205*. Notions. To duties on one side correspond rights on the other side, and indeed in such a way that the right of one extends as broadly as the duty of the other.

1. Duties, according to the diversity of laws from which they arise, are:

a. affirmative duties, which arise from precepts, and negative duties, which arise from prohibitions;

b. absolute duties, which oblige simply and without exception, and hypothetical duties, which oblige only under certain suppositions;

c. natural duties, which are founded in the law of nature, and positive duties, which are founded in positive law, whether divine or human;

d. higher and lower duties, according as they refer to preserving greater or lesser goods, to averting greater or lesser evils;

e. duties of justice, from whose violation an obligation of restitution of itself arises, and duties of charity, from whose violation an obligation of restitution does not arise.

2. Since rights cohere with duties, they are distinguished in the same manner as duties; specifically these are to be noted:

a. connate rights, which are founded in the law of nature, and acquired rights, which are founded in positive law or in contracts.

b. inalienable rights, which can in no way be renounced, and alienable rights, which can be renounced: for what is necessary for man either for attaining the ultimate end or for fulfilling a moral obligation cannot be abdicated.

3. Collision of duties is the concurrence of several obligations which cannot be fulfilled at the same time.

Thus in the case of an unjust aggressor, two obligations collide: preserving one's own life and preserving the life of another. Since the obligation of preserving one's own life is more excellent, the other obligation loses its force.

a. So many and various are the relations of man, whether toward God or toward himself or toward other men, and consequently so manifold are the obligations which arise from them, that not rarely duties which are opposed to one another urge at the same time. But the collision of duties is only apparent, because of the colliding obligations only one in reality exists and requires that it be fulfilled; the rest lose their force or are suspended as long as the collision lasts: for their fulfillment is impossible; but no one is bound to the impossible. Certainly the supreme reason of all obligations is the will of God; but God, whose will is wisdom, cannot wish that at the same time we place actions of which one excludes the other.

b. Wherefore in a case in which duties collide, this is chiefly at issue: that the collision be solved, or that it be determined which obligation among the colliding ones, while the others cease, requires that it be fulfilled. Several rules are established for determining this.

205**. Rules for solving collision. The supreme principle in this matter is this: a higher obligation is to be preferred to a lower; but that obligation is judged higher which arises from a law which is of greater moment. Hence the following rules are inferred.

a. Precepts of the law of nature are to be preferred to precepts of positive divine law, these to precepts of positive human law; among these latter, precepts of ecclesiastical law prevail over precepts of civil law, which is drawn from the diverse end of these laws, one of which is nobler than the other.

The law which requires that we aid a needy neighbor is higher than the law of abstaining from servile works; the law of preserving health is to be preferred to the law of fasting or abstinence.

b. Negative precepts prevail over positive precepts; therefore in general the obligation of avoiding prohibited things is greater than that of doing prescribed things: for that which is prohibited is evil and pernicious in itself; but that which is prescribed is simply fitting and useful.

It is not lawful to lie nor to exercise a shameful business in order to aid one in need.

c. Precepts of justice in general prevail over precepts of charity.

If at the same time the obligation of paying a debt and of giving alms concur, the former, which is of justice, prevails over the latter obligation, which is of charity. Nevertheless, if someone must pay a debt by which, once paid, the debtor casts himself into grave necessity, he can defer payment, although it is an obligation of justice.

d. Precepts (negative and positive) which protect greater goods prevail over laws which protect lesser ones; therefore precepts which refer to spiritual goods, internal goods, common goods, are to be preferred to precepts which refer to bodily, external, private goods.

Thus a citizen is bound to serve as a soldier, even if his own life or his own family suffers damage. - A priest or physician is bound to help the sick, even if his own health or his own family is endangered. - It is not lawful to defect from the faith in order to preserve life; nor to deny the faith in order to avoid persecution. - A servant for whom service is an occasion of sin which can be removed by no means is bound to leave the service, even if the temporal damages would be most grave. - It is not lawful to expose life to danger on account of some slight temporal good.

e. But if in a case of colliding duties, after diligent examination, it cannot be determined which obligation prevails, and at the same time the necessity of acting urges, the choice can be made at will. An error which perhaps is committed in this case is involuntary and is not imputed to the agent.

64. There are four excommunications carried against those who dispose of ecclesiastical goods unjustly or illicitly: a. against those usurping or sequestrating goods of ecclesiastical persons (I. 11); b. against those invading, etc., the temporal dominion of the Roman Church (I. 12); c. against those usurping goods of any benefice or pious place (II. 19); d. against those alienating ecclesiastical goods without license of the apostolic see (IV. 3).

a. Jurisdiction is understood to be both spiritual and temporal; goods are both movable and immovable, such as beneficial lands; revenues are natural and civil fruits which come from ecclesiastical goods. These constitute the matter of this excommunication insofar as they pertain to ecclesiastical persons, and indeed either by reason of the church over which they preside, or by reason of the benefice which they possess. Therefore here do not belong: a. goods of pious places, because they do not pertain to ecclesiastical persons; b. goods of monasteries, because they do not pertain to regulars by reason of a church; c. goods which by another title, e.g. of stipend, pension, pertain to ecclesiastical persons.

b. Usurpers are called those who occupy by authority, as if by right owed to themselves, a thing still existing in the power of its owner. Therefore they do not incur this censure: a. thieves and robbers;¹ b. those who buy a thing from a usurper or receive it by another title.² Sequestrators are both judges and magistrates who command sequestration, and their ministers who execute the mandate.

Twelfth excommunication. Those invading, destroying, detaining, either by themselves or through others, cities, lands, places, or rights pertaining to the Roman Church, or usurping, disturbing, retaining supreme jurisdiction in them, and also those furnishing help, counsel, favor for each of the aforesaid things.

¹ Holy Office, March 9, 1870.

² Holy Office, July 8, 1874.

65. a. This censure intends to protect the temporal dominion of the apostolic see; wherefore temporal jurisdiction, and indeed supreme temporal jurisdiction, is to be understood.

b. They incur the censure: a. those who occupy or retain some temporal right of the holy see or some place of the temporal dominion; b. those who exercise supreme jurisdiction in occupied lands, of which kind are the kings of Italy, ministers of the kingdom, prefects of provinces, etc.; c. cooperators, who spontaneously, not by compulsion, concur in the aforesaid things.

91. a. This censure protects ecclesiastical goods taken in the broadest sense, namely any temporal goods and rights whatever pertaining to churches, religious places, or pious places; to these also in part article 11 and 12 of the first series refer. Therefore in cases which pertain to both censures, the censure reserved in a special mode is contracted.¹

b. Clerics and laymen contract the censure who usurp the goods of the Church, by authoritatively occupying them as owed to themselves by right, or who impede them from being received by those to whom they pertain by right, by occupying them as if pertaining to themselves and converting them to their own uses. Clerics incur the censure if they even only consent to these actions.

c. In this matter they dispute whether all usurpations are punished by this censure, or only authoritative ones, namely those which are done through public authority. From the declaration of the holy see, thieves and robbers do not incur this censure.²

d. Finally, those also incur this censure who have bought goods of this kind from usurpers or have acquired them under another title (donation, inheritance, legacy, etc.).³

¹ Holy Office, July 8, 1874.

² Holy Office, March 9, 1870.

³ Holy Office, July 8, 1894.

100. What ecclesiastical goods. 1. Ecclesiastical goods are here understood to be the goods of all places which are called sacred or pious, provided they have been erected by ecclesiastical authority, even if their goods are administered by lay persons.

Ecclesiastical goods are not pious legacies or other goods donated to the Church which have not yet been accepted by the Church or duly acquired, nor lay chaplaincies, although not even these can be alienated at will.¹ But goods which pertain to institutes of men and women, whether approved by the holy see or only diocesan, are ecclesiastical, which cannot be alienated without license of the holy see; and those alienating them thus incur excommunication.²

2. Nevertheless, not all ecclesiastical goods indiscriminately, but only immovable goods and precious movable goods (which can be preserved by being kept), are prohibited from being alienated without consulting the holy see.

a. Immovable goods are judged to be not only estates and buildings, but also those things which are held by the land, such as mines, fruit-bearing trees or things necessary for the estate, rights (the right of hunting and fishing) and servitudes, revenues, and money destined by donors for acquiring estates or precious movable goods.

b. Precious movable goods are judged to be gold or silver vessels, abundant libraries, ornaments which excel by antiquity or workmanship, etc., provided they are not of slight value. But goods are judged to be of slight value which do not exceed the sum of 300 florins, or 500 marks, or 600 francs.³

But precious movable goods in order to this law are not judged to be: money, unless it has been given for buying immovable goods or precious movable goods; bonds and shares, which scarcely differ from money; notable relics, which are less properly called precious movable goods; old furnishings, which by custom can be alienated for procuring new ones equally precious; nor fruits and goods which cannot be preserved by being kept: for these are permitted to be alienated by this constitution itself.

¹ S. C. C., February 8, 1871. Cf. Acta s. sedis VI. 476.

² S. C. de Prop. Fide, January 15, 1903.

³ S. C. Epp. et Reg., May 1, 1840. The sum of 25 gold pieces, which in this decree the congregation mentions from older responses (from 1611 and 1698), with the value of money changed, is now rightly judged equivalent to the sum placed above.

101. Actions prohibited under censure are alienation and the corresponding reception or acquisition, presumptuous, of ecclesiastical goods. By the name of alienation is understood any contract by which the right of ownership, or of use, or of usufruct, is transferred to another, or in any way diminished or burdened. Actions of this kind are:

a. Sale, exchange (giving in payment), donation, hereditary transmission (Vererbung), etc., by which ownership is transferred to another;

b. Pledging, hypothecation, imposition of servitude, etc., by which goods of the Church are burdened;

c. Infeudation (Lehensgebung), lease beyond three years, emphyteusis, etc., by which useful ownership is transferred to another;

d. Compromise, settlement, remission of servitude, cession of suit, etc., by which rights are ceded.

a. If an ecclesiastical good (a house or field) had to be leased for a longer time, the administrator, to avoid the censure, would have to reserve to himself the right of rescinding the contract every three years. A promise to renew the contract after three years have passed does not induce the censure.

b. To incur the censure it is required that the alienation be perfected from each side. Therefore if the alienation of an ecclesiastical good is made under reservation of apostolic approval, according to the opinion of many excommunication is not incurred, provided the contract is not put into execution before the apostolic license arrives: for what is still in the dominion of the seller cannot be said to have been alienated. In like manner, where sale is not perfected except by delivery of the thing, the censure is not incurred before the sale has been perfected by delivery of the thing; but where sale is perfected by the consent alone of the parties, the censure is incurred already before delivery of the thing.

c. Whether alienations made between churches or pious places are subject to the censure is disputed. D'Annibale and Ballerini deny this: for the constitution Ambitiosae by this prohibition intends to guard against detriment to divine worship, because ecclesiastical goods pass into the ownership of lay persons; but in an alienation of this kind, which is made between churches, divine worship suffers no detriment. Nevertheless the decree of S. C. C., January 24, 1632, stands against the denying opinion.

357. Definition. Ownership is the legitimate faculty of disposing according to one's choice concerning some thing as one's own, unless the owner is prohibited from elsewhere.

a. To be owner of a thing signifies that the thing is one's own, and has such a connection with its owner that in having it and in its use he ought to be preferred to all others. Therefore, although he must render an account of its use to none of men, nevertheless he must render it to God.¹

b. Of disposing, that is, of possessing, using, selling, exchanging, giving, destroying, etc. According to one's choice: ownership gives to the owner the faculty of disposing of his own thing as it shall please him, without injuring justice; therefore by an arbitrary disposition, for example, by a prodigal donation or destruction of the thing, he can sin against another virtue, say liberality, charity, or piety, but he does not sin against justice. Concerning some thing is to be taken generically, insofar as it signifies corporeal and incorporeal things: for there is ownership not only of corporeal things, such as gold or a field, but also of incorporeal things, such as reputation, honor, right of inheritance. As one's own, so that ownership may be distinguished from a simple right to a thing, which does not give the faculty of disposing of the thing, from mere possession, even legitimate possession, which, for example, gives to a tenant the right of disposing of a thing, but not as his own, and finally from the power of a curator and procurator, who likewise dispose of a thing, but not as their own.

c. In various ways the owner can be impeded from disposing of his own thing according to his choice: alpha. by civil law, as if minors are prohibited from selling their own things; beta. by agreement, as if someone sells another his house with this pact, that it not be converted into an inn; gamma. by the will of a testator, as if someone transmits an estate by legacy to another on this condition, that it cannot be sold.

¹ Cf. Lugo, De iustit., disp. 1, n. 5.

358. Principles of right. From the nature of ownership these principles are deduced and explained, of which there is frequent use in law:

a. A thing cries out for its owner.

This principle exhibits the very right of ownership: for since by force of the right of ownership the thing itself is bound to the owner, it tends to return to the owner when it has escaped from his possession.

b. A thing bears fruit for its owner.

This follows immediately from the notion of ownership: for if the whole substance of a thing pertains to the owner and ought to serve for his advantage, the fruits also begotten from it fall to the owner.

c. A thing perishes for its owner, or more accurately: a thing which perishes by chance perishes for its owner; a thing which perishes by fault perishes for him who committed the fault.

This likewise follows immediately from the nature of ownership: for since the owner by force of ownership possesses a right in the thing itself, when the thing perishes the right in it also naturally perishes. But if the thing perishes by another's fault, the thing itself indeed perishes for the owner, but because he by whose fault it perishes is bound to render to the owner an equivalent price, it is said to perish for him who committed the fault.

d. It is not licit to grow rich from another's thing.

This follows from the second principle: for he who grows rich from another's thing turns the fruits of another's thing to his own utility, which is opposed to justice. But he who grows rich not from another's thing, but on the occasion of another's thing, injures neither another's right nor justice.

359. Divisions of ownership. 1. Ownership is divided into high and low: high ownership is the power which belongs to public authority of establishing concerning the goods of its subjects for the common utility; low ownership is the ownership which private men have in their own things and is called private right.

a. It is clear that high ownership is not ownership of property in the true name (for civil power has no property in the goods of subjects), but in reality is nothing except ownership of jurisdiction or the right of prescribing concerning the goods of citizens those things which the prince has judged expedient for the common good. Therefore the prince can transfer ownership from one to another, restrict the exercise of ownership in various ways, indeed he can even deprive subjects of their goods by the right of expropriation, or rather compel them to abdicate ownership of their goods.

b. A twofold condition is required that supreme power can use this ownership of its own: alpha. that a cause of necessity or of great public utility be present; beta. that, if it can be done, it make the subjects who are deprived of their goods by the right of expropriation unharmed.¹

2. Low ownership is divided into perfect or full and imperfect or semi-full: the former is the power of disposing according to one's choice concerning the substance and the utility of a thing; the latter is the power of disposing either concerning the substance of the thing or concerning its utility.

3. Imperfect ownership is divided into direct or radical ownership, which is power over the substance alone of a thing, and indirect ownership or useful ownership, which is power over the utility alone of a thing, and is defined: the power of receiving utility from another's thing while its substance is preserved. The chief species of indirect ownership are use, usufruct, and servitude.

Note. Recent codes reduce the diverse species of imperfect ownership to servitude, and therefore treat use and usufruct as species of servitude, as will be clear from the things to be said below concerning servitude.

¹ Cf. Van Gestel, l. c., n. 46 s.

360. On use. 1. Use is the right of using another's thing while its substance is preserved.

a. He to whom the use of some thing belongs is called a user, so that he may be distinguished from the proprietor of the same thing.

b. It is one thing to use some thing; it is another thing to enjoy some thing. He who can use a thing can receive for himself and his own from the thing that utility which necessity requires; but he who can enjoy a thing receives by right every utility from the thing which it can offer.

2. To use are usually referred: a. habitation or the right of using some part of another's house; b. gathering wood or the right of gathering wood in another's forest; c. pasture or the right of leading cattle into another's pastures; d. diverse species of loan for use, as the use of a horse, garment, etc.

3. Use, as it is taken here, is a right of using some thing which is not revocable at will. From this use there must be distinguished use revocable at will, of which sort is permission of using some thing, such as religious receive from their superior.

Formerly a sharp dispute arose whether there is true use of a thing when the substance of the thing is consumed by use, as happens in food and drink, or rather whether the use of a thing consumable by its first use contains ownership of it. Religious gave occasion to the question, who (as the Friars Minor) said that they had ownership of no thing, not even the least, but only use. Those who affirmed that the use of a thing which is consumed by use cannot be separated from its ownership argued in this way: he who can dispose concerning the substance of a thing has ownership of it; but he who can use a thing which is consumed by the very use disposes concerning its substance. But those who affirmed that the use of a thing consumable by the very use can be separated from the ownership of the same thing used this distinction: if use is understood as an irrevocable right and independent from the will of the one granting, the use of this thing contains ownership; but if the use of a thing is understood as a right revocable at will and fully dependent on the will of the one granting, the use of this thing does not contain ownership, even if the thing is consumed by the very use.¹

¹ Cf. Holzmann, Theologia moralis, IV, n. 166 ss.; Elbel-Bierbaum, Theologia moralis, II, pr. 5, n. 40 ss.

361. On usufruct. Usufruct is the right of using and enjoying another's thing while its substance is preserved. Usufruct is distinguished as legal and conventional, according as it is had from canonical or civil law, or from contract.

a. He to whom the usufruct of some thing belongs is called a usufructuary or fruituary, so that he may be distinguished from the owner or proprietor of the same thing.

b. Usufruct differs from use in this, that the fruituary has the right not only of using another's thing, but also of receiving the fruits which arise from it. Indeed he has perfect ownership in the fruits, so that he can receive not only the fruits necessary to himself, but all, and alienate them according to his choice.

c. By canonical law beneficiaries have the usufruct of their benefices; by civil law parents have the usufruct from the goods of minor children, and sometimes the husband from certain goods of his wife.

362. On servitude. a. Servitude (Dienstbarkeit) taken actively is the right which someone has, that another's thing may serve him or his own thing; taken passively it is a burden inhering in a thing, by force of which it ought to serve another for some advantage. Thus if a right of passing through another's field belongs to someone, he himself is the subject of active servitude, but the field is the subject of passive servitude.

b. Passive servitude is twofold: one personal, when some thing ought to furnish utility to another person, of which sort are use and usufruct, if they are taken passively; the other real or praedial, if some thing ought to furnish an advantage to another thing, as is the servitude of pasturing a flock in some forest.

c. For constituting a real servitude two things are required, of which one bears the burden and is called serving (the forest), the other receives the utility and is called dominant (the flock).

Note. 1. The law of servitudes is drawn up in modern codes with diligent study; and since it determines rights and conduces to preserving the mutual concord of citizens, it obliges in conscience.¹

2. Since the law of servitudes, especially real servitudes, is very intricate, it often gives occasion for disagreements among neighbors. Let the pastor take care either to forestall or to remove disputes of this kind, and for obtaining this end let him admonish the opposing parties that they should rather yield somewhat from their right than expose goods of fortune and mutual concord to danger.

¹ C. A., Section 472-530; C. G., Section 1018-1093.

363. Fruits of a thing. By the name fruits of a thing is understood everything which arises from the thing. Fruits are divided by reason of origin into spontaneous, industrial, and mixed, and by reason of collection into pending, to be received, and received.

1. a. Those are called spontaneous which the thing produces without special industry of men. Special is said because there will scarcely be a fruitful thing which bears fruits without any industry and labor of man.

Spontaneous fruits are either natural or civil, according as they are produced by nature itself, such as hay of a meadow, wood of a forest, offspring of animals, milk, wool, eggs, etc., or are received by force of a contract or another obligation, such as the price which is acquired for the rental of a house, interest which is acquired for money lent, a pension which is acquired for an office.

b. Those are called industrial which are acquired by the industry and labor of man alone, although by means of some thing or instrument, such as the works of artisans and workers, profit received from trading.

Profit received from simple sale can be considered as a fruit of industry; for that profit received can be called a fruit of industry, it is not required that singular and extraordinary industry have intervened, but true work and industry of the person suffices.

c. Those are called mixed which are produced partly by nature and are owed partly to human industry, such as crops, wine, oil, cheese, butter. And because even natural fruits require some industry, it is sometimes difficult to say whether some fruit ought to be reckoned among natural or mixed fruits.

2. a. Those are called pending which have not been separated from the thing, such as offspring of animals not yet brought forth into light, apples still hanging from the tree, crops not yet harvested.

b. Those are called to be received which the possessor could have received if he had wished, but did not receive, whether by negligence or by fraud.

c. Those are called received which have already been separated from the fruitful thing and collected by the possessor. These again are divided into consumed and extant.

Article Second. On the Object of Ownership

The object of ownership is that of which man can be owner. Those things of which man can be owner are usually called goods, and are distinguished into three kinds: internal, mixed, and external. Among internal goods are reckoned man's life, powers, members, and actions; mixed goods are reputation and honor, which are, as it were, midway between internal and external goods; external goods which fall under man's ownership are sublunar things.

364. On internal goods. 1. Of those internal goods which are not distinct from man himself, such as life, powers, and members, man does not have direct ownership, but only useful ownership, so that he receives every utility from them and is their administrator and guardian.

a. God has given no one the right over his own life and members, but has reserved it to Himself: "See that I alone am, and there is no other God besides me; I will kill and I will make alive."¹ And indeed no one can truly be lord of himself, because lord signifies superiority with respect to him whose lord he is. b. He ought to have the power of using them for obtaining his end, and he cannot be impeded by any man in this use, since in tending to his own end he is independent from any man and fully in his own right.

2. Of those internal goods which are distinct from man, such as actions both natural and supernatural and the goods effected by them, man has full ownership, and therefore can dispose concerning them at will. For since he can use his own faculties as his own, he has ownership both in their operations and in the goods arisen from the operations, which are the fruits of the operations.

¹ Deut. 32:39. Cf. Wis. 16:13 s.

365. On mixed goods. Man has full ownership of reputation and honor: for he has ownership of those goods which are the fruits of his own industry; but reputation and honor are acquired and increased by his own industry. Besides, by the consent of all, acts of ownership concerning reputation and honor belong to man: for by defaming himself he can cast them aside for seeking counsel, and he can condone restitution to a calumniator. Nevertheless this ownership is sometimes restricted by another and higher law.

366. On external goods. It will be said below that man can acquire full ownership in external goods; here it is helpful to set forth the various distinctions of external things of which man can have ownership.

1. Things placed in commerce are those which can be in the ownership of a private person; and things placed outside commerce are those which cannot be in the ownership of a private person. Of this kind are: a. public things of the Church, such as sacred places, temples, cemeteries; b. public things of civil society, such as public roads, squares, public bridges, city walls; c. common things, such as air, light, the sea, of which things the use is common to all, but ownership belongs to none.

2. Things are movable and immovable according as, with their substance preserved, they can be transferred from place to place, such as animals and furniture, or cannot be transferred, such as a house or forest. Some things are movable and immovable from their nature, others from the disposition of law, concerning which the civil codes must be consulted.

Civil law also counts fruits not yet collected and the "stocked estate," that is, those things which are necessary for carrying on domestic economy, among immovable goods in some cases.

3. Fungible things (vertretbare) are those of which one can perform the function of another in payment or restitution, in which therefore attention is given not to the species (that is, to the individual thing), but to the genus (to quantity and quality), such as oil, wine, wheat, money, in which not the substance of the coin but its value is considered. Non-fungible things are those of which one cannot perform the function of another, but which must be handed over in the individual, in which therefore attention is given to the species (that is, to the individual thing), not only to the genus, of which sort are animals, garments, etc.

4. Finally, things consumable by first use and things not consumable by first use: the former in their first natural use are destroyed or changed into another substance, such as bread, wine, wood for burning; the latter are indeed worn by use, but are not corrupted, but endure in their substance after use, such as a garment, house, furniture.

The division of external things into corporeal, which can be touched, such as a house, field, money, and incorporeal, which cannot be touched, such as diverse rights, for example, the right of hunting and the right of fishing, which was of great importance in Roman law, scarcely occurs any longer in recent codes.

367. On the subject itself. By the subject of ownership is understood the person to whom ownership belongs. A twofold person is distinguished who is capable of ownership: a physical person and a moral person.

1. From the law of nature the subject of ownership is every living man, even an infant not yet born and a man perpetually insane.¹

a. The foundation of ownership is rational nature: for through reason man has the power of disposing concerning his own things. Wherefore even infants and the perpetually insane are capable of acquiring ownership and habitually retaining it, but not of exercising ownership; for rational nature without any act of will suffices for acquiring and habitually retaining ownership, but the use of reason is required for the exercise of ownership.

b. After death man does not retain ownership of goods of fortune, although he retains ownership of reputation: for since goods of fortune have been granted by the author of nature to man for sustaining temporal life, the right in goods of fortune is extinguished by death itself.

c. Although every man using reason is capable, by the law of nature, of ownership and its exercise, nevertheless by positive law this capacity is restricted in various ways on account of the common good. These matters must be treated below.

2. Moral persons or societies are also capable of ownership. Any society which has been instituted for an honest end is, by the law of nature, capable of acquiring ownership of temporal things. But by civil law this right is recognized only in those which are constituted by it as juridical persons, namely persons capable of acquiring rights.

a. With respect to ecclesiastical societies, juridical persons are first the universal Church, which by natural and divine right is capable of ownership of temporal goods; then within the ambit of the Church: lesser societies, namely dioceses, parishes, church fabric funds, religious societies, seminaries, hospitals, pious institutes, etc.

b. With respect to profane societies, juridical persons are first the state itself or republic, which, since it is a perfect and independent society, has ownership of its goods by its nature; then within the ambit of the state: provinces, municipalities, colleges, universities, and several other lesser societies which are endowed with the privilege of juridical personality and thence are called privileged societies.

¹ Gal. 4:1. Cf. C. A., Section 22; C. G., Section 1, 1923.

369. Notion. Possession is the holding of a thing not prohibited to be possessed, with the mind of having it as one's own.

a. Holding supposes apprehension of the thing: for possession is begun by apprehension, by which someone occupies the thing, and by holding possession is continued. As to rights, their apprehension ordinarily consists in acceptance and holding consists in their exercise.

b. By the name thing is signified the object of possession, which can be not only a corporeal thing, such as money, a field, a house, but also an incorporeal thing, such as a right. In the former case there is possession properly so called; in the latter there is possession improperly so called, or quasi-possession.

c. For possession it does not suffice that someone physically apprehend and hold some thing, but it is required that he hold it with the mind of having it as his own. Therefore it is required that he apprehend the thing not only by body but also by mind or will; therefore a depositary does not properly possess the deposit.

d. For true possession a right in the thing possessed is indeed not required; for even a thief possesses, although unjustly. But it is required that the law not declare a certain thing incapable of being possessed, or a certain person incapable of possessing. Thus public things cannot be possessed by a private man, and some sacred things cannot be possessed by a layman.

e. Therefore three things are required for having possession: alpha. holding of the thing, or if the matter concerns a right, use of the right; beta. the mind of having it for oneself; gamma. permission of the law, which indeed does not approve the possession, but does not prohibit it.

370. Division. Possession is divided: a. into legitimate possession or possession of right, which is begun with a title which of itself can transfer ownership, such as donation, purchase; and into illegitimate possession or possession of fact, which lacks a title which can transfer ownership, such as possession from theft.

He who doubts whether a thing which he assumes for possession is his own or another's begins to possess it legitimately, if it is in the possession of no one and he himself has the mind of inquiring and restoring the thing to the certain owner.

b. Possession of fact is either possession of good faith, doubtful faith, or bad faith: possession of good faith is had if the possessor invincibly thinks that the thing is his own; possession of doubtful faith is had if the possessor, either at the beginning or in the course of possession, doubts whether the thing is his own; possession of bad faith is had if the possessor knows that the thing which he possesses is another's.

He who doubts whether a thing which another possesses is his own or another's possesses illegitimately if he assumes it for possession against the will of the other. The same must be said concerning him who doubts whether a thing which another possesses is this one's or a third person's.

371. Effects of possession. 1. All rights attribute certain privileges to possession, both because the very fact of possession, if it is of good faith, founds a presumption of law, namely that with possession there is also joined a right in the thing possessed, and because these privileges conduce to public tranquility and arouse the diligence of citizens in guarding their own things. These privileges, which belong to possession both from the law of nature and from civil law, are reckoned as two:

a. In an equal cause or doubt the condition of the possessor is better, that is, possession gives the right of retaining the thing possessed until it is certain, or at least established by a stronger motive, that it is another's.

Therefore no one can be despoiled without injustice of a thing which he possesses unless it is sufficiently established that another has the right of possessing it.

b. Possession of good faith begets prescription, but nevertheless it does not transfer ownership of the thing except by the help of prescription.

2. Possession does not confer these privileges unless it is certain and legitimate; doubtful possession or possession of bad faith has no value.

376. Declarations. 1. In order that it can be judged whether the way of acting of spouses concerning temporal goods is just or unjust, one must first investigate which goods are common to them, which are proper, and what rights in both proper and common goods belong to the spouses. Moreover, these rights of spouses depend on the contract which they enter into before marriage (by an authentic act before a notary), or on the regime (system), as they call it, under which they contracted marriage. For those about to marry can freely choose the system according to which disposition is to be made concerning their goods, and to the chosen system add whatever agreements they wish, provided these are not opposed to good morals and are not prohibited by law. Now there are three chief systems according to which spouses are accustomed to enter marriage with respect to ownership of temporal goods: a. the system of community; b. the system of separation of goods; c. the dotal system. But if spouses contract without a special agreement, they are judged to follow that system which commonly prevails in that region. The rights which belong to spouses concerning temporal goods in the individual systems are contained in the civil codes.¹

2. The goods of spouses are distinguished in this way:

a. Dotal goods (eingebrachtes Gut), which are handed over by the wife or by another to the husband for sustaining the burdens of marriage.

Dotal goods occur not only in the dotal system but also in other systems, since in any system a dowry is brought by the wife. It rarely happens that ownership of dotal goods is transferred to the husband; ordinarily their ownership remains with the wife, but administration and usufruct pertain to the husband.²

b. Goods besides the dowry or proper goods, which the wife has besides the dowry, whether she acquired them by inheritance or by donation or by her own and extraordinary industry.

alpha. Ownership of those things which the wife acquires for herself by her own labor distinct from the care which is owed to the domestic estate, for example, by painting or by trading with her own goods, belongs by strict right to her until she contributes them into common.³

beta. The wife retains ownership and usufruct of these goods, but ordinarily the husband has administration.

c. Common goods, which spouses contribute into common either from pact or from disposition of law. Each spouse exercises ownership (common ownership) or co-ownership of these goods, but their administration is with the husband.

