is the interval between the profits of the employer and the pay of his poor drudges?" Honestly we cannot say that it is. We are fain to fall back upon the consideration, that the employer contributes, not only his brains to the work, but his capital. "Ah, that is just it," is the Socialists' quick reply: "We propose to relieve him of his capital, and remunerate his brainwork only: by that means we shall be able to pay sufficiently handsome wages for management, according to the ratio of mental and manual labour, and at the same time have a sufficiently large surplus over to raise the wages of his needy comrades, those seventy thousand hodmen and eighty thousand quarrymen."

Two reasons may be given for turning away from this seductive proposal, and leaving capital (not consumer's wealth merely) in private hands,—and that not only in the hands of what we may call mentally productive capitalists, men who oversee their own enterprises and manage their own workmen, but even of unproductive capitalists, men who have shares in and reap profits out of a business which they never meddle with. The first reason is, because this position of the productive, and still more that of the unproductive capitalist, is a prize for past industry expended upon production. To understand this, we must recollect once more that men work, not as individuals, but as heads of families. Every working man, from the sailor to the shop-boy, covets for himself two things, pay and leisure. The same two things do mentally productive labourers covet. But they covet them, not for themselves alone, but for their families, and more even for their families than for themselves. They weary their brains, planning and managing, that in old age they may retire on a competence, and hand down that same competence, undiminished by their having lived on it, to their children. Thus the young man works and produces, that the old man, and the child to come, may have exemption from productive labour, an abiding exemption, which cannot be unless he is allowed to live on the interest of accumulated capital. These positions of affluence and rest—sinecures they are, so far as production is concerned—are the prizes awarded to the best productive labour. What they who do that labour aim at, is not wages but exemption from toil: their wish is not so much to be wealthy and have leisure themselves as to found a family in wealth and leisure,—the one possible foundation of such a family being a store of private capital. Socialists of course will offer nobler prizes for the best productive labour,—honour, and the satisfaction of having served the community, a satisfaction which they would have men trained from childhood to relish above all other joys. Unfortunately, this taste is yet unformed, and the stimulus of these nobler prizes is still unproved by experience. Meanwhile men do work hard, to the advantage of the community, for the ignobler prize of family affluence and ease. Socialists are going to take away the good boy's cake and give him a sunflower.

The second reason for leaving capital in private, even unproductive hands, begins from the consideration, that the highest end of man on earth is not production, just as it is not consumption, of the necessaries and luxuries of life. Aristotle bids us, as much as possible in this life, "to play the immortal ([Greek: athanatizein]), and do our utmost to live by the best element in our nature," that is, the intellect. (Ethics, c. ii., s. ii., n. 7, p. 9.) There is the intellectual life of the statesman in the practical order: and in the speculative order, that of the poet, of the artist, of the scholar, of the devout contemplative—the outcome of learned and pious leisure, and freedom from vulgar cares. One man ascending into this higher and better region helps his neighbour to follow. The neighbour can follow, even though he be not free from productive cares, but the leader ought to be free, if he is to soar a high, sustained and powerful flight, and guide others aloft. These unproductive capitalist families then form what we may call, by a figure which rhetoricians call oxymoron, something which comes very near a bull,—we may call them an endowed lay-clergy: they are told off from the rest of men to lead the way in doing, and causing to be done, the highest work of humanity. The absence of the First Class of Workers would render the Socialist Utopia a very vulgar place.

Nature's ideal is: To all, plenty: to some, superabundance. The superabundance of some is not necessarily incompatible with all having plenty: nay it is a positive furtherance of that and of still higher ends, as has been shown. But it is a position of advantage that may be abused, and is abused most wantonly: hence there comes to be question of Socialism.

The Socialism above described is of the old sort, called Collectivism. A new variety has appeared, Syndicalism. Syndicalism is opposed to nationalisation and centralisation of capital and power: it would convert workers into owners in each separate department of labour,—colliers to own the coal, railwaymen the lines and rolling-stock, agricultural labourers the land, and so on. Collectivism might conceivably be put in practice, given a sufficiently high standard of social virtue, a quality which Socialists are not in the way to get. As for Syndicalism in practice, I leave that to the reader to imagine. Syndicalism stigmatises Collectivism as a gross tyranny. Thus divided into two irreconcilable factions, the Socialists are not a happy family.

Readings.—The Creed of Socialism, by Joseph Rickaby (Anti-socialist Union, Victoria Street, Westminster).

Pt. III, Ch. VII, Section III. Of Landed Property

Land, like cotton, timber, or iron-ore, is a raw material wrought up by man. Land, like any other thing, becomes an article of property originally by occupation, and its value is enhanced by labour. There is no more reason why all land, or the rents of all land, should belong to the State, than why all house property, or all house rents, should belong to the State. If the people need land to live on, so do they need houses to live in, coals to burn, and shoes to wear. Socialism, once admitted, cannot be confined to land alone. It will exterminate "the lord manufacturer" as remorselessly as it exterminates the landlord.

Every man, it is contended, has a right to live on the fruits of the soil. The proposition is needlessly long. It should be put simply: Every man has a right to live. For as to living on the fruits of the soil, there is absolutely nothing else that man can live on. All human nutriment whatever is derived from what geologists call pulverised rocks, that is, soil. But if it is meant that every man has a right to live on the fruits of some soil or land of his own, where is the proof? So long as the fruits of the earth do not fail to reach a man's mouth, what matters it whose earth it is that grows them? Some of the richest as well as the poorest members of the community are landless men. Confiscate rent to take the place of taxation, and some of the richest men in the community will go tax-free.

The land on which a nation is settled, we are told, belongs to that nation. Yes, it belongs to them as individuals, yet not so that a foreigner is excluded by natural law from owning any portion of it. But the government have over the land, and over all the property upon it, what is called altum dominium, or eminent domain, which is a power of commanding private proprietors to part with their property for public purposes, with compensation, whenever compensation is possible. Thus when a railway gets its Act of Parliament, the owners through whose estates the projected line is to run are compelled by an exercise of eminent domain to sell to the company. By the same power the government in a besieged city, when hard pressed, might seize upon all the stores of food and fuel within the walls, even without compensation. Altum dominium, which is not dominion properly so called, is sufficient for all national emergencies, without making the State the universal landlord.

Vol. I, Case VI: Defrauding an Insurance Company: a Case of Restitution · Vol. I, Case XV: Defraudation by a Bank Employee: a Case of Restitution · Vol. I, Case XXI: A Promise a Binding Contract? · Vol. I, Case XXVII: A Case of Restitution · Vol. I, Case XL: A Case of Restitution

It seems impossible to imagine an emergency that would justify any government in nationalizing all the land at once without compensation. None but a wealthy government could afford the compensation requisite; and the emergency would have to be severe indeed, to make it wise of them to incur such an expense. We can imagine a government in a newly settled country starting on the understanding that all land was State land, and that all ground rents were to be paid into the State exchequer. This would amount to taking rents for taxes; and instead of a landlord in every district we should have a tax-gatherer. Probably further taxation would be necessary: in England at any rate the annual expenditure exceeds the rental by some twenty millions. Government, we may suppose, would grant leases of land: when the lease fell in, the rent would be raised for unearned increment, and lowered for decrement, but not raised for improvements effected by the tenant himself. In that case the tenant in two or three generations might be a quasi-proprietor, his rent being ridiculously small in comparison with the annual value of the holding. The improvements might be the improvements of his grandfather, or even those of a complete stranger, from whom he had bought the tenancy. Anyhow they might be the better portion of the value of the land, and would not be government property. Or would the government insist on purchasing the improvements, and look out for a new tenant paying a higher rent? Lastly, would the government themselves make such improvements as many an English landlord makes now, for love of the country about him and love of his own people?

…and 3 more passages — all of them are listed on the topic page.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 436 passages (filed under the subtopics)

Vol. I, Case VI: Defrauding an Insurance Company: a Case of Restitution

A father wished to have his son who was not in very good physical condition, insured in his labor union, and fearing he would not be passed by the examining physician, sent another son to undergo the physician's examination, and a policy of several thousands of dollars was taken out. After paying premiums on this policy for several years, the father became worried about the honesty of his method of procuring the policy. He says that in his anxiety he went to a priest and told him the whole story of the policy and the priest told him it was all right. Recently the son died and the father applied for the money, but has received none as yet, and it is rumored that on account of the great number of recent labor troubles, the union in question will, in all likelihood, be unable to satisfy the claim. In case the union does settle the claim, either in whole or in part, will the father not have to forfeit all that he paid in for premiums, as he paid the premiums to perpetuate an evident fraud? And what responsibility rests on the priest, to whom the father says that he went for advice, and who told him that it was all right to continue the payments of the premiums?

ANSWER. When the father wished to have his son insured in his labor union, he wished to enter into a true and burdensome contract with the labor union. This contract is known in moral theology as an aleatory contract, in which what is given or promised by one or the other contracting party depends upon an uncertain event. The contract depends on an uncertain contingency, like the throw of the dice. Now one of the conditions of an aleatory contract is that the risk to be taken be made known honestly and without equivocation.

If the person assuming the risk is knowingly deceived by the other party to the contract, regarding the substance of the risk, then the contract is void by the law of natural justice, since the person assuming the risk was deceived as to the substance of the contract. In a contract for life insurance, the party seeking insurance must not fraudulently conceal or distort the risk assumed by the company or labor union, but must submit to a physical examination and answer honestly and without equivocation all legitimate questions concerning his physical condition past and present. If while undergoing the examination, the applicant for life insurance conceal some disease or ailment, the presence of which greatly increases the risk assumed by the company, then he wilfully deceives the company regarding something that is substantial to the contract and forfeits all claim to any money paid him, and must repair any damages that the company may have suffered by his action. In the case submitted to us, there has been practised a complete deception on the labor union. One person has been substituted for another. The labor union was made to believe, by fraud, that it was taking a risk on the life of A, while in reality it was taking a risk on the life of B. The union had no knowledge of B, nor of any risk connected with B's life, and, in fact, did not make any contract conditioned by anything connected with B. Therefore, in truth, the labor union had no contract at all with the father of A and B, and is under no obligation whatever to pay him any money, for the death of his son. Therefore the father may not keep the insurance money, if the labor union eventually pays him any.

But now there arises a second question, concerning the premiums paid to the labor union by the father. Must the father forfeit these, because they were paid to perpetrate a fraud?

No, he must not. The labor union has no title or claim to these premiums. The only claim the company could have to them, would be as payment for carrying the risk on the son's life. But, as there was no valid contract from the beginning, and as the labor union was not carrying any risk on the life of the son, it can have no claim to this money. We mean, of course, in foro interno, ante judicis sententiam. We are trying this case in the court of conscience. If, therefore, the father were to receive the insurance on the life of his son, he would be justified in subtracting the amount of the premiums, before making restitution to the labor union. But he would be obliged to reimburse the union for any expenses they incurred on his son's account, as, for example, fees for medical examinations and certificates, etc. This, however, might be considered cancelled by the interest that the paid-in premiums earned for the labor union.

We now come to the third question. The father says that when his conscience began to trouble him about the honesty of his method of having his son's life insured, he went to a priest and laid the whole matter before him, and the priest told him that "it was all right." The father had been paying the premiums on the policy for several years, when he went to consult the priest. And it is now some three years since he sought the priest's advice.

Supposing now that the man really put the case before the priest, as it is stated here, and that the priest understood him rightly and told him that the means he used to procure the policy were honest (suppositions that we find considerable difficulty in making), what would be the priest's liability before God? How much restitution would he be bound to make, if any?

The question is treated in moral theology under the heading "de restitutione ob consilium doctrinale nocivum."

Whoever, by virtue of his office, is authorized to give advice, and through culpable ignorance, or evil intent, gives counsel that proves harmful either to the person seeking the advice or to a third person, he is bound in conscience to repair all the damages that result from his wrong advice. As to this there is no doubt, be the person giving the advice or counsel a physician, or be he a lawyer, or be he a priest, provided only that he give the advice or counsel by virtue of his office, in the things pertaining to his profession, and of which the public has a right to demand of him that he know what is right and wrong, what is lawful and what is forbidden. The people have a strict right to require of a professional man, who by virtue of his profession is authorized by society to give counsel to those seeking it and to protect the interests of all concerned, that he possess the knowledge his office calls for and that he exercise reasonable diligence in the use and application of his knowledge. If at any time he should realize that his professional knowledge is insufficient for the right exercise of his office, and that harm may result to his clients or to other persons, by advice or counsel proceeding largely from unjustifiable ignorance, he is bound in conscience to suspend the exercise of his office or profession, until he acquire the necessary knowledge, and if he fail to do this, he sins against his conscience, and lays himself liable for all the damage that may result from his lack of knowledge of his profession. Now the priest who assumes the care of souls, is bound in conscience to know the ordinary teachings of moral theology on justice and rights, what is honest and dishonest in the ordinary business relations of life, when a man is bound to make restitution, etc. He can scarcely be ignorant of these things and still have the cure of souls, without grievous sin. His ignorance of the common laws of justice, in his actual position, will ordinarily amount to a gravis culpa. And therefore he must repair the damages resulting from it. Now, in the case which occupies us at present, if the labor union should pay the insurance to the father of the dead boy, then when the father, less the amount of the premiums, has returned the money to the labor union the case is settled. But suppose that the labor union is unable to pay any part of the insurance. What is the priest's liability in that event? It is very simple. If, in reality, the father of the dead boy would have ceased paying the premiums, had the priest so advised him, and allowed the policy to lapse, then the priest is bound to pay to the father the amount of the premiums from the time he advised him wrongly up to the time of the son's death. For we consider his advice to have been the efficacious cause of the continuance of these payments, and therefore of that much damage to the father. And as the advice was sought and given by virtue of his office as a priest, the advice was consilium doctrinale nocivum, vi OFFICII datum, ex-ignorantia graviter culpabili, and the giver of it must repair the damages resulting from it.

Vol. I, Case XV: Defraudation by a Bank Employee: a Case of Restitution

Marcus, an employee in a bank, is importuned by some dishonest fellow-employees to join them in their defraudations. They urge upon him that some former misconduct of his is known to them, and that it would make him lose his position if these matters were brought to the notice of his superiors. He feels that he must do their bidding or lose his bread and butter, for he has neither knowledge nor ability for another calling. In the subsequent constant state of committing fraud, he omits for several years to go to Confession. But in order to amend for his defraudations in some way, he spends considerable money for alms and Mass stipends. At length he hears a certain sermon which moves him deeply, and induces him to go to Confession.

What has Marcus to do on account of his defraudations?

What advice should he be given for the future?

Ad 1. Marcus is clearly bound to make restitution. The alms and Mass stipends with which he tried to appease his conscience can in no way be taken in account in this respect. The injured party is known, and restitution must be made to it, otherwise the wrong can not be righted (Lehmkuhl, I. 1019. Delama II. 713). The question with which Lehmkuhl deals in Sec. 1031 has no bearing upon our case, because in his case a former confessor bade the penitent to use the ill-gotten money for pious purposes, while in our case Marcus has done this without having such commutation granted to him.

Ad 2. As Marcus is evidently in an embarrassing position, he may be allowed to pretend assistance in the defraudations of the bank provided he has the intention and means of making restitution for the amount falling to his share. He should keep this money separate from his private possessions, and he must even invest this money in a profitable way, so as to be able to make at some future time as full a restitution as possible to the defrauded bank. The best way for him to pursue would be to open a special bank account for these defrauded sums and leave them in his will, in a legally unassailable form, to the rightful owner. This is advised to provide for the case of a premature or sudden demise. If circumstances alter, however, or if he should be pensioned or freed in some way from the compulsion exercised over him by his fellow-employees, then he must without doubt make restitution as soon as possible, and must not cause it to be delayed until after his death.

Is Marcus obliged to make known the circumstances to his superiors?

Since his fellow-culprits are not subordinate to him, so that he is not responsible for their actions, he is not obliged in justice to take such a step. But when circumstances alter and he leaves his position, then he will be obliged to report the facts to the proper superiors. (Lehmkuhl I. 1013. Del. II. 705.)

Vol. I, Case XXI: A Promise a Binding Contract?