From common goods there are to be distinguished goods of the family, which sometimes are also called common. They are those which are acquired from the undivided custom of life and from the common labor of each spouse, whose ownership nevertheless belongs to the man alone by force of law.

¹ C. A., Section 1217-1266; C. G., Section 1363-1563.

² C. A., Section 1227 ss.; C. G., Section 1363.

³ Ballerini-Palmieri, III, n. 52.

377. Rights and obligations of the husband. 1. In administering common goods, wide power is granted by law to the husband, so that by law (at least before a judge) nothing can be demanded from him on account of bad and prodigal administration.

But in conscience the husband must be obligated to restitution, because the wife preserves ownership of goods strictly common, although the husband alone has administration. Wherefore the husband, by dissipating them, injures the strict right of the wife. Nevertheless on account of bad administration the husband is not to be obligated to restitution if community of goods is so determined by law that the wife has a strict right only in half the goods extant after the death of the husband.¹

2. A husband who badly administers or even dissipates goods of the family, of which he alone is owner, offends against charity or piety, but not against justice.

3. If a husband, against the will of the wife, dissipates anything from goods of which he has only administration or only usufruct with administration, he injures her strict right and is bound to restitution. The same must be said where, in administering goods strictly common, he exceeds the limits granted by law.

4. From common goods or goods of the family the husband is bound to supply to the wife those things which are necessary for procuring the family estate according to the state and condition of the family, for her sustenance, and for fulfilling her obligations (at least if she does not have proper goods).

¹ Cf. Lacroix, l. 3, pr. 1, n. 1020; Lehmkuhl, I, n. 897; Gury-Ballerini, n. 556; Dalama, n. 40.

378. Rights and obligations of the wife.¹ 1. If the wife takes something from goods of the family, of which the husband is owner, while the husband is reasonably unwilling, she injures his strict right and of herself is bound to restitution unless the injury is condoned.

2. Of herself the wife can licitly spend nothing without the husband's knowledge: for administration of goods, even common goods, belongs to the husband. Besides, the subjection by which the wife is subordinated to the man as head of the family demands that she take nothing without the husband's knowledge and without having consulted him. Yet since the wife is not a maidservant, but the husband's companion and helper, from universal custom that liberty in the use of goods which the decency of state requires is to be granted to her. Therefore several things, especially when a just cause exists, are licit to the wife even without the husband's knowledge, indeed even against his will.

From custom wives have free administration of poultry and their fruits, such as eggs.

a. The wife can spend certain goods, even rather notable ones, without the husband's knowledge for the good of the family if the husband would not give the things necessary for the honest sustenance of herself and the offspring, or if the necessities of the family would be set forth to him in vain. Yet in this case the wife ought to beware lest she make expenses excessive for the condition of the family.

b. She can give customary alms which are usually given by women of the same condition; greater ones indeed if the husband neglects this obligation; some, but lesser ones, even if the husband satisfies his obligation according to the condition of the family. For the wife would appear too hard against decency if she could give no alms.

c. She can assist parents or children received from another marriage if they are constituted in grave necessity.

If she has proper goods, she ought to assist needy blood relatives from them. Yet she can give customary alms to blood relatives even if she has proper goods. If she does not have proper goods and customary alms do not suffice, she can take from common goods or from the goods of the husband to relieve the grave necessity of parents and children. Nor is she bound, after the husband has died, to restore those expenses from that part of the dowry or common goods which she receives, unless those expenses greatly exceed the limits of customary alms. The reason of the first is that the husband, as administrator of the family, ought to furnish to the wife those things by which she can satisfy her obligations; but the laws of piety demand from the wife that she assist parents and needy children. The reason of the second is that the man is not bound to suffer extraordinary expenses from his own goods if the wife has goods whose ownership is with her.

d. She can reserve certain goods without the husband's knowledge so that she may provide for the necessities of the family and of the husband himself and so that she may preserve her rights intact, if the husband dissipates the goods.

e. She can take care that prayers and Masses be said for averting spiritual or temporal damage of the husband or of the family.

f. She can bestow small gifts and spend certain things on honest recreation, according as these things are licit for other women of the same condition and therefore cannot be omitted without some mark of reproach.

Note. The rights of wives in common goods which belong to them from use and custom are not to be proposed publicly in instructions, and ordinarily neither privately in the confessional should too much indulgence be given to women, since they themselves, from an implanted desire of ruling, are very prone to extending their rights more than is equitable. Universally, greater care must be taken that the wife be subject and obedient to the husband in charity, as is fitting, than that she insist upon her rights.

¹ Lugo, disp. 16, n. 64 ss.; Lehmkuhl, I, n. 895.

379. By the name author is understood everyone who by his own talent invents something, of which sort is: a. one who has written a book; b. one who has composed a work of art, such as a musical rhythm or painting; c. one who has discovered a scientific theory, an art, a medical remedy, etc.

Rights of authors. 1. By natural right an author has perfect ownership in the thing which he himself invented before it has become of public right: for each one has a right in the fruits of his own talent; wherefore as true owner he can dispose concerning his own thing according to his choice.

a. Therefore he acts against justice and is bound to reparation of damage who publishes manuscripts against the will of the author, or who steals his secret from the inventor of an art.

b. Therefore he acts against justice who publishes in print, against the will of the author, the lecture of a professor or the sermon of an orator. Nor is the appeal to the fact valid for the contrary opinion, that public speeches either of preachers or of deputies in assemblies are printed in newspapers; for these things are done with the authors knowing and not contradicting. - But by that very fact that someone teaches publicly or preaches, the proposed doctrine becomes in some way of public right; therefore it cannot be impeded that hearers make it their own, use it according to opportunity, or write it out for their own private use and lend the writing to others.

2. In a work already published, the author retains ownership and the right of publishing the work further, but grants to all the use of the published work. For the author is judged to retain that right which from the nature of the thing he can retain, but to grant that which from the nature of the thing he ought to grant; but even after publication has been made he can retain ownership in his own work and the right of publishing the work further; and by that very fact that he publishes the work, he ought to grant its use to all who wish it and pay the owed price. - Besides, to each one naturally belongs the right in the fruits of his own work; but he cannot receive the fruits from his own work unless he retains ownership in the published work and the right of publishing it further.

a. There are those who say that the right of property and further publication in a work or invention already published is lost by the publication itself; and therefore, if the right belongs to the author or inventor of prohibiting that his work or invention be published by others, this is had not from natural law, but from positive law.¹ Although their opinion does not differ much from the proposed one, because they readily concede that a positive law of this kind is altogether consonant with natural equity, nevertheless it is more aptly affirmed that the right of property is indeed from nature, but in many things obscure and indeterminate and therefore must be declared and determined by positive law.²

b. Therefore he acts against the right of the author and publisher and is bound to reparation of damage who sees to it that a published work be printed again without the author consenting. - He who, without the knowledge of the author or publisher, sees to it that some work be printed and published in distant regions inflicts damage insofar as by this reason a greater profit of the author or bookseller is impeded, which can now happen more easily, with means of communication considered, than formerly. - To multiply a book or sheet by transcription for private use, whether for oneself or for another, provided the transcription is not published, is neither unjust nor illicit, because the buyer, by force of the ownership which he acquires in the published work, can dispose of it for his every advantage if the author suffers no damage from it; but from use of this kind the author morally suffers no damage.

c. Whether by natural right the right of impeding that the translation of his work into another language be published belongs to the author is not certainly established, because it is not established whether publication of the translation in reality harms the author and whether the profit which the translator receives exceeds the labor of translation. But positive laws almost everywhere reserve to the author the right of publishing a translation.

3. Civil laws which prohibit the work of some author from being printed without the consent of those whose interest it is, not even after his death unless a certain time has elapsed,³ or which reserve to the author the right of publishing a translation of his own work, oblige in conscience, since they constitute rights (n. 356).

¹ Among recent authors Vermeersch defends this opinion, Quaestiones de iustitia, n. 240 ss.

² Cf. Ballerini-Palmieri, III, n. 53.

³ C. A., laws for the protection of copyright, Section 13, according to which, thirty years after the death of the author have elapsed, his work can be printed by anyone.

380. Declarations. The goods of clerics are of three kinds:

1. Patrimonial goods, which come to clerics from paternal inheritance or from any other profane cause, for example, donation, contract, industry, or another mode of this kind common with seculars, for example, by teaching letters.

Of these goods clerics have perfect ownership equally as laymen: for by no positive law is natural right now limited in this matter with respect to clerics.¹

2. Quasi-patrimonial or quasi-ecclesiastical or casual goods, which clerics acquire from ecclesiastical functions and offices, such as stipends of Masses and sermons.

To these goods belong: a. stole fees; b. salaries which are received by assistants of pastors, military chaplains, professors of religion in gymnasia; stipends for the office of teaching theology in universities or seminaries, whether they are paid by the Church or by the government; distributions which are given to canons, fruits of a lay benefice; c. offerings of the faithful which are given to the pastor himself; d. pensions which, whether by the government or by the Church, are conferred upon retired or sick clerics.

Of these goods clerics likewise have perfect ownership: for there is no reason for affirming that they have limited ownership; and indeed neither those who bestow goods of this kind nor the Church have limited this ownership in any way.

3. Ecclesiastical or beneficial goods, which clerics receive from ecclesiastical benefices.

a. From beneficial goods there are distinguished goods simply ecclesiastical, such as beneficial lands, which pertain to the Church; beneficiaries have their administration and usufruct. Here there is no question of beneficial lands, but of the fruits which clerics receive from them.

b. To ecclesiastical or beneficial goods also belong: alpha. salaries which are paid by the government to pastors, canons, or bishops; for the Church considers these as ecclesiastical goods, because they are paid by the government in place of goods of the Church that were taken away.² Likewise, beta. supplements which are paid out to pastors by the community for suitable support, because by public authority they are substituted in place of ecclesiastical goods.

c. The notion of ecclesiastical good is to be taken strictly, that is, only for those goods which come from an ecclesiastical benefice properly so called, and is not to be extended to goods which a cleric acquires for himself from some ecclesiastical office (as of vicar general, rector of a seminary, professor of sacred theology), even if these goods are drawn from ecclesiastical goods.³

These ecclesiastical goods are either necessary, parsimonial, or superfluous. a. Those are called necessary which clerics need for honest support. b. Those are called parsimonial which clerics could consume by living honorably, but which by living more sparingly they set aside from the revenues of the benefice. c. Those are called superfluous which remain over after honest support.

¹ Cf. Benedict XIV, De synodo dioec., l. 7, c. 3.

² S. Poenitent., 19 Jan. 1819; 19 Aug. 1821; 9 Aug. 1824.

³ Cf. Hollweck, Das Testament der Geistlichen (Mainz: Kirchheim, 1901), p. 32 ff., who calls these goods ecclesiastical; on the contrary, Hilgenreiner, Professorengehalt eines Geistlichen (Linz. Quartalschrift, 1902), p. 349 ff.

381. On the ownership of clerics in ecclesiastical goods. 1. In ecclesiastical goods necessary for suitable or honest support, clerics have perfect ownership; for from the Council of Trent beneficiaries make the fruits received from benefices their own,¹ but by these words the acquisition of ownership is signified.

a. Therefore clerics can take honest support from the revenues of the benefice even if they have other goods; for benefices were chiefly instituted for this end, that those who serve the Church may also be supported by the Church.² But if a cleric lives from his own patrimony, he can receive as much from ecclesiastical goods and dispose of it at will.

b. What support is suitable must be defined not by a certain rule, but by prudent judgment. In rendering this judgment account must be taken of alpha. the person, for more things are necessary to one than to another; beta. the custom of the place; gamma. the office and quality of the benefice. Moreover, under suitable support are also comprehended alms to be given, hospitality, honest recreations, moderate donations, a quantity reserved for future events, and decent support of blood relatives if they need it, so that prodigality and avarice may equally be absent from an ecclesiastical man.

c. With respect to goods left by a cleric, concerning which it is not established by what title they were acquired, it must be distinguished in this way: if it is established that the cleric acquired other goods besides the revenues of the benefice, he must be presumed to have consumed the beneficial goods for his support, but reserved the others for blood relatives. But if it is not established that he acquired other goods besides beneficial goods, he must be presumed to have left ecclesiastical goods until something else is proved.³

2. In parsimonial ecclesiastical goods clerics likewise have perfect ownership: for they are goods set aside from necessaries; but in these they had acquired perfect ownership; therefore also in those they have perfect ownership, since they do not lose the ownership which they had acquired.

3. Even in superfluous goods clerics acquire true ownership; yet they are bound under grave obligation to distribute them to the poor or to other pious uses.

a. That clerics acquire true ownership in superfluous goods is the opinion of St. Thomas,⁴ which St. Alphonsus holds sufficiently probable.⁵ And indeed ecclesiastical goods are offered by the faithful to the Church with this pious intention, that they may be dedicated to the honor of the saints. But it must be said that the Church acquires true ownership and free disposition of those goods, so that it can validly dispose of them for any use whatsoever, but licitly only for a pious and religious use, since that alone corresponds to the nature of the goods and the intention of the faithful.

b. While the Church, with benefices having been constituted, gives a part of these goods to clerics, it transfers true ownership in these goods to them, but at the same time also the obligation which inheres in them, namely of not spending them except for pious uses. That clerics have true ownership in superfluous goods is clear from the Council of Trent, which teaches concerning ecclesiastical goods generally and without distinction that clerics make their fruits their own.

c. Therefore clerics have in ecclesiastical goods, even superfluous goods, true ownership, but ownership burdened with a charge which the nature of the goods demands, namely of distributing them to pious uses. Whether clerics are bound to this distribution from justice is disputed; but because the opinion which denies an obligation of justice has true probability, clerics who spend superfluous goods badly cannot be obligated to restitution, either themselves or their heirs. But concerning this matter it will be said below.

Note. It is altogether fitting that a cleric distribute even goods which are not ecclesiastical, at least in part, to the poor or to pious causes; for the people easily take scandal if all non-ecclesiastical goods are given to blood relatives who are not in need.

¹ Sess. 24, c. 12, De reform., and elsewhere often.

² 1 Cor. 9:7-14.

³ Cf. Schmalzgrueber, in tit. De pecul. cler., n. 15.

⁴ Summa, II-II, q. 185, a. 7; Quodl., 6, a. 12, ad 3.

⁵ L. 3, n. 492, compared with Quaest. ref., q. X.

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.

2. 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).

383. On occupation in general. Occupation (Aneignung) is the apprehension of a thing which belongs to no one, with the mind of acquiring it for oneself.

1. Occupation, if the due conditions are present, is a legitimate mode of acquiring ownership: for by the law of nature things belonging to no one become the things of the first occupier. Therefore just as at the beginning private ownership began by occupation of things which then were all things belonging to no one, so now things which belong to no one pass into the ownership of the occupier (n. 368).

2. The conditions which are required that some thing become the thing of the occupier are: a. that the thing belong to no one, whether it is vacant or abandoned; otherwise by occupation an injury would be done to the owner; b. that true or real apprehension be present; c. that the mind of making the thing one's own be present.

At the present time in our regions, where there are no parts of the earth not yet occupied by men, there occur only occupations of animals, which are made by hunting, fishing, and fowling, and occupations of found things, which are either buried, abandoned, hidden in the bosom of the earth, or lost.

384. Distinction of animals. Animals are distinguished into three kinds:

a. Tame or domestic animals, which by their nature use human society and therefore do not enjoy natural liberty, such as horses, sheep, oxen, chickens, dogs. These of themselves have an owner.

b. Tamed or domesticated animals, which of themselves indeed enjoy natural liberty, but by the industry of men are deprived of it and are subjected to their ownership, such as birds in a cage, bees in a hive, doves in a dovecote. Fish in private fishponds and wild animals enclosed by fences are also numbered among domesticated animals.

c. Wild or sylvan animals, which by their nature shrink from human society and enjoy natural liberty, such as hares, fish, birds. These do not have an owner.

385. On occupation of animals.

1. Tame animals always remain of the former owner, even if they wander off or depart from custody; for since they are domestic by their nature, they never become things belonging to no one.

a. Therefore they cannot be occupied by another, neither they themselves nor their fruits, but must be restored to the owner even when dead, wherever they have been found.

b. The same is also valid in the case in which they certainly would have perished for the owner unless they had been freed from destruction; for a thing does not cease to belong to its owner because it has been rescued from destruction by another. Therefore animals snatched from a fire or from a wolf must be restored to the owner; nevertheless, for the labor a just stipend is owed.

386. 2. Domesticated animals remain of the former owner as long as they are detained in custody; but as soon as they have escaped from custody and recovered their former liberty, they become the things of the first occupier.

a. Animals which are detained in custody are of a twofold kind: some which, once sent out from custody, are not accustomed to return, such as deer, hares, most birds, fish; and others which are accustomed to return, such as doves and bees. Now the former are judged to have recovered liberty when their pursuit has become morally impossible for the owner, or when the owner no longer pursues them; but the latter when they have lost the custom of returning. But they are judged to have lost the custom of returning if they do not return for some days, which positive law determines more accurately.¹

b. It is not licit without injustice to attract to oneself by fraud the domesticated animals of another, such as doves, for example, by throwing out more exquisite food, because the owner of a thing has a strict right that his own thing not be withdrawn from him by others through force or fraud.²

Whether it is licit to kill the animals of another (dogs, doves, chickens) which harm a field. It is licit to kill them lest they harm: for it is licit to repel force by force. But these things are required: a. that the damage cannot be forestalled in another way, for example, by driving them away or by warning the owner; beta. that the damage which they inflict be notable or at least equal to the damage which the owner of the animals suffers; but doves, chickens, and such things inflict notable damage only at the time of harvest and sowing; gamma. that the preservation of one's own thing be directly intended, but not the damage of the neighbor; delta. that the animals killed can be retained only as compensation for the damage inflicted.³

¹ From C. A., Section 384, a swarm of bees which the owner does not pursue for two days, and a domesticated animal which has not returned to the owner for 42 days, can be occupied by another. Cf. C. G., Section 961.

² Cf. Elbel-Bierbaum, II, pr. 5, n. 207.

³ C. A., Section 1320 ff.; C. G., Section 833 ff.

387. 3. Wild animals, as long as they wander freely, can be taken by anyone: for they belong to no one, and therefore become the things of the first occupier. Therefore he who takes an animal of this kind becomes its owner by the occupation itself, whether he took it on his own land or on another's land; and he preserves ownership of it as long as he detains it in his own custody, or, if it has escaped, as long as he pursues it with hope of recovering it.

a. A wild animal which is found on another's unenclosed land does not pertain to the owner of the land, but belongs to no one. The owner of the land indeed has the right of prohibiting another from hunting on his land and of demanding compensation for damage which has been brought upon the land by the hunter; but the wild animal killed or taken from a nest pertains to the hunter.

b. Wild animals which are in enclosed lands, and fish which are in preserves from which they cannot escape, pertain to the owner of the land or preserve, because through the enclosure erected to guard them they have already been taken. Therefore he who hunts in enclosed groves or fishes in private fishponds acts against justice and is bound to restore the animals taken or an equivalent price. Yet if the enclosed forests or lakes of water are of very great extent, so that the capture of the animals becomes uncertain, they are not judged to have lost their natural liberty. Therefore he who hunts or fishes in places of this kind indeed injures another's right, but the damage inflicted must be taken from the probable hope which the owner had of taking those animals.¹

c. A wounded wild animal belongs to the hunter wounding it if it has been so wounded that it can no longer flee away: for the hunter by the wounding itself apprehends it in fact. Likewise a wild animal caught in a snare belongs to him who placed the snare, provided it is so ensnared that it cannot escape; for by the snare it is in reality occupied.

It is asked whose a wild animal is which is caught in a snare which someone placed on another's land. a. Besides the owner of the land and the hunter, no one has a right in the captured wild animal; therefore any other person who either releases the wild animal from the snare or takes it away acts unjustly, unless it would have escaped; for if it would have escaped unless another extracted it, it belongs to the one extracting. beta. A wild animal caught in a snare is indeed of itself the hunter's; nevertheless the owner of the land, if the snare was placed against his will, retains the right of impeding him from approaching to extract the wild animal, and therefore of releasing it while still alive, and probably even of taking it for himself.²

¹ Laymann, l. 3, tr. 1, c. 5, n. 12; Holzmann, Theol. moral., t. 4, n. 31.

² Cf. Gury-Ballerini, I, n. 572, q. 3, note.

388. On the right of hunting and fishing. 1. In an open place accessible to all, whether public or private, each one can of himself hunt (fish), provided he does not bring damage upon another's lands. Nevertheless hunting (fishing) can be prohibited. From received custom this prohibition is judged to be merely penal, which obliges only to paying the fine or undergoing the penalty. But if the right of hunting has been leased, the tenant acquires the exclusive right of hunting in that place; and in our European regions the right of hunting is leased almost everywhere.

Yet laws which prohibit hunting (fishing, fowling) at a certain time to avoid a lack of wild animals (Schonzeit) rightly seem to most to be preceptive laws, which by reason of the common good in a matter of sufficiently great importance oblige in conscience from legal justice.

2. If the exclusive right of hunting (fishing) in an open place belongs to someone, whether because he has leased the right or because the owner of the land has reserved it for himself, by this fact he does not acquire a right in the animals which are found in that place, since they still enjoy natural liberty. But with the right of hunting there before others he has the hope of taking the animals which are found there. Therefore he who hunts or fishes in a place of this kind against his will, by the very hunting (fishing), injures the right of the tenant or owner, but makes the animals killed his own and can retain them; nevertheless he ought to repair the damage inflicted.¹ But damage is not judged to be inflicted unless either several or larger animals are killed.

a. If a great slaughter of animals or a great capture of fish takes place, the hope of the owner of taking at least some of them is manifestly injured. If only one or another animal is taken, the hope which the owner had of taking precisely that animal is injured. Now if the matter concerns smaller animals, and if there are many animals there, this hope is almost none and is worth little or nothing; wherefore no restitution must be made. But if there are few animals of this kind there, or if the animals are larger, this hope is judged to be worth about half the price of the captured animal itself.²

b. Where hunting is prohibited in public or private forests, the owners of the forests or tenants of the hunting: alpha. ought to beware lest wild animals be permitted to eat down or devastate fields or meadows; otherwise farmers have the right of defending their own goods not only by driving away the wild animals, but also by killing them if there is need; beta. they are bound to repair damages which are inflicted either by wild animals or by hunters on the occasion of hunting.

Article Second. On Invention

Invention is a species of occupation. But found things are of four kinds: treasures, vacant things, abandoned things, and lost things, concerning which one must treat in particular, because the rights of the finder are determined diversely by positive laws according to the diversity of the thing found.

¹ Positive laws can not only prohibit hunting, but also impede the hunter from acquiring ownership of the captured wild animal; statutes of this kind, if they certainly exist, oblige in conscience. C. G., Section 958.

² E. Muller, Theologia moralis, II, Section 102.

389. On the finding of a treasure. A treasure is a precious thing, buried or hidden, which no one can prove to be his own.

a. Therefore three things are of the notion of a treasure: alpha. that it be a precious thing; beta. that it belong to no one; gamma. that it be buried or hidden. Therefore, in the proper sense, metallic or coal veins which are found in the bosom of the earth are not treasures.¹

b. The owner of the land in which the treasure is found is he who has its direct ownership. Therefore if a treasure is found in the land of an ecclesiastical benefice, the owner of the land is not the beneficiary but the Church;² if it is found on public land, the owner is the community or city (the fisc), which administers public goods.

c. He is not called the finder of another's thing who first sees it, but he who sees and apprehends it. He is not called the finder of a treasure who first sees and apprehends a treasure already uncovered or dug up by another, but he who uncovers it or makes it visible. The first right of apprehending the treasure belongs to the detector; if the detector does not use this, the treasure can be apprehended by another.

¹ It seems to make no difference whether the thing has been hidden by the hand of man or by the powers of nature; therefore C. A., Section 398, refers ancient things which are dug up (antiquarische, archaologische Funde) to treasures; likewise C. G., Section 981.

² From C. A., Section 399, each is considered as owner of the land: both he who has direct ownership and he who has usufruct.

390. 1. By the law of nature a treasure seems to be a thing belonging to no one and therefore a thing of the first occupier, that is, of the finder, who by finding occupied it. For it was not born in the land in which it is found, but was placed there by an external force. Yet positive laws consider a treasure in some way as a part of the land and therefore adjudicate part of the treasure to the owner of the land.

2. Recent laws nearly agree with the dispositions of Roman law:¹

a. A treasure which is found in one's own land belongs wholly to the finder. (A law which ascribes the whole treasure or part of it to the fisc is penal.)

b. A treasure which by chance is found in another's land must be divided; therefore half is of the owner of the land, but half is of the finder.

This law must be observed in conscience, and indeed before the sentence of the judge (n. 356). At what time the owner of the land acquires a right in part of the found treasure, whether by the finding itself or after the finder apprehends it, depends on the disposition of the law. Ordinarily from the codes the treasure found, not only apprehended afterward, must be divided between the owner of the land and the finder. Therefore the finder could not without injustice bury the treasure again, buy the land, and retain the whole for himself.²

c. A treasure which deliberately and without the knowledge of the owner is sought and uncovered in another's land, after the sentence of the judge, either wholly belongs to the owner or must be divided between the owner and the fisc.

alpha. The law prohibiting that the lands of others be dug up was established to protect the rights of owners; but transgressors of this law are deprived, as a penalty, of part of the found treasure. Because the law was established as a penalty, the finder of the treasure is not bound to undergo the penalty before the sentence. Hence if the finding remains hidden, he can licitly agree with the owner of the land concerning dividing the found treasure.

beta. If money or another precious thing is found in a chest, or in an old garment, or in a corner of a house, whose owner cannot be found, it can be considered as a treasure; and therefore the whole is of the finder if he himself is the owner of the thing in which it is found. Otherwise the found thing must be divided between the finder and the owner of the thing which contains the treasure.

¹ C. A., Section 398-401. By decree of 16 June 1846, political authority renounces the part reserved to itself there. C. G., Section 984.

² Cf. Matt. 13:44.

391. On occupation of a vacant thing. Vacant things by the law of nature become the things of the first occupier, unless by human law their ownership, either in whole or in part, belongs to another: for things belonging to no one by the law of nature become the things of the first occupier.

a. Mines or useful things hidden in the bosom of the earth, such as metallic, marble, sand, coal veins, etc., are considered by some (Lugo) as accessory parts of the land in which they are found, which therefore pertain to the owner of the land. Yet others (Lessius, Soto) adjudicate mines to the first finder, because it does not seem equitable to them to consider a precious thing, such as a vein of gold, as an accidental part of a thing of much lesser price. Concerning this matter the codes must be consulted.

b. Movable vacant things, such as little stones, gems, fragments of gold, and things of this kind, become the things of the first occupier.

392. On occupation of an abandoned thing. Abandoned things likewise belong to the first occupier, unless their ownership is attributed to another by positive law: for things belonging to no one become the things of the first occupier.

a. Goods found on the shore of the sea or on the bank of a river after a shipwreck or flood, likewise goods thrown out from fear of shipwreck, cannot be held as abandoned and therefore do not become the things of the first occupier.¹

b. Wood or other goods which are carried from one place to another by flood are not abandoned things unless from the circumstances it appears either that the owner is no longer solicitous about them or has no hope of recovering them.

c. Fruits, such as nuts, grapes, ears of grain, etc., which remain after the harvest has already been completed, from the presumption that owners do not care about them, are held as abandoned. Therefore the owner can also forbid their collection.

d. He who finds coins in a shop or in a church (for example, by sweeping it) or in a public street can retain them for himself when, on account of the great concourse of men into that place, there is no hope that the owner will be found. Yet if the found thing is of some value, it ought to be deposited in the sacristy or with the pastor, where things lost in the church are usually sought by the owner. But if after some time (about two months) the owner does not claim the thing for himself, it belongs to the finder.

e. In doubt whether a thing is lost or abandoned, it must be treated as lost.

f. Goods left by one who has died without a testament and without an heir, whether movable or immovable, fall to the fisc.²

¹ C. A., Section 388.

² C. A., Section 760; C. G., Section 1936.

393. On the finding of a lost thing.

A lost thing differs from a treasure in two ways: a. in that it is not hidden; b. in that it is not a thing belonging to no one, but has an owner, although unknown. But where, with the circumstances considered, there is no longer any hope of finding the owner, it is judged to have fallen from his ownership and is held as abandoned.

1. The finder can leave the found thing in its place; nevertheless ordinarily there exists an obligation, not indeed of justice but of charity, of carrying it with him.

An obligation of justice does not exist because, with special contract excluded, no one is bound from office to carry another's thing with him; but an obligation of charity can exist. For from charity we are bound to avert damages from the neighbor if it can be done conveniently. Hence if otherwise the owner would not recover his thing, and if there is hope of detecting the owner, the obligation of taking the thing urges, unless inconvenience excuses. This obligation is greater according as the detriment which the owner suffers from the lost thing is greater.

2. He who has taken the found thing is bound from justice to seek the owner, not at his own expense but at the owner's, and meanwhile to guard it diligently.

a. He who takes a found thing, by that very fact, spontaneously receives another's thing into his own custody. But he who has another's thing in his custody is bound diligently to preserve it for the owner and to render it to the owner; and if the owner is unknown, to seek him by suitable means.

b. He who culpably neglects to investigate the owner, and a fortiori he who deliberately hides the found thing, when hope of finding the owner exists, is the cause why the owner cannot recover his own thing. Therefore he becomes an unjust possessor of another's thing and cannot retain it, but, if the owner does not appear, ought to distribute it to the poor or to pious uses.

c. A certain mode of investigating the owner is indeed not prescribed by the law of nature, but any mode suffices which is judged suitable for the end; but by positive law the mode of investigating the owner is accurately determined.¹

d. If the found thing is not of lesser importance,² the mode of investigating the owner prescribed by law must generally be observed in conscience: for private inquiry is not judged an apt and sufficient means of finding the owner. Therefore he who knowingly and willingly does not observe the statutes of positive law does not become owner of the found thing, not even by prescription, because good faith does not assist him.³

3. If the owner has been found, the finder is bound to restore the thing to him; nevertheless the expenses made in investigating the owner, and the reward if any has been promised by the owner or by law, he can by right demand or deduct for himself from the thing.

4. If, after diligent inquiry has been employed, the owner is not detected, the finder can retain the thing for himself by right of occupation; and if afterward the owner appears, he is no longer bound to restore the thing to him.

a. Once sufficient diligence has been employed in investigating the owner, it can prudently be judged that the owner can no longer be found. But where there is no reasonable hope of finding the owner, the thing by natural right or from the tacit consent of men is judged abandoned. But an abandoned thing becomes the thing of the first occupier. Therefore by occupation the finder acquires ownership of the found thing, not by prescription.

b. Some positive laws establish that the finder acquires ownership of the found thing after a year, others after three years.⁴ By this statute there is defined the time after which the owner is judged to lose ownership in his thing; for it is prudently presumed that after this time has elapsed the owner can no longer be found.

Article Third. On Accession

Accession (Verbindung, Vermischung, Umbildung, Verarbeitung) is a mode of acquiring ownership by the fact that something is joined to one's own thing. Three species of accession must be distinguished: natural, industrial, and mixed accession, according as something accedes to one's own thing either by the powers of nature alone, or by human industry alone, or from the concurrence of each.

¹ C. A., Section 389, 390, where a diverse mode is prescribed for the diverse value of the found thing; C. G., Section 965 ss.

² A thing is of greater importance from C. A., Section 389, if it exceeds the value of 2 crowns; from C. G., Section 965, if it exceeds the value of 3 marks; from custom, if it exceeds the value of 10 (according to others, 20) crowns.

³ Cf. Lehmkuhl, Das burgerliche Gesetzbuch, at Section 965 ff.; Carriere, De iustitia, I, n. 336, 347.

⁴ C. A., Section 391, 392, 1466; C. G., Section 973.

394. Natural accession can happen in three ways:

a. By fructification, by the fact that fruits arise from someone's tree or land without human industry. Their ownership is determined from the principle: a thing bears fruit for its owner.

b. By birth, by the fact that an animal arises from someone's animal. Its ownership is determined by the rule: offspring follow the womb, that is, whose the generating animal is, his also is the generated animal, whether it was conceived from one's own or from another's animal.

c. By alluvion, by the fact that earth is added to someone's land. If it accedes gradually, it immediately pertains to the owner of the land;¹ but if a notable part of earth accedes suddenly (avulsion), the owner of the land acquires ownership if the prior owner has not claimed it for himself within the time prescribed by law (within a year).²

¹ C. A., Section 411.

² C. A., Section 412.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

I. Ecclesiastical law strictly so called is the complex of canons or laws which have been made by ecclesiastical authority.

II. Ecclesiastical laws are distinguished:

1. By reason of the legislator, into papal, episcopal, and synodal laws.

2. By reason of matter, into dogmatic and disciplinary canons. The former propose truths pertaining to faith and morals; the latter regard the external government of the Church.

3. By reason of the mode in which they were made, into written and unwritten law. Unwritten law is divided into handed-down and customary law, according as it has been established orally or by the consent of the legislator in custom.

4. By reason of territory, into universal and particular laws, according as they bind the universal Church or only certain regions.

5. By reason of time, into: 1. ancient law, from the beginning of the Church until Gratian around 1150; 2. the law of the Middle Ages, from Gratian until the Council of Trent, 1545; 3. new law, from the Council of Trent until the Vatican Council, or rather until the new Code; 4. newest law, from the new Code.

III. Ecclesiastical laws, as they formerly were in force, are found for the greater part in the Corpus Iuris Canonici, as it is called; as they now are in force, in the Codex Iuris Canonici.

1. The Corpus Iuris Canonici consists of five parts, which are: 1. the Decretum Gratiani; 2. the Decretals of Gregory IX; 3. the Liber Sextus of Boniface VIII; 4. the Clementines; 5. the Extravagantes of John XXII and the Extravagantes Communes.¹

2. The Codex Iuris Canonici, arranged by order of Pius X, promulgated by the authority of Benedict XV in the year 1917, on May 27, and in force from May 19, 1918, consists of five books, of which the first treats general norms, the second persons, the third things, the fourth processes, and the fifth delicts and penalties.

¹ They are generally cited thus:

1. Decretum Gratiani. First part of the decree: c. 9 "Palam est" 11 = c. 9, D. 11 = c. 9, D. XI = canon 9 of distinction XI. Second part: c. 24, C. II, q. 7 = canon 24 of cause II, question 7. The treatise De poenitentia is cited in this way: c. 26, D. I de poenit. = canon 26 of the first distinction concerning penance. Third part: c. 15, D. III de consecr. = canon 15 of distinction III concerning consecration. Summaries written by Gratian are cited by the expression "dictum Gratiani" = dict. Gratiani. The cited dictum is determined by distinction or by cause and question.

2. The Decretals of Gregory IX are cited by the characteristic letter X = extra, for example c. 5 X de praebendis (III, 5) = c. 5 X 3.5 = the fifth chapter of the Decretals of Gregory IX concerning prebends and dignities, book III, title 5.

3. The Liber Sextus of Boniface VIII: c. "ut animarum" 2 de constit. in VIto (I, 2) = c. 2 de constit. in VIto (I, 2) = c. 2 in VIto (I, 2).

4. The Clementines: for example Clem. 1 de celebratione miss. (III, 14), or c. 1 III, 14 in Clem. = Clementina 1 de celebr. miss. = c. 1 III, 14 in Clementinis.

5. The Extravagantes of John XXII: c. un. de praebendis extrav. Ioann. XXII (tit. 3) = c. un. extr. Ioan. (3). The Extravagantes Communes: c. 1 de electione, extrav. com. (I, 3) = c. 1 Xvag. co. I, 3.

I. Civil law is the complex of laws made by civil authority.

II. Civil law is distinguished:

1. By reason of time, into old and modern law.

a) Old law, by which Roman Law is understood, consists of four parts, which are: 1. the Institutes; 2. the Digest or Pandects (pan and dechomai, as if things which contain all); 3. the Code; 4. the Novellae, as if newly issued.⁴

b) Modern law is the law which each kingdom has established for itself, especially from the time of the upheaval of the republic in France, that is, at the end of the eighteenth century.

2. By reason of scope, civil law is distinguished into international and national law.

a) International law is that which is established by express pacts entered into among the rulers of nations. It is called public or private according as it moderates the relation of state to state, or of the citizen of one state to the citizen of another state.

b) National law is that which has been established for a determinate state, such as Dutch law.

¹ Cf. Marcellus a Puero Jesu, Ethica moralis et socialis, pp. 336-340.

² Cf. Lijdsman, Introductio in Ius Canonicum, n. 64 sq.

³ Cf. Lijdsman, Introductio in Ius Canonicum, n. 52 sq.

⁴ They are usually cited in this way: Institutes: § 1 Instit. de adoptionibus lib. I, tit. 11 = § 1, I. I, 11. Digest: the beginning of law, or fragment, 4, Digest, or Pandects, ff., de pactis, book II, title 14 = l. 4 pr. D. II, 14 (fr. 4 pr. ff. II, 14) = l. 4, § 1, D. II, 14. Code: law 7, § 1, Cod. de diversis rescriptis, book I, title 23 = l. 7, § 1, C. I, 23. Novellae: Nov. VII praef. = Nov. VII, cap. 1.

One who strictly doubts about the cessation or fulfillment of a law, in other words, one who holds it as equally or almost equally probable that the law has not ceased or has not been fulfilled, is held to observe it.

It is said "one who strictly doubts," or "one who holds it as equally or almost equally probable"; since it is commonly admitted that the obligation of observing the law is absent in broad doubt about the cessation or fulfillment of a law, in other words, where it is more probable that the law has ceased or has been fulfilled. Besides, in doubt about the fulfillment of a law several principles are at hand, in view of which the fact of fulfillment can commonly be held as more probable. Principles of this sort are: What regularly, what ordinarily happens, is judged to have happened; from things commonly occurring a prudent presumption is made.¹ Likewise: In doubt every fact is presumed to have been done rightly;² or: In doubt one must stand for the validity of the act³ (St. Alphonsus, I, 26). With these points noted, the thesis is proved:

I. From the authority of St. Alphonsus. Although I would not wish to deny that this thesis is not to be valued as much as the first and third theses are to be valued, nevertheless it cannot be denied that it extends very widely and pertains to the whole system, so that what we said above (nn. 214, 225) about the authority of St. Alphonsus is also to be applied to this thesis. But the holy Doctor, who had previously adhered to the more benign opinion, after considering the matter better, revoked it (I, 29) and defended the stricter opinion (I, 26-34); which in any case is now commonly admitted even by the adversaries themselves.⁴

II. From the authority of theologians. Our opinion was formerly commonly admitted, even by those authors who adhered to Probabilism. The witnesses of this assertion are Suarez⁵ and Laymann.⁶ The fact that afterward several withdrew from this opinion does not prevent the consensus of ancient theologians from supplying us some argument.

III. From reason. First, in strict doubt the condition of the possessor is better; or, to abstain from the ambiguous word "possessor," in strict doubt the condition of that which is prior seems to be better than the condition of that which is posterior.⁷ But the law itself is prior to its cessation and fulfillment. Therefore, in strict doubt about the cessation or fulfillment of a law, the condition of the law seems to be better (St. Alphonsus, I, 29-34).

The major is established by these arguments: first, our principle of its own accord pleases reason more than the contrary principle, which would have to be admitted by the adversaries, namely: in strict doubt the condition of that which is prior seems to be worse than the condition of that which is posterior. This spontaneous inclination of reason indeed seems to supply an argument for our doctrine. Second, a principle which favors stability, or a stable manner of acting, seems to be preferred to a principle which fosters mutability, or a changeable manner of acting. But our principle favors stability, while the contrary favors mutability. Third, there is added that the principle stated by us has force for the external forum. Why, precisely, would the contrary principle have to be admitted for the internal forum?

Then our thesis is proved from the fact that the thesis of the Probabilists is at least doubtful: namely, a law which has doubtfully ceased or has doubtfully been fulfilled obliges unless it is demonstrated, or certain, that it does not oblige. But no one who hears prudently will contend that that is certain.

The major is evinced from a principle admitted by all: in a practical doubt not entirely solved, the safer part is to be followed.

To prove the minor, it will be enough to advert to these things: first, the arguments of the adversaries, as we shall soon see, either involve a begging of the question, or are such that they themselves require further proof. Second, add that always very many, and those grave and distinguished, theologians supported the contrary opinion. Third, finally, our arguments seem to be of such a kind that not even the adversaries will deny them all probability. Once all these things have been attended to and well weighed, no one will have affirmed that the opinion of the Probabilists has been placed beyond doubt.

¹ Suppose someone, while praying Sext, doubts whether he has said Terce. In the case he can commonly hold it as more probable that Terce has been said, since from things commonly occurring a prudent presumption is made. But it commonly happens that Sext is not begun before Terce has been said.

² Suppose someone doubts whether he has confessed with true sorrow. In the case he can commonly hold it as more probable that true sorrow was present.

³ Yet this principle, which canonists and moralists commonly use, is very ambiguous; namely, it has force only insofar as it rests on another principle of presumption. But this happens when there is doubt about the manner in which an act has been placed; in which case it can be held as more probable that all those things required for validity were done. It is otherwise if the manner in which the act was placed is known, but it is disputed whether the act so placed is valid.

⁴ Cf. De Minusprobabilismo, pp. 133-139, where those things which some formerly objected are refuted.

⁵ Suarez, treating the question whether one who has doubtfully fulfilled an oath is still held to fulfill it, responds: "It is beyond controversy that he is held," because "in doubt the condition of the possessor is better" (De Relig., tr. 5, bk. 2, cap. 33, n. 7); this solution is a mere application of our thesis to a particular case.

⁶ Laymann speaks thus: "But the latter part of the assertion is common" (Theol. mor., bk. 1, tr. 1, c. 5, § 3, n. 31), namely, that one who doubts whether he has fulfilled a vow or promise, or satisfied any other debt whatsoever, is held by the obligation.

⁷ In this sense St. Alphonsus and others take the principle of possession, insofar as it regards matter distinct from the matter of justice; but since others explain it otherwise, we have abstained from that designation, mindful of this: "It belongs to the wise man not to care about names" (St. Thomas, In II Sent., dist. 3, q. 1). With these points noted, those things which several theologians object concerning the nature of the principle of possession do not harm our argument.

I. Object of the precept. On feasts of precept the following are prohibited: 1. forensic acts; 2. unless legitimate customs or particular indults provide otherwise, public market, fairs, and other public sales and purchases; 3. servile works (can. 1248).

1. Forensic acts. Judicial acts are understood (both those concerning secular causes and those concerning ecclesiastical causes), which are exercised with judicial solemnity or apparatus, such as the citation of witnesses, the request for a judicial oath, the judicial investigation of a case, the pronouncement and execution of a sentence. But it is lawful to excommunicate, to dispense; likewise to perform preparatory actions privately, for example to consult an advocate, prepare a defense, etc. - Besides, where the prohibition is not observed, those whom it concerns are commonly excused on account of avoiding harm (St. Alphonsus, III, 284).

2. Public market. Therefore, of itself it is not lawful to sell or buy in public shops, much less in the forum. Yet custom and competition permit in many places that food and drink be sold in public shops, likewise, especially in the country, clothes, shoes, etc. (St. Alphonsus, III, 286). For the rest, however, today on account of the laws in force, those who sell with open doors are less easily excused.

3. Fairs; these likewise can be permitted on account of custom; if they fall on a feast day, in many places they are anticipated or deferred; but if this is not done, many nevertheless can attend fairs, either on account of custom or on account of an excusing cause (St. Alphonsus, III, 286).

4. Other public sales. Therefore purchases and sales made privately, even before a notary, are not prohibited. Contracts of lease, exchange, etc., are equated with purchases (St. Alphonsus, III, 285). Custom here and there permits some public sales, for example of doves which in French are called pigeons-voyageurs.

5. Servile works. Works are called servile which are exercised by the powers of the body rather than of the soul, and immediately serve the utility of the body, for example rural works, such as plowing, etc.; works of the mechanical arts, such as the shoemaking art, etc. They are called servile because they were formerly done by servants. Liberal works are those which are done by the powers of the soul rather than of the body, and immediately serve the utility of the soul or its cultivation, for example to study, to read, to teach, to play the organ, etc. They are called liberal because they were chiefly exercised by free men. Common or intermediate works are called those which are exercised promiscuously by all, such as making a journey, hunting, etc. (St. Thomas, II-II, q. 122, a. 4, ad 3; St. Alphonsus, III, 272, 279).¹ Besides, note that the servility or liberality of a work depends neither on the intention of the one working, so that it makes no difference whether it is done for the sake of utility or recreation, for oneself or for another, for gain or gratuitously; nor on bodily fatigue. Hence:

a) Liberal and common works are permitted, except those about which something was said under I, 1, 2, 3, and 4. Servile works are prohibited by the Church because "they are contrary to the observance of the Sabbath, insofar as they impede man's application to divine things" (St. Thomas, cited place). From the prohibition, however, are excepted works necessary for the nourishment and arrangement of the body and the house, which cannot conveniently, or are not customarily, anticipated, such as cooking food (even food to be prepared with greater skill, such as cakes), making beds, cleaning the house or clothing (St. Alphonsus, III, 298).

b) Concerning some works it is more difficult to determine whether they are servile, or at least whether and to what extent they are lawful. Practically these things can be established.

a) It is lawful to write and transcribe (even musical notes); likewise to correct books and to exercise other light accessory labors, for example by drawing necessary lines and gluing superposed paper; likewise it is lawful to form artists' drawings (St. Alphonsus, III, 279).

b) It is lawful to paint, provided one stops at the act of painting. "The reason is that painting, although it requires a material operation, nevertheless does not seem properly able to be called a servile action; indeed, it seems rather to be called liberal. For, just as writing expresses internal concepts, so painting expresses images of things" (St. Alphonsus, III, 280). It is said, provided one stops at the act of painting; for it is unlawful to grind and mix colors, to prepare and stretch panels. Likewise it is forbidden to dye cloths or walls.

c) What has been said about the act of writing and painting is also to be applied to some similar acts. Hence it is lawful: 1. to paint with a needle, but not to sew, nor to do what is called in Dutch breien, in French tricoter, in German stricken (cf. St. Alphonsus, III, 281); 2. to arrange type (St. Alphonsus, III, 279, 282), which nevertheless by common estimation in a public workshop is held to be unlawful; 3. to exercise the photographic art, insofar as it is done without notable labor, for example to form what is called a negative image; 4. to sculpt, insofar as it is a question of the final perfection of a statue; otherwise "the sculptural art commonly, at least in the estimation of men, is numbered among the mechanical arts" (St. Alphonsus, III, 281).

d) Whether to lead draft animals, ships, and carts loaded with merchandise is lawful in itself is disputed; but the accompanying labor of loading and unloading burdens seems to be unlawful or lawful according as it is great or slight (St. Alphonsus, III, 276 ff.).

e) Hunting, fishing, and fowling are lawful, unless they are done with great apparatus and labor (St. Alphonsus, III, 283).

f) Milling, in whatever way the mill is moved, is lawful, provided the application of man is moderate. Yet in our regions custom is opposed (St. Alphonsus, III, 277).

g) Finally, various works to be performed for the convenience of some establishment seem lawful, which bring with them scarcely any bodily labor, for example microscopic examination of milk or of some other material; nevertheless by common estimation they are held to be unlawful if they are performed in the public establishment itself.

¹ This distinction of works used to rest, and still rests, partly on custom; which custom indeed has been tempered somewhat, so that, for example, works which formerly could be servile are now common. We have tried to treat the matter in such a way that every difficulty arising from different custom seems excluded.

IV. Fuller exposition; this is especially set forth by a fuller exposition both of the object of justice, that is, as is clear from the definition handed down, right,¹ and of its subject.

1. Notion of right. The word right is taken in different senses, for example for a moral and inviolable faculty in regard to something, that is, in regard to some thing or some action, whether one's own or another's; for a law granting some moral faculty in regard to something; for a body of laws, as when someone is said to study law; for the sentence of a judge, who therefore is said to declare the law; for the place in which sentence is pronounced, whence someone is said to appear in court.

Now right, insofar as it is the object of justice, is a thing due to someone according to some equality; namely the material object is the thing due, and the formal object is the character of debt. Moreover, under the name of thing we also comprehend an action or omission.

2. Source of right. The remote source of every right is law, whether natural or positive, and ultimately the eternal law, which is the origin of all laws according to these words of St. Alphonsus: "The will of God alone, as being most holy, most wise, most upright, is the one source of every law, of every rule, and of the measure of honesty" (Dichiarazione del sistema, n. 18). The proximate source of right is the moral faculty itself, on account of which some thing is due to someone. I said moral faculty, by which is understood some power with respect to some thing.

3. Division of right. Right, insofar as it is the object of justice, is divided:

a) By reason of origin, into natural right and positive right, according as it flows from natural law (n. 82) or from positive law (n. 89).

b) By reason of subject, into individual right and social right, according as it belongs to man as an individual, or as part of a whole, or as a member of society.

c) By reason of the title in which it is proximately founded, into right founded in the title of devinction or quasi-devinction² of a thing to some person, and this is the object of commutative justice; into right founded in the title of capacity, dignity, merit, or necessity, on account of which some good, for example an office, ought to be granted by the whole, that is, by the prince, to some member of society, and this is the object of distributive justice; into right founded in the ordination of subjects and of the prince to society, and this is the object of legal justice.

d) By reason of efficacy, into strict right and less strict right, according as it is founded in the title of devinction or quasi-devinction of a thing to some person, or in another of the titles just assigned.

Strict right, that is, the object of commutative justice, is distinguished into ius in re, or real right, and ius ad rem, according as a thing has already been bound to someone, or someone has a right that a thing, still bound to another, be bound to himself. This right is sometimes called ius in personam, insofar, namely, as some person, from commutative justice, is obliged to render some thing to someone (St. Alphonsus, III, 486).

4. Subject of right. A rational being, and it alone, is the subject of right. For right is a thing due to someone according to some equality. But something can be due only to a rational being.

The Minor is proved. Something can be due only to him who has a moral faculty in regard to something. But a moral faculty in regard to something belongs to a rational being, and to it alone.

The subsumed Minor is proved. A moral faculty belongs to him, and to him alone, who can and ought to direct himself to the ultimate end; for such a one and such a one alone enjoys the faculty of choosing means to the ultimate end, a faculty, I say, of which others ought to take account. But a rational being, as free, and it alone can and ought to direct itself to the ultimate end; irrational beings, as lacking liberty, cannot direct themselves. Therefore a moral faculty belongs to a rational being, and to it alone.

Corollary I. Even infants and the insane are capable of rights. This is clear: 1. from Sacred Scripture: "For as long as the heir is a little child, he differs nothing from a servant, although he is lord of all; but he is under tutors and governors until the time predetermined by the father";³ 2. from the consent of all nations and laws; 3. from the fact that nothing prevents some thing from being destined to the special utility of someone and therefore owed to him, even if in the use of the thing he must be directed by the reason and will of another.

Corollary II. Not only physical persons, but also moral persons, can be the subject of right, or at least be regarded as if they were the subject of right;⁴ concerning these we shall speak specifically later.

Corollary III. The capacity of acquiring a right can be restricted by authority, both civil and ecclesiastical, and this both directly, for example if someone is deprived of the usufruct of his own thing (n. 764), or is rendered incapable by reason of a solemn vow of poverty; and indirectly, insofar as certain things are placed outside commerce. The state in which someone exists deprived of the capacity of right is called civil death.

And with these things having been premised concerning justice taken more generally, let us proceed to the treatment of commutative justice, speaking, as we have already noted, first of commutative justice itself, then of injustice and restitution. We shall add a double appendix, the former on distributive justice, the latter on legal justice.

¹ Cf. Lijdsman, C.SS.R., Introductio in Ius Canonicum, vol. I, n. 1.

² By quasi-devinction I understand the power which belongs to a private person, so that some thing may be bound to him (ius ad rem).

³ Gal. 4:1-2.

⁴ It is disputed: 1. whether and 2. in what precise sense a moral person can be called the subject of right. Cf. Brinz, Pandekten, III, § 432-454; Ihering, Der Geist des Romischen Rechts; Vermeersch, Quaestiones de Iustitia, XIV; F. C. von Savigny, System des heutigen Romischen Rechts, II, § 85-103; d'Annibale, Summula Theologiae Moralis, I, n. 43; Waffelaert, Etude de theologie morale sur l'obligation en conscience des lois civiles, p. 157-184; Cathrein, Moralphilosophie, II, p. 394-395; Gierke, Das Deutsche Genossenschaftsrecht, cited by Duynstee, n. 22.

All strict real rights involve something of ownership; most, however, involve only limited ownership. So that these may be explained completely and in order, we shall treat first of ownership generally, then of limited ownerships.

We must speak first of the notion, division, legitimacy, and necessity of ownership, then of the objects of ownership.

I. Notion. Ownership is a right which is concerned with a thing already bound to someone; but what that right imports depends on the species of ownership which is had, as will be clear from what is to be said under II. The ownership of which we speak is also called ownership of property, or low or base ownership; and it is distinguished from high or eminent ownership, or ownership of jurisdiction, of which we shall speak in the scholion.

II. Division. Ownership is divided into full or perfect ownership, and non-full or imperfect ownership.

1. Full or perfect ownership is the strict right of disposing of a thing in any way not prohibited by law, with others excluded. It is said: of disposing in any way, that is, of using the thing, or applying it to one's own operation; of enjoying the thing, that is, of receiving the fruits of the thing; of consuming or destroying the thing; likewise of retaining, throwing away, giving, exchanging, or selling the thing. Therefore full ownership regards the substance, use, and fruits of the thing.

2. Non-full or imperfect ownership is ownership which is destitute of one or several of the rights enumerated above. Moreover it is called:

a) Direct, or radical, or naked, insofar as it comprises only the substance of the thing.

b) Indirect, or useful, insofar as it regards only the use or only the fruits.

III. Legitimacy.¹ An individual man has the right of acquiring ownership. This is established against Communists and Socialists, insofar as at least many of them contend that all things, or at least productive movable goods (capital) and immovable goods, must be abolished as private possessions and transferred to particular societies, whether economic (syndicates) or political (municipalities), or to the universal society (the State). The proposition is proved first from Sacred Scripture, which manifestly signifies that ownership of many things can be acquired by an individual. Thus Deuteronomy: "You shall not covet your neighbor's wife, not his house, not his field, not his maidservant, not his ox, not his ass, and all things that are his."² Add those passages in which theft,³ that is, the violation of the ownership which belongs to one's neighbor, is condemned.

Ecclesiastical documents are added.

Thus, for example, Leo XIII: "But that God gave the earth to the whole human race for use and enjoyment cannot in any way be an obstacle to private possessions. For God is said to have given the earth to the human race in common, not because He wished its dominion to be promiscuous among all, but because He assigned no part to anyone for possession, leaving the delimitation of private possessions to the industry of men and the institutions of peoples."⁴ Again: "For since the right of possessing goods privately has been given not by human law but by nature, public authority can abolish not the right itself, but only moderate its use and compose it with the common good."⁵ Pius XI teaches the same.⁶

There is added the constant use of all peoples.

There are added reasons which confirm the proposition. For first, the individual man enjoys a right of providing for himself and for his family, not only for the present but also for the future; and he cannot do this unless he makes several things his own, so that he can dispose of them according to his will. Nor should one object that the means of sustenance are to be received from the commonwealth; for since nature tends toward the perfect, existence itself brings with it the right of continuing existence independently of another. Indeed, since man and the family are prior to the commonwealth, "he must have had by nature this right of his to protect life and body before any State had come together."⁷ Secondly, the proposition is deduced from the fact that private ownership is necessary for the good of society, as we shall soon see.

Objection. An individual man has the right of acquiring ownership only insofar as the State leaves that right intact.

Resp. The State cannot take away that right, but at most limit it: both because the State, as destined to the good of citizens, can protect the rights of individuals, and at most moderate them, rather than extinguish them;⁸ and because private ownership, as we shall say, is morally necessary.

Corollary. The use of the right of acquiring ownership is lawful. This is deduced first from Sacred Scripture, in which renunciation of private ownership is taught to pertain only to perfection,⁹ and salvation is said to have come to Zacchaeus, who retained half of his goods.¹⁰ Secondly, it would be useless for a right to be granted if the use of the right were prohibited. Finally, it is clear from the necessity of private ownership, now to be proved.

¹ Cf. Horvath, Eigenthumsrecht nach dem hl. Thomas v. Aquin; Schweigman, De eigendomsphilosophie van Hugo de Groot.

² Deut. 5:21.

³ For example, Luke 19:8.

⁴ Encyclical Rerum novarum (May 15, 1891), n. 6.

⁵ Encyclical cited.

⁶ Encyclical Quadragesimo anno (Acta Apostolicae Sedis 1931, p. 193).

⁷ Encyclical Rerum novarum, n. 35.

⁸ "Always the very natural right of privately possessing goods must remain intact and inviolable, since the commonwealth cannot take it away; for man is older than the commonwealth." Thus Pius XI in the Encyclical Quadragesimo anno, May 15, 1931.

⁹ Matt. 19:16; Mark 10:17; Luke 18:18.

¹⁰ Luke 19:8.

IV. Necessity. Private ownership is necessary for the good of society. For the good of society requires ordered and peaceful life together, and also solicitude for conserving and increasing goods. But common possession hinders ordered life together, since distinction is lacking by which each one cares for his own thing; it hinders peaceful life together, since disputes very easily arise both about the production and about the use of things; it hinders solicitude for conserving and increasing goods, since solicitude is usually had only for conserving and increasing one's own things (St. Thomas, II-II, q. 66, a. 2). For the rest, however, observe:

1. Although private ownership and therefore some division of goods is legitimate and necessary, nevertheless not for that reason, as Pius XI teaches in the Encyclical Quadragesimo anno,¹ can every division of goods be approved, because not every distribution is apt by which the end intended by God may be obtained.

"The very immense multitude of proletarians on the one hand," says the Supreme Pontiff, "and on the other hand the most enormous riches of certain very wealthy persons, are an argument greater than every exception that riches so abundantly produced in this age of ours, which they call the age of industrialism, have not been rightly distributed and have not been equitably applied to the different classes of men."² Now this disordered distribution of goods is ascribed by Pius XI to the abuse of the so-called capitalistic system; hence:

Question. What does the Supreme Pontiff understand by the so-called capitalistic system or regime, and what judgment does he offer concerning the said system?

Resp. 1. By the capitalistic system or regime the Supreme Pontiff understands that system "by which generally for the common exercise of the economic thing, by some things are supplied, by others labor is supplied, as Leo XIII, using a felicitous combination of words, defined it in the Encyclical Rerum novarum, n. 15: neither capital can stand without labor, nor labor without capital."³

Resp. 2. The Supreme Pontiff teaches that this mode of economy "is not to be condemned" in itself, but that its abuse must be condemned. "And indeed it is not vicious by its own nature; but it violates right order when capital hires workers or the proletarian class for this end and under this condition, that business affairs, and therefore the whole economic thing, be turned according to its own will and advantage, with the human dignity of the workers, the social character of economy, and social justice itself and the common good contemned."⁴

2. But from the fact that the division of goods, such as it now is, is disapproved by the Supreme Pontiff, you should not deduce that disparity of fortunes is to be disapproved.

"The Socialists indeed agitate this," says Leo XIII, "but every contention against the nature of things is vain. For in men there are very many and very great natural differences: not all have equal talents, nor equal diligence, nor health, nor strength; and from these things an unequal fortune follows of itself by necessary difference. And this is plainly accommodated to the uses both of private persons and of the community: for common life needs varied ability for managing affairs and diverse offices; and men are especially impelled to fulfilling these offices by difference in each one's family property."⁵

3. But it is another question whether the use of each one's fortune is left to his own choice; this must be denied.

"Just possession of money," says Leo XIII again, "is distinguished from the just use of money. To possess private goods, as we saw a little before, is a natural right for man; and to use that right, especially in the society of life, is not only lawful, but plainly necessary for human life.⁶ But if one asks what sort of use of goods must be made, the Church indeed responds without any hesitation: as to this, man ought not to have exterior things as his own, but as common, namely so that he easily communicate them in the necessity of others." And Pius XI says: "Nor are a man's free revenues left in every way to his choice; namely those which he does not need for sustaining life conveniently and decorously. Indeed, Sacred Scripture and the holy Fathers of the Church continually declare in the clearest words that the wealthy are held by the gravest precept of exercising almsgiving, beneficence, and magnificence."⁷

4. Therefore it is certain that the wealthy are bound to give alms. But again there is another question, how great the alms owed are; concerning this, note:

a) Each one, as already follows from what has been said, can first take care of himself and his family, and indeed live suitably to his state.