Claudina promises her husband, on the day of their marriage, that she will make over to him the sum of three thousand dollars, as soon as he shall have served out the term of his enlistment in the army. In the meanwhile, however, her husband becomes addicted to drink and before the term of his enlistment has expired is a confirmed drunkard. Claudina refuses to keep her promise. She proposes to keep the money herself and use it for her children. Her husband, however, insists that she keep her promise to him and give him the money. What is Claudina to do under these circumstances?

Solution.—Claudina's promise has all the necessary qualities of a binding contract, and it imposes on her, therefore, the obligation of keeping it, in the event of the husband complying with the conditions of the promise. As the case stands, it is not clear what use Claudina's husband is to make of the money once it comes into his possession. If Claudina intended that her husband should be perfectly free in the use of the money for whatever purpose he might choose, and this seems to have been the case, then it is certain that Claudina would never have made the promise had she foreseen the circumstance of her husband becoming a drunkard. The fact that she postponed the fulfilment of her promise until her husband should have completed the term of his enlistment seems to prove that she made this reservation expressly. Since she intended, therefore, to bind herself by her promise only on the condition that her husband should remain a good, decent man, she is, under the circumstances, absolved from all further obligation toward her husband in the matter. For a so-called "contractus gratuitus unilateralis" is considered void when the circumstances of the person or thing have so changed that it may be taken for granted that from the start the obligation imposed by the contract was not to be extended to this case. The wife may rest perfectly easy in her conscience, and all the more so, since she intends to use the money for her children, whereas, the father by his drinking is prevented from taking the necessary care of his family.

But should not the wife, in the interest of domestic peace, give way to her husband and let him have the money? No; because it is not she, but the husband who is disturbing the peace of the family, and if she gives him the money promised she only lends him new means for indulging his habit of drink and further destroying the peace of the home.

Only in case the conveying of the money to the husband did not give him the free disposition of it, neither now nor later, could the wife be advised to make it over to him. But in that case the husband would have no further interest in the matter. The wife may, if she pleases, renew her promise to her husband, but make its fulfilment depend on his thorough and sincere reform.

Vol. I, Case XXVII: A Case of Restitution

Some time ago a fire broke out in a store in which John is employed as a clerk. To increase the amount of damages which his employer would receive from the insurance company, John, together with another clerk named Donald, testified that a large quantity of silk goods and laces had been destroyed by the fire, when, in fact, they had been removed by the proprietor and were intact. In the meantime the storekeeper has disposed of his business and removed elsewhere. Donald has a good position in a large New York house, but John makes scarcely enough to keep him.

All this John makes known in his Easter confession. He knew at the time that he made the statement to the insurance agents about the silk goods and laces that it was a false statement, but Donald's testimony alone would not have sufficed to recover the supposed damages, and so he was induced to make a joint statement with Donald. He did not profit by it himself, nor does he know how much money the storekeeper got from the insurance people for the silk and laces, except that it was hundreds of dollars. When questioned further by the confessor, John admits that there is no probability whatsoever, that either the storekeeper or Donald will ever make any restitution, neither of them being Catholics. Under these circumstances, the confessor holds John to restitution in the full amount. But John has nothing wherewith to make restitution, neither does he know the exact amount to be restored, nor the parties to whom restitution is to be made, since the old company has gone out of business and a new concern has bought up its interests. Under these circumstances the confessor volunteers himself to find out how much money was recovered from the insurance people for the silk and laces, and to what individuals restitution must be made, and to inform John later of the results of his inquiries. In the meantime, however, the confessor grows anxious about the course he is taking in the matter, and asks whether he is acting rightly. Theoretically, there can be no doubt of John's obligation to make restitution, but only in case the storekeeper refuses to restore, in which case John is held jointly with Donald, because Donald's testimony, by itself, did not suffice to prove the supposed damage. Therefore, John is liable, together with Donald, for the whole amount, but only in the second instance, that is, in case the storekeeper does not make good, in which case John may recover from the storekeeper. But Donald refuses to pay his share; therefore, John is liable for the full amount, but with the right to recover from Donald, Donald's half of the amount restored. In principle, therefore, the decision of the confessor is correct. In practice, however, we are obliged to take a different view of the confessor's conduct.

In the first place, the confessor acted imprudently in undertaking to find out for John the exact amount of money paid by the insurance company to the storekeeper for the supposed destruction of the silk goods and laces, and to what persons this money should be restored. There is always danger of breaking the seal of confession in making such inquiries. Moreover, even supposing the penitent gives the necessary permission to make the inquiry, the undertaking is odious in itself, and may lead to embarrassing complications. There is no need, in the present instance, of such an investigation, because John has no means wherewith to restore. There is question of making restitution to an insurance company. These companies are operated and secured by the premiums paid by the persons insured. The rate of the premiums depends on the risk the company takes in insuring, the risk being computed on the average frequency of fires, as shown by the records of insurance companies, no account being taken whether the fires are accidental or of incendiary origin. The company endeavors, by means of restrictive clauses and thorough investigation into the origin of each fire, to protect itself against fraud. However, it can not guard against every deception practised by the insured. Therefore, in fixing the rate for insurance the company considers only the possible damages it may have to pay. Hence it follows that the carriers of fire insurance policies are themselves, to some extent, the sufferers when unjust fire damages are allowed, because they pay a higher premium rate in consequence of fires of incendiary origin. If no fraud were practised on insurance companies by holders of policies in the same, the rate for insurance in such companies would be much lower than it is. It is but just that the policy-holders should be indemnified for unjust damages they are thus indirectly made to suffer. But the number of policy-holders is so great that the amount of restitution to be made to each policy-holder for damage done him by any particular fire is inconsiderable.

Moreover, their identity is unknown. Therefore, the poor may be substituted for them and restitution made to the poor. In this view, and it is well founded (cf. Lehmkuhl, I. 11, 34), John's case may be easily disposed of. John is actuated by a sincere desire of making restitution, but is prevented by his poverty. The confessor may tell him that he may give alms to the poor by way of restitution, and as he is poor himself, he is included in the number of those who may benefit by the alms. In this way John's conscience is set at rest. But the storekeeper and Donald are still bound to restore.

Vol. I, Case XL: A Case of Restitution

Mr. X was engaged, some years ago, in the wholesale dry goods business. The saying that "every business man fails at least once in his life," came true of him. He failed for $25,000, with assets amounting to about half that sum. His creditors were, first, several wholesale houses, to whom he owed $20,000; second, a friend, from whom he had borrowed $4,000; third, a dressmaker, to whom he owed about $1,000 for garments for his family. Mr. X, though a Catholic, had neglected the practice of his religion, but was, nevertheless, in his business dealings an honest man. It was through no fault of his that he failed, and he turned over conscientiously to the receiver for his estate whatever he possessed in the nature of assets. When his affairs were finally settled, it was found that he was able to pay fifty cents on the dollar. This he paid and got a discharge from the court, under the bankruptcy laws, from all further liability for these debts.

He went to work again, courageously, to retrieve his fortunes. By industry and economy, he has succeeded in laying by about $15,000. But now his health is broken and he is growing old, and is obliged to retire from business for good. He has nothing to depend on for the support of himself and his wife and an invalid child but this $15,000. He has made up his mind to return to the practice of the faith, and this matter of his earlier failure disturbs him. He was discharged by the court from further liability, after paying fifty cents on the dollar, at that time, because it was all he had wherewith to pay. Now he asks himself, Was that discharge of the court also a discharge in conscience? Did it wipe out, before God, his obligation of paying the other fifty cents out of his future acquisitions? Or did it only discharge his person, and leave his obligation to pay out of his future acquisitions in full force? This is the question that he asks his confessor to settle for him, as it is now only a question of conscience.

Solution. Theologians are agreed that a "cessio bonorum," whether voluntary or ordered by the court, does not, of itself and independently of other considerations, relieve a debtor of the obligation of making full payment of his debts out of his future acquisitions, if he be able to do so.

Dr. Crolly, sometime professor in Maynooth College, and an authority of weight, contends that the intention of the insolvent laws of England is to wipe out the debt entirely, and that these laws must be considered just and equitable, and applicable in the court of conscience. (De just, et jure, vol. iii., n. 1232.)

But Lehmkuhl takes exception to this contention of Dr. Crolly, and maintains that the insolvent laws of England or of any other country can not, of themselves, discharge the conscience of the debtor from further liability for his debts, unless other conditions are present, from which it may be gathered that the creditors renounce all future claims against him.

And this opinion of Lehmkuhl is the opinion practically of all the theologians.

A specific case, according to modern theologians, where a "cessio bonorum," followed by a discharge of the court, operates in conscience also, and wipes out the obligation of future payment, is the case of wholesale and retail merchants, making a bona fide assignment in favor of their creditors. In this case it is not the discharge of the court that wipes out the debtor's liability in conscience, but it is the method of doing business prevailing to-day that makes it probable, if not altogether certain that there existed a tacit contract between the retail and wholesale merchant that in case of a bona fide failure, the creditor would take the debtor's assets in payment for his debts, and renounce all further claims to be paid out of future acquisitions.

Father Konings (Theol. Mor. i., n. 861) says that there are theologians to-day who think that the opinion of earlier writers on this matter must be abandoned, because of the new methods introduced into commercial transactions. Commerce to-day, they say, is conducted almost exclusively on a credit basis. The creditors foreseeing that, among their numerous debtors, there will be some who will fail and who will be obliged, in consequence, to settle with them for a certain per cent on the dollar, charge a higher price for their goods, or a higher rate of interest for their money, in order to secure themselves against loss. It is tacitly understood among business men that if one of their number makes a bona fide assignment, his creditors take what is left and renounce all further claims against him. The insolvent laws, discharging the debtor from further liability, are equally fair to all, beforehand. The benefit which A reaps under them to-day at the expense of B is reaped later on by B at the expense of A, or of some one else of their number. To all of this Konings replies: “Let wiser men judge how much these considerations are worth and whether, at least when taken together, they make that opinion probable.”

We believe, with Konings and others, that it is not the intention of the insolvent laws of the United States, or of any other country, to discharge the conscience of the debtor from further liability. Although the civil law uses the words "forever discharged from all debts and claims," it takes no account of the conscience, and only means by these words that the creditors are forever denied any action in the future against a legally discharged debtor.

Judge Kent (Commentaries on Am. Law, vol. I., n. 422) says, in regard to the value of insolvent laws: "The 'cessio bonorum' of the Roman law, and which prevails at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, or exempt the future acquisitions of the debtor from execution of the debt. The English statute of George II, commonly called the lords' act, and the more recent English statutes of George III and George IV have gone no further than to discharge the debtor's person; and it may be laid down as the law of Germany, France, Holland, Scotland, and England, etc., that insolvent laws are not more extensive in their operation than the 'cessio bonorum' of the civil law."

Again in vol. ii., p. 392, note, he says: "It was stated by the Chief Justice in giving the opinion of the Supreme Court of the United States, in Sturges vs. Crowninshield, 4, Wheaton, 122, that the insolvent laws of most of the States only discharge the person of the debtor and leave his obligation to pay out of his future acquisitions in full force." These laws have been very materially changed, of course, since the days of Judge Kent, both in their purpose and nature, and are less concerned to-day than ever perhaps about the "forum internum," or court of conscience.

Lehmkuhl's opinion, therefore, seems just and equitable, namely, that in a case of "cessio bonorum," the discharge of the court is not sufficient of itself to wipe out the conscientious obligation of paying the remainder of the debt out of future acquisitions. Other conditions must be present, from which it may be inferred, with at least reasonable probability, that the creditors renounce further claims against the debtor.

The question remaining to be settled, therefore, is this: Are there, in reality, present in business transactions circumstances and conditions from which it may be gathered that business people enter into a tacit agreement to accept, in case of a bona fide failure, the assets in full settlement for the debts owed them? We think they do. We have reason to believe that this is the persuasion of conscientious and honorable business men, both Catholic and non-Catholic alike. Conscientious and honorable business men, who feel a keen sense of duty to pay dollar for dollar for money borrowed or for work done for them, feel no such sense of duty to pay, later on, out of their future acquisitions, the remainder of their debt to, for instance, wholesale houses after a bona fide failure and a discharge in bankruptcy. A wholesale house, for example, is fully aware that among its many retail patrons, the number of failures, on an average, will reach such a figure every year. To secure themselves against this loss, among many other measures that they take, is this that they charge a higher price for their goods than they would otherwise charge, or be justified in charging, were there no bona fide as well as fraudulent failures. Thus, if A, a retail dealer, fails in business and makes an assignment in favor of his creditors, who are the wholesale houses, it is in reality A's fellow retail dealers purchasing from the same wholesale house who make good the amount that A is unable to pay by paying a higher price for their goods, in view of such failures as A's. This is true of most lines of business. For instance, insurance companies protect themselves against loss by fraudulent fires by charging a uniform higher rate for insurance than they would be justified in doing were there no fires of incendiary origin. The policy-holders all tacitly agree to pay more for insurance in order to protect them against loss inflicted by some of their number.

We do not see, therefore, how Mr. X can be obliged in conscience to pay in full out of his future acquisitions the debts he owed the wholesale firms. There seems to be a reasonable doubt of his obligation to pay. And with such reasonable grounds for doubting whether Mr. X is bound in conscience, it would be unreasonable to impose such a burden on him. Of course, as Father Konings remarks, “most certainly, those who have come through their own grave fault into that necessity—namely, of surrendering their goods—are bound as formally unjust authors of harm.”

We suppose that Mr. X has not failed through any grievous fault of his own; and, moreover, that he has done all that he tacitly agreed to do, in the event of his bona fide failure, viz., he has turned over conscientiously all his assets for the benefits of his creditors. Therefore, being certainly discharged in person by the court, he is also probably discharged in conscience.

It is quite different with Mr. X's other two creditors, namely, the man from whom he borrowed $4,000 and the dressmaker. With these he is obliged in conscience to settle in full out of his future earnings. For he had no such understanding with these as he had with those. The discharge of the court does not, of itself, discharge the conscience. There are no other conditions or circumstances present, however, on which a discharge in conscience might be argued, even with probability. Therefore, for these two latter debts Mr. X must in conscience settle from his future earnings.

…and 396 more passages — all of them are listed on the topic page.

Rickaby, Socialism

Joseph Rickaby, S.J. — 90 passages (filed under the subtopics)

1. The Sores of Lazarus. · 2. What is Socialism ? · 3. Socialism a Romance. · 4. Political Difficulties of Socialism. · 5. The Proletariate. · 6. The Iron Law. · 7. Karl Marx’s Theory of Value. · 8. The Unproductive Rich. · 9. The Healing of Lazarus.

1. The Sores of Lazarus.

The sacred rights of property—yes, but there is something even more sacred than property, the lives and happiness of mankind. It is an often proved thesis that property is an institution natural and necessary ; a comforting doctrine to persons in easy circumstances. But these arguments for property are not the want of the times. Dives does not need them, and Lazarus will not heed them, not at least unless they be accompanied with a recognition of his grievances and a discourse of remedies for the same. The sacred duties of property, that is the theme to take up at present, even in the worldly interest of the propertied classes themselves. To parody a famous saying, property now is on its trial. If the existence of Dives is a benefit to Lazarus according to the order of nature, then well and good, Dives may be converted, and maintained in his estate ; but if his existence is a benefit to no one but himself, so much the worse for Dives in the time that is coming on the earth.

Lazarus can read; he has had some education: he can think ; and he does think the division of this world’s goods between himself and Dives desperately unfair : and in his weakness he growls to his comrades in misery, “We will right this injustice some day.”

2. What is Socialism ?

The means of redress held out to him by the oratory, poetry, journalism, and organizing power of a very active propaganda, is a plan called “Socialism.” It is one of those inconvenient names that mean different things to different people. Socialism carried to an extreme, involves a transfer, sudden and probably violent, of all capital to the State, and that apparently without compensation to the sufferers by the change. There is nothing to prevent a good Catholic, or any reasonable man, if he sees his way to it, advocating that the State should pacifically and with due consideration of vested rights, take up now this form of capital, now that, and make it a government or communal monopoly ; and it is difficult to see where the absorption should stop ; only let it be done gradually and justly. But there must be some limit. I am about to argue that Socialism in its extremest form, implying the extinction of private capital and private commercial enterprise altogether, would be a huge and intolerable evil, abhorrent alike to the pious Catholic and to every other rational human being.

Whenever I speak of Socialism, I mean Socialism full-blown, unmitigated and extreme. It may take many forms. But as it is impossible here to discuss infinite possible amendments, I must beg leave to confine my remarks to one original proposal. That proposal at least is thoroughly Socialistic ; and we want to inquire what thorough-going Socialism would involve.