"Certainly no one," says Leo XIII, "is commanded to help others from that which pertains to the necessities of himself and of his own; indeed, not even to hand over to others what he himself needs for preserving what is suitable to his person and what is becoming: for no one ought to live unbecomingly,"⁸ that is, in such a way that he "could not pass his life suitably according to his own state and the affairs that occur" (St. Thomas, II-II, q. 32, a. 6).⁹

b) It is lawful to spend superfluous things "so that the advantage of profitable work may be abundantly had, provided that that work is expended for acquiring goods truly useful."¹⁰

c) It remains to inquire to what extent truly superfluous goods, if they are not spent on profitable and useful works, are to be spent on good works. Now, with St. Alphonsus, we judge that in practice the obligation is satisfied if they are spent partly on pious works; this we explained in n. 534.

¹ Encyclical Quadragesimo anno, May 15, 1931.

² Encyclical cited.

³ Encyclical cited.

⁴ Encyclical cited.

⁵ Encyclical Rerum novarum, May 15, 1891.

⁶ St. Thomas, II-II, q. 66, a. 2.

⁷ Encyclical Quadragesimo anno, May 15, 1931.

⁸ Encyclical cited.

⁹ St. Thomas, II-II, q. 32, a. 6.

¹⁰ Encyclical Quadragesimo anno.

I. High ownership is the faculty of the prince of disposing of the goods of citizens, insofar as this is necessary or at least very useful for the common good. From the definition it is clear that high ownership is not ownership properly so called, but the power of jurisdiction. For ownership properly so called involves the faculty of disposing of a thing and its fruits for one's own advantage. But the prince cannot dispose of the goods of citizens so as to provide for his own good, but only so as to provide for the common good.

II. That high ownership belongs to the commonwealth follows from the fact that otherwise it would not be sufficiently equipped for attaining its end, which is the common good.

III. In order that the prince may dispose of the goods of citizens, there is required necessity or a great utility that is sufficiently common. For the commonwealth exists for the common good; moreover, by easily restricting the rights of individuals and families, rather than protecting them, it would harm the common good more than consult it.

Corollary. When necessity or great utility demands it, the commonwealth can deprive someone of some thing by way of expropriation, as it is called, in which case, however, the owner is to be rendered unharmed; likewise, by way of prescription, it can transfer the ownership of one person to another, and so forth. Nevertheless the high ownership of the civil State does not comprehend sacred things, nor temporal things which have been referred by ecclesiastical authority to a supernatural end.

IV. Annexed or akin to high ownership is the faculty of determining whose goods are, or will be, things belonging to no one, such as a treasure to be found; likewise goods not yet existing, such as the fruits of some thing. Now laws looking to this matter, as otherwise the obvious sense of the dispositions sufficiently signifies, are presumed to constitute true and strict rights. Make an exception if the nature of the thing suggests that the disposition of the law rather has the character of a penalty; in that case, before the sentence of a judge, obligation is lacking, but through the sentence of a judge the right is determined. We shall apply these things in their own place to different cases.

Question. Whether the commonwealth also enjoys the so-called right of colonization.

Resp. Colonization is distinguished as twofold, absolute and qualified. Absolute colonization is that by which an external region perfectly depends on a state of higher culture. Qualified colonization is that by which a society of higher culture subjects another to itself, insofar as subjection is necessary for fittingly distributing the goods of the other. Colonization differs from a protectorate or mandate, to which a foreign region is subject, as Egypt and Syria are with respect to Britain and France.

The question regards an unwilling region; for nothing prevents subjection from being constituted by a free contract. Now:

I say first. Absolute colonization is opposed to the right of a foreign region, as is clear.

I say second. Qualified colonization seems lawful; for each state has some right to the goods of the world, since they have been created for the human race. Hence if some uncultivated nation altogether neglects the riches of its region, and impedes other nations from their use and exchange, and refuses and prohibits social life, its subjection in a qualified sense seems lawful.

Corollary I. Colonization established solely for the sake of profit and dominion is not legitimately constituted. From this, however, it does not follow that colonizations constituted in this way must be dissolved at once; for by this manner of acting the colonies would be reduced by rampant communism and other commonwealths into a much worse state, indeed even into extreme misery. Besides, it could have happened that subjection, at first tolerated by unwilling persons, has now been legitimated by free consent.

Corollary II. The duty belongs to the colonizing state of procuring, in its own way, the riches of the region, profitable cultivation, and the goods of the Christian faith for the subject nation.

Goods in relation to man are distinguished into:

1. Internal goods, to which belong goods of the body, such as life and members; likewise goods of the soul, both natural, such as faculties, sciences, and so forth, and supernatural, such as grace, virtues, and so forth.

2. External goods, such as houses, fields, money, in a word, goods of fortune. External goods are divided:

a) Into movable and immovable goods. Movable goods are those which can easily be transferred from place to place, such as money, furniture, and so forth. Immovable goods are those which are in no way, or only with difficulty, transferred.

b) Into consumable and non-consumable goods, according as the use of them consists, or does not consist, in their very consumption. Thus, for example, grain is consumable, but a book is non-consumable.

c) Into fungible and non-fungible goods. Fungible goods are those of which one can stand in the place of another of the same species, because it makes no difference whether the same thing individually, or another of the same species, is had; thus one who has borrowed money is not bound to return the same money individually. Non-fungible goods are those of which one cannot be substituted for another of the same species; thus one who has stolen a horse is bound to return the same individual horse.

3. Intermediate goods, namely reputation and honor, which, although they are founded in good qualities, nevertheless formally exist in others, who think well of someone or honor him. For the rest, compare also the division of goods or things with attention to the law of one's country. Moreover:

I. A man does not have direct ownership, but he does have useful ownership, of those goods which pertain to his substance and integrity, such as life, members, and the faculties of the soul. The first is proved from Sacred Scripture: "See that I alone am, and there is no other God besides me: I shall kill, and I shall make live."¹ The reason is that direct ownership exists only over a thing distinct from him who has ownership. Besides, ownership imports a certain superiority with respect to the thing of which direct ownership is had. But no one is superior to himself. The latter is clear; for to what end would those goods have been granted by God, if man lacked the right of using them?

II. A man has full ownership of those internal goods which do not pertain to his substance and integrity, such as operations and habits produced by natural activity. The reason is that a man is the owner of those things which he has acquired by his own industry. The same seems to be said in some way of grace, of habits, and of supernatural acts. For it is rightly admitted that these have truly been given by God as a gift to man. There is added, as regards an adult, that "through the use of free will with the help of God, man disposes himself to such goods, and therefore they are effects of cooperating grace, because man obtains them from God by cooperating with His help for receiving them."²

III. A man has full ownership of reputation and honor. The reason is that a man has acquired these by his own labor. Besides, "if a man were not owner of his own reputation, he could not condone or remit restitution of it; for no one can remit what is not his own. But nevertheless this is often done, and is done laudably."³

One who without proportionate cause neglects his reputation is guilty of the sin of prodigality, just as one who without cause dissipates riches.⁴ Hence Sacred Scripture says: "Have care for a good name; for this will remain to you more than a thousand precious and great treasures. The number of days of a good life is limited; but a good name will remain forever."⁵ This warning must especially be attended to if our reputation is necessary to our neighbors.

"Our reputation," says Lessius,⁶ "can be necessary to our neighbors in three ways. First, when the reputation of a neighbor so depends on our reputation that from our disgrace his disgrace follows; as from the disgrace of a monk there follows a certain disgrace of the monastery. Second, when our reputation is necessary so that we may render to a neighbor an office due to him by strict right; as the reputation of a public person, a Bishop, a Pastor, an Abbot, is necessary so that he may govern subjects well; and in these two events, in the judgment of many, one who disgraces himself sins against justice: not because precisely he deprives himself of reputation, but because as a consequence he harms his neighbor, either by bringing disgrace upon him, or by rendering himself unfit to perform the due office for him. Third, when we are bound to benefit a neighbor not from office but only from charity, and through disgrace we are rendered unfit for this, then one who disgraces himself sins only against charity; just as he sins against charity who throws away money by which he could have benefited the poor."

IV. A man can have full ownership of external goods or goods of fortune, provided they are such that they can be the object of ownership. The truth of the proposition is clear both from Sacred Scripture⁷ and from those things which we said concerning the legitimacy and necessity of private ownership.

I said, however: provided they are such that they can be the object of ownership. In order that this can have place, it is required: 1. that the thing can be subjected to man or occupied by him; hence, for example, the stars are excluded; 2. that the thing can be useful; nevertheless, observe that sometimes a thing which seems useless can be for some use; 3. that the thing is not of inexhaustible use, that is, such that all can use it without harm to anyone, of which sort are, for example, air and daylight.

To the question to what extent the sea can be the object of ownership, Waffelaert responds thus: "If there is question of the vast ocean, then it can scarcely be guarded; then certainly the use, which is major fishing and navigation, is inexhaustible. But if there is question of the parts of the sea washing the land, of gulfs and straits, the use, which is fishing, the finding of pearls and other precious things, the collecting of shells, and so forth, is not inexhaustible, especially since things of this sort and certain kinds of fish are frequently found in determinate and not very spacious places. Besides, provision would not be sufficiently made for the security of a maritime nation if, without any precaution, it were lawful for anyone to bring armed ships to the shore."⁸

V. A man cannot have direct ownership of those goods which pertain to the substance and integrity of the members of another; nevertheless he can acquire useful ownership of them. It is said:

1. A man cannot have direct ownership of those goods which pertain to the substance and integrity of the members of another. This is clear from the fact that ownership imports that the thing of which someone is owner is referred to him as to an end. But it is repugnant that one man be referred to another as to an end.

2. Nevertheless he can have useful ownership of these. This is clear from Sacred Scripture,⁹ and from those things which we shall say concerning the different titles on which the aforesaid ownership can rest. Moreover, the said ownership or servitude, by which someone is bound to furnish all his works to another for food and other things necessary for life, can be introduced:

a) By free agreement; for since man has useful ownership of himself, he can freely transfer it, and indeed entirely, to another.

b) By just condemnation, or as a penalty for a delict; as is clear.

c) By right of war, and by birth from slaves; these, however, with every fault set aside, even original fault, cannot be just titles. "There is," says St. Thomas, "a twofold subjection, one servile, according to which the one presiding uses the subject for his own utility; and such subjection was introduced after sin" (I, q. 92, a. 1, ad 2; I, q. 96, a. 4).

Corollary. Servitude which is extended so far that a man, as if an irrational animal with respect to his works, can be bought and sold, is altogether unbecoming to man, and therefore is judged to be abolished by law.¹⁰

VI. An author has a right in the fruit of his mind, that is, in literary, musical, or other works of the liberal arts; an inventor has a right in the art or industry invented, according as follows:

1. When the work has not yet been published by the author, he certainly has the right that another not seize and publish the manuscript, or steal the secret, for example of a known art. One who has violated that right is bound to restitution of the damage thence following; and therefore, if the author would have published the work, he must compensate the damage hoped for from publication. The same must be said of one who uses knowledge to which he has come by fraud or from a communication made by the author under secrecy.

2. When the work has been published in some measure, for example a writing printed for private use, lectures given, sermons delivered, the author seems to have the right that another not publish it. The reason is that from the circumstances themselves and from common estimation, the aforesaid things have not yet been made simply of public right, but he has retained them as his own. This posited, another also seems to lack the right of making them of public right. Nevertheless custom permits some publication, or even an entire publication, of sermons in newspapers.

3. When the work has been plainly published, one must speak thus:

a) With natural law considered, it is disputed whether the author has the right that another not further disseminate the work, for example by reprinting it.¹¹ Moreover, the opinion which is theoretically sufficiently probable and therefore safe in practice denies this, both because a work published by the author by that very fact becomes of public right, or destined for common use, and because the buyer of the work acquires ownership of it, and therefore can use it according to his will.

Finally, for the same reason the doctrine handed down seems also to be applied to a law which grants someone the right or privilege of using a commercial trademark exclusively.

Corollary I. If someone, within the limits determined by civil law, inflicts some detriment on an author or seller, he does not sin against justice; for by the very fact that civil law determines the right of authors, beyond these limits it takes away their right, if perhaps it exists, by force of high ownership. The same holds concerning international agreements.

Corollary II. The custom even of God-fearing persons commonly permits many things against the right of authors and inventors, namely: 1. the right of buying what has been publicly displayed, even though contrary to law; 2. the right of representing scenic and musical works in circles; 3. the right of making for private use some work for the manufacture of which the author's license is required, because the damage which the inventor suffers, if he suffers any, is very slight, since often it would not have been bought. From the said custom, laws which prohibit the things set forth rather seem to be merely penal.

Objection 1. The author has the right of receiving a fitting reward from the work.

Resp. The assertion is very ambiguous and must be distinguished: the author has the right that others buy the work and thus procure a reward for him, I deny; he has the right that others, for example by reprinting the work, not be the cause why less profit comes to the author, this must be proved; indeed, on account of the arguments adduced, it seems it must be denied.

Objection 2. Authors, at least today, by exposing their works for sale, add the tacit condition that others not reproduce the work by their own authority; in other words, authors sell the spiritual use, but not the commercial use of the work.

Resp. Besides the fact that that condition is asserted gratuitously, it seems one must deny that a condition so vague or indeterminate is validly attached.

Concerning the right of religious in manuscripts and so forth, we shall speak in the treatise on the duties of religious.

b) With civil law considered, which, as order and natural equity demand, has commonly determined this matter, an author, that is, a writer or inventor, seems to have a strict right to those things which the law establishes for his advantage; for legislators in this case expressly declare that they grant the author an exclusive right. Unless the nature of the thing or the context of the law suggests something else, this word seems to be understood of a full or strict right. Nor again should it be objected that the legislator does not care about obligation in conscience; for the explicit or implicit intention of granting a right suffices. Hence a transgressor of the law is bound to restitution of damage even before the sentence of a judge; but penalties established against transgressors do not oblige except after the sentence of a judge.

Some,¹² indeed, do not apply the doctrine handed down to inventors to whom patents (brevets) have been granted, because they are accustomed to increase too much the natural price of the invented thing, which is against the common good. But the fact that they act thus does not seem to impede Authority from being able to grant them a right in the thing invented and published; and that in fact it has granted them a right is to be deduced from the fact that, with the terms of the law considered, it equates them with writers and so forth.

¹ Deut. 32:39.

² Salmanticenses, tract XII, chapter 2, point 5, n. 46.

³ Billuart, IV, dissertation 3, article 2.

⁴ Billuart, loc. cit.

⁵ Ecclus. 41:15 ff.

⁶ Book 2, chapter IV, doubt XI, n. 59.

⁷ Gen. 1:28, 29; 9:1, 3; Ps. 8:7-9.

⁸ De Iustitia, I, n. 88.

⁹ Exod. chapter 21; Lev. chapter 25; Deut. chapters 20-21; cf. Eph. 6:5.

¹⁰ Cf. Leo XIII, letter In plurimis, May 5, 1888.

¹¹ Cf. Lehmkuhl, I, 904; Goepfert (II, 68) and Sweens (n. 39), who affirm; Waffelaert (I, 171) and Vermeersch (n. 248), who deny.

¹² Vermeersch, Quaestiones de Iustitia, n. 250.

To limited ownerships, or those more or less imperfect, there especially pertain: usufruct, use, servitude, and in some respect also possession.

I. Notion. Usufruct is the right of receiving the fruits of another's thing, with the substance of the thing preserved. In Roman Law it is called: "the right of using and enjoying another's things, with the substance of the things preserved."¹ From the notion handed down, it is clear that usufruct is not constituted in things which are consumed by first use. A right in things of this sort, for example in wine or oil, is sometimes called quasi-usufruct (St. Alphonsus, III, 487).

¹ Law 1, Digest, De Usu fructu.

II. Acquisition. Usufruct can be acquired: 1. by law, for example where the law grants parents a right in the fruits of the goods of minors; 2. by the will of the owner, who, for example by contract or testament, assigns usufruct to someone.

III. The rights and burdens both of the usufructuary and of the proprietor, what precisely they are, you should deduce from the title by which the usufruct is constituted, and from civil law.

IV. Cessation. Usufruct ceases: 1. by the lapse of the time for which it was constituted, or by fulfillment of the resolutory condition; 2. by the death of the usufructuary, or, if there is question of a moral body, by its dissolution; 3. by the fact that ownership of the thing passes to the usufructuary; 4. by renunciation by the usufructuary of his right; 5. by prescription or non-use for the time required by law; 6. by the destruction of the thing.

Use is the right of using another's thing, with its substance preserved (St. Alphonsus, III, 487). If the other's thing is a house, it is called habitation.

It is acquired and extinguished in those ways in which usufruct is.

The rights and burdens of the user and of the proprietor are to be drawn from the title and the law.

I. Notion. Servitude is a right consisting in this, that the owner of some estate,¹ as its owner, has some favor over the estate of another. The favor is called active servitude; the burden inhering in the estate of another is passive servitude. The estate which is considered to have the favor is called the dominant estate; the estate in which the burden inheres, the servient estate.

¹ Under the name of estate come corporeal immovable things, such as fields, pastures, houses, and so forth.

II. Division. Servitudes are distinguished:

1. Into continuous and discontinuous, according as they are exercised without human action or through it. Continuous servitudes are, for example, the right of a stream, of drip, and so forth; discontinuous servitudes are the right of a path, of drawing water, and so forth.

2. Into visible and invisible, according as it appears by an external sign, for example a door or window, or does not appear. Invisible servitudes are, for example, a servitude of not building on an estate, or of not raising some building higher.

III. How acquisition and cessation have place you should deduce from the laws of the country; the rights and burdens annexed to servitude you should draw from the title by which it is constituted and from the law.

Possession can be taken both for a right in a thing and for a fact. Possession taken in the former sense is a right in the very detention of some thing, with the intention of ownership; taken in the other sense, it is the very detention of the thing, with the intention of ownership. But since possession accepted in this latter sense can bring certain rights with it, it is useful to set forth certain things concerning it. Therefore let there be:

I. Notion of possession. Possession, as is drawn from what has been said, is understood here as detention of a thing, with the intention of ownership. It is said:

1. Of a thing; moreover, under the name of thing there is understood not only a thing properly so called, for example a field or house, but also the use of a thing, such as dwelling in a house or the exercise of authority.

2. Detention; by this word are comprehended physical detention, or its equivalent, if there is question of a corporeal thing; the very acts of using a thing, if there is question of the use of a thing.

3. With the intention of ownership, that is, with the intention of having the thing as one's own.

II. Division of possession. Possession, not indeed by reason of itself but by reason of the mind with which it is possessed, is divided into possession of good, bad, and doubtful faith.

1. Good faith is had when the possessor judges that he licitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is his own; 2. when the possessor, although he doubts whether the thing is his own, nevertheless detains it without fault or, if there is question of a grave thing, at least without grave fault. These things will be explained more fully later.

2. Bad faith is had when the possessor judges that he illicitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is another's; 2. when the possessor doubts whether the thing is his own and detains it with fault, if there is question of a light thing, or with grave fault, if there is question of a grave thing.

3. Doubtful faith, strictly speaking, is not had, because one who doubts whether the thing possessed is his own necessarily detains it either without fault or with fault; in that case he becomes of good or bad faith, as the case bears according to the things explained above. But what is lawful for one doubting whether the thing possessed is his own, we shall explain later. I said strictly speaking; but doubtful faith is customarily taken for the doubt of a possessor whether the thing possessed by him is his own. What is lawful for one thus doubting, however, we shall say at once.

III. Effects of possession. 1. Possession in good faith, and in some way also in doubtful faith, creates some presumption of an existing true right.

2. Possession, if doubt about the right in the thing possessed persists after truth has been investigated, brings with it the right of continuing the use of the thing, or even, if there is question of a thing which can be consumed, of consuming it, if: 1. the possession was begun in good faith; 2. the possession is such as is required by a just law; 3. the judge has not justly determined otherwise. The reason is sought both from the fact that the common good requires this; and, as regards ecclesiastical matter, from rule 50 in Sexto: in doubt the condition of the possessor is better; and, as regards civil matter, from civil law. What the law is, if possession began in doubtful or bad faith, you should draw from what is to be said later about the possessor in doubtful or bad faith.

Children of the family are here understood as children born of a legitimate marriage, or legitimated, and still subject to parental power. Now:

I. Children of the family acquire direct ownership of all goods which come to them by a just title. This follows from the fact that they, just as others, are capable of ownership. Moreover, just titles are donation, inheritance, purchase, contract, and so forth. Hence parents sin against justice who transfer to themselves, alienate, or squander goods which have come to their children by a just title. For the rest, observe:

1. A child acquires a right in goods granted to him by his parents according as follows: he acquires a full right in those things which are truly given to him. Hence he obtains a full right in small things and in a small amount of money granted for recreation, so that by abusing them he does not violate justice. The contrary must be said of things given for a special use, for example for paying school fees, for buying books, clothes, or other necessities; by abusing these, the child is guilty of injustice.

2. A child who exercises an art or industry in common with his father, with any agreement set aside:

a) Does not acquire a right to a part of the profit, since he is not his father's partner. Moreover, he is considered to exercise an art or industry in common with his father when he works as the agent or helper of his father, whether he exercises the work in the paternal home or outside it, for example because the father, as an artisan, has hired out the works of the son to another.

b) Nor does he have a right to wages if he performs only labor to which he is held from piety or from an equitable precept; for what one owes from piety or obedience, he owes gratuitously. On the other hand, however, the father is bound from piety to support the son; and this piety again brings it about that, if suitable support is denied to the son, the son can procure for himself what suitable support requires (St. Alphonsus, III, 488, doubt 2).

c) The child acquires a right to wages for labor furnished beyond what is owed and not otherwise compensated, for example by a donation made in view of special labor, by equal labor of the brothers, and by the inheritance thereby increased. The reason is that, since the said labor is not owed, the child ought not to be of worse condition than a stranger. Make an exception, however, if the child has expressly or tacitly renounced his right; concerning this, however, observe that in itself the silence of the child does not contain a renunciation of the right, because often he abstains from explicit petition only from reverential fear (St. Alphonsus, III, 488, doubts 2 and 3).

3. If, on account of peculiar circumstances, equity seems to demand that the labor owed by the child be compensated by wages or a part of the profit, for example if the other children lead idle leisure, or, although subject to parental power, labor for themselves, an agreement between father and child can sometimes prudently be advised.

4. A child who exercises private labor or industry acquires a right in those things which he thus procures for himself. Moreover, private labor or industry is had if the child labors neither in the name of his father, or as his agent, nor in his service. Therefore it is present if the child has hired out his works in his own name, even if he dwells in the paternal home; likewise if he has been received as a servant by another family, even if the father entered into the contract. Yet these things do not prevent the child from being bound from piety to assist needy parents, and, if the father wishes it, to compensate for food and clothing perhaps to be received from the parents.

5. A child who does business with paternal goods acquires a right in the profit if he acts in his own name, but not if he acts as the agent or helper of his father. And this holds even if he stole money from his father; nevertheless he is bound to restore the damage and the profit ceased which followed for the father (St. Alphonsus, III, 488, doubt 1).

II. Children of the family do not have the administration of their own goods, but it belongs to the father or mother or guardian.

III. The right of the fruits is commonly determined by positive law. Therefore from that law it is to be drawn to whom it belongs. Again, however, note that the silence of the child in itself does not contain a renunciation of the right in the fruits which he enjoys by force of law.

The goods of spouses are distinguished into common and proper, according as they belong to both or to either one. It depends on the law what kind the goods of spouses are: whether common, or proper, or partly common and partly proper. In many kingdoms legal community is in force; in other words, the goods of spouses are common unless before marriage something else is agreed. Now:

I. As regards common goods, ownership of them belongs to both; the right of administration is in the husband's hands; the right of the fruits falls to both. It is said:

1. Ownership of them belongs to both; this is the same as asserting co-ownership, as it is called.

A twofold co-ownership of spouses can be distinguished: one by which spouses are not distinct subjects of right but one owner; according to many, though undeservedly as it seems, co-ownership of this kind is constituted by Dutch law. The other co-ownership is that by which the spouses are two distinct subjects of rights. And this co-ownership is again twofold, Roman and Germanic. Moreover, the chief difference between them consists in this, that the Romans divided common goods mentally, and then considered the undivided part of the thing as a separated whole, which any co-owner could alienate or burden. But the Germans did not divide common goods mentally, but continued to consider them as one whole, and therefore left to all co-owners the right of disposing of the common goods.

2. The right of administration is in the husband's hands; the right of the fruits falls to both.

Corollary I. Spouses who seize common goods for themselves alone or squander them sin against commutative justice if, with the law considered, the co-ownership is Roman or Germanic. The reason is that they violate the strict right of the other spouse. The contrary is to be said with sufficient probability if the co-ownership is of the former kind explained above, because deservedly it is doubted whether the alterity required for commutative justice is present if one person, although one is not the same as two, with another becomes one subject of rights or one owner. In a word: the matter depends on whether the two are to be regarded as a moral person or not; if the former, the required alterity is certainly had. For the rest, not only the husband, but also the wife, can subtract those things which otherwise will be squandered by the husband. This is clear if Roman or Germanic co-ownership is had, because squandering is opposed to strict justice, as we have said; and the wife can certainly forestall that injustice. If co-ownership is of the former kind explained above, the squandering to be feared is a sufficient reason for withdrawing common goods from the husband's disposition and acquiring for herself the administration of those goods (St. Alphonsus, III, 541).

Corollary II. If the husband refuses necessities or grants them with great difficulty, the wife can, even if Roman or Germanic co-ownership is had, from the common goods:

1. Give out what is necessary for suitable support of herself and the offspring, for decent adornment and suitable recreation, for alms to be given according to condition; likewise for guarding herself in the future and procuring a suitable state for the offspring, or for averting grave spiritual or temporal damage from the family. The reason is that the intimate conjunction between wife and husband, between children and parents, brings it about that common goods, if the proper good or the good of the offspring demands it, can be treated as proper goods (St. Alphonsus, III, 540, 541).

2. Spend those things by which she may consult the necessary support of her parents or of offspring received from another marriage; for what is lawful for her in order to her own advantage also seems lawful in order to the good of those who are in some way one with her; all the more because in the case the husband is also bound from piety to consult the parents and offspring of his wife (St. Alphonsus, III, 542).

II. As regards proper goods, each spouse has direct and useful ownership of them, that is, of proper goods; but to whom administration belongs is to be drawn from the law.

Corollary I. Those about to marry sin against justice, and in themselves are bound to restitution, by deceiving the other party, for example by exaggerating goods, lessening debts, and thus bringing it about that a nuptial agreement is omitted by which community of goods would be excluded wholly or in part.

Corollary II. A wife can freely dispose of those things which she has gathered by extraordinary labor or parsimony, or has saved from what was granted for food or pleasure (St. Alphonsus, III, 541).

Corollary III. If the husband refuses, or grants with great difficulty, the things which are necessary for suitable support of the wife or offspring, for decent adornment and suitable recreation, for alms to be given according to condition, for guarding the wife in the future and procuring a suitable state for the offspring, or for averting grave damage from the family, if, I say, the husband refuses these things or grants them with great difficulty, the wife, in defect of proper and common goods, can also use the husband's proper goods, because the intimate conjunction between wife and husband, between children and parents, brings it about that the proper goods of one are in some way also those of the other, so that things owed to the other spouse or to the children, if they are denied, can be seized (St. Alphonsus, III, 540-541).

In general, however, the confessor should not easily indulge the complaints of wives, lest the reins be loosened too much.

I. The goods of clerics are distinguished into beneficial or ecclesiastical goods and non-beneficial goods.

1. Beneficial goods are those which come to them from the endowment of a benefice. Moreover, the endowment of a benefice is constituted either by goods whose ownership is in the juridic entity itself, or by certain and due payments of some family or moral person, or by certain and voluntary offerings of the faithful which belong to the rector of the benefice, or by stole fees, as they are called, within the limits of the diocesan tax or legitimate custom, or by choral distributions, with a third part of them excluded, if all the revenues of the benefice consist in choral distributions (can. 1410).

To beneficial goods are to be counted pensions or annual salaries which in Belgium and in those districts of Holland which, at the time of the Concordat of 1801, belonged to France, that is, in the whole diocese of Roermond, in part of Gelderland and Staats-Vlaanderen, are paid by the Government to Bishops, canons, and pastors.¹ The reason is that they represent the fruits formerly received from the endowment of benefices.² The same, for the same reason, seems to be said of annual payments which are sometimes stably assigned by the Government to some pastors under the name of competencies.³

2. Non-beneficial goods are all other goods of clerics. They are customarily divided into patrimonial and quasi-patrimonial goods. Patrimonial goods are those which fall to them by a profane title, for example by contract, inheritance, testament, labor, or industry, that is, profane labor or industry. Quasi-patrimonial goods are stipends which are received for sacred functions and, according to what has been said, do not pertain to the endowment of the benefice. To this class belong, for example, Mass stipends; likewise the third part of choral distributions, if all the revenues of the benefice consist in choral distributions (can. 1410).

To non-beneficial goods are counted: 1. supplements which are sometimes paid to pastors by municipalities or from the treasury of the Church; 2. annual pensions which in our country are paid by the Government to priests, except in the places enumerated above; 3. retirement pensions. The reason for all these is that they are not, or not necessarily, to be considered as representing fruits formerly received from the endowment of benefices. 4. Payments by whatever name which are assigned to vicars, because, since vicars lack a benefice, they neither are nor represent fruits of a benefice.

3. As regards offerings, I note:

a) Offerings handed over in boxes or collected for a certain end must be used for that end.

b) Certain and voluntary offerings of the faithful made in a place subject to a pastor are considered to have been granted to the pastor, unless the intention of the faithful to cede them to others is clear. If they are granted to the pastor, they pertain to the endowment of the benefice, and therefore are counted among ecclesiastical goods.

¹ Sacred Penitentiary, January 19, 1819 and August 19, 1821, collected response of January 9, 1823, apud Carriere, I, 194.

² Sacred Penitentiary, January 19, 1819 and August 19, 1821, collected response of January 9, 1823, apud Carriere, I, 194.

³ Sweens, n. 79.

II. Rights of clerics with respect to goods. 1. Clerics acquire full ownership, so that they can freely dispose of them, of non-beneficial goods. For from no source is it clear that ownership and the liberty of disposing are restricted in any way.

2. Clerics likewise acquire full ownership, so that they can freely dispose of them, of beneficial goods, insofar as these are necessary for suitable support. And this, as can. 1473 expressly establishes, is to be understood so that a cleric, even if he has other non-beneficial goods, can freely use and enjoy beneficial fruits which are necessary for his honorable support. Moreover, from these things it is deservedly deduced that the cleric can freely dispose also of goods which, from beneficial goods necessary for suitable support, he has set aside by living more frugally; and therefore they are called savings from frugality (St. Alphonsus, III, 490; IV, 185).

3. As regards those things which are superfluous after honorable support from beneficial goods, these things hold:

a) A cleric is bound to spend them for the poor or for pious causes, with the prescription of can. 239, § 1, n. 19 saved (can. 1473). By force of the prescription of can. 239, all Cardinals from their promotion in Consistory enjoy the faculty of freely disposing of beneficial revenues, even by testament, with the prescription of can. 1298 saved. For the rest, "it must be noted that in this, in order that the matter be considered grave, a much greater quantity is required than in theft" (St. Alphonsus, III, 490 under IV; St. Thomas, II-II, q. 185, a. 7). Under the name of the poor come "not only those begging door to door, but also those who otherwise cannot preserve their state; likewise blood-relatives, if they are truly poor, so that otherwise they cannot sustain their own state... But these needy blood-relatives the cleric can prefer to other poor persons, even those more gravely in need. The reason is that... the support of needy relatives pertains also to preserving the cleric's own state, since their poverty redounds to his own disgrace" (St. Alphonsus, III, 491, question 2).

b) It is disputed whether the obligation extends itself to stole fees which constitute the endowment of the benefice. It seems one must answer affirmatively, because on the one hand the law counts them among beneficial goods, and on the other hand, as regards the obligation imposed concerning them, it does not distinguish, or no longer distinguishes.

c) It is further disputed whether the obligation explained is an obligation of justice or of another virtue. If it is an obligation of justice, a cleric who, for example, has squandered things superfluous from beneficial goods, is bound to restitution. Moreover, a sufficiently probable opinion denies an obligation of commutative justice, because, as is deservedly deduced from canons 729, 2°, 1475, and 2403, the beneficiary makes the fruits of the benefice his own, provided he is not deprived of them as a penalty for delict or negligence (St. Thomas, Quodlibet 6, q. 7, a. 12, ad 3; II-II, q. 185, a. 7; St. Alphonsus, III, 492; IV, 183).

I. Notion of a moral person. A moral person is a subject of right distinct from a physical person; it is also called a juridic person (cf. can. 99).¹

¹ Cf. Code of Canon Law, can. 99 sq.; Gillet, La personnalité juridique en droit ecclésiastique.

II. Division of moral persons. Moral persons are distinguished into collegial and non-collegial moral persons (can. 99). That is, several physical persons can constitute one whole, which is distinguished from those constituting it, and as such is ordered to a determined end; and, when the things to be observed have been observed, there is had a moral person, which in Canon Law is called a collegial moral person (can. 99).¹ Likewise certain goods can be destined to a determined end and administered stably; and, when the things to be observed have been observed, there is had a moral person, which in Canon Law is called a non-collegial moral person (can. 99).² I said when the things to be observed have been observed; these will become clearer from the things to be said under III.

¹ In civil law it is called a universitas personarum, or also a moral body.

² In civil law it is called a universitas rerum, or also an institute or foundation.

III. Diverse moral persons. 1. By force of natural law the civil State is a juridic person. Moreover, citizens within the State have the right of constituting juridic persons; nevertheless this does not prevent the State from establishing certain things which regulate both the constitution itself of juridic persons and their norms of acting.

2. By force of divine-positive law the Catholic Church and the Apostolic See have the character of a moral person (can. 100, § 1).

3. By force of ecclesiastical law juridic persons likewise can be constituted and in fact have been constituted. Hence can. 99: In the Church, besides physical persons, there are also moral persons, constituted by public authority. Moreover, they receive the character of a moral person either from the prescription of law itself or from a special concession of the competent ecclesiastical Superior, given by a formal decree for a religious or charitable end (can. 100, § 1). Thus, for example, hospitals, orphanages, and other similar institutes, destined for works of religion or of charity, whether spiritual or temporal, can be erected by the Ordinary of the place and by his decree constituted as a juridic person in the Church (can. 1489, § 1).

The rest, which concerns moral persons within the Church, should be consulted among the Canonists.

Corollary. The civil power and all citizens are bound to recognize as a juridic person both the Church itself and the Apostolic See, and the other juridic persons constituted by Canon Law. Hence a defect of civil recognition cannot be opposed to them without injustice, so that damage inflicted on a juridic person by precisely that means, or a good denied to it by force of that means, must be repaired or compensated.

4. By force of civil law, various moral persons also have been constituted in various kingdoms; but the things which pertain here are to be drawn from the diverse laws. I note this one thing, however: the State, by force of natural law, cannot validly constitute or recognize juridic persons which primarily pursue a sinful end, since a right to evil cannot subsist. Hence, for example, a right of personhood conferred on an association which is destined to promote Neo-Malthusianism is not valid.

I. Notion. Occupation, taken generally, is the apprehension of a thing with the intention of making it one's own; if you add: of a thing which belongs to no one, you have the notion of occupation insofar as it is a mode of acquiring ownership.¹ It is said:

1. Apprehension of a thing; by this is understood an external act by which someone subjects a thing to himself; and this can occur in different ways for different things.

2. Which belongs to no one, that is, of a thing which either has not had an owner up to now, or is destitute of its owner, for example because the owner has abandoned ownership. Note, however, that goods of shipwrecked persons taken from the sea or cast by the waves onto the shores are not things belonging to no one;² nor are the goods of soldiers who have been killed.

¹ Code of one's country.

² Bull In Coena Domini. Civil laws everywhere establish that shipwrecked goods found on the shore are to be handed over to the official constituted for this purpose.

II. Force of occupation. Occupation is a mode of acquiring ownership.¹ For the individual has the right of having private ownership, as was proved in n. 762. But unless you admit that occupation is a mode of acquiring ownership, originally, that is, when things were undivided, that right could not have been exercised by the individual, or private ownership acquired by the individual. For, if occupation as a mode of acquiring ownership is excluded, that right would have had to be exercised through labor. But several things can serve our use which require no labor, or even exclude it, such as animals, metals found on land belonging to no one, and many fruits. But that such things should be excluded from private ownership is asserted irrationally. It remains, therefore, that - if they belong to no one - they are acquired by occupation.

With these things noted generally, we shall speak specifically about the occupation of animals, about found treasure, and about lost things.

¹ Encyclical Quadragesimo anno (Acta Apostolicae Sedis 1931, p. 194).

I. Species of animals. Animals, as they are considered here, are distinguished into tame or domestic animals, animals made tame or tamed or gone wild, and wild or sylvan animals. Tame animals are those which by their nature serve man and therefore are said to lack liberty, such as horses, dogs, hens, and so forth. Animals made tame are those which have been made such by human industry that they serve man and therefore are said to have been deprived of primitive liberty, such as doves in a dovecote. Wild animals are those which are subject neither by nature nor by human industry to man, and therefore, unless they are captured, are said to enjoy full liberty, such as lions, birds, and fish. Therefore:

II. It is explained insofar as animals belong to no one, or become such, and therefore can be occupied. 1. Wild animals established in primitive liberty, or restored to it, belong to no one and therefore can be occupied. I said or restored to it; nevertheless they are not said to have recovered liberty immediately when they are taken away or have escaped, but it is required that they already cannot morally be recovered by the owner.

2. Tame animals have an owner, and remain in the property of the owner however much they wander, provided they are not lost; in that case the principles concerning the occupation of lost things are to be applied.

3. Animals made tame likewise have an owner, and remain in the property of the owner as long as they have not recovered primitive liberty, by which they become things belonging to no one. Hence:

a) Doves remain the owner's as long as they return to the owner's dovecote; and the same seems to be said even if they pass from one dovecote to another and no longer return. The reason is that they have not recovered primitive liberty, and therefore have not become things belonging to no one; but this is required so that they can be occupied by the owner of another dovecote. Nevertheless it must be seen whether custom perhaps permits that another's doves be enticed in certain ways and be able to be considered as one's own by the owner of another dovecote.

The doctrine set forth under a) is rather commonly denied; and, when the contrary opinion is posited, it is asked how far the owner of another dovecote can bring it about that the doves no longer return to the former dovecote. Now he cannot, without injustice, impede them by force, for example by shutting them in; for the owner has a right that no one use force against his thing. But he can arrange his own dovecote more conveniently and provide better food to his doves, permitting, though not intending, that another's doves pass into his dovecote and thus pass into his ownership.

b) A swarm of bees which has flown out from a hive remains the owner's as long as he can easily pursue and recover it, because it is not yet judged to have been restored to primitive liberty. But if he abstains from pursuing the swarm, he is judged to abandon it.

c) Deer and pheasants which the owner keeps in a wood or on an estate cannot be occupied as long as they retain their dwelling there. Understand, however, places not so vast that they rather enjoy natural liberty.

III. Mode of occupying animals belonging to no one. Wild animals established in primitive liberty are occupied: 1° if they are killed, or so wounded or entangled that morally they cannot escape (St. Alphonsus, III, 604); 2° if they are so enclosed by someone - for example by a narrow circuit or pond - that they are judged to be destitute of natural liberty. It is not enough that the wild animal be in your field, or be enclosed by fences so vast that it must be said to enjoy natural liberty, as deer in large forests or pheasants on large estates.

Question. Whether an owner, on whose land another has placed a snare without his consent, can take for himself or free the wild animal caught in that snare.

Response. Per se he cannot take it, because it belongs to the one who placed the snare; nor can he free it, because he would bring it about that another's thing became a thing belonging to no one. Yet he can keep from his land the one who placed the snare without consent; and if he does this, the wild animal can no longer be of use to the one placing the snare. With this posited, the wild animal can be released or taken by the owner of the land at will.

Since rights and duties are correlative—there being a duty that corresponds to every right, and vice versa—and since both are regulated by law, the principles given for the apparent collision of laws can be applied to the apparent collision of rights.

(a) Rights of a higher kind have preference over rights of a lower kind. Therefore, the rights that arise from birth itself, or from the fact that one is a human being (e.g., the right to life), are superior to the rights that are acquired through some condition, such as inheritance or contract (e.g., the right to property, etc.). Example: Titus must get his child, who is in danger of death, to a hospital without delay. Balbus is getting ready for a pleasure ride, but Titus takes his car since there is no other ready means of getting to the hospital. Titus acts within his natural rights, if the car is returned safely and as soon as possible to the owner. According to civil law his act would be technical larceny, but in view of the necessity courts and juries would certainly not insist on the letter of the law.

(b) Inalienable rights (i.e., those which one may not renounce, because they are also duties), such as the right to serve God, the right to live, etc., are superior to alienable rights (i.e., those which one may renounce), such as the right to marry, the right to own property, etc. Example: One may surrender the right to drink intoxicants in order to serve God or preserve one’s life.

Resemblance between Distributive and Commutative Justice.—The general likeness between distributive and commutative justice may be summed up as follows:

(a) they have the same remote matter, since both alike are concerned with external things, persons or works. Thus, things such as goods of fortune may be distributed by the community to its members, or may be exchanged by individuals between them; labors to be performed may be assigned by the community or may be agreed on by private persons through contract;

(b) they have the same general form, since both alike seek to impress equality on the matter with which they deal, by rendering in these things to every one his due, and by making man’s actions towards his neighbor to follow the mean of reason and of the thing (see 1711).

The Special Differences between Distributive and Commutative Justice.—(a) They differ in their proximate matter, that is, in the operations by which use is made of external things, persons or works; for while distributive justice acts through distribution (or division), appointment, or assignment among many, commutative justice acts through exchange, or transfer from one to another between two persons.

(b) They differ in their special form; for distributive justice seeks equality and the golden mean, according to proportion, while commutative justice seeks the same according to quantity (see 1712). Distributive justice does not treat parties as equals, but gives to each one according to his personal worth—to the more deserving the superior positions and high salaries, to the less deserving the inferior positions and lower salaries. Commutative justice, on the other hand, treats the parties as equal, and decrees that debts must be paid and injuries repaired, even though payment or reparation must be made by a good man to a bad man, and that the recompense must equal the difference created between the parties by the debt or the injury.

Three Kinds of Unlawful Possessors.—The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

Obligations of the Possessor in Good Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

The Vices against Commutative Justice.—These vices can be classified under two general heads: (a) the vices committed in involuntary commutations (see 1748), which include deeds against the person (such as homicide, mutilation, imprisonment) and against property (such as theft and rapine), and unjust words, whether spoken during judicial process (by judges, advocates, witnesses, etc.), or outside of judicial process (such as contumely, detraction, etc); (b) vices committed in voluntary commutations (see 1748), which include fraud and usury.

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

The Chief Kinds or Ways of Occupation.—(a) Animals.—Domestic animals (e.g., dogs, cats) may not be occupied, even though they have strayed from their owner; tamed animals (e.g., bees, pigeons, songbirds) may be occupied only when they have recovered their liberty; wild animals (e.g., birds, foxes, fishes, hares, etc., at large) may not be occupied, unless they are kept in a small enclosure from which they cannot escape.

(b) Land and Plants. These may be occupied only when they have no present owner.

(c) Treasure-trove.—This is a deposit of precious movables hidden away so long ago that it is impossible to discover the owner. According to natural law it may be occupied by the finder, but the civil law sometimes decides that the find must be divided with the owner of the place or with the government.

(d) Lost Property.—This embraces those movables which an owner has recently parted with, through accident or forgetfulness, without any intention of giving up his ownership of them, and which are now easily findable, although their owner is not known. The finder is obliged to make reasonable efforts to find the owner. If he neglects to make these efforts, proportionate to the worth of the found article, and is convinced that he might have found the owner, he is considered by some theologians to be a possessor in bad faith and bound to reserve the article for the owner or turn it over to the poor or to pious causes. Having made the effort unsuccessfully, according to natural law, he may use the article as his own. The prescriptions of civil law as to the time interval before he may begin to use the article must be observed.

(e) Abandoned Goods.—According to natural law one may occupy goods voluntarily relinquished by the owner (e.g., an old automobile left by the roadside), but the civil law sometimes awards certain classes of goods (e.g., immovables) to the State.

(f) Vacant Goods.—According to natural law the goods of one who died without heirs may be occupied; but under the civil law they usually devolve to the State, whether they be movables or immovables.

Principles on Accession.—(a) According to natural law, if the two things united are separable, then each owner should be given his own property; but if the things are inseparable and one is more valuable, the owner of the more valuable part keeps all, but compensates the owner of the less valuable part; if the things are inseparable and of equal value, there is joint ownership.

(b) According to positive law, these natural principles are applied to various cases of accession, whether it be natural (as through growth of plants or deposit of land by rivers) or artificial (as through change made in a material by labor, or addition of one substance to another). These details are treated in books on law.

Prescription.—Prescription laws (see 1798) are valid in conscience, since they are determinations about property rights made in the interest of the common welfare. But the following conditions are required for acquisition of property through prescription:

(a) the object of prescription must be a thing prescriptible according to natural and positive law. Thus, natural rights and public property may not be prescribed against;

(b) the subject of prescription must be a person capable of possessing, and he must be honestly convinced that he has a right to what he possesses;

(c) the claim of the subject to the object must rest on possession, on apparent title to the property, and on the lapse of the legal time during which possession has been held or ownership has remained undisputed.

Wills.—A will is a declaration made in legal form (i.e., with the solemnities required by law) of the disposal to be made of one’s property after one’s death. Defects in a will or legacy sometimes operate to take away the moral obligations of observing it.

(a) Thus, if the defect is one of natural law (e.g., a will made under duress), there is no moral right or obligation produced by reason of the gift.

(b) If the defect is of positive law only and makes the will rescindable (e.g., a will not subscribed, as by law required, in presence of the testator), the gift is good in conscience until adverse decision of court.

(c) If the defect is of positive law only and makes the will ipso facto invalid (e.g., a legatee acts as witness to a will), the gift is good in conscience, if there is question of pious causes, since property donated to God may not be alienated by human laws. But the Church desires civil formalities to be observed in the making of wills (Canon 1513).

(d) If the defect is positive and ipso facto invalidating, and there is question of profane causes, the will is not good in conscience, even before declaration of court.

Cessation of Obligation.—The obligation of a contract ceases in various ways: (a) by action of the contractants, as when a promisee renounces his right, or each of the parties to a promise has made a gratuitous promise in favor of the other and one refuses to keep his word; (b) by action of law, for example, by prescription, by annulment; (c) by impossibility, as when a thing freely promised has become unlawful or useless, or when the donee of a gift mortis causae dies before the donor.

Unauthorized Use of Another’s Funds.—What is the guilt of one who uses for his own purposes the money of another entrusted to him for other purposes?

(a) There is no theft, for it is supposed that the purpose of the user is to make only a temporary loan of the money.

(b) There is an act of injustice, if the permission of the owner cannot be presumed; for the rights of an owner are violated when one converts his property to uses displeasing to him. Thus, if the prospect is that the owner may never get his money back or that he will lose profits by the use made of it, the guilt of unjust damage is incurred, at least in intention (e.g., a depositary uses a deposit to buy stocks on margin, or a company official makes an unauthorized loan instead of investing the amount for the company’s benefit).

(c) There is no sin, if the permission of the owner can be reasonably presumed; for to him who willingly consents no injury is done. Thus, if one who is managing the funds of another has the chance to make a large amount of money today by using those funds for himself but cannot get in touch with the owner, the latter’s consent can be presumed, if he will suffer no present loss and it is absolutely certain that his funds will be returned tomorrow. But on account of the risk that is ordinarily present, this case would be rare.

Conditions for Lawful Occupation of the Goods of Others in Extreme Need.—(a) The occupation must be necessary for securing one’s own or another’s natural right to some supreme good, such as life or what is almost the equivalent of life (e.g., freedom from cruel restraint, escape from fearful disease). A supreme good is at stake, then, when one is in extreme, quasi-extreme, or most grave need (see 1236), that is, exposed to the certain or very probable peril of losing life, limbs, liberty, sight, chastity, etc.; occupation is necessary when there is no other way (e.g., by begging) to avert the danger.

(b) The occupation must be made without detriment to the rights of others. Hence, one may not occupy more than is really necessary to escape the danger; one may not occupy at all if the owner is situated in an equal danger (e.g., one may not take the plank from a man in danger of drowning in order to save oneself); one may not retain the thing taken, if the danger has passed (e.g., one who commandeered his neighbor’s car in order to escape from a thug must return the car). The neglect to ask permission, however, does not exceed a venial sin and does not impose the duty of restitution, if there is a real reason for occupation. One may not take the goods without permission, if this can be obtained without too much difficulty; nor forcibly, if possession can be had peaceably.

Negative Duties of Clerics.—The negative duties of clerics are the avoidance of certain acts, occupations, or amusements forbidden as worldly, undignified, dangerous, distracting or scandalous (I Thess., v. 22; II Tim., ii. 4).

(a) Forbidden Acts.—A cleric may not go surety without permission, lest he or his church be involved in scandalous embarrassments (Canon 137); nor engage in trade, lest he be distracted from his spiritual duties and exposed to the danger or suspicion of injustice or greed (Canon 142; for penalty attached see Decree of the Sacred Congregation of the Council, AAS, 42-33D).

(b) Forbidden Occupations.—These include, first, employments and pursuits unbecoming to clerics (such as those of butcher, actor, innkeeper); next, those that are incompatible with the ministry (such as the practice for profit of the medical profession, public magistracies, government jobs, civil court functions, legislative offices, Canon 139); finally, those that are contrary to the mildness that should distinguish clerics (viz, the occupation of fighting man or soldier, Canon 141; see also Canon 984 on executioners). But exceptions may be made for a just cause.

(c) Forbidden Amusements.—Clerics should not take part in undignified diversions or cruel sports, such as the hunting of big game with great uproar of dogs and guns (Canon 138) or in gambling, and they should not enter saloons or similar places (Canon 138). Clerics are also forbidden to assist at unbecoming shows, performances, dances, or at any theatrical entertainment where their presence gives scandal (Canon 140). To gamble much (say, several times a week and for a considerable time at each game) is considered a serious matter; but it is not sinful to indulge in a game of chance now and then, if the stakes are moderate and there is no scandal.

537. • Principles. I. Man has useful dominion of the goods which are intrinsic to him, namely of soul and body. Therefore he can, without injury to anyone, use them for his own utility, and for every use not prohibited by law.

Yet he does not have direct dominion of these goods. This is established from Sacred Scripture; thus Wisd. 16. 13: "You are, O Lord, who have power of life and death." - Likewise Deut. 32. 39: "I shall kill, and I shall make alive." - It is also established from natural law, as we said where treating of the fifth precept of the Decalogue, n. 389 and following.

538. • II. Man can have useful and direct dominion in external goods of fortune legitimately acquired. This is established, 1. as to useful dominion, because on the one hand these goods are of themselves apt for promoting the preservation or utility of man, and on the other hand the use of them is not opposed to divine and human right; indeed God Himself permitted at least the utility of the aforesaid goods by these words, Gen. 1. 28: "Have dominion over the fishes of the sea and the birds of the air," etc. - And Ps. 8. 8: "You have subjected all things under his feet." - It is established, 2. as to direct dominion, because the faculty of applying goods of fortune to one's own uses is restricted by no right; indeed it is expressly permitted by human right, as is clear from the various laws concerning the right of possessing, and by divine right in the words cited: "Have dominion," etc.

539. • Questions. Q. 1. Whether man has dominion of his own reputation?

Resp. Affirmatively, according to the common opinion; for even concerning reputation there belong to man the primary acts of dominion, such as to acquire it by labor, to condone restitution of it, etc. Therefore... Yet prudence requires that he not squander it without just reason, and sometimes he is bound under grave sin to preserve it carefully by reason of scandal, of removing harm to the family, etc. - St. Lig., lib. 3, n. 983. - Billuart, diss. 3, art. 2.

Q. 2. Whether man can have dominion over another man?

Resp. 1. Negatively, as to dominion of property; for that belongs to God alone, as is established from what has been said, n. 522.

Resp. 2. Affirmatively, as to useful dominion, or the works of man. The reason is that any man is master of his own work, and therefore he can alienate it for his own utility and hand it over into the dominion of another. For a master can dispose at will of the object of his dominion.

Hence 1. by natural right a man can even sell himself to another forever as to useful dominion. For if he can confer upon another the useful dominion of himself for some time, he can do the same forever, since he can yield whatever he has. 2. Per se servitude is not repugnant to the law of nature, or the state of perpetual subjection by which someone, in exchange for food, is bound to furnish all his works to another.

540. • Q. 3. From what titles can servitude be introduced?

Resp. From the four following titles: 1. 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. - 2. From the right of war. For it is not repugnant that the victor should sometimes inflict this punishment. For sometimes he could kill captives for the security of the nation; therefore, a fortiori, reduce them to servitude. - 3. From an offense, or from just condemnation. For if a guilty person can be condemned to death, a fortiori to servitude, since deprivation of life is deservedly considered the greatest of all punishments. - 4. From birth in a state of servitude, since by law they are slaves who are born of slaves. Thus according to the law of nations, in accordance with the common opinion. - Lugo, disp. 6, n. 11 and 17.

541. • Q. 4. Whether the trade in Negroes is lawful?

Resp. 1. It is altogether unlawful by every right, as often as Negroes are unjustly despoiled of liberty, and are transported in bands from their own regions as cheap cattle, and are sold, as happens in their nefarious trade (Traites des Nègres). Against so monstrous a trade there have come forth various Apostolic Constitutions, namely of Paul III, Urban VIII, Benedict XIV, and lately Gregory XVI, in the Constitution In supremo apostolatus, December 3, 1839, as may be seen in the public sheet called Ami de la Religion, tom. 103, n. 3219.

Resp. 2. But if it is a matter of Black persons or others existing in legitimate servitude, it is not per se absolutely unlawful, because once servitude has been admitted as legitimate, the master has a true right in slaves, or in their works, and therefore is able to transmit it to others. I said, per se; for circumstances can stand in the way, for example, if a spouse would have to be separated from a spouse, or if civil laws forbid it, just as in reality servitude is generally interdicted in Europe.

596. • Definition. Servitude, passively taken, is a burden imposed on a thing for the utility of another. - But actively taken, it is a right which someone has in another's thing, so that it may serve him ¹ or his thing.

¹ By this word "him," perhaps the Author indicates the broader range to which the name of servitude extends among the Doctors. For they take the name of servitude passively indeed for an obligation by which a thing or person is so bound to another that it serves him in some way; but actively for a right which inheres in someone, so that another's thing or another person may serve him.

Hence comes the distinction, concerning which the Author says nothing, according to which servitude can be 1. personal, which is owed by person to person, and is proper to a slave toward his master; 2. mixed, which is owed by a thing to a person, such as use, usufruct, habitation; 3. real, which is owed by a thing to a thing, and is customarily defined passively indeed as a burden imposed on an estate for the utility of another estate; but actively as a right inhering in an estate, so that another may serve it. And concerning this last alone both the Author and others are accustomed to treat in this place.

Division. 1. By reason of origin, servitude is either natural, legal, or conventional, according as it arises either from the disposition of places, or from law, or from mere agreement.

2. By reason of object, it is urban or rural, according as it is instituted for the utility of an urban or rural estate.

3. By reason of mode, it is continuous or not continuous, according as it can endure without the deed of man, as is the servitude of an aqueduct, or cannot be exercised without it, for example, the servitude of a path. Again it is apparent or non-apparent, according as it is openly declared by an exterior sign, for example, a door, window, etc., or lacks such a sign, as is, for example, the prohibition of building in some place, etc.

597. • Questions. Q. 1. What are the rights and obligations of servitudes?

Resp. Generally speaking, these depend on the nature of the thing, or on law, or on agreement; but these are chiefly established. 1. He who actively has a right to the servitude can perform all works which are necessary for using it and for preserving it. 2. If the estate for whose utility the servitude was constituted is divided, this servitude is owed to each part of that estate. 3. The owner of the servient estate can do nothing from which the use of the servitude could be diminished; and conversely he to whom the servitude is owed can do nothing whence the condition of the servient estate may become more burdensome. Thus natural equity bears, to which the laws also are consonant.

Q. 2. How are servitudes extinguished?

Resp. 1. By the established time having elapsed, or by the condition having been fulfilled; 2. by express or tacit renunciation; 3. by consolidation, by which the owner of the dominant estate becomes at the same time owner of the servient estate, or vice versa; 4. by prescription, or by non-use of the right of servitude for at least 30 years. Nay, since servitudes have the character of immovables, they can be prescribed through the space of time which is observed in prescribing these.

598. • Resolutions. 1. If it is a matter of natural servitudes, or of servitudes which follow from the natural disposition of places, the owner of the lower estate cannot construct a dike so that the waters of the higher estate no longer flow down through his land; just as neither can the owner of the higher estate do anything so that the flow of the waters be unusually increased.

2. For acquiring by prescription a right of servitude, for example, a right of way, aqueduct, etc., through another's land, the one prescribing must exercise positive acts by which he may acquire such a right, and at the same time have good faith by which he believes that that right pertains 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.

3. Those who possess fields at the banks of navigable rivers cannot stand in the way of a road necessary for the course of ships being opened. The same must be said of those whose estates lie beside roads or other public works; for they are held to suffer the servitude so long as it is necessary for the making or repairing of the aforesaid works. But in both cases the injured proprietors have a right to some indemnity, if this can be done.

4. The owner of the servient estate cannot change the position, for example, of the road, waters, or little stream, unless the servitude has become more burdensome, or impedes repairs useful to the estate from being made.

Can there be an invincibly erroneous conscience concerning the precepts of natural law? - "It is certain that in the first principles of natural law, as also in the proximate conclusions and certain obligations of one's own state, invincible ignorance is not given, because by the very light of nature such things are known to all, except to him who closes his eyes lest he see them.... On the contrary, however, the unanimous opinion of theologians is... that in mediated and obscure conclusions, or those remote from the principles, invincible ignorance is indeed given and must be admitted." L. 1. 1. n. 8. 170 seq.; Struggl tr. 3. q. 1. n. 10-13; S. Th. Quodl. 3. a. 36, De Verit. q. 17. a. 2; De Malo q. 3. a. 8; Rom. 2:14. 15. In the first principles of natural law, for example: good is to be done, evil avoided; the highest good is to be loved, evil detested; what you do not wish for yourself, do not do to another; thanks are to be given to benefactors, etc. In proximate conclusions, for example: God is to be worshiped, parents are to be honored, theft is not to be committed, etc. In remote conclusions, for example: private revenge is not to be exercised, abortion is not to be procured, etc. Eternal law, existing in the divine mind, most perfectly exhibits the order of things. Natural law, which is the application of eternal law, exists in the human mind. Therefore natural law, by the very fact that it is manifested through human reason, falls short of the highest perfection of eternal law.

Hence it happens that not always what we think and judge, in more difficult matters, corresponds to the rules of the divine mind, and remains obscure and unknown to us. Whence that thing, although materially and in itself it pertains to natural law, nevertheless does not pertain formally and as regards us, since it has not been sufficiently promulgated to us by the natural light. - Wirceburg. De Actib. hum. c. 1. a. 3.

Note: An exception, and a true and illogical exception of probabilism, is the limitation which some probabilists and equiprobabilists add to probabilism from the principle of possession: In doubt the condition of the possessor is better. Therefore, they say, a doubtful law, in doubt about the existence of the law, does not indeed oblige, because liberty possesses. But a doubtful law in doubt about its cessation obliges, because the law possesses. Hence if it is probable that you did not emit a vow, you are not bound by the vow. If you certainly emitted a vow, and it is probable that you satisfied it, you are still bound to satisfaction.

But thus to admit probabilism halfway concerning the existence of the law, and not concerning the cessation of the law, is to admit the principles and deny the conclusions. If a doubtful law does not oblige, precisely because it is doubtful, whenever it is doubtful it will not oblige. Now the law is as doubtful in doubt about its existence, namely about its first existence, as it is doubtful in doubt about its cessation; for if its cessation is probable, by that very fact the existence itself of the law becomes doubtful. But the law obliging is not a law which existed, but one which exists; nor is it the law which exists in the abstract, but one which binds us in the present by its certain obligation.

But if a probable opinion is had concerning the cessation of the law, however that may be understood, its obligation becomes doubtful, and its existence likewise becomes doubtful; namely again, not the very existence itself of the law in the abstract, but its force of obliging in the concrete, in the particular case, here and now. L. 1. 1. n. 63. 78. And thus, although it is certain that a vow was emitted and at some time existed, if you probably satisfied it, that certain vow, insofar as it once existed, becomes doubtful insofar as it binds you here and now; and that saying has force: A doubtful law does not oblige.