Socialism thus carried out means a posture of affairs in which a government of sheer democracy, just such as was proposed by Jean Jacques Rousseau, keeps in its own hands the whole of the capital, or producer’s wealth, of the country. The government is purely democratic. The people, having manhood suffrage, make their own laws by their own direct vote, without Parliament or Senate, and hold the sovereign power in their own hands in such a way that all government officials are their nominees and bailiffs, removable at their will any day they choose. The people collectively is sole proprietor, not of all the wealth of the country, but of all the wealth that may lawfully be employed for producing other wealth by means of buying and selling, or other contracts. A man thus may own the house he lives in, the coat upon his back, the wine in his cellar, even the garden that grows cabbages for his table; but he may not hire hands to cultivate the garden, and then sell the produce; he may not build houses and rent them ; he may not import wine for the market. The State will be sole landlord, sole manufacturer, sole owner of shipping and railroads and all branches of the carrying trade, sole exploiter of mines, sole practitioner of medicine (taking fees), sole educator, sole keeper of wine and spirit vaults, sole merchant, and sole retail dealer—in a word, sole capitalist. The only way to wealth for the individual will be his own personal labour ; he will get nothing but the wages of his work. The utmost vigilance will be exerted to prevent his capitalizing his wages ; they are given him to consume, not to produce with. He may produce for himself if he can, but not for the market. It will be seen that there is no compulsion put on any man to work ; but he must either work himself, or have worked, or beg, borrow, or steal from some one who has worked, if he means to live.

Under this system mental labour will be rewarded as well as bodily. The work that feeds the imagination and ministers to the æsthetic taste will command a price no less than the labour which supplies the necessaries of life. Every one will receive pay who does work useful to the community, and no one else will receive anything. Skilled labour will be paid better than unskilled, not in proportion to the excellence of the work, but in proportion to the time that the workman, manual or intellectual, may be supposed to have taken in acquiring his skill ; the apprenticeship will be counted into the value of the labour. Thus the value of labour will always be reckoned by time, the unit of value being the day of a labourer of average skill and diligence.

It is difficult to formulate proposals which crumble away in the act of putting them into definite shape and detail ; proposals the authors of which prefer to leave them vague and general ; or if any one has come forward with a scheme more detailed than the rest, the others are sure to protest that they are not answerable for the absurd details of his addition. No working-drawing, so to speak, of Socialism has yet been made by its architects. And yet some of them are bold enough to cry out for the demolition, sudden, violent, and total, of the present edifice of civilization. Before a man consents to have his house tumbled about his ears, he may well insist upon inspecting precise and accurate plans of the new palace into which he is invited to migrate.

There are two kinds of labour, storable and unstorable, or productive and ministrative. The former is such labour as making a coat, or writing a book ; book and coat can be stored up till there is a demand for them.

Ministrative labour is illustrated by a surgeon lancing an abscess, or an usher teaching a class. Whatever the labour be, some Socialists propose that the doers of it form a gild, and that gild have the monopoly in its own sphere—thus a joiners’ gild, a tailors’ gild, a shoemakers’, a masons’, a physicians’, a schoolmasters’. The maker of a coat, then, will take his article to the gild stores, and receive his pay thence, if he be one of the fraternity ; otherwise he will not be authorized to make coats, except, if he chooses, for his own back. The gild will sell the coat. The writer of a book will take it to his literary gild, and they will pay him according to the number of days which they think it would have taken an ordinary man amongst their number to have written that work. But the surgeon and the schoolmaster have no work to take to their gild : who then shall remunerate them ? If they pocket their fee according to approved modern practice, they will not be members of the Co-operative Commonwealth, they will be working on their own account. It appears, therefore, that the patient or the pupil must carry his fee to the gild of physicians or the gild of preceptors, and the gild will pay their man for doing so many days’ work.

n. ¶17.

Every gild will manage its own affairs, subject to the central control of the State—that is, of the whole people in meeting assembled. The State will fix, from time to time, a prescribed limit of production for the productive gilds ; how many tons of coal shall be raised, how much wheat grown, how much cloth woven, and the rest. This the State will be able to do by employing a school of statisticians, whose forecast will be received with deference by the people. Sometimes it will be necessary to order a large transference of workers from one gild to another. In this system it will be observed that whoever buys anything, buys it of the State, that is, of some gild over which the State has plenary dominion and control. The State, in like manner, buys all the marketable labour of the individual. The State, having full power over the individual, will always have an escape from bankruptcy by demanding his labour at a lower figure.

n. ¶18.

For the whole people to form one sovereign legislative assembly, the State cannot be very large. Nations will be resolved into myriads of sovereign cities or communes. These cities may federate together for mutual protection. Some Socialists, however, are opposed to the idea of federation, as infringing the liberty of the several component States. Some indeed go so far as to wish to get rid of the State itself, as barring the free action of the individual. But these are madmen.

n. ¶19.

Socialism, to be successful, would need to embrace the civilized world. Otherwise the threatened capitalists would hasten to transfer their wealth to countries where private capital was still allowed. It might even be worth while for some State to stand aloof from the Socialist movement, thus to grow rich at her neighbours’ expense.

3. Socialism a Romance.

n. ¶20.

Still, man fell from Paradise, and might fall from Socialism. And it yet remains to see whether the Socialist State would be a paradise or a pandemonium, a heaven or a hell on earth. That will depend largely—chiefly, perhaps—on the spirit in which it is worked. But we must consider whether the institutions are such as, taking man as he is, are likely to be worked in a good spirit. The first advances of State Socialism were made more than two thousand years ago. They were confronted by one of the keenest practical intellects that ever lived, with this emphatic condemnation : “ This style of legislation wears a good face and an air of philanthropy. No sooner is it heard than it is eagerly embraced, under the expectation of a marvellous love to grow out from it between man and man, especially if the proposer goes on to inveigh against the evils of existing institutions, setting all down to the want of a community of goods. These evils, however, are due, not to the want of a community of property, but to the depravity of human nature. For experience teaches that disputes are far more likely to occur among people who possess property in common and live as partners, than among those who hold their estates in separate tenure. The life proposed appears to be altogether impossible.”¹

¹ Aristotle, Politics, 2, 5.

n. ¶21.

There are a great many minds who are unable to withstand a brilliant picture set before their imagination. Their intellect is fascinated, their reason dazzled : they take what is set before them without argument, and hold it in spite of argument ; it is so airy, so romantic, it must be true. Socialism has made way under this advantage : it is a charming Utopia on paper.

4. Political Difficulties of Socialism.

n. ¶22.

The first difficulty about the scheme is a political one. Pure unmitigated democracy is to Socialism the very breath of its nostrils : for if the State owned all capital, and privileged classes ruled the State, where would the workman be? But pure democracy is a very hard government to work. There is no instance in history of its working over a large area and for a long period of time. But the area of government duties in the Socialist State would be very large indeed. Not only would it include all the functions of government proper, as at present carried on, but likewise the supreme management of business throughout the country. To be sure, those functions would be simplified by the absence of competition, but even in their simplest form the administrative duties would be enormous. The State might have armies of clerks to work for it : moreover, the several gilds, as proposed above, might each conduct their own affairs; but there would always remain the appeal to the general assembly, an appeal that would be made continually. The assembly, unless it were willing that the government should pass into bureaucracy and oligarchy, would exercise an active and meddlesome supervision over the gilds and their officers. It would be a body huge and unwieldy, established on the principle of a vote for every man, and every man one vote. Obstruction would flourish there rank and impassable, like the growth of an Indian jungle. The labour of legislation would supplant the labour of production. The people would be voting supplies when they should be working for them. To “ run,” as the Americans phrase it, the Social Democracy, there ought to be, as there was at Athens and at Rome, one set of men to work as slaves, and another set to legislate and adjudicate as citizens.¹ Thus only would there be shoulders broad enough to bear the immense burden of sovereign and proprietary right combined, which Socialists wish to devolve upon the sovereign people.

¹ Rousseau was shrewd enough to see this. He says of the Greeks: “Des esclaves faisaient ses travaux : sa grande affaire était sa liberté. . . . Quoi ! la liberté ne se maintient qu’à l’appui de la servitude ! Peut-être. Les deux excès se touchent” (Du Contrat Social, iii. 15.).

n. ¶23.

We are told in reply that the General Assembly, in Socialist times to come, will consist of people so highly educated, so wise to discern their own best good in the good of the commonwealth, so very unlike all people within our experience, the British House of Commons included, that there need be no fear of obstruction, over-legislation, partisanship, or any other of the infirmities that have beset popular assemblies in the past. In other words, we are requested to discard all the lessons of history in judging of Socialist proposals. By what other canon is it possible to judge them except the experience of the past ? “ What is it that hath been ? The same thing that shall be.”

n. ¶24.

Peoples have their favourites as well as kings. The favourite of a Social Democracy would be a very formidable personage. The lives, liberties, and property of all would be in his hands. It is the way of the multitude in politics to overlook principles which they cannot understand or see the application of, and stand by persons who excite their enthusiasm and sympathy. To these persons they blindly commit the management of concerns, as our large-tongued James committed himself and his kingdom to “ Doggie Steenie.” But this devotion to what our forefathers in Cromwell’s time called “ The Single Person ” looks ominous for popular liberty. If ever in the Socialist State a Fighting Gild—in other words, a standing army—shall rise up by the side of the other gilds, the people may find some day that they and all their capital have passed into the ownership of a military despot.

5. The Proletariate.

n. ¶25.

So much for political difficulties. They have been the difficulties of democracies in past times, and Socialism will not be exempt from them. Rather, as being the most democratic of democracies, it will experience them in an aggravated form. There remains a social difficulty peculiarly incident to the constitution we are now considering. The only source of private wealth here will be wages. That is to say, wages will be the only lawful source : but it is not to be expected that the greed of having, and the dislike of working, will be extinguished in the heart of man. On the contrary, when wealth by the force of law and public opinion is made a mere thing to squander and enjoy, men will first scrape together a little wage, then quit work altogether and spend their earnings wildly; then come back with less inclination than before to work, agitate for higher wages, abuse their foremen, rant and cabal in the Assembly, steal the wages of a more industrious neighbour, embezzle the gild-money ; or they will borrow at usury, as gamblers contract their debts in disregard of legal sanction, from some canny workman who will let them have part of his wages for a consideration. Saving money for commercial gain is certainly not the noblest motive that a man can have for suppressing his spendthrift and riotous appetites : yet it is a motive, and one which poor humanity can ill afford to lose. That motive is flung aside and lost by Socialism.

n. ¶26.

There is an ugly foreign word, unknown to our fathers, that Socialists now use as a watchword, the Proletariate. It means the people who have nothing but their labour to live by, and who give birth to children as poor as themselves. Socialism promises to be the enfranchisement, aye, the enthronement, of the Proletariate. But Socialism once established would witness the speedy development of a Proletariate within the Proletariate thus ennobled and crowned. In the days when the workmen are to have all, and all are to be workmen, there will grow up in the vitals of this new society a class of drones, of workmen who have gone to the bad ; degraded, debauched, and dissolute creatures, whom no gild will employ, and who have no mind to belong anywhere where work is to be done. People like these—“ stinging drones ” Plato calls them—are, in countries like England and France at present, systematically coerced and kept under by force, the doing, Socialists say, of the bourgeoisie. But in the new republic to come they will be emancipated, on the principle that one man is as good as another : so they will sway from side to side like unsecured cargo in the hold of the political vessel. Their votes in the Assembly will be bidden for by the political adventurer, the Clodius of the future : one day they will shout for a Clodius, another for a Caesar. This is the revolution that is preparing in the womb of the Revolution itself.

n. ¶27.

It may be said that Socialism will disfranchise these drones, every man that will not work, and treat them as criminals. But that would be to make labour obligatory, an intention which at least some modern Socialists disclaim. Besides, once disfranchisement sets in, many may be found to deserve it.

6. The Iron Law.

n. ¶28.

The right and left arm of Socialism in argument are Karl Marx’s Theory of Value and Lassalle’s Iron Law of Wages. We will deal with the Iron Law first. There is a certain level of wages, the lowest that is sufficient to enable a workman to live and work, and leave children behind him to go on working when he is dead. If wages sink below this level, numbers of workmen die : and the scarcity of labour in the market brings wages up again to their normal level. If that level is exceeded, more children are born to working people, and more live : thus in time the labour-market is glutted and wages sink. The conclusion is that, as things are, the lot of the labouring classes can never be permanently improved : they and their children have nothing to hope for but a bare subsistence : they are iron-bound in toil and penury. Whence the further conclusion is drawn, that the labouring classes must break up the established order and the distinction between labourer and capitalist.

n. ¶29.

The Iron Law professes to state things as they must be. The first verification of such a statement is by comparison with things as they are. Now, looking at things as they are, we find that the Iron Law has been broken, is being broken, cancelled and removed, by the action of the Trades Unions. Socialists themselves explain that what they call bare subsistence must be taken with a certain latitude. It includes more in Queen Victoria’s reign than it did in Queen Anne’s. It means more for an Englishman than for a coolie. So the term may be stretched until it comes to signify quite a comfortable existence ; and when that limit is reached, the workman need no longer complain of the Iron Law. It depends in some measure on the workmen themselves to keep wages up towards this limit. This has been the object of the Trades Unions, an object not unsuccessfully pursued.

n. ¶30.

There are always two limits to wages, a superior and an inferior. The superior limit is the utmost that masters can afford to give ; the inferior is the least that workmen can afford to take. If the superior limit is past, the master closes his business : if the inferior limit is not attained, the workman dies of slow starvation. Where labour is very unproductive, the superior limit falls down upon the inferior: where the productiveness of labour generally is very great, the superior limit rises high above the other. That is the workman’s opportunity. Then let him combine with his fellows to ask a high price : the master can afford it. Then he may live and flourish, and snap his fingers at the Iron Law.

n. ¶31.

The workman who does fall a victim to the Iron Law is the unfortunate person who, for one cause or another, cannot belong to any Union, and is glad to eke out a livelihood at any sacrifice. He comes under the operation of the “ sweating system,” and the worst of it is that he (or she, for it is too frequently a woman) is glad to be “ sweated,” the alternative being starvation. At this price of human misery we are supplied with cheap goods. But we need not raise the demon of Socialism to be rid of the sweating system. A more innocuous and more effectual remedy would be to relinquish the cheap goods, and pay honest prices for our luxuries to provide fair wages.

7. Karl Marx’s Theory of Value.

n. ¶32.

But the right arm of Socialism, as I have said, is Karl Marx’s Theory of Value. He presupposes the distinction between worth, or value in use, and value in exchange, or market-value. The worth of a thing is the esteem which its possessor has of its utility to him. Thus the convenience of being ferried across a river, thereby saving a seven miles’ walk when I am short of time, has a worth in my eyes equal perhaps to £1. The market-value of that same passage, the ferry being a public one, is 1d. Value in exchange is measured by the commercial price of any article, or of a service rendered. Karl Marx, then, reasoned thus. The exchange value of a commodity, he said, is the amount of human labour that has been put into it. Take, for instance, a regimental coat. There was, to start with, a sheep, a work of nature ; but the shepherd laboured to rear and feed it, and to shear it : there was the carriage of the wool, the dyeing it, the manufacture of it into cloth, the tailoring. There has been large use of machinery in these processes, but the machines were made by man. The value of the coat is all this labour added together, all the human labour that such a coat involves. Moreover, Marx goes on, labour is estimated by the time that it takes a man to do it. Thus the value of the coat is the amount of man’s time that has been spent in making it. It is obvious to object that at that rate the slower the workman, the more valuable the work. Marx replies that by time we must understand the time which an average workman would take over the task.

n. ¶33.