Possession indeed constitutes a prevailing right insofar as he who possesses is shown by possession itself, or at least is presumed, to be the owner of the thing which he possesses. But how can that be either demonstrated or reasonably presumed when the opposite is established by true or grave probability? For then it is established by true and grave probability that the possession is not legitimate, which alone can constitute a prevailing right. For if the fact alone of possession, without legitimate title, at least reasonably presumed, constituted that prevailing right, then all thieves and robbers could retain another's property by the prevailing right of possession. Cf. 157. 4; Troplong, Della Prescrizione c. 2 del Possesso a. 2228; D'Annib. ed. 4. p. 1. n. 260. 268.

The material fact itself of possession by no means constitutes a prevailing right in the internal forum, as regards the very right of dominion and ownership of the thing, but only as regards proof in the external forum, which must be instituted by the plaintiff against the possessor, because of the aforesaid presumption of dominion. But presumption yields to truth. Hence if someone has possessed in bad faith, even for a very long time, he must restore the thing even spontaneously and without proof or petition by the plaintiff. D'Annibale himself, who ed. 4. p. 1. n. 264 seq. follows the rule of possession, asserts n. 256 note 5: "Justice forbids giving damage to him who is in certain possession of his right....

I said, who is in certain possession of his right; for if the right of another is uncertain, either the condition of the possessor will be better, or at least because no certain right of another is violated, there will be no obligation of restitution." Behold how D'Annib. himself requires certain and legitimate possession, so that it really constitutes a prevailing right. And the same D'Annib. l. c. n. 259 note 18 also asserts: "Namely, certainty against true probability is not given." How therefore will the obligation of the law be certain, if it is probable that that obligation already ceased long ago?

See also ibid. n. 169. 181. 203. - Cf. 143. S. Alph. l. 3. n. 112 par. Secundo says: "When it is probable that the obligation of the law never began, or that it has been abolished, then the presumption in favor of the law ceases, and liberty possesses." Behold, the limitation of probabilism through the principle of possession is finished; and from S. D. also, it has no value except from presumption. S. D. joins indifferently the two cases, that the law never began, or that it has been abolished, and when each is probable, from S. D. the obligation of the law is not present. - Likewise n. 290 he says that probable custom suffices for excusing from the law. Behold again, no account is taken by S. D. of possession of the law.

And then, distinguishing well altogether between doubt and probability, he says: "that in doubt about custom the precept possesses, whence a dispensation must be sought; otherwise, if it is probable that custom is present." Cf. L. 1. 3. n. 325, par. Infirmi, n. 483, l. 4. n. 47. Besides, D'Annibale asserts the law of possession in a threefold case, namely in doubt 1. whether it receives a restrictive interpretation, 2. whether it is just, 3. whether it has ceased. P. 1. n. 262. And in the preceding n. 261 note 30 and n. 263 note 1, he affirms that S. Alphonsus perpetually used this rule of possession. - Now D'Annibale himself, cited n. 262 note 35, says: "except the 2nd case, in which all agree, Cf. here 157, in the others even those who seem to profess it depart from our rule."

And among these he expressly cites and reports only S. Alphonsus! And while the praised author notes this against Probabilism, that it must use exceptions which his rule of possession does not need, l. c. n. 266, he then candidly admits that his rule is not perpetual, and that it fails in several cases which he enumerates, l. c. n. 269 note 30. - But the alleged exceptions of Probabilism, namely when the question concerns not only the honorableness of an action, but an end to be obtained absolutely and the objective truth of the thing, l. c. n. 266, 256 note 5, are not really exceptions.

Cf. here 120. What he likewise says, l. c. n. 267, that the probabilist is forced to give contradictory responses, is in no way true. Cf. here 128. And it is certainly surprising that the learned theologian found a contradiction, cited n. 267, as regards that same case in which he himself had expressly affirmed a little before, namely n. 263, that it is licit to follow each of two contrary probable opinions. - Finally he asserts n. 264 that that rule of possession enjoys a better right, and n. 269 that it is better than the others not only as to the truth of the thing, but also as to practice; but in the following n. 270, immediately afterward, he affirms that it is licit to follow opinions truly and gravely probable; and n. 263, after he has set forth the various systems and also established his own rule n. 262, he says, let it be licit for each one to choose what pleases him more.

Perhaps to avert contradiction it can be said that the illustrious D'Annibale regarded that rule of possession not for the case of true probability, but for the case of doubt, which he seems sufficiently to suggest n. 269; and thus it is altogether true that theologians most commonly teach that rule, n. 268, and in this sense we also admit it and diligently explain it. Cf. here 143 seq. And certainly that rule is stated in doubt.

In doubt the condition of the possessor is better. C. 6 de Praescript. This axiom in the external forum, both ecclesiastical and civil, has been received as a certain rule of judgments. For it is to be presumed that he who possesses a thing possesses it by right, unless the contrary is clear. The same certainly has force in the internal forum of conscience. For certain and legitimate possession produces moral certainty concerning the dominion of the thing, L. 1. 1. n. 35, l. 4. 210, l. 6. n. 905. 927; and the reason is that, given human customs, no one is, morally speaking, negligent; indeed on the contrary all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. 1. 1. n. 26. Now some say that this axiom has force only in the matter of justice. "Yet I," says S. Alph. l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer opinion. The reason for this extension also to other matters, with due proportion, is the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his own. But man naturally, and therefore certainly and altogether legitimately, possesses his liberty, which certainly is some good and right of his own. Therefore this good also pertains to justice, and he who unjustly either takes it away or weakens it violates justice. Without injustice a free man cannot be subjected to servitude. But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except a free man? Whence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28. § 2 Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3. d. 12. s. 5. n. 8; Lugo De Iust. et Iur. d. 17. n. 87, d. 23. n. 110. In doubt: that is, in negative doubt, and the reason of the axiom is then clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. Cf. Lugo De Iust. et Iur. 23. n. 110. But in positive doubt, or probability, if probability is present on each side, so that on one side possession and probability of right stand, and on the other only equal or almost equal contrary probability of right, the condition of the possessor is again better, as is clear of itself. But if on one side indeed possession stands, but on the other contrary probability of right; or on one side possession and at the same time probability of right, and on the other far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. Indeed the first opinion holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of the Law in the Sixth has it thus: "In equal fault, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor ought to be held stronger." But the second opinion holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each a certain right of retaining the thing, until the right of another is not established, as they say most commonly... a certain right, which cannot be overcome except by the certain right of another through certain convincing reasons." For possession is defined: the right of insisting in a thing not prohibited to be possessed. L. 1. 1. n. 36; Ithur. Cas. 1. n. 2. Cf. L. 1. 3. n. 547. 562. 711, etc.

Therefore the possession about which the present saying speaks is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith, and likewise begun and continued by a just title, at least apparent, or at least thought to exist, or presumed, such as, for example, donation, purchase, inheritance, and similar things, through which ownership of some thing is usually acquired. Therefore if possession is doubtful, or begun with doubtful faith, or by a doubtful title, it by itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. 1. 1. n. 36. 47, l. 4. n. 210.

Probability of right, which can be only on one side or on each side, is the probability of a real just title, or of one actually existing, from which true and real dominion and ownership of the thing arise. For for legitimate possession, about which the axiom speaks, it suffices that the just title at least appears, because, for example, a donation or purchase intervened from him who was thought to be owner, although he was not; or at least was thought to exist, because the action signified by the title is thought to have intervened, although it did not intervene, as happens when someone thinks that the thing was given to him or bought by him, and nevertheless this was not done; or at least presumed, because, for example, because of length of time in peaceful possession or other circumstances, it is prudently thought that some title intervened, although the possessor cannot allege any determinate one. Therefore this probability of right, as is clear, is altogether outside possession itself, which only gives the right of insisting in the thing, or of holding it, although perhaps its dominion and ownership does not belong to you, since a just title was not really present. Now the probability of a real just title, or of one actually existing, can be in two ways: 1. Probability of the justice of the title for beginning or continuing possession and ownership of the thing, for example, a testament lacking legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of donation, when it is also probable that the thing was taken by theft. The former probability is called of right; the latter is called of fact. Where this latter is treated, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since laws never permit the accused to be condemned unless the crime or debt is fully proved; but it is not proved fully and sufficiently for a sentence when, although two or three witnesses testify, nevertheless other witnesses testify the contrary; for through these the testimony of the former is destroyed or diminished, and therefore the sufficient proof required for full proof and condemnation does not remain." Lugo De Iust. et Iure d. 16. n. 100. Cf. also d. 23. n. 100, d. 16. n. 34. 96. 99.

Who generally can make laws? - Since God is Lord of all, and has ordered obedience to superiors not only ecclesiastical but also civil, not only he himself, but they also can make laws. L. 140. Hence several laws are distinguished:

Eternal law, which is: The eternal reason and will of God commanding the natural order to be preserved and forbidding it to be disturbed. S. Aug. l. 22 Contra Faustum c. 27. It is the beginning and foundation of every law; for from it flows natural law, and from natural law the remaining laws take their force and norm. Cf. S. Th. 1. 2. q. 91. a. 1, q. 93, q. 95 a. 2, q. 96. a. 4; Wirceburg. De Legib. c. 1. a. 2.

Natural law, which is the eternal law of God promulgated to men through right reason, by which we discern what is good and what evil, the good to be done and evil to be avoided. Therefore the object of this law is that which is per se and intrinsically good or evil. In it are distinguished the first principles of morals, immediate conclusions, and mediated conclusions. Cf. S. Th. 1. 2. q. 91. a. 2. 6, q. 94; L. 102; Wirceburg. l. c. a. 3. 4. 6.

Divine law, which is law given by God through revelation. It is twofold; for one is contained in the Old Testament, the other in the New Testament. The Old Testament contained ceremonial, judicial, and moral precepts. Only the moral precepts remain to be observed today, the rest having been abrogated by the New Law. Matt. 19:17; 1 Cor. 7:19. The New Testament, besides counsels, contains precepts of catholic faith, morals, sacraments, sacrifice, and ecclesiastical hierarchy. The moral precepts are those very things which stand by natural right, and the law of the unity and indissolubility of marriage is that which, enacted from the beginning of the world, was confirmed by Christ. Matt. 19:4 seq. Cf. S. Th. 1. 2. q. 91. a. 4. 5, q. 98-108; L. 103. - The legal precepts of the Old Testament, or ceremonies, sacred things, sacrifices, sacraments of the Mosaic Law, all ceased after the Gospel was promulgated, nor can they be observed without sin. Eugene IV, B. Cantate Domino. - Wirceburg. l. c. c. 2.

Canon and civil law. The former is from ecclesiastical power, and it touches those things in the Church which regard the salvation of souls. The latter is from civil power, and moderates rights and obligations between citizens and citizens; between citizens and society and its Prince; between nation and nation. Whence private, public, and international or law of nations arises. C. 1. 13 de Const., C. 2 e. t. in 6; Inst. l. 1. t. 1. 2, l. 2. t. 1. § 11; L. 2 de Origine Iuris etc. §§; S. Th. 1. 2. q. 91. a. 3, q. 95, 2. 2. q. 57; Wirceburg. l. c. c. 3; E. M.

But the law of nations can be taken otherwise, namely insofar as it is distinguished from civil law. Appositely S. Th. 1. 2. q. 95. a. 4 says: "It belongs to the notion of human law that it be derived from the law of nature, and according to this positive law is divided into the law of nations and civil law. For to the law of nations pertain those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this kind, without which men cannot live together with one another; which is of the law of nature, because man is naturally a sociable animal. But those things which are derived from the law of nature by way of particular determination (of certain common things, a. 2) pertain to civil law, according as any city determines something suitably to itself." And thus likewise that one must not kill pertains to the law of nations; for it is derived as a conclusion from the fact that evil must be done to no one. To punish the criminal with such or such a penalty pertains to civil law; for it is a determination of the common law of nature, that he who sins be punished. S. Th. ib. a. 2. "And therefore Caius the jurist says, L. 9 ff. De Iust. et iure: What natural reason has constituted among all men, that is preserved equally among all, and is called the law of nations." S. Th. 2. 2. q. 57. a. 3. Hence the law of nations embraces not only those things which are imposed by the very necessity of nature, as the division of goods, but also those things which flow from a certain highest suitability of nature, and which therefore are preserved by all through use and custom, by a certain implicit compact, or, when doubts arise, by an explicit compact, such as to enter a foreign region, unless danger arises from it for that region; free navigation of every sea; mutual commerce among peoples; transmission of letters; abolition of servitude, etc. - But positive law more determinately defining the various relations to be observed among nations will be able better to be called international law.

180 bis. Note: Natural law is altogether immutable, since it regards those things which by their nature are good and by their nature are evil. Against this immutability, as is clear, certain things permitted by God have no force, which because of peculiar circumstances were no longer opposed to the right order, as, for example, polygamy permitted to the patriarchs, dissolution of marriage, etc.; or were not opposed to that order because the matter is subject to divine dominion, as theft once permitted to the Hebrews. But change is not had as regards the precepts of natural law which are called primary, without which the order of things cannot exist, as, for example, the honor due to God, subjection in man of the lower part to the higher, etc.; but only as regards those precepts which are called secondary, and which regard not the very being of the order, but the perfection of the order, as, for example, the marriage of brothers and sisters permitted to the first parents. - S. Th. 1. 2. q. 100. a. 5; Wirceburg. De Legib. c. 1. a. 5.

Canon Law: The collection of canonical laws constitutes Canon Law. Yet some canonical laws are contained in the Corpus Iuris, others are outside it. The Corpus Iuris contains three Parts. The first part contains the Decree of Gratian, a Benedictine monk, around the year 1150, in which, in a threefold part, under the title on Distinctions, on Causes, on Consecration, there is treated successively of ecclesiastical persons, ecclesiastical judgments, and sacred things. This collection is not authentic; therefore the individual texts have and retain their force from themselves, not from the collection. The second part contains the Decretals by S. Raymond of Pennafort, of the Order of Preachers, in the year 1234, in which likewise, in five books, there is treated successively of persons, judgments, things, marriage, and penalties. This collection, completed and published by order of Gregory IX, is authentic, and therefore the laws contained in it have the force of universal laws from the very fact of insertion into it. The third part contains the sixth book of the Decretals, so called because it was added to the five books of the Decretals of Gregory IX. It was published by the authority of Boniface VIII in 1298; therefore the collection is authentic, and proceeds in the same order as the Decretals of Gregory. This third part also contains the Clementines and Extravagantes. The Clementines are so called from Clement V, who after the Council of Vienne, over which he himself presided in 1311, ordered the Constitutions issued by himself and by the same Council of Vienne to be collected. Therefore this too is an authentic Collection. It is divided into five books. This same third part contains the Extravagantes of John XXII and the Common Extravagantes. The former are constitutions issued in the earlier years of the pontificate of the aforesaid Pontiff. The latter are other Constitutions issued by John XXII and by other Pontiffs, divided into five books. Although all those Constitutions are genuine, nevertheless they do not constitute an authentic Collection. The other Constitutions that are present, besides these, of the Council of Constance, of Trent, and of the Vatican, and also of the Supreme Pontiffs, issued afterward, were not collected into the Corpus Iuris.

Civil Law: Roman Law is contained in the Corpus of Civil Law issued by order of Justinian in the 6th century. It embraces four parts: the Institutes of Justinian, divided into four books, which are subdivided into titles and paragraphs; the Pandects, which comprehend selected responses of jurists, to which the force of law was attributed, also called the Digest or Digests, because they contain legislation arranged in order, and are divided into fifty books, which are subdivided into titles and laws; the New Code, or repeated lectures, that is, in a second edition or publication, C. Cordi nobis, Nov. 16, 534, which contains twelve books, subdivided into titles and laws, and embraces the constitutions of Princes; the Novels, or Constitutions issued after the Code, which are not all of Justinian himself, and are genuine, although their Collection is not authentic as the three preceding parts are. Modern law is contained in modern Codes, which are divided into books, titles, and articles.

Of how many kinds is vain observance? - There are four species of vain observance, which are distinguished only materially by reason of effects. 1. If certain useless things are observed for acquiring an infusion of knowledge, without other study, and it is called the notory art. It differs from divination because the latter directly regards speculative knowledge; the former directly regards an infusion of knowledge for one's own convenience, but indirectly the knowledge itself. Thus they sin who take a prepared potion, or employ a certain prayer, so that they may immediately become learned. 2. If useless things are observed for obtaining health, and it is called the observance of healths. Thus they sin who use unknown names and certain empty ceremonies for driving away animals; or who carry amulets, wrappings, or something similar for repelling diseases. L. 18; S. Th. 2. 2, q. 178, a. 2. 3. If from consideration of some trifling event it is determined what will be future, and someone thence regulates his actions, and it is called the observance of events. It differs from divination, both because observations of this sort are without any reason and art, whence they are more vain and superstitious, and because they look to directing one's own acts; but divination rather intends speculative knowledge of hidden things. Thus he would sin who refused to sit with thirteen at table as though this were a sign of death, although this for the most part can be excused, since no true faith is given to this matter, but there is a certain simple and empty fear. 4. If the observance concerns bodies to be variously changed and other wondrous or harmful effects to be produced, and it is called magic or malefice. Malefice contains a threefold moral malice against religion, charity, and justice. One malefice is amatory, or a philter; another is poisonous. The former is for exciting carnal love or hatred toward some person, the demon moving the phantasy of the man or the humors of the body, yet doing nothing upon the will; whence it does not induce necessarily to committing sin. But the latter is for inflicting harm upon someone, whether in his goods or in his health.

Job 1:12; S. Th. 2. 2, q. 178, a. 2. But here it must be noted that possession consists in this, that a demon in some way is united to a human body, and works extraordinary things in it and through it. But if the demon does not seem to reside in the body of a man, but only works externally, vexing it in various ways, then there is obsession. It must be noted besides that "power over demons has not been committed to man, so that he could licitly use them for whatever he wished." S. Th. 2. 2, q. 96, a. 2 ad 3. Struggl 28, 41, 42, 43; Suarez, cc. 15, 16; L. 15, 23; S. Th., Quodl. 4, q. 9, a. 16; 2. 2, q. 96.

What is paternal power? - Paternal power is the complex of rights of parents over children, and it arises from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at the same time, positive law defining and determining natural right. For the rights of parents over children flow from natural and civil law. By Natural Law, piety is owed to parents, whether legitimate or illegitimate, namely to father and mother, and it belongs to them equally and perpetually as to love and honor, but not however as to obedience after the son has become major, or has been emancipated. C. I. 220. Besides this, power belongs to parents as to those things which pertain to the spiritual salvation of children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they disagree among themselves, he prevails who consults the salvation of the child. And, when the father has died, if the mother as tutor and the paternal grandmother disagree, the latter will be stronger. Benedict XIV, Ep. Probe te, §§ 20, 21, 23; Ep. Postremo mense, §§ 16, 17; C. Ex litteris 2, de Conv. infid. - The natural power of parents in those things which pertain to the salvation of the soul ends when infancy has passed; in those things which pertain to the choice of state it ends at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it ends by emancipation. But in those things which regard the sustenance of the body and generation of offspring, children are their own masters. And as to entering marriage, they commonly are bound only to seek the counsel of parents. L. 335.

But emancipation is naturally had when the son of the family has already grown sufficiently by age, so that he himself can now be father of a family, and by himself duly consider and oblige himself concerning those things which pertain to his own person and to his exterior goods. C. 11, 12, de Regul.; S. Th. 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2. 2, q. 104, a. 5; S., q. 43, a. 2; q. 58, a. 5; St. Basil the Great, Epist. 276, Migne, vol. 32, col. 1011.

By Common Law paternal power belongs only to the father of the family, and it was per se perpetual. Inst. 1, l. 1, t. 9, §§ 2, 3; t. 12; lib. 1, tit. 6, ff., §§ 3-5, de Patr. pot.; l. 8, t. 46, C.; C. 2, de Convers. infid. But from the More Recent Laws it belongs also to the mother of the family. C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138; C. He. 274. But the mother does not use it as long as the father uses it, to whom it principally belongs. C. I. 46, 220, 230, 331; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. Moreover it belongs over legitimate and natural children, over natural children acknowledged, over natural children acknowledged and legitimated, and at least in some way also over adoptive children. C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Cf. here n. 663.

Paternal power is exercised by the father, and when he has died or is absent, by the mother with equal right. C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684; C. He. 274. Yet a father dying has the right to prescribe to the surviving mother the manner he wishes to be observed in the education of the children and the administration of goods. C. I. 235, 1059. Cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family Council or pupilary Judge to permit or remove guardianship from her. C. I. 237; C. G. 395; C. A. 255. When parents are lacking, and a tutor has not been named, guardianship by law belongs to the paternal grandfather; and, he being lacking, to the maternal grandfather. C. I. 244; C. B. 1776.

Moreover paternal power is exercised partly over the persons, partly over the things of children. C. B. 1627.

Paternal Power is exercised, 1. over persons by the faculty which the father has of retaining the son at home, C. He. 273, unless the son wishes voluntarily to give his name to military service. C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son, C. He. 275; also of barring him from his own house, and even having recourse, where there is need, to the tribunal, and of placing him in another house of education or correction. C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3, de Patr. pot., C. Moreover the son is prohibited without the consent of parents from giving himself into adoption, C. I. 208; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage. C. I. 63; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058, 1061; C. He. 98. But when the mother dissents, the consent of the father suffices. C. I.; C. G., ll. cc.; C. He. 274. Finally the right of appointing a tutor belongs to the last surviving parent. C. I. 242; C. G. 397; C. B. 1777; C. He. 274.

Excepting marriage, which before puberty is null from canon law, as to other acts and contracts sons of a family who are minors are only naturally obligated; and if in due time they do not seek restitution in full, they can also be civilly obligated, and those who contract with them are naturally and civilly obligated. Therefore, if they have entered betrothals, if they have emitted a vow, they are bound by the betrothals and by the vow. If they have donated anything, they transfer dominion to the recipient; and if they themselves receive something as a gift, they licitly acquire and retain dominion. C. I., de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. 1, l. 3, t. 19, § 6; S. Th. 2. 2, q. 88, a. 8; 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo, de Iust., d. 22, nn. 228, 295, 300.

But although a minor validly contracts, from the More Recent Laws he does not contract firmly if various prescriptions of those laws are not observed, and then restitution in full is conceded to them, which also holds in the forum of conscience, since a law of this sort is definitive of right and just; since it is for protecting good morals, for the peace and good of families, and for the common good. C. G. 2012; C. I. 317, 319, 1899.

From C. I. a minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor performed an act by himself without the intervention of the father or his legitimate representative. 2. If an emancipated minor performed by himself an act for which the law requires the assistance of a curator. 3. When the formalities constituted for certain acts by special dispositions of law are not observed. But an action of nullity is not admitted: 1. If the minor by evil art and deceit concealed his condition as a minor. 2. If the matter concerns an obligation arising from delict or quasi-delict. 3. If it is proved that what was paid was turned to the convenience and utility of the minor. C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. a minor is restored because he was harmed, and an action of nullity is admitted if the prescriptions of the law in contracts of minors were not observed. Rescission is not admitted: 1. If the harm happened from a chance event. 2. If a minor exercises commerce or some art, as to contracts entered by reason of his commerce or art. 3. If the matter concerns an obligation flowing from delict or quasi-delict. 4. If it is proved that what was paid went to their convenience and utility. C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, nn. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of law not having been observed, the contract of a minor becomes liable to rescission. But he is not bound to restitution except insofar as he became richer by the thing received. C. H. 317, 420, 1163, 1304, 1764, 1765. From C. A., in general a minor indeed cannot be validly obligated without the consent of the father and the other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and of others given to him for his own use after puberty has been attained. C. A. 151, 152, 244, 246, 248. From C. B., a minor needs the consent of his representative for any declaration of will whatever, unless this procures a juridical advantage for him, or unless the matter concerns things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. C. B. 108 seqq. From C. L. 297 seqq., the acts of a minor are null if they are made without due authority. But they themselves cannot use this nullity as to obligations upon things of their own art or profession, or if they use deceit so that they may be held as majors.

The power of the father is exercised, 2. over the things of children. From common Law the son was at first a thing of the father of the family; whatever he acquired belonged to the father. Afterwards peculium was recognized. Peculium is any good whatever proper to the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired by military service or on the occasion of military service; and this whole thing, in perfect dominion, belongs to the son. Yet one below puberty does not have its administration.

2. Quasi-castrense, acquired by the profession of sciences or liberal arts, or by some civil office, for example, of judge, advocate, physician, teacher, from an ecclesiastical office or benefice; and the perfect dominion of this also belongs to the son. Yet administration belongs to the father if he himself is below puberty.

3. Adventitious, which comes to the son from elsewhere than from paternal goods, and not by regard for the father, for example, what comes to the same son from the mother, from the maternal line, or by regard for the mother, or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of ownership belongs to the son; the usufruct and administration of this peculium belongs to the father as long as he lives. Therefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct ends only by the death of the father, otherwise than is had by More Recent Law.

4. Profectitious, which either is acquired from paternal goods, or has been donated to the son by regard for the father. And this whole thing belongs to the father, in ownership, usufruct, and administration. Inst. 1, l. 2, t. 9, §§ 1, 2; l. 3, t. 29; Lugo, d. 5, n. 23 seqq. The father can dispose of adventitious goods if they are consumable, with the burden however of restitution. If the son trades outside the father's house from goods other than paternal goods, the gain is adventitious. If he labors in the paternal house and is fed by the father, or trades from the father's goods, it is profectitious. "If a son trades with the money of the father, either received as a loan or secretly stolen, at his own risk, so that he seriously determines to preserve the father unharmed in any event whatever, it is certain from the common opinion of all cited by Laymann, l. 3, tr. 4, c. 8, n. 12, that the whole gain pertains to the ownership of the son as adventitious peculium. Why is this? Because although he obtains the whole gain by the money of the father, he obtains it in such a way that the whole gain is derived not from the money of the father, sterile of its own nature, but from the industry of the son, which renders the money fruitful." Ithur., Cas. 3, n. 6; L. 488.

The father of the family and the son of the family are held as one person. Since therefore no one can contract with himself, if they contract, the pact is civilly void. Civilly, for naturally they are mutually obligated and obligate. Inst. 1, l. 3, t. 19, § 6. A son of the family, not even with the father consenting, can make a testament concerning adventitious or profectitious peculium; but he can, even against the father's will, concerning castrense or quasi-castrense peculium. Inst. 1, l. 2, t. 12.

From More Recent Laws, minors are held by law incapable of protecting themselves and their own goods. Hence as to each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100; C. He. 279.

The administration of all goods of minor children is in the hands of the father or mother, or tutor, who must supply the incapacity or lack of skill of the children until they become majors or obtain emancipation. Exceptions must be made, from C. B. 1638; C. L. 147; C. He. 294; C. I. 224, of goods given to the son with exclusion from this administration of the father. Cf. C. L. 146, 147. Majors are altogether free in managing their own affairs, unless in some case the law specially forbids this to them, and therefore they have full administration of their own goods; but emancipated persons have it only limited. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311.

Hence he who exercises paternal power manages the affairs of the son. C. I. 224, 242; C. G. 389; C. A. 149, 152. He, not the son, acts in judgment, enters upon inheritances coming to the son after an inventory has been made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149. But goods, whether immovable or movable, excepting those which cannot be preserved by being preserved or become worse, he cannot alienate, bind by mortgage or pledge, nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility and by decree of the civil tribunal. C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150; C. He. 290, 299, 300.

The father, or mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title. C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685; C. He. 294, unless the goods were left to the son by testament, or given by donation, on this condition, that the usufruct not pertain to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation for undertaking some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted the donation or legacy, or entered upon the inheritance, C. I. 229. Likewise excluded from that usufruct are those things which the son acquired for himself by labor, profession, or separate industry, C. I. 229; C. G. 387; C. B. 1650, 1651, and the goods of the succession of a son as to which parents have been declared unworthy. C. I. 728; C. G. 730.

To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148; C. He. 293. Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also concerning the fruits. Gousset on a. 384, C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. A. 149, 150, 151, 154, all goods, administration excepted, simply pertain to the son; yet the father can deduct the expenses of education from the revenues. From C. H. 161, goods acquired by children from the goods of the same parents simply pertain to the parents. From the same C. H. 160, the usufruct even of those goods which the son acquired by his own labor and industry pertains to the parent exercising paternal power. From C. L. 145, 146, 147, the usufruct of goods which a son of the family acquires by his labor, his industry, his means, or by any other gratuitous title whatever, pertains to the parents, unless they were given with exclusion of this usufruct, or the children acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the father's permission.

Usufruct of this sort ends by the emancipation of the son, or by death, or when minority or legitimate age has been completed; by the widowed father or mother passing to other nuptials; if the father abuses paternal power, either by not caring for the obligations imposed or by administering goods badly, with a sentence of the tribunal added; and likewise it ceases with respect to the spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 172; C. B. 1666, 1673, 1679, 1680; C. He. 297 seqq. From C. B. 1661, 1662, usufruct also has an end by the marriage of the son, and by renunciation of the father. From C. G. 384, 386, usufruct is conceded to the father, and after he has died to the mother remaining unmarried, up to the eighteenth year of the children, or their emancipation. Cf. C. L. 149; C. He. 274, 292.

But when the son has become a major, those things which have been done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And if meanwhile a conflict arises as to goods between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 1304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153; L. 488, 543, 544; Gousset 682; C. He. 283, 284, 297 seqq.

Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; C. He. 274; by adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252. But a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; C. He. 14, otherwise from C. A. 175. Emancipation is a legitimate act by which a father dismisses his minor son from his power, so that he is made his own master. Emancipation cannot be made before the completed eighteenth year, C. I. 311; C. He. 15. It is dissolved besides by majority of age, C. I. 220;

C. G. 372; C. A. 172; C. L. 170. Cf. here 664. From C. B. 386, which does not admit emancipation, declaration of majority can be had in the eighteenth year of age. It is likewise dissolved if the father abuses paternal power, with a sentence for the crime added. C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. If the mother survives, she does not simply lose it, although she passes to other nuptials. Yet in this case, from C. I. 237, she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq.; C. He. 286. When parents are interdicted, insane, or mad, their paternal power remains suspended. C. I. 220, 229 seqq.; C. A. 179; C. B. 1676 seqq.

When paternal power has been dissolved, the son of the family becomes his own master. But whether he is his own master or is still subject to paternal power, the father of the family can usefully contract with him, and from the eighteenth year of age he can make a testament. C. I. 763, 1107; C. A. 271, 596; at the sixteenth year, but in a limited way, from C. G. 903, 904. Inst. 1, l. 1, t. 12.

Is a son judged to renounce the usufruct to which he has a right, if, with him seeing and silent, the father receives this usufruct? - R. Negatively, at least speaking generally. The reason is that silence would be equivalent to renunciation only insofar as the son could easily protest. Now reverential fear for the most part stands in the way of his being able to do this easily. From C. I. 234, if, after usufruct has ceased, the parents still continue to receive it, with the son staying with them, and without the condition of rendering an account having been established, the parents or their heirs are bound only to the fruits existing from the day on which they are demanded.