I waive for the present another objection with Marx’s reply to it, and proceed to show how this theory is pursued to the destruction of capital. Suppose we have before us a consignment of five thousand regimental coats, fresh from the premises of Messrs. X. Y. Z., military tailors and outfitters. The coats are of considerable value : that is, they represent not a little of man’s time spent in making them. Who created that value ? The man, it is answered, whose time and labour has been spent, and is contained as it were jellified in those coats. But who are those men ? X. Y. Z. ? Not a bit of it. Y. and Z. are away perhaps boating on Lake Lucerne; and X. has not been on the premises more than two hours a day, and has never laid a finger on the coats in any stage of their manufacture. The men who created that value are other workmen going before, and finally the workmen or “ hands ” of Messrs. X. Y. Z. But now who will pocket the price, the equivalent of that value? Messrs. X. Y. Z. will take it, and divide into three portions. With one they will pay for the raw material and machinery : one will be paid to their workmen as wages : the third portion, it is said, they will put into their own pockets, and on it live in luxury, doing no work, creating no value, but consuming the lives and devouring the labours of other men. Messrs. X. Y. Z. are capitalists. That third portion which they take to themselves, is termed “ surplus value.” Karl Marx proposes to abolish Messrs. X. Y. Z., and distribute that surplus value among the hands that created it, the workmen.

n. ¶34.

It is time to go back upon the objection that we waived just now. A carver in wood spends his time in turning out wooden imitations of cakes of Brown Windsor Soap. In ten days, working eight hours a day, he has turned out two hundred of these wooden tablets. No ordinary carver could have done the job in less. The man goes about to sell his products and can find none to buy them. In vain he relates how long he took to make them, and babbles of labour-jelly and Karl Marx : the public will not have them. They are no use. This brings Marx down to saying that by labour he means socially useful labour, or what society esteems such. Here is a vast alteration of the theory. Value, which had been all reduced to labour and time, is found to contain a totally different element, social utility. So the value of labour itself is not the mere labour and toil of it, not the mere time that it took, or would have taken an average man ; but the issue or outcome of the labour to society is an important factor in its value.

n. ¶35.

It further appears that there are various orders of labour, some more useful to society than others, and therefore more valuable, time for time. In other words, we must consider the quality of labour, not merely the quantity. The attempt to reduce labour of high quality, or the best skilled labour, to quantity by referring it to the time spent in education or apprenticeship, is futile and absurd. Lord Wellington drove the French out of the Peninsula in something like five years : how long would it have taken an ordinary soldier, with Arthur Wellesley’s education, to do the like? How long would the Duke of York, of Walcheren celebrity, have taken to do it ? As in war, so in medicine, literature, engineering, politics, business management, art, there are men whose labour is quite incommensurable with the labour of their fellows. There are born aristocrats, a nobility of nature’s own creation. And there is every grade of quality between one man’s labour and his neighbour’s, the difference arising partly from natural endowment, partly from advantages of position. Thus the little finger of Caesar or Crassus is thicker than the loins of Drom : half an hour of Caesar’s thought does what Dromo could not do in weeks, perhaps not in centuries. So blind, so misleading, so outrageously neglectful of the facts, is this conceit of reducing all value to labour, and all labour to time.

n. ¶36.

To return to Messrs. X. Y. Z., their “hands,” and the regimental coats. These coats are valuable, not merely as representing a certain amount of labour, but as being tolerably well adapted to meet a public need. But who thought of adapting them ? Who foresaw the need and was forward to meet it? Who set up the machinery, improved and perfected it, bought up the raw material, got together the workmen, inspected and controlled them? All this is the doing of capitalists, not of the hands. It is not hand-labour, but it is labour of the highest social utility. Unless this be done, all the labour of the workmen is of no use at all, and has no value. So I have seen four horses dragging a load of timber up the slope of a hill, straining and bending to the weight, and by their side at his ease walked a man urging the animals with low cries : the horses carted the timber, but the man carted it too, the former as physical causes, the latter in the way of mental and moral causation ; and as the man would have been helpless to move the timber without the horses, so the horses without the man could never have carried it to any good end. But it will be urged, the capitalist is a man and the workmen are men too : the workmen then may replace the capitalist. Not if they continue to be workmen, that is, hand-labourers. You cannot have every one working with his hands. There must, as Socialists allow, be directors, statisticians, managers, whose work is mental, not manual; there must be men set aside for mental labour, as others are made over exclusively, this to one, this to another narrow province of manual labour. The labour and use of capitalists, and the value they create, are proved by the vast bureaucracy which Socialists are compelled to think of instituting in order to replace them. It is no more fair to deny the capitalist his profit, and call it unjust gain, because one has imagined a contrivance to work in his stead, than it would be fair of a capitalist to defraud his labourers of their wages, in view of a dreamy vision of machinery to come whereby he shall no longer need them. The present actual creator of social utilities is to have his reward in the present ; the coming man may look for his at the justice of future generations.

n. ¶37.

It is only fair to X. Y. Z. to observe that they do not spend all the so-called surplus value in living riotously : that is what Socialists advise workmen to do with the said surplus, when it comes to be distributed amongst them. But X. Y. Z. capitalize great part of it, and provide for work and production to come. Their investments are not always judicious, it is true ; but it is generally better to invest than to squander. More production means of itself higher wages ; and less production, lower wages.

n. ¶38.

Pressed by arguments like these, Socialists sometimes change their key, and tell us that at any rate Messrs X. Y. Z. are wonderfully well paid for their personal contribution to the value of their goods. As one puts it, “ half the cake is a pretty dear price for overseeing its baking.” But how many capitalists get half the cake, or a net profit equal to the sum of wages and other working expenses put together? Perhaps there ought to be higher wages ; certainly the capitalist has other duties to his workmen besides paying them their wages ; but it is a law of nature, from which even the Socialist Commonwealth will not be exempt, that the superintendent be better paid than the journeyman baker.

n. ¶39.

Under the direction of intelligence, labour has vastly increased the wealth of the world, an increase which Socialists are never weary of enlarging upon, while they forget that it is due, not to common labour merely, but also to the intelligence of the capitalist setting common labour to work under advantageous conditions.

8. The Unproductive Rich.

n. ¶40.

Beaten out of their first position, Socialists take up this second and stronger ground. “ Granted that some capitalists can rightly claim a reward as productive causes, for example, a gentleman farmer, or the managing partner in a factory, or the lessee of a coal-pit, what shall we say of the young nobleman who owns this pit and half a dozen others, and who is lounging about Pall Mall or Rotten Row, with less knowledge of coal than a housemaid, and with less brains than four-fifths of the miners ? ”

n. ¶41.

Personally, of course, he is not a productive cause, though his money is. But what good comes to society of his having that money and that exemption from all personal labour of production ? Why this, that such sinecures are the prizes of the intellectual labour that is thrown into the work of production. The managing partner, and the coal-pit lessee aforesaid, toils and moils in the hope that, before the evening of life, he shall have reached an opulence which shall enable him to spend the rest of his days exempt from the labour of producing, and moreover to hand over his store, undiminished by his period of rest, to his children. His ambition is to found a family in wealth. He works that his posterity may not have to work as he does. An ignoble desire, you say : but a potent moral cause of production. This second and further good comes from the existence of a class of unproductive capitalists, that society has available an array, as it were, of pensioners, who can, and who as a class do, undertake and perform a mass of ministrative duties. Of this class are our Cabinet Ministers, and our higher Public Service generally, our clergy, authors, scientific investigators, musicians, artists, poets, the men who refine our taste and brighten our lives. Society exists not for consumption alone, nor for consumption chiefly, and quite as little for production alone. Socialists, who are fond of the fable of the Belly and the Members, may remember that some organs in the body minister to higher purposes than those of nutrition and reproduction.

n. ¶42.

The class, then, of unproductive capitalists is valuable to society. The drones, who are found in this class as in every other class, and well-nigh in every family, high and low, should be induced to such labour as they are capable of by public opinion. There is no harm trying to render their position uncomfortable, even by law, if that can be done without destroying greater store of goods than they at present idly consume. For example, they may be taxed in proportion to their laziness and their luxury, if need be : but they are not a reason for overturning the whole Social Beehive, in the hope of building up the comb afresh on unnatural lines of Socialism.

9. The Healing of Lazarus.

n. ¶43.

There is no lack of remedies proposed. Temperance, Thrift, Emigration, National Insurance, Co-operation, Profit-sharing, all have their advocates, all are good in their way, none of them is all in all by itself. I have yet another remedy to add. It is not Charity, as that word is commonly understood in England. The science and art of almsgiving must be studied and practised by charitable societies for the relief of the sick and wounded in the battle of life, who cannot help themselves : but we do not want all the working classes on the sick list.

n. ¶44.

We must contrive to have fewer sick and wounded, by giving the workman a better chance of doing a stroke for himself. He has higher claims than those of charity on his employer. There is a virtue which the old schoolmen called piety : we might English it family-feeling. It imports the habitual love and care which the members of a family ought to have one for another. Family is from the Latin familia, by which the Romans understood all who were under the paterfamilias, namely, the wife, the children, (called liberi, or free subjects), and the bondsmen (servi or famuli, literally the doers, or workers, whence the name familia, from facio, I do).

Ch. I, Section I: Nature of Socialism. Its Relation to Communism · Ch. I, Sect. II, § I. Socialism of Antiquity and of the Middle Ages · Ch. I, Sect. II, § II. The Pioneers of Modern Socialism

We need to have the principle recognized, that workmen are part of the family of their employer, understanding family in this wide Roman sense : that he is their paterfamilias : that between him and them there exists a personal relationship, the observance of which is matter of the virtue of piety. Now piety is a virtue that binds with a closer tie than justice. It is justice to give to another his own. Justice supposes two terms, the giver and the receiver, mutually distinct. Therefore no man can be just to himself, strictly speaking. Nor does hard, fast justice run between those who are in some sense identified as one moral person, as between father and son, husband and wife, master and servant. This is the teaching of Aristotle. If the father harms the son, or the master the servant, he harms himself, a more wicked piece of mischief than is injustice done to a stranger.

n. ¶46.

This was the personal relationship, the family connection between master and man, recognized in theory at least in the ancient world, where there were slaves ; recognized in the Middle Ages as the relationship of lord and vassal ; and most cruelly discarded in modern times by the substitution of the conception that finds expression in the terms employer and hands.

n. ¶47.

The bond of family must be strengthened, and the sphere of duty of the paterfamilias enlarged. It is the depreciation of family ties that leads up to the rankest State Socialism. To that goal our large Companies, with their agents and “hands,” are unconsciously tending. But the tendency may be arrested, and even Companies become paternal, by wishing it, and by delegating to their various agents in command of their workpeople the office of a father, not without support of course from the Company’s purse. Thus a station-master might be responsible for the Company’s servants employed under him, not merely as touches the Company’s interest, but for their individual well-being, short of fussy interference, for there is excess in all things.¹

¹ “It is a good investment in a money point of view, but far more in other ways, for a railway company to provide houses for its station-masters, porters, platelayers, and signalmen. A company in good credit ought to be able to build houses more cheaply than other people, and can afford to let them to its servants at a lower rent than people who build houses merely for profit ; and it is much to the advantage of the company to keep their men together, giving them an interest in the company both while at work and when off duty.”—Railway Appliances, by Barry (Text-books of Science), pp. 190–1.

…and 50 more passages — all of them are listed on the topic page.

Cathrein, Socialism

Victor Cathrein, S.J. — 1045 passages (filed under the subtopics)

Ch. I, Section I: Nature of Socialism. Its Relation to Communism

n. ¶36.

Communism has a wider signification than socialism. By communism in its wider sense we understand that system of economics which advocates the abolition of private property and the introduction of community of goods, at least as far as capital, or means of production, is concerned. Communism in this broad sense admits of various forms, the chief of which are the following:

n. ¶37.

Negative communism is restricted to the negation of private property. According to this form of communism all goods should equally be put at the disposal of all. This species of communism found a zealous apostle in the person of MOSES Hess, who flourished in the forties of the past century. Unrestricted right of enjoyment for every individual, no obligation of working, but active co-operation of all for the sake of the common interest, these were the fundamental dogmas of his gospel. This preposterous form of communism is no longer advocated by any one, at least not to our knowledge; for it is evident that a system which does not exclude others from the use of those things which individuals have appropriated to themselves would ruin all industry and bring about a state of universal misery and utter disorder. For who would till a field, if others were permitted to come at will and to reap the harvest?

n. ¶38.

Positive communism demands the total or partial transfer of all property to the community, which is to be owner, administrator, and distributor of all the products. This communism may be of two or rather three different kinds:

n. ¶39.

(a) Extreme positive communism advocates the transfer of all goods without exception to one great common administration. All production and the use of all goods should be common—common meals, common dormitories, common hospitals, etc. This system was advocated by some of the earlier communists, and by some religious sects.

n. ¶40.

(b) Moderate positive communism advocates only the abolition of private property as far as capital, or the materials of labor, or productive goods in contradistinction to non-productive goods, is concerned. By productive goods are meant real estate, all kinds of raw material, factories, machines, tools, means of transportation, in fine, everything not intended for immediate consumption. These goods should be handed over to and be administrated by some sort of commonwealth. This moderate form of positive communism is at present the only one having adherents. They are divided into two large groups bitterly hostile to each other: anarchism and socialism.

n. ¶41.

(a) Anarchism (anarchist communism) demands the transfer of productive property to independent groups of workingmen (communities). In these groups, united to each other by mere federation, each individual is to receive the entire product of his work. Moreover, all governmental functions are to cease. For, anarchists desire to realize absolute liberty and equality to their full extent. Nevertheless anarchism does not imply anarchy or disorder. If you ask, how can order be maintained without civil functionaries, without legislation, courts of justice, police administration, etc., anarchists will refer you to that highly modern theory of evolution, according to which mankind is supposed to ascend to higher and higher stages of perfection; after class differences and the domination of the rich are abolished, order will spring of its own accord from the lively sense of solidarity, which will then animate every human being. Every one will jealously safeguard the right of each one to do as he pleases as long as he does not inflict unwarranted injury on others. According to this doctrine free contracts are the only social bond, the compulsive power of the state being absolutely excluded.¹

¹ Cf. Jahrbücher für Nationalökonomie (1896), p. 137. There are also anarchists who demand the abolition of government, but wish to maintain private property.

n. ¶42.

Unlike socialists, these anarchists eschew the use of so-called political means for obtaining their purpose; thus they disdain to take part in elections, parliamentary discussions, and the like. They appeal principally to violence and explosives, their aim being the quickest possible destruction of existing society. Their principles were formulated in great part already by PROUDHON († 1865),² and again by MAX STIRNER (alias Karl Schmidt, † 1857);¹ but the real founder of anarchism is to be sought in the Russian BAKUNIN († 1876). For the rest, the details of the anarchist theory have never been fully developed, and the views of different anarchists are widely divergent. Other anarchists of note besides those already mentioned are the Russian prince KRAPOTKIN, the geographer ÉLISÉE RECLUS, the former socialist JOHN Most, and JOHN Mackay.

² Concerning Proudhon cf. Menger, Das Recht auf den vollen Arbeitsertrag (1891), p. 73 sqq.

¹ Der Einzige und sein Eigentum (1844); published anew by Reclam.

n. ¶43.

In May, 1901, the German anarchists assembled in convention at Bietigheim near Stuttgart issued a manifesto, which contains the first official programme of their party.

n. ¶44.

“The present order of society [they maintain] is based on the system of oppression and exploitation and will never make any concessions to the working classes; social-reform laws are made merely for the purpose of cajoling workingmen into peace and contentment, but their effect is mostly hurtful. Therefore anarchists reject all participation in parliaments or other legislative bodies. The revolutionary workingmen advocate the transfer to the community of all real estate, of the means of production, and of the public utilities of modern civilization. Their ideal is the free socialistic community, whose every member is at liberty to live and to act according to his own inclinations. In spite of persecutions on the part of the state and of capital, the revolutionary workingmen will pursue their goal undaunted. The ‘Federation of Revolutionaries’ promotes this purpose by enlightenment and culture, by revolutionary thought and sentiment, by supporting the anarchist press and literature, by establishing debating clubs, etc. Workingmen must be trained for the economic struggle, they must organize, found co-operative societies in order to obtain control of production and consumption and to hasten the socialization of the state. ‘These are our doctrines, our goal, our methods. For this we combat with the conviction of final victory. This victory will be tantamount to liberty and prosperity for the entire nation.’”²

² Cf. Germania (1901), No. 101, Supplement.

Besides these theoretical anarchists there are also practical anarchists who are perfectly unconcerned about speculative disquisitions. They aim at a radical destruction of civil organization and of all authority (Ni Dieu, ni maître); what is to happen thereafter they reck not. Such views are but the “phantoms of a heat-oppresséd brain.”

n. ¶46.