What are the rights and obligations of spouses concerning goods? - If Natural Law is considered, marital society does not prevent both husband and wife from retaining ownership, usufruct, and administration even of goods which they had before marriage, and which they acquire during marriage. Yet they must concur for expenses necessarily to be sustained on account of common burdens. Moreover, it is fitting that the husband either have the whole administration of goods, or certainly assist the wife as much as is necessary for supplying her weakness.

But if positive Law is considered, the husband's power in this matter is broader. Hence by positive Law various goods of the wife are distinguished. S. Th. 2. 2, q. 57, a. 4.

Some goods of the wife are dotal, whose fruits the husband enjoys for sustaining the burdens of marriage; others are paraphernal, namely beyond the dowry, which the wife has beyond the dowry, and which she specially reserves to herself; others are common, which by pacts of the spouses or by determination of law are brought into a certain society. Before entering marriage, spouses can determine under what conditions their goods are to be subjected, with certain statutes of the law observed. If they have omitted to do this, the law will supply.

From Roman Law: The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all personal creditors of the husband, and even during life she can juridically seek the dowry again if she fears lest the husband become unable to restore it. If the dowry consists in money, or in other things consumable by use, or in appraised things handed over, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion being transferred for the wife into all goods of the husband according to the rate or quota of her dowry. The wife has full dominion and administration of paraphernal goods, so that concerning these the husband, with her unwilling, can dispose of nothing. Hence as to these she in no way depends upon the husband.

The ownership and utility of common goods pertain to each spouse; but administration of the same pertains to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be given to the various dispositions of places. Gury 549; Elbel 69; L. 489; Troplong, della Prescrizione, c. 3, n. 483 seqq.

From More Recent Law: In the first place we can distinguish goods of the wife, goods of the husband, and common goods. As to goods of the wife, these likewise are either dotal or extradotal, or paraphernal. Dowry is goods brought to the husband for sustaining the burdens of marriage. But any goods whatever of the wife not constituted as dowry are held as paraphernal. C. I. 1388, 1425; C. G. 1540, 1575; C. A. 1218.

That there be dowry it is necessary: 1. that it was expressly constituted by this name, C. I. 1388; C. H. 1336. Therefore those things which are donated to the woman by contract of marriage are not dotal, unless something else has expressly been provided. But it is otherwise from C. G. 1541. Moreover, dowry can comprehend all goods, even future goods. C. I. 1389; C. G. 1542; C. A. 1218, 1227; C. H. 1336, 1337. 2. That an instrument be drawn up by a notary, and, if the dowry is constituted by the spouses themselves, before marriage. C. I. 1382, 1391; C. G. 1394. For after marriage dowry can neither be constituted nor increased by them. C. I. 1341; C. H. 1338; and from C. G. 1543, not by others either. Cf. C. A. 1225; C. H. 1344. 3. That nuptials have been entered from Civil Law. L. 3, de Iure dot.; C. I. 93; C. G. 165; C. A. 44; C. H. 42.

He who constitutes a dowry must furnish it from his own goods, even if the woman does not lack her own goods. C. I. 1392, 1393, 1394, 1395; C. G. 1544, 1545, 1546; C. A. 1224. Cf. C. H. 1340, 1341; and he furnishes security against eviction. C. I. 1396; C. G. 1547. But the husband is not bound to surety for the dowry unless he is obligated to it by agreement made, or is driven to it by sentence of the judge, if the dowry is exposed to danger, and the dowry was constituted by him who, if it were lacking, would be compelled to furnish support to the dowered woman. C. I. 1400; C. G. 1550, 1563; C. A. 1245. Cf. C. H. 1345, 1349, 1358.

Of those things which are given by reason of dowry, some pass into the full dominion of the husband, others do not, and constitute a permanent dowry. Things which are consumed by use pass into the full dominion of the husband, C. A. 1227; things, whether movable or immovable, which are given to him in payment, C. I. 1403; C. G. 1553; movable things, if they were given appraised, C. I. 1401; C. G. 1551; not likewise immovable things, unless this was openly expressed. C. I. 1402; C. G. 1551; C. A. 1228. From C. H. 1346, if nothing is determined in the marriage contract, the wife preserves dominion of all her dotal goods. Cf. C. B. 1227, 1228.

Of those goods which constitute a permanent dowry, natural and direct dominion remains with the wife; civil and useful dominion passes to the husband. C. A. 1227, 1228, 1230. Therefore, by force of the natural and direct dominion of the wife, the increase or damage of the dowry will belong to the wife. By force of the civil and useful dominion of the husband, the husband has administration and usufruct of dotal goods; whence he administers dotal goods as his own, acts in judgment for them, C. I. 1339; C. G. 1549; C. H. 1357, 1360, and all things which are contained under the name of fruits are his from the marriage entered, C. I. 1399; C. G. 1549; C. A. 1227; and if counted money was promised, interest by the law itself is owed to him, although delay for payment had been stipulated. C. I. 1397; C. G. 1548. But the husband must furnish that diligence in administering dotal things which he furnishes in his own things, and he must fulfill all obligations of a usufructuary, C. I. 1408; C. G. 1562. But he is bound to use the fruits for feeding the family, for this is why the fruits are assigned to him, namely for bearing matrimonial burdens.

A woman can obtain separation of dotal goods by the office of the judge if the dowry is in danger, or the affairs of the husband are turning to evil, or she has been judicially separated from him. C. I. 1418; C. G. 1563. When this has been obtained, she herself, in place of the husband, administers the dotal goods, C. I. 1424; C. G. 1449; C. H. 225, 1365; but together with the husband she must provide for domestic necessities and for the instruction of the children. C. I. 1423; C. G. 1448. Cf. C. A. 1241, 1263. It can be established in the marriage contract: 1. that the wife receive each year a part of the fruits for small expenses, C. I. 1399; C. G. 1549; 2. that the surviving spouse receive some gain beyond the dowry, with the legitimate portion of the children preserved. C. I. 1398; L. l. 3, n. 539.

Dotal goods regularly, while marriage remains, cannot be alienated, and an alienation made can be revoked even by the husband himself who consented to the alienation. C. I. 1407; C. G. 1560. Dotal goods, namely all from C. I. 1405, but only immovables from C. G. 1554. Regularly; for they can be alienated from a grave cause of necessity or utility, by decree of the tribunal and consent of each spouse, C. I. 1405; C. G. 1558; C. H. 1358 seqq.; or if alienation was permitted in the marriage contract itself. C. I. 1404; C. G. 1557. They cannot be alienated for any cause whatever from C. I. 1405, which distinguishes nothing, except the cause of placing some child from C. G. 1556. Alienation, moreover, also comprehends exchanges, servitudes, and mortgages. C. I. 1404, 1405; cf. C. G. 1554, 1559. While marriage remains; therefore also after separation from C. I. 1405; cf. C. G. 1449. But if, while marriage remains, a woman has legitimately contracted debt, or any obligation whatever, after the marriage has been dissolved even dotal goods are bound to creditors from C. I. 1407; but otherwise from C. G. 1558, 1560. Cf. C. A. 1260.

When the marriage has been dissolved, the dowry ceases and must be restored. The dowry must be restored to the wife, or to her heirs. C. A. 1229; C. H. 1365. Things whose civil and useful dominion only was in the hands of the husband must be restored immediately in their own species, as they then are. C. I. 1409, 1411, 1412; C. G. 1564, 1566, 1567; C. H. 1367; and if by the fault of the husband they have become worse, the loss is charged to him. C. I. 1408; C. G. 1562; C. H. 1360, 1375. But of things of which the husband had full dominion, only the price must be restored within a year. C. I. 1401, 1410; C. G. 1551, 1565; C. H. 1347, 1366, 1370. From these the woman can retain for herself linens and those things necessary for her ordinary use, with their actual price deducted, if, after an appraisal of the same had been made, they were first given. C. I. 1411; C. G. 1566. Cf. C. H. 1384.

Besides this, the fruits of the last year of marriage are to be restored, according to the proportion of time. The year is computed from the anniversary day of the marriage celebrated. But the widow can according to her judgment either demand these fruits, or support for the whole year of mourning. Besides, during this year housing and mourning clothes are owed to her. C. I. 1415, 1416; C. G. 1570, 1571; only mourning clothes, C. H. 1879. Cf. C. A. 1242, 1243. Finally, when the marriage has been dissolved, gains also or dotal increases are owed to the surviving spouse from the goods of the deceased, if a pact concerning them was present in the marriage contract. C. I. 1398.

Paraphernal or extradotal goods are those which the wife reserves to herself outside the dowry. C. H. 1381. These are the wife's by full right, and therefore she administers them and enjoys their usufruct. C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor stand in judgment for them without the express consent of the husband, or, with the husband resisting, without sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is altogether separated in goods. But if the husband administers them from the express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist when the woman asks, or dies; but he must restore all the fruits which he received if the condition was added to the mandate that he render accounts of the fruits, or if the woman opposed herself at least by an extrajudicial act. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose dominion remains in the hands of the wife. From C. A. 1238, 1239, unless the wife opposes herself, by presumption of law the administration of the wife's free patrimony is judged to have been entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; he is not bound to give an account of the fruits received, unless this was expressly agreed.

To paraphernal goods belong, and they are the wife's, those goods which, during marriage, she acquires from her own goods, or from singular industry, or from her own extraordinary labor, especially if she exercises commerce in her own name, or also by subtracting something from what has been conceded to her for food, clothing, recreation, etc.; and also those things which were given to her with the express condition that they not fall to the husband. C. A. 1237; L. l. 3, n. 541.

As to the goods of the husband. The wife has no dominion over the goods of the husband. But since the wife is the companion of the husband, and the husband must feed the wife according to her condition, the wife can by her own right take for herself those things which are necessary to her for this reason. Lugo, de Iust. et Iur., d. 16, n. 72; Lessius, de Iust. et Iur., l. 2, c. 12, n. 85. And if by received custom of the region it is accepted that the wife spend something from the goods of the husband, she can also do this. Lugo, l. c. Therefore the wife can take not only those things which are necessary for the body, but also those things which pertain to relieving the mind and to the decency of her state. Lugo, l. c., nn. 68, 70. Nor indeed can she do this for herself only, but also for the children received from that marriage, for the utility of the family, or for removing some harm to it, and this even against the will of the husband. Therefore she can withdraw things from a prodigal husband in order to reserve them for the family in the future, or from an avaricious husband for making moderate alms. Lugo, l. c., n. 65; Lessius, l. c., n. 85. From the very nature of conjugal society the wife has administration of domestic things, the pantry, furniture, etc. C. He. 163; Lugo, l. c., n. 65; Lessius, l. c., n. 85. From C. I. 1432, if the wife administered the goods of the husband, she is subject to the same law to which he himself is subject in the administration of the wife's paraphernal goods.

But when the husband is absent or insane, the wife administers his goods, and she can spend them, according to the strength of the patrimony, for the sustenance and preservation of the dignity of the family, although perhaps the husband, if he were present or in control of himself, would not have spent them. From C. H. 1442, 1444, the wife administering all the goods of the marriage has the same faculties and obligations as when the husband administers them. Yet she cannot alienate or burden immovables. Lugo, l. c., nn. 16, 70; Lessius, nn. 12, 86; L. 541.

As to common goods. From C. I. 1433, 1435, 1436, 1438, 1439, 1441, in the marriage contract itself, although a dowry has been constituted, the spouses can enter together into a universal society, not indeed of goods, but of fruits coming from the goods themselves, whether movable or immovable, whether present or future. Yet this society cannot comprehend debts and credits existing before marriage, nor those which are later deferred by title of succession or donation while the communion itself lasts. The effect of this communion is to render common and divisible those things which are acquired by the spouses together or separately during the communion, whether by common industry, or by thrift made upon the fruits or incomes of the spouses, the debts of the communion itself always being deducted. Goods placed in common are administered by the husband, who cannot alienate them or subject them to mortgage except by onerous title, and if he leases them, he must observe the laws established for leasing which is done by a usufructuary. But the society ceases by the death of either spouse, by the declared absence of one, by definitive separation of persons, and by judicial separation of goods.

From C. H., when a contract concerning goods is lacking, by which they can also establish separation of goods between themselves, the marriage is judged to have been entered under the regime of legal society of gains, 1315, 1432. But if this society is excluded, without the rules by which the goods are governed being expressed, then the dotal regime is observed, and nevertheless the husband receives all the fruits of the society of gains just as if it existed, 1364.

Now by society of gains husband and wife make their own, by half, when the marriage has been dissolved, the gains and benefits indistinctly obtained by either spouse during marriage, 1392. By the law itself the proper goods of each spouse and the common gains are determined, 1396 seqq., 1401 seqq., and also the burdens and obligations of this society, 1408 seqq. The husband administers the society according to the established laws, 1412 seqq.; he can make moderate donations for the sake of piety and beneficence, but cannot reserve usufruct for himself, 1415.

The society is dissolved by dissolution of marriage, by the absence of either spouse, by separation of persons or goods, 1417, 1433. When the society has been dissolved, after an inventory has been made, and dotal and paraphernal goods have been restored, and the other burdens of the society have been satisfied, what remains is divided equally between husband and wife, or their respective heirs, 1418 seqq. Cf. ibid. 1435, 1436.

From C. G. 1393, even if spouses do not establish that certain goods will be common, nevertheless if any other pact is lacking, legal Community has place by force of law. For the pacts which can be entered by spouses before marriage constitute three classes, or a threefold regime, namely the dotal regime, concerning which we have already spoken, the regime of community, and the regime excluding community. Moreover, Community is either legal or conventional, according as it is constituted by law or by a special pact of the contracting parties. 1391, 1400 seqq., 1497 seqq., 1540 seqq. Legal Community coalesces: 1. from all movable goods which the spouses possessed on the very day of the marriage entered, or which afterwards come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the spouses before marriage, or coming to them during marriage; 3. from all immovable goods which were acquired from common goods during the time of marriage. Conventional Community consists in other pacts of the spouses, by which legal statutes can be restricted or relaxed. When these are lacking, the community is governed by the disposition of the law alone.

Under the regime of community the husband alone has administration of common goods. Indeed he can sell them, exchange them, and hand them over into mortgage, even without the consent of the wife. Yet he cannot donate immovables by gratuitous title, nor movables by universal title, or as to their universality or quota, that is, a half, third, or fourth part. He can dispose of some movable thing by gratuitous title, provided he does not reserve usufruct for himself. But when the community has been dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus to exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs. The husband also has administration of the proper or personal goods of the wife. 1400, 1401, 1409, 1422, 1428, 1441, 1453, 1467 seqq., 1497 seqq.

A regime excluding community can be constituted by the spouses in two ways, namely: 1. by declaring that they enter marriage without community; 2. by establishing that each will be altogether separate as to goods. In the former case the man receives all revenues of the wife's goods and alone administers all things. But if they are consumed by use, he is bound to return their value. But in the latter case the woman has administration and usufruct of all her own goods. Each spouse concurs for the burdens of marriage by special pact; but if no agreement exists, the wife must concur up to a third part of her revenues. Therefore in this third regime, as also in the second, some dowry must be contributed by the wife, by which she may in part aid the burdens of marriage; but a dowry of this sort can be alienated by the husband. 1530 seqq., 1536 seqq. Cf. here 868, 1237.

From C. A. 1233, 1234. For communion of goods between spouses a special contract is required. But it is understood only for the case of death, and gives to the spouse a right to the half part of the goods constituted in communion which remain after the death of the other spouse. Cf. art. 1262, 1266.

From C. B. the regime of goods is twofold, legal and conventional. Legal matrimonial regime of goods. By the marriage contract the goods of the wife, even those which she herself acquires during marriage, are administered by the husband, who has their usufruct, but must sustain the expenses of marriage. The goods reserved to the wife are excepted, whether by law, namely clothes, precious gems, and instruments of labor, and goods acquired by labor or the personal exercise of a gainful profession; or by contract, namely those which were declared such by the marriage contract; by succession, legacy, or donation made with that reservation. The wife has administration and usufruct of these reserved goods. When administration and usufruct of the husband have ceased, the husband is bound to restore the goods to the wife and also to render an account of administration. But the wife can demand this cessation if her goods are placed in danger. C. B. 1363 seqq.

Conventional regime of matrimonial goods. Spouses can establish an agreement concerning goods both before marriage and after marriage has been contracted, and they can dissolve or modify the regime of goods. If by the marriage contract the administration and usufruct of the husband is excluded, or if the community of goods is dissolved, then separation of goods is had. But community can be either universal of goods, or particular, or particular of acquisitions, or particular of movables and acquisitions. The husband administers the community and sustains the burdens of marriage from the goods of the community. When the community has been dissolved, the debts having first been paid, those things which remain are divided into two equal parts between the two spouses, or the descendants of either and the widowed spouse. C. B. 1432 seqq.

Besides these things, which are constituted by various laws, all those pacts must be observed both by the husband and by the wife which in the marriage contract either were tacitly entered, according to the proper laws of the region, or expressly constituted by private will, provided however that these agreed pacts do not oppose good morals or the laws. C. I. 1378; C. A. 1217; C. G. 1387; C. H. 1315.

From C. L. It is licit for spouses before marriage to make a contract concerning goods, within the limits of the law, 1096. Agreements of this sort will not be valid unless they have been made by public writing, 1097. If no agreement is made, the marriage is judged to have been contracted according to the custom of the kingdom, 1098. A woman can reserve to herself the right of receiving part of the fruits of her goods, provided it does not exceed a third part, 1104. An agreement can be made of marriage according to the custom of the kingdom, of community of acquisitions, of separation of goods, of the dotal regime, 1099 seqq. Agreement according to the custom of the kingdom imports community of all present and future goods not excepted by law, 1108 seqq. Dominion and possession of these goods is with each spouse; administration is in the hands of the husband, 1117 seqq. When the Community has ended, its goods are divided between the spouses and their heirs, due equality being observed. But satisfaction must be made first to the woman, then to the man, 1123, 1124. Agreement of community of acquisitions does not comprehend goods which are had at the time of marriage, or which afterwards are had by succession or another gratuitous title, 1130 seqq. Agreement of separation of goods does not exclude from community goods acquired without express declaration, 1125. Each spouse preserves dominion of his or her own goods, and their free disposition, with however that restriction for the woman which is made by law, 1127, 1128. Under the dotal regime the husband can alienate movable goods, but is bound concerning their value, 1148. Immovable goods are inalienable except for cases permitted by law, 1149 seqq., nor can they be prescribed during marriage, 1152. When the marriage has been dissolved, dotal goods must be restored to the woman and her heirs, 1156 seqq.

C. He. has the regime of union of goods, communion of goods, and separation of goods. Unless otherwise disposed, spouses are subject to the regime of union, 178. By union of goods all goods which the spouses possess at the moment of the celebration of marriage, or acquire during marriage, are joined into one sole conjugal substance, 194. The part of this conjugal substance brought by the wife remains her property. The husband is owner of the goods which he himself brought, and of any conjugal substance which was not brought by the wife. The wife's revenues and natural fruits of goods brought by her are the property of the husband from the moment when they are owed or separated, 195. The husband administers the conjugal substance, uses and enjoys it as a usufructuary, 200, 201. When the wife has died, the goods brought by her pass to her heirs. When the husband has died, the wife recovers the goods brought by her. If, after separation has been made, an increase is had, two thirds of this pertain to the wife and her descendants, the third part to the husband and his heirs. If on the contrary diminution is had, it is to be sustained by the husband and his heirs unless it is proved to have been caused by the wife. And, if on account of debts made by the husband the wife would obtain less than half of the goods brought by her, her credit for completing this half part is privileged. The cession of this privilege in favor of individual creditors is null, 211 seqq.

By communion of goods all goods and revenues of husband and wife are joined into one undivided substance, which pertains to each. The husband administers it. By the death of either spouse, half part of the common substance pertains to the surviving spouse, the other half part to the heirs of the deceased. Increase is divided into two equal parts between the spouses or their heirs. Diminution must be sustained by the husband or by his heirs, unless it is proved to have been caused by the wife. 215, 216, 225, 240.

Separation of goods regards the whole substance of each spouse. Each preserves ownership, administration, and usufruct of his or her own substance. But the wife is bound to contribute, in an equitable portion, to the burdens of marriage, even with reserved goods. 192, 241, 242, 246. Goods are reserved either by matrimonial contract, or by the liberality of third parties, or by law. Reserved by law are those things which personally and exclusively pertain to either spouse; goods of the wife which serve her for the exercise of her profession or art; and the gain which the wife receives by laboring in her own name. Reserved goods of the wife are not comprehended in the union of goods. 190, 191, 194.

What is the distinction between slaves and servants? - Servants are distinguished from slaves. Slaves are those who, by the law of nations and civil law against natural liberty, are subject to another master, so that they can be possessed, alienated, and sold after the manner of patrimony. Schmalz., l. 4, t. 9, n. 1 seqq. "The appellation of slaves flowed from this, that our commanders are accustomed to sell captives, and by this to preserve them and not kill them." L. 239, de Verb. sign. But servants are not slaves, but free persons who freely enter contracts of service, by hiring their works for a certain or uncertain time in the service of a master and his family. Hence servants are of the family, and therefore are also called familiars or domestics. Servants are under the governance of the master, and masters have rights and obligations toward servants. Although by servants and those of the family is not properly understood one who furnishes the duties of service only for one or another hour of the day, nevertheless those are sufficiently understood as familiars who have a stable seat for the whole day in the house of the master and serve him, but sleep at night in their own house. S. Th. 2. 2, q. 102, a. 1.

Therefore servants are also distinguished from workers. For these hire their works to some master for a certain time and labor, but are not received into his house and family, nor are they properly subject to his governance. From the contract of works there arises an obligation of commutative justice, for the servant to furnish his works to the master, and for the master to pay the agreed wage. But from the fact that he is taken into part of the master's family, the master has the right and office also of ruling and governing the servant for the common good of the family; but the obligation of observance and obedience falls upon the servant in those things which pertain to domestic order. And thus S. Th. 2. 2, q. 65, a. 2, not from some pact or from commutative justice, but from the order of society, although imperfect, recognizes in the master, besides dominion of ownership over the works of the servant, dominion of jurisdiction or power extending itself over the person even to moderate correction of him.

Do the aforesaid touches differ in species from the consummated act of pollution and intercourse, and from other incomplete acts? R. To the 1st: Affirmatively; and this response holds both for touches and for other incomplete acts, about which the discussion has hitherto been. The reason is that an inchoate act differs in nature from a consummated act. Therefore when similar acts precede the venereal act completed in the same passion, or accompany it, or immediately follow it, such as kisses, touches, etc., they constitute with the completed venereal act one sin in number, and they are not necessarily to be explained distinctly in sacramental Confession; but when they are exercised without a completed venereal act, they are a sin distinct from this, yet one or several in number, if they are exercised in the same movement of passion, or in several. Hence in such a case they are a certain incomplete lust, and are to be explained in sacramental Confession.

R. To the 2nd: The first and more common opinion affirms. The reason is that these acts, considered in themselves, proceed from distinct and diverse faculties, and are ordered to distinct and diverse objects. Hence it follows that "the desire of looking basely, touching, kissing, fornicating, are distinguished in species not only from morose pleasure concerning those objects, but also each from the other, because they tend to those objects as they would be placed on the part of reality; but if they were placed on the part of reality, they would be distinguished in species, as is clear. Hence he who once was delighted by thought about intercourse, and once desired intercourse, does not satisfy by saying, twice I had a base thought, but he must say, once I was delighted in intercourse, and once I desired it. Similarly, he who once desired to look, once to kiss, once to touch, once to fornicate, does not satisfy by saying, four times I desired to do something base, but he is bound to express those objects." La-Croix l. 6, p. 2, n. 1032. The second opinion denies. The reason is that although acts of this sort physically proceed from faculties really distinct and diverse, and tend to objects really distinct and diverse, nevertheless, morally considered, they do not contain grave intrinsic malice; but the grave malice which they contain they have from venereal pleasure, to which they proximately dispose, and which is the same in species for all these acts. S. Th. 2. 2, q. 154, a. 4. Hence it follows that, once in Confession the venereal pleasure which followed, to which someone consented, has been explained, it is not necessary to explain whether he procured it for himself by looking at or touching himself, or even by looking at or touching another person, abstraction nevertheless being made from the sin of cooperation and scandal, certainly to be explained if they were present. Likewise, once the interior pleasure of the will, or desire as regards venereal pleasure, has been explained, it is not to be explained whether that pleasure and desire of the will was immediately terminated to base looks or touches. Billuart, Diss. 6, art. 15, section III, Note and following, has these things: "Franc. Henno teaches that pleasures concerning look, touch, kiss, etc., differ in species among themselves, and ought thus distinctly to be accused... because, he says, looks, touches, kisses, are distinguished in species among themselves... but nevertheless he admits that the practice of confessors and penitents is contrary. Besides, I think that his foundation is false, namely that touches, kisses, looks are distinguished in species in the genus of lust. For since they are not evil per se, as has been said, but only by reason of commotion, or pollution, or intercourse, to which they excite and tend, they have the same species of malice among themselves, namely either of carnal commotion, or pollution, or intercourse, etc. Hence in my judgment the penitent would satisfy who would say, so many times I excited in myself or in another carnal commotion, or pollution, while saying nothing whether by touches, or looks, or kisses, provided that he explains the conditions of himself and the accomplice. A fortiori he would satisfy by saying, so many times I was carnally delighted concerning such or such a person, without explaining whether concerning touches, or kisses, or looks; but indeed if there was pleasure concerning intercourse or pollution, because these differ in species from immodesty and are to be distinctly accused, so too are the pleasures concerning them." S. Th. 2. 2, q. 154, a. 4 ad 3, speaking of kisses and touches, says: "That things of this sort are not sins according to their species." And ib. ad 2 he says: "From lust they have the nature of sin." And in c.: "Things of this sort, insofar as they are lustful, are mortal sins."

783bis. Note: An act exciting simple venereal pleasure differs in species from an act of pollution; and therefore in confession the nature of the act is, per se, to be explained distinctly. "Nevertheless, as Genicot notes here, ed. 4, vol. 1, n. 396, 3, that distinction often is not accused by the penitent; nor are questions about most shameful matters to be made by the confessor without true necessity. It is lawful to follow the rule set down by Bouvier, Diss. in 6 Dec. praec. p. 76: 'Once touches or lustful motions have been discreetly known, let the confessor abstain from immodest interrogations.' And Berardi writes, Prax. conf. n. 851: 'When the penitent says, I touched myself, if it is evident that he truly touched himself maliciously, it is to be presumed that he carried the act through to its natural end; hence, whether the matter concerns men or women, I would say that interrogations about that matter can be omitted. It is true that some interrupt the act, although they have maliciously begun it, but from this confessors cannot be obligated to add further interrogations to all and each who confess that they touched themselves, concerning this very interruption.'"

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

1. 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.

2. 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.

3. 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.

4. 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.

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

1. 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.

2. 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.

3. 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.

4. 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.

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.

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. By renunciation of the fructuary, provided it is not done in fraud of creditors. C. H. 513.

7. 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.

8. 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.

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.

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.

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.

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.

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.

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.

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.

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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

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.

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.

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.

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

1. 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.

2. 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.

3. 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.

4. 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.

105. The goods of the wife are some dotal, the fruits of which the man enjoys for sustaining the burdens of marriage; others are paraphernal, namely besides the dowry, which the wife has besides the dowry, and which she specially reserves to herself; others common, which by the agreements of the spouses or the determination of law are brought into a certain society. - Before entering marriage spouses can determine under what conditions their goods are to be subject, with certain statutes of law observed. If they have omitted to do these things, the law will supply.

106. Of dotal goods, generally and speaking per se, direct ownership remains in the power of the wife. But the husband has their administration and usufruct. Dotal goods, during marriage, cannot be alienated, nevertheless speaking regularly or ordinarily; for they can be alienated from a grave cause of necessity or utility of the family, and with the consent of each spouse. If the dowry during marriage is increased or perishes, it is increased or perishes for the wife; when marriage has been dissolved, it is to be restored.

Extra-dotal goods are the wife's by full right. Common goods belong by equal right to each; nevertheless the husband has their administration, and receives their fruits for the necessities of the family. - Finally the wife has no ownership of the goods of the husband.

113. Paraphernal or extra-dotal goods are those which outside the dowry the wife reserves to herself. C. H. 1381. - These are by full right the wife's, and thus she administers them and enjoys their usufruct, C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without the sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is wholly separate in goods. - But if the husband administers these goods by express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist, when the woman asks, or dies; but he must restore all the fruits which he received if a condition was added to the mandate that he render accounts of the fruits, or if the woman at least by an extrajudicial act opposed him. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose ownership remains in the power of the wife. From C. A. 1238, 1239, unless the wife opposes, by a presumption of law the administration of the free patrimony of the wife is deemed entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; but he is not bound to give an account of fruits received, unless this has been expressly agreed upon. - To paraphernal goods belong, and are the wife's, those goods which, during marriage, she acquires from her own goods, or from her singular industry, or from her extraordinary labor, especially if she exercises trade in her own name, or also something by subtracting from those things granted to her for food, clothing, recreation, etc.; then also those things which have been given to her with the express condition that they not yield to the husband. C. A. 1237. - L. l. 3, n. 541.

1. 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.

2. 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.

1. 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.

2. 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.

3. 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.

4. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

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

3. 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.

4. 2. 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.

5. 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.

6. (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.

7. (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.

4

(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.

8. 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.

9. 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.

3. 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.

10. (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.

11. (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.

12. (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.

13. 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.

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.

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.

28. 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.

29. 2. 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.

30. 3. 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.

32. 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.

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.

1. 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.

2. 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.

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).

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.

38. 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.

39. 1. What is certain. Now all concede that any man has full dominion over the fruits of his talent, so long as he has not made them public property: for nothing can be more proper to us than what we acquire by the labor of our own mind; and indeed, if external things bear fruit for the owner, much more do internal faculties, which immediately flow from our essence. Therefore he who would steal the manuscripts or inventions of another, and publish them, without the permission of the author, would sin against justice and would be bound to repair damages; for he violates the double right which belongs to the author, that the work written by him not be published against his will, and that the profit to be received from it not be diminished.

For the same reason, he who would take down in writing sermons or lectures heard, and make them public property, without the explicit or tacit permission of the preacher or professor, injures justice and is bound to restitution: for although he can use these for his own use, he cannot publish the same things. Nevertheless implicit permission suffices, which rests upon legitimate custom: thus many sermons are commonly published in periodicals without the explicit consent of the speaker.