Anarchists are not to be confounded with the French communists, who aimed at the political independence of the single communes without demanding a general abolition of private property.

n. ¶47.

By communards, on the other hand, are meant the supporters of the Paris Commune in 1871.

n. ¶48.

Nihilism is a peculiarly Russian phase of anarchism. Among its adherents are found a number of anarchists, but in itself it is a purely practical political party of revolutionary tendencies aiming at the destruction of the Czar’s autocratic powers.

n. ¶49.

(8) Socialistic communism, or simply socialism, advocates the transformation of all capital, or means of production, into the common property of society, or of the state, and the administration of the produce and the distribution of the proceeds by the state. Since modern socialists, and chiefly the followers of Karl Marx, intend to realize this scheme entirely upon a democratic basis, they call themselves social democrats, and their system social democracy. Social democracy may be defined as that system of political economy which advocates the inalienable ownership on the part of the state of all capital, or materials of labor, as also the public administration of all economic goods and the distribution of all produce by the democratic state.¹

¹ Many socialists protest against the expression “socialistic state;” whether they are right in doing so we shall see later on.

n. ¶50.

We call socialism a system of political economy, not as if it did not also lead to many political and social changes, but because the gist of socialism consists in the nationalization of property and in the public administration and distribution of all goods. Socialism, at least as it is conceived by its modern defenders, is in the first instance an economical system, and only secondarily and subordinately a political system affecting society, the state, the family, etc.

n. ¶51.

Socialism has been defined as the political economy of the suffering classes,¹ that is, “a philosophy which in its nature and in the sentiments of contemporaries is actually the economic philosophy of the suffering classes.” This explanatory clause is, to say the least, superfluous; to our mind it is incorrect. It makes the nature of socialism dependent on an external factor, namely, the actual subjective conception of men. Even though all the socialists of to-day could be convinced of the impracticability of their system and made to abandon it, yet socialism would still remain the same system, though it no longer existed in the consciousness of contemporaries. On the other hand, the ideal state imagined by Plato is in truth socialistic, although his contemporaries looked upon his theory as an idle dream. Moreover, if such a definition were correct, the moderate economic system which is advocated by the German Centre party and other conservative politicians for the relief of the laborer and artisan would be socialistic, which we cannot grant to be the case.

¹ Schönberg, Handbuch der politischen Oekonomie, vol. I. p. 107 (2d ed.).

n. ¶52.

The definition given by E. DE LAVELEYE² is equally vague and incorrect. By socialism he understands “every doctrine which aims first at greater equality of social conditions, and secondly endeavors to obtain this reform by means of the state or legislation.” No wonder, therefore, that he speaks of conservative, Catholic, evangelical, and international socialism. It is perfectly evident that such loose notions and comprehensive definitions cannot possibly form the basis for a clear and thorough discussion of the nature of socialism.

² Le socialisme contemporain, 6th ed., p. xii.

n. ¶53.

EDWARD BERNSTEIN defines socialism as “the movement toward, or the actual existence of, the co-operative organization of society.”¹

¹ Die Voraussetzungen des Socialismus und die Aufgaben der Sozialdemokratie (1899), p. 84.

n. ¶54.

From our own definition it is evident that every socialist is a communist in the broader sense of the term; but not every communist is a socialist. Positive communism is related to socialism as the genus to the species. Every system advocating common property or common ownership may be called communistic. But only that system can be termed socialistic which intends to organize the production and distribution of goods by means of the entire society. Of course, this organization presupposes the common ownership of the means of production.

n. ¶55.

Karl Marx, the chief founder of modern socialism, often spoke of himself as a communist; and rightly so, since the general notion of communism is always contained in the specific notion of socialism. Every horse is an animal, but not every animal is a horse. Thus every socialist is a communist, but not vice versa. It is also manifest that neither in communism generally nor in its special form called socialism is there any question of a distribution of property either taking place once for all or else recurring at stated periods. For the basic principle of communism is the absolute negation of private ownership in the means of production.

n. ¶56.

Moreover, it also follows that the so-called agrarian socialists, who deny only the right of private property in land, cannot simply be called socialists, although they defend many principles which would logically lead to the total abolition of private property.¹ Nor can those politicians and theorists who in principle admit the right of private property, but in their economical systems put the administration of private property almost entirely into the hands of the state, be confounded with true socialists.²

¹ Concerning agrarian socialists cf. our work: The Champions of Agrarian Socialism (Buffalo, N. Y., Peter Paul & Bro.) and Moralphilosophie 4th ed., vol. II. p. 247 sqq.

² Cf. our Moralphilosophie, vol. II. p. 597. Wagner, Grundlegung der polit. Oekonomie, 3d ed., pt. I. § 18 sqq.

n. ¶57.

In the meaning which we have assigned to it the term socialism is current not only in German and English, but also in French, Italian, and Spanish, especially so in works of a scientific character. Also Pope Leo XIII. in his Encyclicals on the social question (Quod Apostolici, Dec. 28, 1878, and Rerum Novarum, May 15, 1891) employs the word socialism exactly as we do. Therefore we perfectly agree with Cardinal Manning in maintaining that to speak of Christian or Catholic socialism is a proof of vagueness of thought or at least of expression. It is our urgent desire that this term should retain its accustomed signification. Why breed confusion and obscurity by the ambiguous use of terms in discussions which stand most in need of clearness and of a well-defined terminology? However, we call attention to the fact that there is a great difference between socialistic and social. Socialistic or socialist is applied to everything referring to socialism, whilst social refers to life in human society. Every one may and should be an advocate of social reform, whilst combating strenuously all socialistic tendencies.

n. ¶58.

Wherever socialism exists at present it is also democratic, aiming at the introduction of the greatest possible equality; therefore the terms socialism and social democracy may be regarded as synonymous. In French and English socialism is also often spoken of as collectivism.

Ch. I, Sect. II, § I. Socialism of Antiquity and of the Middle Ages

n. ¶59.

From the most ancient times we meet with certain partially communistic systems and institutions. On the island of Crete we find a certain kind of communism introduced as early as 1300 B.C., which in later times Lycurgus took as his model for the constitution of Sparta. This constitution seems to have been Plato’s ideal when he composed his work entitled “The Republic,” as also, though in a more moderate form, in the work on “Laws;” for in these works he commends community of goods, community of education, and even community of meals. Aristotle,¹ who accurately describes these economic systems, has also clearly demonstrated their untenableness. While the communistic attempts of antiquity suppose a large portion of the population to be in the condition of slavery, there arose in the first Christian community in Jerusalem a higher kind of communism, based upon true charity and equality. Among the early Christians those who chose could retain their possessions; but most of them, of their own accord, sold all they possessed and gave the proceeds to the apostles for the common support of all.² In voluntary poverty the first Christians wished to devote themselves wholly to the service of God and of their neighbor. Such a condition, however, in its very nature, considering men as they generally are, could not be obligatory, universal, permanent—a circumstance which was overlooked by the Apostolics, Albigenses, Anabaptists, and other sects which in the course of centuries fell off from the Church and clung to the principle of the unlawfulness of private property. Apart from these heresies and from some communistic political works of fiction based, as it seems, chiefly on the “Utopia” of Blessed Thomas More,¹ we may say that communism and socialism are essentially the growth of modern times. The reductions of Paraguay, which are frequently set up as models of communism, were not strictly communistic, and were destined only to be institutions of a transitory character.²

¹ Polit. ii. 3.

² Acts v.

¹ On account of his Utopia Bl. Thomas More has often been numbered among socialists, but wrongly so; for, a distinction must be made between his criticism of the social conditions of his time and his descriptions of the Utopian state. The latter were intended merely to serve as a background for bringing the criticisms into brighter relief. At the close of the book he himself points out the absurdity of many Utopian institutions.

² Cf. Stimmen aus Maria-Laach, vol. xxv. p. 455.

Ch. I, Sect. II, § II. The Pioneers of Modern Socialism

n. ¶60.

Modern socialism differs essentially from its precursors by the fact that it is a permanent phenomenon, to be met with in all civilized countries, wherever industry is highly developed. This latter circumstance by itself proves to evidence that there is question here not of a merely external appearance produced artificially by popular agitators and demagogues, but that we are confronted by a phenomenon rooted in, and nourished by, the soil of modern social conditions.

n. ¶61.

The roots of modern socialism are to be found first of all in the great development of industry and the consequent modification of social conditions dating from the latter part of the eighteenth century. Since the French Revolution the unhampered development of industrial forces in unrestricted competition has undoubtedly brought about astounding results in the field of technical discoveries and their application to industry and commerce. But one of these results was also the great division of society into two hostile ; Classes—a small number of wealthy capitalists, and an immense multitude of laborers—which classes are usually designated respectively as capital and labor. But above all, the proletariat, that homeless, floating population of our great cities which has already assumed gigantic proportions, is the almost inevitable result of modern industry, in as far as by its machinery it practically precludes the existence of independent tradesmen and promotes the concentration of great masses of factory laborers.

n. ¶62.

Side by side with this increasing proletariat the disruption of family life, drunkenness, and dissolute morals have been growing apace. Moreover, by the baneful influence of the higher classes gross materialism and an insatiable craving for enjoyment have penetrated the masses of the people, whilst numerous upstarts with their quickly amassed wealth openly revel in senseless luxury. Thus the smouldering fire of discontent needed but a breeze to fan the flames into a fierce conflagration.

n. ¶63.

The French Revolution of 1789 marked indeed a new epoch in the world’s history. The third estate, the so-called bourgeoisie, raising the banner of liberty, equality, and fraternity, had come to power and influence. In opposition to them there was soon formed the fourth estate, consisting of penniless proletarians. From the very beginning of the revolution “fraternity” was no more than an ornamental catch-word. Liberty and equality were indeed granted in political matters, but for a numerous class of the population they meant no more than the privilege of being free and equal in misery. It was then that unrestricted competition was let loose upon the world to strangle the unprotected artisans in its clutches. These victims are marshalled into line by modern socialism; they are to be emancipated by destroying the monopoly of capital in the hands of a few. No wonder, therefore, that already at the cradle of socialism was heard the cry: “La propriété, c’est le vol”—Property is theft”¹—the cry repeated later on by Proudhon and Lassalle, and hurled as a firebrand among an excitable populace.

¹ Brissot de Warville, Sur la propriété et le vol (1780).

n. ¶64.

The first to raise the standard of modern socialism was FRANCIS NOËL BABEUF, or, as he was pleased to style himself in revolutionary times, Gracchus Babeuf. The starting-point of his theory is the idea of equality. At the head of the Constitution of 1793 were displayed the words: “All men are equal by nature and by law;” and again: “The purpose of society is universal happiness.” But for most people this declaration of equality and happiness remained mere waste paper, and the reason for this failure was imagined to be private ownership. To realize equality also on the field of economics Babeuf formulated the following demands: Every one is obliged to work; the time of work is to be determined by law; production is to be regulated by a supreme committee elected by the people; necessary work is to be allotted to the citizens; disagreeable jobs are performed in turn by every citizen; each citizen has a right to all commodities, which are to be distributed to each according to his needs.

n. ¶65.

At bottom Babeuf’s demands are identical with those formulated by Bebel and other modern socialists. Foreshadowing, as it were also, the tactics of modern socialism, Babeuf promised his adherents a tremendous increase in production to follow from the adoption of his plans. To promote the execution of his ideas he founded a secret society, which was discovered by the police and brought him to the guillotine, May 27, 1797.

n. ¶66.

Whilst Babeuf took the idea of equality as the basis of his reforms Count HENRI DE SAINT-SIMON (1760–1825) built his plans on the foundation of labor. He was the first who endeavored to place modern socialism upon a systematic scientific basis, and at the same time he called into existence a school of scientific socialists. From him dates “scientific socialism” in the present acceptation of the term.

n. ¶67.

Liberal political economists had established the principle that labor alone is the foundation and source of all value, and, consequently, of all wealth. Socialism seized upon this principle and made it the basis of its operations against the modern conditions of property, Saint-Simon drew from this principle the conclusion that labor—industry in its wider sense— must be the standard of all social institutions; in other words, that the laborers should not as heretofore take the last but the first place in society; it was, therefore, the business of social science to restore the laborers to the position due to them.

n. ¶68.

Saint-Simon was only a theorist. He made no practical attempts to give effect to his views; nay, he did not even venture directly to question the right of private property. From the principle that labor alone is the source of value his disciple ENFANTIN drew the conclusion that the unearned increment obtained without working by landowners and capitalists is unjust and therefore to be abolished. His conclusion is thereafter to be met with in socialistic literature in endless variations. BAZARD, another disciple of Saint-Simon, intending to remove the inequality and seeming injustice of the existing conditions of property, demanded a complete modification of the rights of inheritance. In place of kindred he would make merit the base of inheritance; or rather, the state alone was to be the heir of all its children and distribute the property of the deceased among the most worthy of the living.

n. ¶69.

Almost contemporaneously with Saint-Simon, CHARLES FOURIER (1772–1837) proposed his system of socialism. Fourier proceeds from the supposition that what is ordinarily called the will of God is nothing else than the laws of universal attraction, which uphold the universe and manifest themselves in the instincts and tendencies of all things. Also in man these instincts are revelations of the divine will. Therefore it is unlawful to suppress them; they should be gratified; from their gratification arises human happiness; but the means to this gratification is the organization of labor. For, as he claims, every man is entitled to his share of labor, viz., he has the right to demand remunerative labor from the state, if he cannot obtain it elsewhere. As it seems, Fourier was the first to enunciate this right in the sense in which it is accepted by socialists nowadays.¹

¹ Especially in his books: Théorie des quatre mouvements (1808) and Traité de l’association domestique-agricole (1822). Fourier’s disciple CONSIDÉRANT developed his master’s idea more fully and gained for it many adherents. Cf. Menger, Das Recht auf den vollen Arbeitsertrag, p. 16.

n. ¶70.

This organization of labor is to be brought about in this wise. Proprietors, without losing the right of property, should contribute all their wealth to the common industry, in order that each individual in continued succession may be able to apply himself to that occupation to which his momentary instinct may incline him. Such labor would be a delight. Fourier, moreover, makes the following propositions. On every square mile should dwell two thousand persons (a phalanx) in one large building (phalanstère) under the control of an overseer (unarque). The phalanxes, again, should be divided into series, the series into groups. Thus each one might at pleasure change his labor. From the proceeds of the labor four-twelfths goes to the capital as interest; three-twelfths is given to genius, and the rest, five-twelfths, is given to labor. Yet neither Saint- Simon nor Fourier ventured to suggest the abolition of private property. For the rest, there is an intrinsic contradiction in the very fact that Fourier allows private property to exist and wishes to compel the proprietor to give all his capital for common use.

n. ¶71.

ROBERT OWEN (born 1771 at Newtown in Wales, died 1858) exercised a far-reaching influence upon the modern labor movement by being the first to introduce social reforms in his own spinning-factory at Lanark. By his benevolent institutions and his numerous writings he called the attention of the public to the wretched condition of factory hands.

n. ¶72.

His leading principle was: Man is but a chemical combination, the result of circumstances; every man may be trained to any kind of disposition and sentiments if he is but put into suitable surroundings. By careful organization the productiveness of labor might be raised to an incredible height, furnishing ample provision for everybody. Owen tried to put his ideas into practice by establishing a number of communistic colonies, the first and most important of which was at New Harmony in Indiana. An atheist himself, he decided to exclude God and religion from his communistic establishments. But before long all his experiments were doomed to dismal failure.

n. ¶73.

The example of Owen induced also ETIENNE CABET (born 1788 at Dijon, died 1856) to draw up a communistic programme. His plan was to change France into a republic consisting of communist municipalities. His ideas he developed in the celebrated novel, “Voyage en Icarie” (1840), which caused a great stir among the laboring population of France.

n. ¶74.

In 1848 he founded his communist colony Icaria, at first in Texas, and, after this attempt had failed, in the abandoned Mormon city Nauvoo, Illinois.¹ Slowly but steadily the colony began to prosper, and at one time contained up to 500 colonists. They succeeded in making their quarters comfortable, and their cottages bore the stamp of neatness and cleanliness. Assiduous work was required of all Icarians, but they were not wanting in entertainments and enjoyments. A select library was free to all; music, theatricals, and dances agreeably diversified the monotony of the daily routine. Newspapers in several languages were issued at Icaria both for the instruction and amusement of the colonists and for advertising and money-making purposes, Cabet insisted on retaining family life; education, however, was to belong to the community. The instruction imparted was very thorough and calculated to instil communist principles. Public worship was unknown; each one could choose his belief as he pleased. Financially the colony was at first a marked success. But, as prosperity increased, discord and petty quarrels became rife, resulting finally in the expulsion of Cabet and his partisans from Icaria, August 3, 1856. His few faithful followers founded a new colony at Cheltenham near St. Louis; but notwithstanding the financial support obtained from France, internal strife caused its disruption within a few years. Icaria, on the other hand, now established in southern Iowa, began to prosper anew; toward 1875 it numbered about 70 members living in frugal contentment. But here also discord and disputes were unavoidable. The Icarian youth nurtured in communistic principles soon became unmanageable, fond of novelty, despising the experience of their elders. The year 1878 witnessed the complete rupture between the older and younger generation. The faction of the juniors remained at the old homestead, forming the so-called Icarian Community which in 1884 moved to California, where it was soon dissolved.¹

¹ Cf. Hillquit, History of Socialism in the U. S. (1903), p. 129 sqq.

¹ Cf. Hillquit, loc. cit., p. 137.

n. ¶75.

The “old party” were assigned the eastern part of their former domain and were incorporated as the New Icarian Community. With no accession from the outside they struggled on till their final dissolution.

…and 1005 more passages — all of them are listed on the topic page.

Coppens, Moral Philosophy

Charles Coppens, S.J. — 40 passages (filed under the subtopics)

Chapter V: Rights of Ownership in Material Property

n. 170.

170. Ownership is the right to dispose of property at will, and to exclude others from its use. By property, we mean the external material goods of the earth, which men can divide amongst themselves.

n. 171.

Article I. Validity of Titles to Ownership.

171. Thesis XV. We have a right to own property.

n. ¶347.

Explanation. The ownership here spoken of is not absolute: it is dependent on God.

n. ¶348.

Proof. We have a right to live, indeed we are bound by duty to our Creator to preserve our lives; hence we have a natural right to the means necessary to preserve life. But the ownership of property, i. e., the holding, using, and disposing at will of material goods to the exclusion of other men, is a necessary means for the preservation of life. Therefore, we have a right to own property.

n. 172.

172. Thesis XVI. We have the right to increase or lay up property.

n. ¶350.

Proof 1. Our right to life not only exists for the present hour or day, but it also extends into the future; hence we have the right to the ordinary means for prolonging our lives by providing betimes for future wants, such as sickness, old age, or the dependence upon us of other persons. Now, this implies a right to increase our property beyond present needs. Therefore, we have a right to increase or lay up property.

n. ¶351.

Proof 2. All men, considered specifically, or according to their common nature, are equal; therefore, no one is bound either to labor for another or to surrender the results of his labor without just compensation. Yet this a man would be forced to do, unless rights to property were lasting; because, if a claim to property had been established, and that claim could not continue, the labor which the claimant had expended in obtaining or developing the property would pass without compensation to another man.

n. 173.

173. The principles explained in the preceding paragraphs apply to landed property just as well as to other material goods of a less stable character. Yet the right of private individuals to own land has been, of late years especially, vigorously denied, as unjust and opposed to the natural law. This doctrine, or land theory, has had for its most prominent champion in our own country Mr. Henry George, who declares (Progress and Poverty, B. VI., C. II.) that private ownership in land is the chief source "of the unjust and unequal distribution of wealth apparent in modern civilization." He finds only one remedy: "We must make land common property." His reasonings are as ingenious as his claim is bold and his language forcible; but they are full of sophistry. He begins by granting that if the remedy is a true one it must be consistent with justice. But he fails in his earnest attempt to prove this for his land theory. In striving to establish the justice of his claim, he does not hold the teaching of the Communists that any kind of private property is unlawful. On the contrary, he refutes this teaching with much ability and force. "What constitutes," he asks (B.

n. ¶353.

VII., C. I.), "the rightful basis of property? What is it that enables a man to justly say of a thing, 'It is mine'? From what springs the sentiment which acknowledges his exclusive right as against all the world? Is it not primarily the right of a man to himself, to the use of his own powers, to the enjoyment of the fruits of his own exertions? Is it not this individual right which springs from and is testified to by the natural facts of individual organization — the fact that each particular pair of hands obey a particular brain and are related to a particular stomach; the fact that each man is a definite, coherent, and independent whole — which alone justifies individual ownership? As a man belongs to himself, so his labor when put in concrete form belongs to him.

n. ¶354.

"And for this reason, that which a man makes or produces is his own, as against the world — to enjoy or to destroy, to use, to exchange, or to give. No one else can rightfully claim it, and his exclusive right to it involves no wrong to anyone else. Thus there is to everything produced by human exertion a clear and indisputable title to exclusive possession and enjoyment, which is perfectly consistent with justice, as it descended from the original producer in whom it vested by natural law. The pen with which I am writing is justly mine. No other human being can rightfully lay claim to it, for in me is the title of the producer who made it. It has become mine because transferred to me by the stationer, to whom it was transferred by the importer, who obtained the exclusive right to it by transfer from the manufacturer, in whom by the same process of purchase vested the rights of those who dug the material from the ground and shaped it into a pen. Thus my exclusive right of ownership in the pen springs from the natural right of the individual to the use of his own faculties."

The theory, however, proves too much. If the principle were true that right to ownership can be established only by transforming labor, man could own nothing, for he can produce nothing without material to work upon. The iron or gold of which the pen is made is not produced by man; hence, in the very first instance, appropriation by occupation must be admitted as a true title to the raw material. Mr. George is, therefore, entirely mistaken when he goes on to say: "There can be to the ownership of anything no rightful title which is not derived from the title of the producer." In his elaborate development of this false proposition, on which his theory of the injustice of private ownership in land chiefly rests, the same fallacy is ever recurring, namely, the confusion of production with any exercise of the human faculties. The explorer does not produce the desert land which he discovers; and yet he acquires a clear title to it on Mr. George's own principle that he exerts his faculties in its acquisition. Mr. George's theory is, therefore, unsound; he totally fails to prove the injustice of private ownership in land. His attacks on land owners are not justified, and are consequently unwise. For, as he himself says: "That alone is wise which is just, that alone is enduring which is right."

n. 174.

174. Thesis XVIII. Mere first occupancy is by itself a valid title to ownership.

n. ¶356.

Explanation. Occupation consists in taking possession of something that does not belong to another person, and that can be an object of ownership. This means of acquiring ownership can be employed at present to only a very limited extent, since land and nearly all movable property belong to individuals, or companies, or governments.

n. ¶357.

Proof. The principle that a man is entitled to possess what he first occupies, provided it be the property of no other person, is universally admitted as a dictate of common sense. The only thing opposed to it is the doctrine of Communism, that all goods are by nature positively common to all men. But this doctrine is absurd, for a man would be thereby made slavishly dependent upon all other men, without whose permission he could not justly appropriate anything for his personal use. The child or the man, savage or civilized, that catches a wild fowl or fish, that finds a valuable stone belonging to no one, that gathers wild fruit, will justly claim ownership as a right by priority of possession. There is no reason why this principle should apply to movable goods only and not to land as well, provided he who finds a piece of land ownerless marks it by some external sign as his property, thus indicating his intention of keeping it and of excluding all others from the possession of it.

n. 175.

175. In modern times occupancy of a new land is effected by some state or government, which thus becomes the first owner. Next, individuals acquire possession by complying with certain conditions determined by the civil power. In this country, lands are held in virtue of original grants made either by the United States directly, or by other governments that controlled tracts which afterward came under the jurisdiction of the United States. These latter grants were confirmed later on by the present government. Once the conditions placed by the civil power are complied with by the occupants, their rights are fixed, and both justice and the common good demand that they be kept inviolable. The Constitution of the United States provides that no private property shall be taken for public uses without just compensation. In this, the Constitution only enunciates the natural right of private owners; and therefore no amendment of the Constitution could ever confer upon the government the right freely to confiscate the land.

n. 176.

176. Yet a state might hold landed property in common, as was done to some extent among the Irish clans, and later on in the French Colony of Louisiana. But, as a rule, it is far more expedient to encourage private industry by allotting portions of the land to private persons, or permitting them to take possession according to certain formalities that the State will determine for the common good. Nearly all nations have, in their early history, acted on these principles; and thus the division of land by occupancy, yet with public sanction and according to public regulations, is said to have been made jure gentium. This term does not mean international law, but the law of the nations in this sense, that it is the prevalent legislation of all nations in accordance with the exigencies of natural rights.

n. 177.

177. The state retains two restrictions on private ownership, founded on the requirements of the common good: 1. The right of taxation, that is, the imposition of a burden proportionate to the protection bestowed, and not any tax at will; for justice requires a proportion between what is given and what is received. 2. The right of eminent domain, i. e., the right of taking private property for public uses when necessary, with compensation made to the owners.

n. 178.

178. Thesis XIX. A grant of unoccupied land, made by civil society to private parties, on proper conditions, founds a just claim to ownership.

n. ¶362.

Proof 1. Society can make such laws as promote its end — the general welfare of the community — provided it does not violate any prior rights. But such assignments, or grants, made on proper conditions, contribute to the general welfare and violate no prior rights. For such a measure promotes enterprise, industry, and public spirit, without which a high degree of civilization would be difficult, if not impossible.

n. ¶363.

Proof 2. A State can dispose of its property for the common good. This it does by allotting lands as a reward to soldiers who have fought for their country, or for the purpose of encouraging settlers to clear and improve the ground, or as an inducement to corporations to make roads, build bridges and other public works, and thus open up the country to trade and travel.

n. 179.

179. Thesis XX. Communism and Socialism are unjust and injurious.

n. ¶365.

Explanation. Communism denies the right of private ownership and declares that all property is by nature positively common. Socialism demands that all productive property shall be given over to the State, which would thus become sole proprietor of land, manufactories, railroads, etc., and sole distributor of the compensation due to every individual member of the commonwealth for his labor. Now we maintain that Communism and Socialism, if introduced as general systems in the present order of things, would be unjust and injurious.

n. ¶366.

Proof. The fundamental principle of Communism is false, namely, that by nature all goods were intended for mankind to be positively common, so that no one could justly appropriate to himself anything beyond immediate pressing wants, without the consent of the other members of the community. The absurdity of this view is manifest from the unnatural dependence in which man would be thereby placed. Another false principle made use of by both systems is the absolute and entire equality of all men. In the abstract and before the law, all men are said to be equal; but in the concrete, no two men are exactly equal. No two men have equal powers of body and mind, equal abilities for government or trade, the same tastes and dispositions, even the same rational wants.

n. ¶367.

Both systems would begin by depriving men of the fruit of past labors; both would confiscate the earnings of one man for the benefit of others without compensation, thus violating a great natural right. Moreover, it is impossible for either system, judged on economic grounds, to last, or to attain even a fraction of the fanciful plenty so freely promised by its advocates. The latter seem to base their calculations on the utopian dream, that, in the new Communistic or Socialistic Republic, men shall lose their selfishness and be free from their passions, and will freely practise heroic self-denial and self-forgetfulness; that, in other words, men shall be transformed into angels. Yet these same leaders generally ignore or repudiate religion, the wellspring of self-sacrifice, and aim at sweeping away the rights of Church and family.

n. 180.

Article II. Violations of Ownership.

180. The violation of the right of ownership, if committed secretly, is called theft; it is called robbery, if the act is done openly and with physical force. Such violations disturb the balance of equality which justice demands for all the members of the community. The balance cannot be properly restored except by the restitution of the property unjustly acquired. What was stolen continues to belong to the one from whom it was taken, and must be given back to him. Res clamat ad dominum, "property calls for its owner," is an important axiom of jurisprudence. Even if the owner cannot be found, it is not fair that the thief should retain what he has stolen: fraus sua nemini patrocinari debet, "no one should reap any benefit from his fraud." He must part with his ill-gotten goods, disposing of them as he may presume the owner would direct, if he could be consulted; for instance, by giving them or their value to the poor.

n. 181.

181. If damage has been done willfully to the property of another, reparation of the damage must be made before equality can be restored. This duty rests, in the first place, upon the chief perpetrator of the damage; and, secondarily, upon those who have voluntarily aided him, physically or morally, to inflict the injury. Such aid or co-operation may be given in various ways, viz.: by taking part in the material action; by command, advice, consent; by sheltering or concealing; by sharing in ill-gotten gains; and even by not warning, not preventing, or not making the guilty known when one is, in justice, bound to do so.

n. 182.

Article III. Various Modes of Acquiring Property.

182. The chief modes of acquiring property are the following:

n. ¶371.

1. First occupancy: that is, taking possession of any material object that is really without an owner. (No. 174.) Domestic animals, even when they have strayed far from their owner, remain his property; but wild animals, though captured and tamed, if once they have regained their native liberty, are considered as belonging to no one till captured again, when they become the property of their new captor.

n. ¶372.

2. The finding of lost articles. These have an owner to whom they must be returned, if he can be discovered with reasonable effort. If, however, the owner cannot be discovered, the articles become the property of the finder. When hidden treasures of great value are found in civilized lands, their ownership or apportionment is settled according to existing laws that have been enacted for such cases. The goods of those who die intestate, and without natural heirs, are to be disposed of as the laws direct.

n. ¶373.

3. Accession is a title to new property that is added to my former possessions, either naturally, e. g., by birth, as with the young of cattle, or by alluvion, as by deposits of soil on a river bank; or accidentally, or even designedly, as when another plants or builds on my grounds, or in other ways improves my property. In these instances, disputed claims may arise which the civil law is to decide.

n. ¶374.

4. Prescription is a title to ownership of property based on the fact that it has been held in quiet and bona fide possession for the space of time appointed by the law. This supposes: 1. That the property is such as can be lawfully acquired by a private person. 2. That the person in possession has honestly considered it all along as his property. 3. That he has remained in undisputed and uninterrupted possession during the required time.

n. ¶375.

The common good demands that claims to property reaching back beyond a reasonable period should be disregarded, in order that ownership may be settled on a solid basis.

n. 183.

Article IV. The Transfer of Property by Contract.

183. Ownership has been defined (No. 170) to be the right to dispose at will of material, external goods. Now, the right to dispose of an object at will involves the right to transfer it to another person. This act of transfer begins in the owner's will, is continued in the expression to the other party of this act of his will, and is completed by the latter's acceptance of the offer. This consent, externally manifested, of the two parties concerned, agreeing to the transfer of rights, is called a contract.

n. 184.

184. A contract is gratuitous, or one-sided, if only one party gives up a right to ownership, the other party accepting the proffered benefit without any cost to himself. This is the case in free gifts amongst the living or in the behests of the dying. In either instance, the equality implied in natural justice requires the person benefited to make the compensation of gratitude to the donor.

n. 185.

185. A man has a right, derived not from civil legislation but from the natural law, to dispose of his property by his last will Yet he cannot do it in such a manner as to violate the rights and just claims of others. Hence, the father of a family has no right to alienate his entire property in favor of externs, if in so doing he should leave his wife and children destitute. If he dies without making a will, they have a right, founded on the natural law, to inherit his property. The share that each member of the family shall receive is usually determined by existing civil laws.

n. 186.

186. Inviolability is due to last wills, not only by reason of the right which the testator has to dispose of his property, but also on account of the common good of society. Few men would care to exert themselves beyond the efforts necessary for present needs, if they could not dispose of the property acquired by their toil for the benefit, after their death, of those who are nearest and dearest to them, or of objects and institutions the success and continuity of which they had greatly at heart during life.

n. 187.

187. All contracts in which both parties assume an obligation, or in which both yield some right for the benefit received, are called onerous. The rights thus exchanged or transferred need not be those of ownership; yet, of whatever kind they may be, the principle of equality between what is given and what is received determines the justice of the transaction. This principle, however, is not to be too strictly interpreted. If, for example, I take a fancy to an article of little intrinsic value in the possession of another and induce him to let me have it at a high price, the bargain is just. Though materially no equality exists between the price and the thing purchased, still there may be an equality formally between what I pay and the value that, of my own free choice, I set on the article. But this supposes that the excess of the price is assented to freely on my part. If another takes advantage of my special need and forces me to pay more than the commodity is worth, he does me an injustice, and the contract is unjust.

n. 188.

188. To be valid or binding, every contract, whether it be gratuitous or onerous, must be attended with the following conditions:

n. ¶382.

1. The contracting parties must be competent persons — i. e., in the full possession of reason; hence, infants, insane and intoxicated persons are not competent; minors are legally incompetent — i. e., their contracts are usually not recognized as valid before the law.

n. ¶383.

2. The matter of the contract must be appropriate -- i. e., the rights transferred must be really capable of transference, and must belong to those who exchange them. Hence, no one can validly bargain to do a thing that he has no right to do.

n. ¶384.

3. Proper form must be observed. Both civil and ecclesiastical authority may, each in its own province, appoint certain forms, the non-observance of which renders some contracts null and void. The natural form essential to every contract is the true, full and mutual consent of the contracting parties. This supposes that both have a sufficient knowledge of what they are agreeing to. Hence, if one of the parties seriously misunderstands the contract, he is not bound to stand by it. Contracts made by minors can frequently be rescinded or annulled by their parents or guardians, because minors are supposed to act with insufficient knowledge.

Slater, Questions

Thomas Slater, S.J. — 188 passages (filed under the subtopics)

Slater, Questions, Value in Moral Theology and Political Economy

The price of a thing is the expression in money of its value. But what is value? What is it that makes a pair of boots sell for sixteen shillings in a certain place on a fixed day? The question is one of primary importance in the science of Political Economy. Jevons¹ quotes with approval the following words of Mill: —

¹ Theory of Political Economy, p. 80.

n. ¶46.

Almost every speculation respecting the economical interests of a society thus constituted, implies some theory of value; the smallest error on that subject infects with corresponding error all our other conclusions; and anything vague or misty in our conception of it, creates confusion and uncertainty in everything else.

n. ¶47.

The theory of value is picturesquely said by a foreign writer to be the dragon which guards the entrance to economic science; while another declares that he who understands value, understands half of the difficulties of the science of Economics.² If the notion of value is fundamental in Economics, it is of great importance, to say the least, in Moral Theology, and particularly in questions concerning justice and contracts. It may be of interest to inquire what economists have to say on a subject which specially belongs to their province, and to compare it with the received doctrines of Moral Theology. According to a recent writer, economists have shown the teaching of theologians on the point to be chimerical and absurd: and as I propose to make the words of this writer the basis of my remarks, I will quote him at length : —

² C. Antoine, S.J., Economie Sociale, p. 258.

n. ¶50.

In modern times the form of economic doctrine has been affected by the fact that it has been so much discussed by men who were accustomed to deal with physical and mathematical problems, and who brought their habitual methods of reasoning to bear on the phenomena of supply and demand. In a similar fashion the economic doctrine of the thirteenth century in Christendom was affected, as far as its form was concerned, by the engrossing studies of the time; economic problems were discussed by men who were habituated to the methods of metaphysics. In accordance with current modes of thought, they tried to determine an ideal standard which should be realized in particular transactions, and sought for a definite conception of a ‘‘just price’’; the practical inquiries then resolved themselves into means for discovering the just price of each particular thing. From the modern point of view this whole quest was chimerical: prices are always fluctuating, and must, from their very nature, fluctuate. According to the ‘‘plenty or scarcity of the time’’ there will be great differences in the quantities available, and, therefore, in the relative values of wheat, cloth, coal, and commodities of every sort. We know, too, that the commodity used for money must vary in value from time to time, and that, therefore, there must be continual fluctuations not only in values but in prices as well. The attempt to determine an ideal price implies that there can and ought to be stability in relative values, and stability in the measure of values, which is absurd.

n. ¶51.

The medieval doctrine and its application rested upon another assumption, which we have outlined. Value is not a quality which inheres in an object, so that it shall have the same worth for everybody; it arises from the personal preferences and needs of different people, some of whom desire a given thing more and some less, some of whom want to use it in one way and some in another. Value is not objective—intrinsic in the object—but subjective, varying, with the desires and intentions of the possessors or would-be possessors; and because it is thus subjective, there cannot be a definite ideal value, which every article ought to possess, and still less a just price as the measure of that ideal value.³

³ Dr. Cunningham, Western Civilization in its Economic Aspects, 1900, p. 78.

n. ¶52.

According to Dr. Cunningham, therefore, the medieval theory of a just price for everything, and the medieval concept of value have been shown to be absurd and untenable by modern economic science. The schoolmen of the Middle Ages, habituated to the study of metaphysics, looked upon value as a quality intrinsic to the thing itself. To them it was something objective, definite, stable, and fixed; and so the measure of value, or price, was something stable and fixed also.

n. ¶53.

On the contrary, the doctrines of modern economic science have been formulated by men accustomed to deal with the physical and mathematical sciences. These men have brought their strictly scientific methods to bear on the economic problems of supply and demand. They have taught us that the medieval quest after a just price for commodities was as chimerical as the quest after the San Grail. Taught by them we now know that prices are not stable and fixed, but are always fluctuating, and must of their very nature fluctuate. The plenty or scarcity of the time will affect the quantities of the available commodities, and so will affect the relative values. We now know that. money itself, the measure of value, is subject to the same economic laws as other commodities, and that it fluctuates in value as they do. So that the attempt of the schoolmen to arrive at a just price for each particular thing involved the two absurdities of supposing that there can be stability in relative values, and stability in the value of money.

n. ¶55.

Let us see what the schoolmen really did teach about the just price of commodities. It is easy to state some absurd theory, ascribe it to the metaphysical scholastics of the Middle Ages, and then proceed to demonstrate its absurdity. It is a more scientific method of procedure first, as the scholastics were fond of doing, to make sure of the fact — Primo, queritur utrum sit.

n. ¶56.

Molina, one of the great doctors on justice, will tell us what the common teaching of the schoolmen concerning the just price of commodities really was. Almost any other of a score of scholastic theologians would serve our purpose equally well, and I shall refer to one or two others in the course of my remarks, but in the main I propose to follow Molina. The difference between the date at which he lived and the thirteenth century, which Dr. Cunningham has specially in view, need not trouble us, for there was no change of doctrine in the meantime; Molina’s teaching is merely that of St. Thomas somewhat amplified.

n. ¶57.

This scholastic doctor then is careful in the first place to say what the just price is not derived from. It is not, he says, to be measured by the excellence of things according to their own nature and intrinsic qualities, but according as they serve man’s use and benefit. A mouse considered in its own nature is a more excellent thing than corn, but mice are worthless, while corn, which serves man’s necessities, has its price.

n. ¶58.

However, he proceeds, the price of a thing does not depend merely upon its usefulness for supplying man’s necessities, but it depends a very great deal upon the estimation which men commonly choose to have of it with reference to its use. Thus the just price of a gem, which is for ornament only, is greater than that of a large quantity of corn, wine, meat, cloth, and horses. And among the Japanese a piece of rusty iron or cracked pottery is of immense value on account of its antiquity; while among us it is worth nothing at all. And mere ornaments of colored glass have a far higher price among the Ethiopians than gold, which they exchange for them. Now all this is brought about solely by the common estimation in which things are held in the place where they are exchanged, so that such trafficking is not to be condemned, though the want of culture and the manners of such peoples are sometimes laughable.

n. ¶59.

So that the just price of a thing depends a great deal upon the common estimation of men in any place; and when without fraud or any unfair dealing, a commodity is commonly sold at a certain price in any place, that may be considered the just price, as long as the circumstances which cause prices to vary remain unchanged. The Roman Civil Law⁴ and the common opinion of doctors agree on this point.

⁴ L. Pretia rerum, Dig. ad legem Falcidiam.

n. ¶60.

But it must be observed, adds Molina, that a great many circumstances alter the prices of commodities. Thus scarcity makes the just price rise, while plenty makes it fall; the greater number of competing buyers at one time than at another, or their eagerness to buy, makes prices rise, on the other hand the fewness of buyers makes them fall; the greater demand at one time than at another, while the supply remains constant, as of horses in time of war, makes prices rise. The scarcity of money in any place makes the price of other things fall, while abundance of money makes the price of other commodities rise. For the less the supply of money in any place the greater its value, and thus many more other goods are bought with the same sum. The manner of sale, too, alters the price, as we see in sale by auction, or when a man is anxious to find buyers and seeks them, or in sale by retail.⁵

⁵ Molina, De Justitia, tract. ii., disp. 348.

n. ¶61.

The just price which we have been considering was called by some theologians, following Aristotle, the natural price; not, as Molina is careful to explain, because it did not depend largely on men’s estimation, nor because it was not very inconstant and changeable, but to distinguish it from the legal price, which was settled for some commodities by law. Inasmuch as the natural, or vulgar price as it was also called, depended upon men’s estimation, wants, and desires, which are very various, it could not be a quantity exactly determinate and precisely defined, it necessarily admitted of a certain latitude; and so theologians distinguished the highest, the lowest, and the middle price, and taught that justice would be done if the seller kept within those limits.⁶

⁶ Ibid. disp. 347.

n. ¶63.

All this, even in the light of modern economic doctrines, seems eminently practical and thoroughly in keeping with common sense; I fail to detect in it anything that savors of the “ metaphysical,” if that term is intended by Dr. Cunningham to mean unreal and unpractical. The whole point of the teaching of the theologians lies in this, that there is such a thing as a fair and reasonable price for commodities, in which English law and English juries agree with them, and that it is matter of justice to keep to it in contracts. The scholastics certainly knew as well as the modern economist that prices are always fluctuating; they knew that the plenty or scarcity of the time has great influence on the relative values of commodities of every kind; they knew of what is now called the law of supply and demand; they even knew that money is exposed to constant variations in value, and that it would be absurd to look for stability either in relative values, or in the measure of values. In fact they knew all that Dr. Cunningham has taken for granted that they did not know.

n. ¶64.

From what has already been said, it is quite clear also, in spite of what Dr. Cunningham seems to imply, that the scholastics knew that “value is not a quality which inheres in an object, so that it shall have the same worth for everybody.” Molina expressly states that it arises from the preferences and needs of different people, with their different desires and wants. As we shall presently see they unanimously denied that the seller can charge for any special individual advantage which may accrue to the buyer from the bargain; thus clearly supposing that social and individual value were two very different things. However, a difference between the scholastic doctrine on value and modern theories is touched upon, when Dr. Cunningham proceeds to say : —

n. ¶66.

Value is not objective—intrinsic in the object—but subjective, varying with the desires and intentions of the possessors or would-be possessors; and because it is thus subjective, there cannot be a definite ideal value, which every article ought to possess, and still less a just price as the measure of that ideal value.

n. ¶67.

According to modern theories then, value — exchange value is meant — is merely subjective, varying with the desires and intentions of the possessors or would-be possessors of a commodity; and so there is no definite value which a thing possesses, and no just price, for a just price is merely the just measure, the proper equivalent of value. A man may sell a horse for what he can get, he may exact whatever interest the borrower will give him for a loan, he may pay his workmen as little as necessity forces them to take for a day’s wage. There is no just price for commodities, justice is not violated by however unconscionable a bargain. Certainly these are conclusions of great importance, and if they had been proved to be true, we should have to modify some of the rules of Moral Theology. Catholic theologians of the Middle Ages, as well as their successors of to-day, are unanimous in teaching that there is such a thing as a just price for commodities, that justice can be violated by charging too much for what is sold, and that individual wants and tastes do not finally settle the just price. “The estimation of one or two,” says Lugo,⁷ “does not suffice to raise the price, but the common estimation is required.” This doctrine is common to all theologians, and most are content to quote in proof of it the Roman Civil Law: “The prices of things are not settled by the tastes or utility of individuals, but by those of the generality of people.”⁸ The great authority of the Roman Law, that ever-living monument of written reason, was of itself considered sufficient to settle the question; but some went further in their inquiries as to the method of arriving at the just price. Scotus taught that to estimate the just price of his merchandise the merchant should reckon up all the expenses which he has incurred in buying, transporting, housing his goods, then add to them something for his labor and trouble, and something else to compensate for the risks he has run: what corresponds more or less to all these items, will be the just price, he says.⁹

⁷ De Justitia, xxvi., n. 42.

⁸ L. Pretia rerum,

⁹ Molina, disp. 348.

n. ¶68.

In modern phrase the costs of production were the measure of value, according to Scotus. This opinion was commonly rejected by other theologians, who pointed out that if this were so, the merchant who had lost a portion of his goods might raise the price of the rest to compensate himself; which could not be admitted, for the price of goods is not measured by the profit or loss of the seller, but by the common estimation concerning their value in the place where they are sold, consideration being given to all the circumstances; besides Res perit domino, and it was not fair that the public should bear the private losses of the merchant.

n. ¶70.

63 Dig. ad legem Falcidiam.

n. ¶71.

The common estimation then is the cause of value and the measure of value, according to the scholastics; and if the formula be understood as they understood it, there seems no objection why “the common estimation ” should not still be used as a correct term for the cause and the measure of what economists call market prices. For certainly the market price of an article, whatever it may ultimately depend upon, is settled proximately by the common estimation of the value of the article in the particular market, at the time in question. Some of the most recent writers on Economics state this doctrine in terms as precise as those used by the scholastics. Thus Mr. J. A. Hobson¹⁰ says: —

¹⁰ The Social Problem, 1901, p. 144.

n. ¶72.

Now, just in proportion as exchange or market-value enters and displaces use-value, so does social determination of value displace individual determination. While value in use is strictly personal, value in exchange is distinctively social. A market, however crudely formed, is a social institution ; the value of our farmer’s produce is partly determined by the personal labor he has put into them, but partly by the needs and capacities of others, and not even by the needs and capacities of any definite individual, but by a great variety of needs and capacities expressed socially through the instrument of a market price, which is a highly elaborate result of bargaining, and does not represent the needs or the capacity of any single purchaser.

n. ¶74.

It would seem, then, that the difference of view between theologians and economists appears prominently and practically only with regard to non-market prices. The theologian teaches that justice requires that there should be an equivalence of social value between the price and the thing bought; (I say “social value,” because, of course, each party to a contract hopes to gain in individual value in use, otherwise there would be no exchange;) that the just price is settled by the common estimation of the value of an article; that value is partly objective, inasmuch as it supposes usefulness, capacity to be esteemed and desired, in the object, partly subjective, not, indeed, with reference merely to the wants and desires of the buyer and seller, but with reference to the common estimate of people at the particular time and place. However, theologians commonly allow the seller to charge for any special private loss of any sort which he may suffer from parting with his property, the pretium affectionis as it is called; and so to this extent they concede that subjective and private wants and desires may be allowed to influence the terms of the contract. What they agree in rejecting is the view that the seller may exact a higher price on account of some private necessity of the buyer, for then he might sell dearer to the poor than to the rich, or on account of some special advantage accruing to the buyer from his purchase, for then he would sell what did not belong to him, and sin against justice.¹¹

¹¹ St. Thomas II. II. q. 77, a. 1.

n. ¶75.

On the other hand the economist considers that the value of an article and its price are settled by the consent of the parties to a bargain; no man would give 100 per cent. interest for money unless it were worth his while; the loan, therefore, is worth that price to him, and the lender does him no injustice in taking it.

n. ¶76.

This, of course, would be true if both parties to the contract were equally intelligent, free, and independent; a man, if he chooses, may give what he likes of his own for any commodity ; if he gives a sovereign for a cup of tea at a bazaar, held for a charitable purpose, nobody will have anything but praise for his generosity. But usually when an unconscionable bargain is struck the parties are not on equal terms.

n. ¶77.

If a man promises 100 per cent. for a loan, when the current rate of interest on money is 3 per cent., or if a laborer undertakes to work for sixpence a day, when the common rate of wages is sixpence an hour, hard necessity alone, or perhaps ignorance, will have been the cause of his consent to such unfair terms. In such cases theology teaches that he who exacts such hard terms commits a sin against justice, and is bound to restitution; but the theory of value, on which this theological doctrine rests, is, according to Dr. Cunningham, an “ assumption which we have outlived.”

n. ¶79.

The difference between theological and economic doctrines on this point may partially perhaps be explained by the difference of standpoint assumed by theologians and economists respectively. Theologians consider the question from an ethical point of view, they condemn whatever the Christian code of morals condemns; on the other hand many economists at least treat the phenomena of political economy as they treat the phenomena of the physical sciences. The law of supply and demand is, for the purposes of the science, studied and reasoned upon with the help of mathematics as if it were as necessary and determinate as a law of astronomy; most economists abstract from questions of morality. Thus Jevons wrote: —

n. ¶80.

I conceive that such a transaction must be settled upon other than economical grounds. The disposition and force of character of the parties, their comparative persistency, their adroitness and experience in business, or it may be a feeling of justice or of kindliness really influences the decision. These are motives altogether extraneous to a theory of economy.¹²

¹² The Theory of Political Economy, p. 124.

n. ¶81.

Perhaps Dr. Cunningham belongs to this class of economists, and perhaps he would not disagree with the theologians if he treated the matter from their point of view, for he writes: —

n. ¶82.

We feel that it is unfair for the economically strong to wring all he can out of the economically weak, or to trade on terms in which ‘‘common estimation’’ is notoriously set aside. We have given up as impracticable many of the old attempts to put down hard bargains with a high hand: but modern moral feeling does not sensibly differ from that of medieval times in the desire, if it were possible, to interfere with the action of any dealers who are able to enrich themselves through the necessities or the ignorance: of others, and to gain at their expense. If we tried to find a test by which to discriminate hard bargains we could scarcely do better than adopt the medieval phrase and say that hardship arises when a bargain is made without reference to ‘‘common estimation.’’¹³

¹³ Western Civilization, p. 80.

n. ¶84.

This is admirable, but we hardly see how it can be reconciled with other passages of the same author. In other passages he seems to condemn the theological doctrine not only as out of place in economics, but as false in itself. He thus seems to agree with many other writers, the earliest of whom is said to be Hobbes, who rejected the hitherto received doctrine on commutative justice, and substituted an invention of his own. “The value of all things contracted for,” he says, “is measured by the appetite of the contractors: and therefore the just value is that which they be contented to give.”¹⁴

¹⁴ Hobbes, Of Man, p. 187.

n. ¶85.

This assertion Hobbes did not attempt to prove, nor has it been proved by any of his followers. The argument drawn from marginal values is no proof that the subjective and individual theory of value is in accordance with truth and justice; it merely formulates the fact that as a rule people will exchange commodities as long as it is worth their while to do so.

n. ¶87.

Economists are by no means agreed as to the nature of value, although all confess that it is a question of the greatest difficulty; some hold that it is purely subjective, depending upon the desires of each individual; others, that it is the same thing as private utility; others, that it is social utility; others, that it is the relation between two services exchanged ; others, that the value of a commodity is the labor bestowed on it, and so forth. None of these theories is commonly accepted, and none of them is an improvement on the old doctrine that common estimation is the cause and measure of value.¹⁵ The merely subjective theory, which seems to be most in vogue, fails to furnish any reasonable ground for condemning transactions which all, economists included, admit to be wrong. It even furnishes some sort of justification for the iniquities of the swindler, the usurer, and the sweater. I cannot do better than conclude this article with the concise argument by which, in his Encyclical on the Condition of Labor, Leo XIII proves its falseness as applied to the price of labor.

¹⁵ Professor Smart in his little book on The Theory of Value

n. ¶88.

We now approach a subject [says the Holy Father] of very great importance, and one on which, if extremes are to be avoided, right ideas are absolutely necessary. Wages, we are told, are fixed by free consent, and, therefore, the employer, when he pays what was agreed upon, has done his part, and is not called upon for anything further. The only way, it is said, in which injustice could happen would be if the master refused to pay the whole of the

n. ¶90.

(1914) says: “The history of economic science is strewn with the wrecks of theories of value,” p. 1.

n. ¶91.

wages, or the workman would not complete the work undertaken. ...

n. ¶92.

This mode of reasoning is by no means convincing to a fair-minded man, for there are important considerations which it leaves out of view altogether. To labor is to exert oneself for the sake of procuring what is necessary for the purposes of life, and most of all for self-preservation. In the sweat of thy brow thou shalt eat bread. Therefore a man’s labor has two notes or characters. First of all, it is personal; for the exertion of individual power belongs to the individual who puts it forth, employing this power for that personal profit for which it was given. Secondly, man’s labor is necessary; for without the results of labor a man cannot live, and self-conservation is a law of Nature which it is wrong to disobey. Now, if we were to consider labor merely so far as it is personal, doubtless it would be within the workman’s right to accept any rate of wages whatever; for in the same way as he is free to work or not, so he is free to accept a small remuneration or even none at all. But this is a mere abstract supposition; the labor of the working man is not only his personal attribute, but it is necessary, and this makes all the difference. The preservation of life is the bounden duty of each and all, and to fail therein is a crime. It follows that each one has the right to procure what is required in order to live, and the poor can procure it in no other way than by work and wages.

n. ¶93.

Let it be granted, then, that, as a rule, workman and employer should make free agreements, and in particular should freely agree as to wages, nevertheless there is a dictate of Nature more imperious and more ancient than any bargain between man and man, that the remuneration must be enough to support the wage-earner in reasonable and frugal comfort. If through necessity, or fear of a worse evil, the workman accepts harder conditions because an employer or a contractor will give him no better, he is the victim of force and injustice.

n. ¶94.

In the Irish Theological Quarterly for October, 1914, Fr. Kelleher subjected the doctrine of the just price which I have been defending, to some adverse criticism. He writes:

n. ¶95.

The difficulty against this, which we may call the general desirability, convenience, or utility theory, is that it is only a variety of the fascinating game of sending the fool farther. In substance it means that we can get over the objection against a subjective, individualistic standard by applying it to 100 or 1000 cases instead of to one.

…and 148 more passages — all of them are listed on the topic page.

Slater, Morals of To-Day

Thomas Slater, S.J. — 4 passages (filed under the subtopics)

Ch. VII, Christ, and the Church

n. ¶178.

IN every question much depends on the point of view adopted by the inquirer. It is a trite saying that the Catholic Church and her teaching look very different to the Catholic who regards them from the inside of the Church, and to the non-Catholic who regards them from the outside. The Catholic is satisfied that the Gospel preached to him by the Church is the Gospel preached by Jesus Christ. He knows by experience that it is a practical and workable system, and, believing what he does about Jesus Christ, he is sure that it would be rank blasphemy to believe that Jesus Christ preached anything that was not practical and workable.

n. ¶179.

On the other hand, many outside the Church, and Socialists especially, affect to regard Jesus Christ as a dreamer. His Gospel was above all a revolution in economic theory. He was, they say, a Communist who condemned private property and strove not only to subjugate wealth but to annihilate it. He taught that all attachment to wealth was sinful, and that poverty, actual poverty, was a necessary condition of admittance into the Kingdom of Heaven. He condemned riches in themselves. In all this He was followed by His Apostles and by the Fathers of the early Church. The first Christian Churches were societies of communists. It was only when Christianity became the fashionable religion of the Roman Empire that the Church accommodated her doctrine to the requirements of the altered circumstances. This had already been done for the great trading centre of Egypt by Clement of Alexandria. This Father, who lived at the end of the second century, wrote a little book on " Who that is rich shall be saved?" With Alexandrine subtlety he succeeded in accommodating the Gospel of Christ concerning wealth to the needs of a rich trading community of Christians. His doctrine was adopted by the mediaeval and modern Christian Church. So, in effect, said Signor Nitti some years ago, and the view has been substantially adopted by Mr. Butterworth in his dainty little book on Clement of Alexandria, recently issued. The charge that the Catholic Church has changed the Gospel of Christ has, of course, frequently been made before. After years of study Cardinal Newman satisfied himself that she had not changed but only developed it. That is true of other doctrines and of the doctrine on poverty and wealth. One great obstacle which prevents non-Catholics from seeing the truth is their rejection of counsels in the Gospel. The Protestant theory of Gospel morality is that all good is of precept, none is merely recommended and of counsel only. This theory prevents them and those who follow them from seeing the point in the incident between Christ and the rich young man. The text is classical as bearing on the question at issue. The writers with whom I am dealing see in it a clear proof that Christ taught that the renunciation of wealth is a necessary condition for admittance into the Kingdom of Heaven, and that a rich man cannot be saved. Clement of Alexandria, and Catholic exegetes generally, show that it proves nothing of the sort.

n. ¶180.

The rich young man asked what he had to do to have everlasting life. " If thou wouldst have everlasting life, keep the Commandments," was the answer. " Which Commandments?" again asked the young man. " The Ten Commandments of the Decalogue," answered the Master. "All those I have kept from my youth. What is yet wanting to me?" said the young man. Jesus looked upon him with a look of approbation and love, and then He said: " If thou wouldst be perfect, go sell what thou hast and give it to the poor." He did not absolutely command him to sell what he had; He only bade him do it if he desired to do something more than what was commanded and strictly necessary to gain everlasting life. Moreover, it should be noted that Jesus did not command him to put the proceeds of the sale into the common fund. He told him to give them to the poor. Our Lord was no Communist. But, it is argued, the Gospel narrative goes on to say that it is easier for a camel to pass through the eye of a needle than for a rich man to enter into the Kingdom of Heaven. Here the Socialist stops, but we should go on to the end of the narrative.

n. ¶181.

The disciples wondered very much, we are told, at hearing this proverb, which seemed to make salvation impossible for the rich, and they asked Him: "Who, then, can be saved?" "With men," said Our Lord, "this is impossible, but with God all things are possible." Even the rich man may be saved by the grace of God. The same conclusion follows from the story of the rich Zaccheus, and it is not contradicted by the parable of Dives and Lazarus if no part of the Gospel narrative is omitted, as is done by Signor Nitti. St. Paul instructed his disciple Timothy how to deal with the rich, but he did not tell him to compel them to renounce their wealth. The communism of the Church of Jerusalem was local and not obligatory, as is shown by what St. Peter said to Ananias and Sapphira. What Socialists assert about the early Church Fathers is refuted by examining their whole teaching about wealth. Dr. J. Ryan's little book, " Alleged Socialism of the Church Fathers," will enable the English reader to do this at small trouble and expense to himself. L. Garriguet's little book on " The Social Value of the Gospel" is also well worth reading.

Slater, Religion & Human Interests

Thomas Slater, S.J. — 2 passages

Chapter VI: Religion and Business

n. ¶44.

THE message brought to the Mother Country by Mr. W. M. Hughes, Prime Minister of the Commonwealth of Australia, stirred the country deeply. Deservedly so; for although Mr. Hughes did not prophesy smooth things, his message had about it the unmistakable ring of truth. He said bluntly that the principles on which English commerce has rested for at least a hundred and fifty years are wrong. " England has been, and is, the chief of sinners." It required great courage to say that at a distinguished gathering of English commercial men, in the chief centre of the greatest commercial empire that the world has ever seen. But the words were not spoken at random. They were the outcome of deep study, thought, and experience, and the speaker knew how to demonstrate their truth. The principles on which English commerce had rested so long were those of the classical school of political economy represented by Adam Smith and John Stuart Mill. Briefly stated, they may be summed up thus—unfettered competition, buying in the cheapest market and selling in the dearest, and the law that the price of labour and of commodities is settled by the demand and supply of them. Mr. Hughes was not concerned to deny that a case can be made out in favour of those principles if the only question about trade is how to get rich as quickly as possible. But that is not the only question. The trade of a country is intimately connected with national safety and with the social welfare of its people. "For a time," said Mr. Hughes, "the trade of a nation that treats trade as if it had no connection with national safety may make great strides, as did ours, but there comes a day of reckoning to such nations, and it has come to us." " This war," said Mr. Hughes on another occasion, "has rung the death-knell of a policy of cheapness that took no thought for the social and industrial welfare of the workmen, that mistook mere wealth for greatness, no matter whether the wealth was in our hands or those of German Jews." And he had his instances in proof of his thesis. Our foolish habit of looking only at cheapness, and disregarding wider and higher interests, has given a monopoly to our enemies of tungsten powder for the hardening of steel, of dyes, and of sugar production. We thus found ourselves at the outbreak of war largely dependent on the enemy for certain commodities of prime importance to us. We had allowed the enemy to gain a monopoly in these commodities, and by having to buy them from him we had furnished him with money to pay for ships, guns and munitions to be used against us in the war. Nor is this all. We have already paid five thousand millions of pounds, without reckoning the priceless lives lost, in order to defend ourselves against the enemy's attack. So that " Penny wise and pound foolish " is the epitaph which may be written on the tombstone of the old liberal political economy which has governed British trade for generations. But Mr. Hughes was not so much concerned about demolishing false principles which have led England astray in the past. He is a statesman and he is thoughtful for the future. He saw that British unpreparedness and want of organisation make the British Empire a tempting bait for her highly organised enemies. He was conscious that it would be a difficult task to organise the British Empire. Tantæ molis erat Romanam condere gentem. The task required all the skill and all the energy of her greatest statesmen. But it was to be done; the welfare of the world and her own safety demanded it. The enemy is buoyed up with the hope of conquering for himself the trade of the world after the war is over. There is sure to be a great and rapid development of commerce, and the profits will go largely to those who are best prepared to reap them. We must be ready with a definite and well-thought-out policy for the defence and preservation of the Empire. Enemy competition will not be the only danger to be confronted after the war. The war has necessitated great changes in the national life and industry. Prices have risen enormously. The cost of the war will press upon the shoulders of the people for generations to come. Unless the situation is carefully managed, all this will inevitably lead to a period of domestic strife, to a war between class and class hardly less disastrous than the war of nations. Mr. Hughes saw clearly what is wanted. His mind is filled with a glorious vision of a future British Empire: “The British Empire organised for trade, for industry, for economic justice, for national defence, for the preservation of the world's peace, for the protection of the weak against the strong. That is a noble ideal. It ought to be, it must be, ours." The old system favoured individualism. It professed to give everybody a fair field and no favour. If everyone was sure to reap the fruits of his labour, everyone would put forth all his energies, and in working his utmost for himself, each would work for the common good in the aggregate. It looked like a sound and sane philosophy. It only forgot the facts of human nature and of life. It forgot that in capacity and in opportunity men are, and must be, very unequal. And so the system of unfettered competition meant in practice that a few grew enormously rich, while the great majority were reduced to the condition of "hands," they became mere instruments of production. Unfettered competition meant in practice selfishness, class hatred, envy and malice. It meant sweating, starvation wages, and oppression of the poor. It meant the lowering of the quality of commodities by tricks of trade which left nothing unadulterated, and called nothing by its proper name. To make sure of a profit, traders frequently charged as much as they thought the customer could pay. The very notion of a fair and reasonable price for commodities, the just price as it used to be called, was almost lost. You got as much as you could for your goods, and gave as little as you could for them. That was business; it was buying in the cheapest market and selling in the dearest. The stress and the strain of the war have given the death-blow to all these ideas. A nation relying on them was found to be no match for a nation organised in every department for national action and for conquest. If it was not desirable to jump from one extreme to the other, if it was not wise to emulate the excessive organisation of the enemy, national safety imperatively demanded that something should be done. After all there is a middle course, and there as a rule, in politics as in morals, salvation is to be found. For individual and class selfishness it should not be impossible to substitute a care for the common weal. The common good should be the supreme aim of governments, and individuals and classes should learn to subordinate private interest to the common welfare of the whole. Instead of laissez faire and unfettered competition, rulers should strive to make economic justice prevail. Commerce and trade are not governed only by physical and necessary laws; they are departments of human life and are subject to moral law. The classical school of political economists was fond of arguing about the law of demand and supply as if it were a law of astronomy. They used to say that it was as futile for governments to try to interfere with its working as it would be to try to interfere with the law of gravitation. In one of his little books on political economy Dr. Cunningham, the Anglican Archdeacon of Ely, has told us that we have outlived the old notion that there is a just price, a fair and reasonable price for everything. The experience of the war has taught us what to think of views like those. " Other food products generally were unduly inflated in price early in August by the anxiety of consumers to lay in stocks. This was checked by reassuring statements from the Government as to supplies of the principal products both present and prospective, and the inflation of prices was prevented on the appointment by the government of a standing committee of retail traders who fixed from day to day maximum retail prices."* This shows that the "economic justice" which forms one feature of Mr. Hughes's policy for the future is not an impossible ideal. If we add to it the other feature, "the protection of the weak against the strong,” we shall have the chief elements of the time-honoured Christian teaching that the firm foundations of States are Justice and Charity. The reader will not be left under the impression that I am preparing the way for advocating Socialism. That would be no remedy for existing evils; it errs by excess in the opposite direction. It is, however, too large a subject to be treated here.