40. 2. What is disputed? - But when a book has already been printed, or an invention has been made public property, it is controverted whether by natural right the author or inventor is able to prohibit others from committing the book to the press again or multiplying the thing invented. (a) Some deny this, because a work once published now becomes a common good, which can licitly be occupied by all. (b) Theologians, however, commonly affirm it; for natural right forbids anyone to be despoiled of the fruits of his own labor; but the author of a book or invention could not receive the fruit of his labor, if it were permitted to each one to print and sell anew a book published by another, or to spread the inventions of others, without any compensation; therefore natural right forbids this.

41. 3. Practical conclusion. Nevertheless all admit that nothing certain is defined by natural right as to the time during which an author or inventor can exclusively enjoy his own works. Therefore it is necessary that positive right intervene to determine the matter more accurately. This in fact has been done among all cultivated Nations; and since laws concerning literary and industrial property are determinative of rights, they oblige in conscience, in justice and under the burden of restitution. Likewise, where international agreements exist, these have the force of law.

Now an agreement of this kind was entered into on September 9, 1886, among the principal cultivated nations, by force of which authors who have published books according to the law in force in their own region enjoy the right of property in all regions which have adhered to this agreement.

42. In France, writers who have sent two copies of the books published by them to the legitimate authorities enjoy the exclusive right of selling these throughout their whole life, and their heirs for fifty years.¹ - With regard to inventions, those who, according to the forms determined by law, have obtained the diploma which is called Brevet d'invention, can enjoy the right of property for fifteen years.²

¹ Lyon-Caen and Delalain, Lois francaises et etrangeres sur la propriete litteraire et artistique, Paris, 1889-1890; Pouillet, Traite theorique et pratique de la propriete litteraire, Paris, 8th ed. 1889; Supplement for France, p. 1*-4*.

² Pouillet, Traite theorique et pratique des Brevets d'invention, 2nd ed., Paris, 1879; Supplement for France, p. 4*-7*.

We shall set forth in the Supplement the civil law in force among other nations.

43. Man cannot protect and preserve life unless there inheres in him the right of having certain external goods as his own, by which he can enjoy what is necessary for the support of himself and his own. We shall speak: 1. of the right of possessing external goods; 2. of the various kinds of goods, and especially of semi-full dominion.

45. (A) It is scarcely possible to define socialism accurately: for it embraces so many and such diverse systems that a definition which fits one system by no means belongs to the others. - Nevertheless it can be described as the complex of systems which tend toward this, that they subvert the present order of Society, and substitute for it another order, in which the right of dominion is exercised principally, if not exclusively, by the State or Commonwealth itself.

¹ E. de Laveleye, Le Socialisme contemporain, 10th ed. Paris; J. Bourdeau, L'Evolution du Socialisme, Paris, 1901; Winterer, Le Socialisme contemporain, 4th ed. Paris, 1904; Leon de Seilhac, Le Monde socialiste, Paris, 1904; L. Garriguet, Introduction a l'Etude de la Sociologie, t. II, Paris, 1901; R. T. Ely, French and German Socialism in Modern Times, New York, 1883; Rae, Contemporary Socialism, 2nd ed., London, New York, 1898; E. Jager, Der moderne Socialismus, 1873; Cathrein, Der Socialismus, ed. 7, 1898; E. d'Eichthal, Socialisme, Communisme et Collectivisme, 2nd ed. Paris, 1901; V. Pareto, Les Systemes socialistes, Paris, 1902; M. Bourguin, Les systemes socialistes et l'evolution economique, Paris, Colin, 1906.

There are three forms of socialism: (a) communism, which wishes all goods, even those destined for consumption, to be common; (b) collectivism, which distinguishes two kinds of goods: some, which are reserved for producing new things (e.g., lands, instruments of labor, etc.), are to be retained by the State or Commonwealth; others, which are destined for consumption, remain under the dominion of private persons; (c) State socialism, which, while it retains private dominion with regard also to many means of production, advocates the universal and continuous intervention of the State in all affairs, and too greatly restricts the activity and rights of private persons.

Anarchism differs from socialism, for it intends the overthrow of the whole of society.

46. (B) Among the Pagans, certain traces of communism are found: practically among the Spartans in the time of Lycurgus; theoretically in Plato, who, in the treatise On the Republic and On the Laws, proposes communism as a means for establishing concord among citizens.

In the first centuries of the Church, certain Gnostics, and also Apostolics, and afterward in the Middle Age the Waldenses and Albigenses, advocated a certain community of goods, relying on the examples of the primitive community of Jerusalem; which errors the Anabaptists and a few sects of Protestants renewed.

The system of Plato was again proposed by Thomas More in his Utopia, yet polishing it and cleansing it from many vices, especially from the community of wives.

But various systems of this kind had scarcely any moment in minds; and modern socialism took its origin only in the middle of the eighteenth century.¹

¹ A. Lichtenberger, Le Socialisme au XVIIIe siecle, Paris, 1895.

47. A threefold cause of this system can especially be assigned: namely an industrial, philosophico-political, and religious revolution.

² Leo XIII treats of these things briefly, but profoundly, in the proemium of the Encyclical Rerum Novarum, May 16, 1891.

(A) The industrial revolution, which began around the middle of the eighteenth century, must be ascribed to the invention of more perfect instruments in manufactured things. For since only the rich are able to acquire these new inventions, by that very fact there are found two classes of men plainly distinct: capitalists, or owners, who possess the instruments of labor; and proletarians, or workers, who labor not for themselves, but for others. Once this is posited: (a) workers depend entirely on the owners for whom they labor; formerly, after some years, they could acquire for themselves the instruments of labor and so become independent; but today for the most part through their whole life they must work in the workshops of others, and can be dismissed at the nod of the owners.

Moreover, by the aid of machines, not rarely more goods are produced than can be sold: from this it happens that workers are dismissed, at least for a time, and suffer want. From this they burn with anger and indignation against the owners.

48. (b) From this it also follows that relations between owners and proletarians have been changed: for he who is over many thousands of workers cannot care for each one in the same familiar and paternal manner as he who is over only a few; therefore if difficulties and dissensions arise, they cannot so easily be settled, but rather are increased, especially since among the workers there are some who not rarely impel their companions to rebellion.

(c) From this also the condition of capitalists is separated more and more from the lot of workers: for the latter, generally receiving a scant wage, can scarcely support themselves and their own; while the former, hiring a great number of workers, and receiving some profit from each of them, become very rich and often indulge in luxury; hence envies, desires, and dissensions are born.

49. (d) Moreover, the ancient guilds of artisans having now been destroyed, proletarians have been handed over, solitary and defenseless, to the inhumanity of owners; new associations have indeed been established, but by no means tempered by religion, which attempt to render the condition of workers better by the overthrow of the social order and by the diffusion of socialism.

50. (e) Finally, domestic life, which formerly was wont to furnish consolation to workers, is today much disturbed; for since the husband, wife, and children are often compelled to labor in various workshops, they can live together only for a few hours; the wife can hardly attend to the domestic matter and to the education of the little ones; the husband, finding a cold and filthy house, and badly cooked foods, gradually deserts his own hearth and frequents taverns.¹ Thus the family is overthrown, and workers, enjoying no domestic happiness, dream of destroying the whole social order.

¹ Concerning the miserable condition of workers, among others, the following have written: Villermé, Tableau physique et moral des ouvriers employes dans les manufactures, Paris, 1840; J. Simon, L'ouvriere, 1861; Comte d'Haussonville, Salaires et miseres de femmes, Paris, 1900.

51. (B) The philosophical and political revolution, which, under the leadership of J. J. Rousseau, pervaded all Europe. For he taught (a) that man is by nature essentially good, and that he was made evil only by the present social order of things: take away private dominion, take away mine and yours, and immediately man will betake himself to a better course; (b) that all men are by nature equal and enjoy the same rights; from which it is logically inferred that the right of property must be abolished, as necessarily favoring excessive inequality among men.

52. The French Revolution partly made these ideas its own, by proclaiming the rights of man and keeping silent about his duties, by establishing the political equality of all citizens, and by patronizing unbridled liberty; from this certain men, with Babeuf,¹ deduced the community of goods; for equality is vain, and liberty vain, unless all things are common.

¹ In order to obtain perfect equality, Babeuf wished all goods to be possessed by the State, all citizens to be compelled to labor, and the fruits of labor to be distributed according to the necessities of each one. Cf. Espinas, La Philosophie sociale du XVIIIe siecle et la Revolution, Paris, 1898.

53. (C) Finally, the religious change which took place in many owners and workers; for unbelief, which in the eighteenth century had invaded the minds of many, began to increase more and more. Now, once faith in the other life had been taken away, or at least greatly diminished, each one desired to obtain an earthly paradise in this life, by indulging in pleasure.

(a) Not a few owners, whose desires are no longer restrained by the bridle of religion, not rarely regard workers as slaves, or instruments of production; they use and abuse them in order to acquire riches more quickly, imposing more work than their strength can bear, and giving a wage which scarcely suffices for food.

(b) On the opposite side many workers, who no longer expect an eternal reward, often indulge in drunkenness and lust; and, since the wage furnished to them is unequal to acquiring the pleasures which they desire, they rebuke capitalists as guilty of injustice, and long to divide their spoils among themselves.

54. It is permitted to distinguish three principal phases in the evolution of socialism: the first, formative and utopian (1820-1850); the second, more scientific (1850-1873); and the third, more political.

55. (A) In the first period, more or less utopian theories were devised, and certain experiments of communism were attempted, but without a happy outcome.

(a) In France, Saint-Simon¹ (1760-1825) wished to establish a new form of society, in which industry organized by science would completely prevail; he taught that the whole value of things flowed from labor as from its proper and sole font, and therefore that workers were to be held in the highest esteem, and that industry, as the most excellent work of religion, was to be fostered and established under the paternal rule of a certain priestly hierarchy. Wherefore his disciples, Bazard, Enfantin, and others, judged that the right of inheritance was to be abrogated, and that goods were to be distributed according to the measure of merit; from this, gradually, private dominion and the family would vanish; but the fruits of labor would be divided according to the works and merits of each one; in place of marriage, free union of the sexes was to be permitted.

¹ Hubbard, Saint-Simon: sa vie et ses travaux, 1857; Weill, Saint-Simon et son oeuvre, Paris, 1894; Charlety, Histoire du Saint-Simonisme, Paris, 1896; P. Janet, Saint-Simon et le Saint-Simonisme.

56. (b) A little later, Charles Fourier² (1772-1837) advocated a certain form of organized communism: families were to coalesce into economic societies, called phalanxes, which would not exceed two thousand persons, and would live together in a spacious building, namely a phalanstery; any resources possessed by families would form a common fund. In each phalanx, agriculture, various crafts, and also liberal arts would be exercised, according to the talent and faculties of individuals, under the leadership of some overseer: all, even the lazy, would receive the necessities of life; but the industrious would obtain something besides, according to each one's merit. Several phalanxes would form some series, and the series multiplied throughout the world, under the rule of a supreme president (omniarch), would tend toward the common good of the whole human race; and thus universal harmony would reign throughout the earth. - An experiment of this system was made in the village of Conde-sur-Vesgre, but it had an unhappy outcome.

² Ch. Fourier, Traite de l'association domestique-agricole, 1822; Le nouveau monde industriel; Theorie des Quatre mouvements; Ch. Gide, Oeuvres choisies de Fourier, preceded by a Notice, Paris, 1890.

57. (c) E. Cabet proposed a more radical communism in the work entitled Voyage en Icarie;¹ according to him, all goods would be placed under the dominion of the Republic, individual citizens, led by brotherly love, would labor with equal spirit, and the fruits of works would be divided equally among the members of the community. He himself indeed wished to preserve the family and marriage; but his disciples soon preached free union. They attempted to bring his system into practice in the region of Texas, in the United States of America; but after some months the matter had an unhappy outcome.

¹ Cf. Ely, Socialism in France, p. 39-52; Malon, Histoire du Socialisme, p. 163.

58. (d) Louis Blanc proposed a mitigated form of communism; he contended that there is inborn in every man a right to labor, and therefore that national workshops were to be established, in which work would be divided according to the strength of each one, but the fruits according to the necessities of each one; wherefore private dominions would gradually have to be abolished, and the State would become the sole owner of all things.

If we study the nature of the sins thus characterized as crying to Heaven for vengeance, we find that they form a category separate and distinct from the capital sins. For whereas the latter spring from an inordinate craving of the natural appetites, and are sinful only when they involve a lack of rational self-control, the distinguishing note of the so-called peccata clamantia is violent suppression of certain natural instincts and conscious frustration of their ends and objects. In other words, besides a transgression of the moral order, they entail a violation of the laws of nature, thus provoking divine wrath in a special manner. This fact is well expressed in the phrase, "sins that cry to Heaven for vengeance."

1. From the duty of labor flows the right of property or ownership, i. e., the right to acquire, hold, and dispose freely of the material fruits of labor, that is to say, the goods which are the result of man's individual and personal endeavor.

The right to acquire and possess property is by no means, as the Communists and Socialists maintain, a fictitious claim based on robbery and injustice,¹ but corresponds to the natural duty of labor from which it arises, and therefore is a natural right.

¹ Cfr. V. Cathrein, S.J., Socialism: Its Theoretical Basis and Practical Application, tr. and adapted to conditions in the United States by V. Gettelmann, S.J., New York 1904.

Under certain conditions the acquisition of a limited amount of earthly goods even becomes a duty.² The supreme, though not the sole, title of ownership is labor.

² Gen. III, 19; Eccles. V, 17; 2 Thess. III, 10. —Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 66, art. 2: “With respect to an external thing, two powers belong to man, one of which is the power of procuring and administering it; and with respect to this it is lawful for man to possess things as his own. It is also necessary for human life for three reasons: first, because each person is more solicitous in procuring something that belongs to him alone than something common to all or to many, since each person, fleeing labor, leaves to another what pertains to the common good, as happens in a multitude of servants; secondly, because human affairs are handled in a more orderly way if the proper care of procuring some particular thing falls upon individuals, whereas there would be confusion if everyone indiscriminately procured everything; thirdly, because by this means a more peaceful condition of men is preserved, while each is content with his own thing. Hence we see that quarrels arise more frequently among those who possess something in common and undivided.” —Father J. Kelleher, in what is probably the best modern treatise on the subject (Private Ownership, Dublin 1911) points out (p. 149) that the classical theologians almost unanimously taught that the division of private property does not depend directly upon the natural law, but is derived from the ius gentium. (Cfr. Ross, Christian Ethics, pp. 278 sqq.)

Private ownership is a wonderful institution, to which humanity owes the development of trade, commerce, and industry, nay whatever determines the differences between civilized man and the savage. Without it labor would languish because the laborer would no longer be sure of the product of his industry. The surer he feels that he is toiling for himself and his own, rather than for strangers, the greater the persistency and diligence which he will bestow upon his work. Private ownership safeguards the future, as far as this is humanly possible, and without it diligence and thrift would never increase the movable capital that lends so powerful an impetus to production, nor would the constantly renewed and always laborious work of cultivating the soil insure to the earth that increase of fertility without which society would be condemned to endless misery.³

³ Chas. Perm, Les Lois de la Societe Chretienne, 2 vols., Paris 1876, especially Vol. I; F. Walter, Naturrecht und Politik, Bonn 1863, pp. 145 sqq.

Barely touching the traditional arguments as developed, e. g., by St. Thomas, Pope Leo XIII, in his famous Encyclical "Rerum Novarum," bases private ownership on the rational nature of man.

"Every man," he says, "has by nature the right to possess property as his own. This is one of the chief points of distinction between man and the animal creation, for the brute has no power of self-direction, but is governed by two main instincts, which keep its powers on the alert, impel it to develop them in a fitting manner, and stimulate and determine it to action without any power of choice. One of these instincts is self-preservation, the other, the propagation of the species. Both can attain their purpose by means of things which lie within range; beyond their verge the brute creation cannot go, for beasts are moved to action by their senses only, and in the special direction which these suggest. But with man it is wholly different. He possesses, on the one hand, the full perfection of the animal being, and hence enjoys, at least as much as the rest of the animal kind, the fruition of things material. But animal nature, however perfect, is far from representing the human being in its completeness, and is in truth but humanity's humble handmaid, made to serve and to obey. It is the mind or reason which is the predominant element in us who are human creatures; it is this which renders a man human, and distinguishes him essentially and generically from the brute. And on this very account —that man alone among the animal creation is endowed with reason —it must be within his right to possess things not merely for temporary and momentary use, as other living beings do, but to have and to hold them in stable and permanent possession; he must have not only things that perish in the use, but those also which, though they have been reduced to use, continue for further use in after time. This becomes still more clearly evident if man's nature be considered a little more deeply. For man, fathoming by his faculty of reason matters without number, and linking the future with the present, becoming, furthermore, by enlightened forethought, master of his own acts, guides his ways under the eternal law and the power of God, whose providence governs all things. Wherefore it is in his power to exercise his choice not only as to matters that regard his present welfare, but also about those which he deems may be for his advantage in time yet to come. Hence man not only can possess the fruits of the earth, but also the very soil, inasmuch as from the produce of the earth he has to lay by provision for the future. Man's needs do not die out, but recur; although satisfied to-day, they demand fresh supplies for to-morrow."⁴

⁴ English tr. from The Pope and the People, London 1912, pp. 181 sq. A better tr. in Bolshevism — The Remedy, New Haven, Conn., 1919, pp. 5 sq.

The Pontiff goes on to show that private ownership was established through individual efforts before the existence of the State, and that it is recognized by history, by civil law, and by divine law.⁵

⁵ Cfr. A. C. Breig, Papal Program of Social Reform, Milwaukee 1913, pp. 14 sqq.

It is frequently asserted that the first Christians, especially those at Jerusalem, practiced Communism.⁶ Learned scholars who have investigated the question with great care deny that there was Communism in the primitive Church. The early Christians were allowed to keep their property, and if some of them sold it, they did so voluntarily, for the purpose of assisting the poor.⁷ The most that can be said is that in some sections of the great congregation of Jerusalem there existed a sort of religious community of goods.⁸

⁶ Cfr. Acts II, 44 sq.; IV, 32-37; V, 1-4.

⁷ Cfr. E. Baumgartner, "Der Kommunismus im Urchristentum," in the Innsbruck Zeitschrift für kath. Theologie, 1909, pp. 625 sqq.

⁸ O. Schilling, Reichtum und Eigentum in der altkirchlichen Literatur, Freiburg 1908, pp. 16 sq.

Those Church Fathers who are represented as having preached Communism, did not oppose private ownership, but merely its abuse. The passages quoted from their writings by Socialist authors are largely spurious, and those which are genuine prove nothing more than that God did not distribute temporal goods directly among individual men, but gave the earth with its resources to the race at large for the common use of all, so that no one may claim anything as his own as if he had the right to exclude all others absolutely and for ever from its use.⁹ The Fathers simply wished to express the same truth which St. Thomas in the thirteenth century set forth as follows: "Man may not have exterior things for his own, but as the common property of all, namely in such a way that one readily shares them with others in case of need."¹⁰ There are many Patristic texts which unmistakably assert the right of private ownership.¹¹ Lactantius defends it with great scientific acumen. St. Ambrose, who frequently censures the wealthy, teaches that the condemnation pronounced by Christ does not affect all who have wealth, but only those who abuse it, and adds that every man is allowed perfect freedom in giving alms.¹²

⁹ Cfr. J. Biederlack, S. J., Die soziale Frage, 7th ed., p. 134, n. 1.

¹⁰ Summa Theol., 2a 2ae, qu. 66, art. 2: “A man ought not to hold external things as his own, but as common, so that, namely, he may readily share them in the necessity of others.”

¹¹ See G. Ratzinger, Die Volkswirtschaft, 2nd ed., pp. 82 sqq.; A. Vermeersch, S. J., Quaestiones de Iustitia, 2nd ed., pp. 266 sqq.: V. Cathrein, S. J., Moralphiloso- phie, 4th ed., Vol. II, pp. 313 sqq.; J. Seipel, Die wirtschafts-ethischen Lehren der Kirchenvater, Vienna 1907, pp. 49 sqq., 120 sqq., 190 sqq.; J. A. Ryan Alleged Socialism of the Church Fathers, St. Louis 1913.

¹² St. Ambrose, Expos. Evangel, sec. Luc., 1. V, n. 69: “Although in abundant wealth there are many enticements to sins, nevertheless there are also very many incentives to virtues. Although virtue does not require assistance, and the contribution of a poor man is more praiseworthy than the liberality of a rich man, nevertheless the heavenly sentence condemns by its authority not those who possess riches, but those who do not know how to use them.” (Migne, P. L., XV, 1654).—IDEM, De Nabuthe Iezrael, c. 13, n. 55: “He who has been able to be proved faithful amid riches is truly perfect and worthy of glory.” (P. L., XIV, 748).—IDEM, De Officiis, l. I, c. 30, n. 14: “It is in your power to bestow what you wish.” (P. L., XVI, 66). —On the teaching of St. Ambrose consult O. Schilling, Reichtum und Armut, (see note 8, supra) pp. 134 sqq., and J. A. Ryan, Alleged Socialism of the Church Fathers, St. Louis 1913, pp. 52-66. "What St. Ambrose teaches is not communism in any correct sense of the word," says Dr. Ryan (op. cit., p. 57 sq.). "It is rather a first principle of the natural law, namely that the earth belongs to all the children of men, and not to a few only. He tells the rich to restore their excessive wealth to the poor, while a communist would order them to turn it over to the community. It is true that he calls these donations of the rich by the name of restitution, but this is because the rich have accumulated so much that the poor have been deprived of their birth-right. Hence, he commands them to give back their unjust gains. Any one who will read the history of the oppression of the poor in Italy in the fourth century, will know that St. Ambrose was right when he told the rich that they had robbed the poor, and were consequently bound to make reparation. The most zealous defender of individual ownership could speak the same way in the same circumstances. What St. Ambrose demands, therefore, is not a return to common property, but a recognition of common rights."

The phrase, "Omnis dives aut iniquus aut iniqui heres,"¹³ which occurs repeatedly in the writings of St. Jerome, has led to his being classed as a Socialist. But the fact that St. Jerome makes this sentiment his own and quotes it with approval, does not prove that he looked upon every property holder as a thief. "Iniquus—from in + aequus—refers literally to a want of equality or want of proportion. Taken figuratively, it has about the same meaning as iniustus, for which it was often used as a synonym by the best authors. Now St. Jerome's style, as well as his own confession, assures us that he was well acquainted with classical Latin. We may safely infer then that he uses this word in the specific sense of iniustus, and not in the more general sense of peccator. This inference is confirmed by his manner of speaking in a sentence where he distinguishes between an impius on the one hand, and an iniquus and a peccator on the other. Even if he meant merely 'wrong doer' when he wrote iniquus, the specific wrong doing referred to must have been an act of injustice, since it was committed in acquiring riches. When a man gets possession by wrong-doing, the greater part of the wrong will fall under the head of injustice, violation of personal rights. St. Jerome, therefore, subscribed to the opinion that every dives was an unjust man, and by dives he meant, not a man of some property, but a man of much property. All the synonyms of dives and its use by the best authors show that it refers to an abundance of goods, and not to mere ownership, as some would have us believe."¹⁴

¹³ This remarkable saying, which seems to have been of pagan origin, was evidently current in St. Jerome's day, for he quotes it in three distinct passages of his writings. For an analysis of these passages see J. A. Ryan, Alleged Socialism of the Church Fathers, pp. 67 sqq.

¹⁴ Ryan, op. cit., pp. 70 sq. Further on in his booklet (p. 74) Dr. Ryan shows that Herbert Spencer spoke in much the same way of the present titles to landed property as St. Jerome did of those of his time. "It can never be pretended that the existing titles to such property are legitimate... Violence, fraud, the prerogative of force, the claims of superior cunning, these are the sources to which these titles may be traced." The passage occurs in Spencer's Social Statics and was omitted in later editions, but, as Dr. Ryan correctly says, "the question is one of fact, not of opinion." W. S. Lilly declares: "I say, without shadow of doubt, that to much property the saying of Proudhon [namely, that property is theft] is strictly ap- plicable." Charles S. Devas says: "As a matter of fact, much of the wealth of the rich classes in modern Europe has been gathered together, and is still kept up, by dreadful deeds of cruelty, injustice, and fraud." —"Mr. Lilly," comments Dr. Ryan, "is neither a Socialist nor a radical, but above all a pleader for law, while Mr. Devas was an unimaginative student of economics. If men of this character can write thus of titles to property in modern times, is it any wonder that St. Jerome used similar language in his day?" (Alleged Socialism of the Church Fathers, pp. 74 sq.)

The proposition, "No Christian should be engaged in commercial pursuits, and those who persist in them, should be expelled from the Church,"¹⁵ which is frequently ascribed to St. Chrysostom, does not occur in his genuine writings, but in the Opus Imperfectum in Matthaeum of an Arian writer falsely attributed to the Saint.¹⁶ Certain communistic ideas that occur in the genuine works of St. Chrysostom must be interpreted as the product of a sort of ideal Communism, resembling that of Plato, which marked a reaction against the dominating power of wealth, the materialism and egotism of certain rich people, and the exaggerated esteem in which worldly possessions were generally held at that time and which manifested itself in an insane pursuit of wealth similar to that which we behold all around us to-day. In attacking these flagrant and serious abuses St. Chrysostom occasionally employed expressions which, when read through modern glasses, seem to stamp him as an opponent of the principle of private ownership.¹⁷

¹⁵ “No Christian ought to be a merchant; or, if he wishes to be one, let him be cast out of the Church of God.”

¹⁶ Cfr. F. X. Funk's paper, "Ueber Reichtum und Handel im christlichen Altertum," in his Kirchengeschichtliche Abhandlungen und Untersuchungen, Paderborn 1917, Vol. III, pp. 150 sqq.

¹⁷ On the teaching of St. Chrysostom, see O. Schilling, Reichtum und Armut, (note 8, supra), p. 123 and J. A. Ryan, Alleged Socialism of the Church Fathers, pp. 1-7; on the teaching of St. Basil, ibid., pp. 7 sqq., 17 sqq.; of St. Gregory of Nyssa, pp. 10 sq.; of Clement of Alexandria, p. 11; of St. Augustine, pp. 12 sq.; of St. Gregory the Great, pp. 15 sq.

2. In all that regards wealth and earthly possessions (bona fortunae) Catholics must be guided by the following principles.

a) Broadly speaking, every man is in duty bound to acquire the means which are necessary to support himself and his dependents and to fulfil the obligations that rest upon him as a member of society. He may, moreover, acquire a superfluity of earthly possessions, but if he does so, he incurs the additional obligation of making good use of his surplus; in other words, he must not acquire or cherish wealth for its own sake, but in order to share it with the needy.¹⁸

¹⁸ Eph. IV, 28; I Tim. VI, 18. —Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 187, art. 3.

b) The possession of wealth is no sin in itself, but involves great danger because a rich man is constantly tempted to seek his happiness in this world and to neglect his soul.¹⁹ It is in this sense that Christ speaks of "the care of this world and the deceitfulness of riches,”²⁰ and warns His disciples that "a rich man shall hardly enter into the kingdom of heaven."²¹

¹⁹ Cfr. I Tim. VI, 9 sq., 17. — Seneca says (Epist., XVII, 3): “Riches have hindered many from philosophizing; poverty is unencumbered and secure.” And in another place (Ep., XVII, 5): “If you wish to be at leisure for the soul, you must either be poor or like a poor man.” —Cfr. G. Ratzinger, Die Volkswirtschaft, 2nd ed., pp. 43 sqq.

²⁰ Matth. XIII, 22.

²¹ Matth. XIX, 23 sq.; cfr. Mark X, 23 sqq.; Luke XII, 16 sqq.; Jas. V, 1 sqq.

Neither is poverty in itself a virtue, or a source of virtue, though apt to become such. That it is no disgrace to be poor, appears from the example of Christ and His disciples, who were all poor laboring-men. "Jesus saith to him: The foxes have holes, and the birds of the air nests: but the Son of man hath not where to lay his head.”²² “Being rich," says St. Paul, "He [Jesus] became poor for your sakes, that through his poverty you might be rich."²³

²² Matth. VIII, 20; X, 9 sq.

²³ 2 Cor. VIII, 9; IX, 1 sqq.

When poverty is the result of sloth and shiftlessness, it easily leads to immorality and is in itself a sin if it makes a man discontented and covetous of the possessions of others. We read in Sacred Scripture: "Give me neither beggary nor riches: give me only the necessaries of life, lest perhaps being filled, I should be tempted to deny and say: Who is the Lord? or being compelled by poverty, I should steal and forswear the name of God."²⁴ Poverty becomes a virtue if borne humbly and with resignation to the will of God. "Blessed are the poor in spirit, for theirs is the kingdom of heaven."²⁵ St. Ambrose explains this text as follows: "Not all the poor are blessed, for poverty is merely a means: both good men and bad may be poor, unless perhaps that poor man is to be considered blessed of whom the prophet says, 'Better is the poor man that walketh in his simplicity than a rich man that is perverse.’²⁶... Blessed the poor man who cried to the Lord and was heard: poor in crime, poor in vice, a poor man in whom the prince of this world finds nothing, who imitates Him who, being rich, was made poor for our sake.²⁷ St. Matthew unfolded the full truth when he said: 'Blessed are the poor in spirit,'²⁸ for he who is poor in spirit does not become puffed up and proud in his conceit."²⁹

²⁴ Prov. XXX, 8-9.—St. Leo the Great says (Serm., 49 [al. 48], c. 1): “There are snares in the abundance of riches and snares in the straits of poverty. The former raise one up to pride; the latter incite one to complaint.” (Migne, P. L., LIV, 302).

²⁵ Matth. V, 3; cfr. Jas. II, 5.

²⁶ Prov. XIX, 1.

²⁷ 2 Cor. VIII, 9.

²⁸ Matth. V, 3.

²⁹ St. Ambrose, Expos. Evangel. in Lucam, l. V, n. 53: “Not all the poor are blessed, for poverty is an intermediate thing: both good and evil men can be poor. Unless perhaps that blessed poor man is to be understood whom the prophet described, saying: ‘A just poor man is better than a lying rich man.’ Blessed is the poor man who cried out and the Lord heard him: poor in crime, poor in vices, a poor man in whom the prince of this world found nothing, an imitator of that Poor Man who, though He was rich, was made poor for us. Hence Matthew disclosed the matter fully, saying: ‘Blessed are the poor in spirit’; for the poor man in spirit is not puffed up and is not exalted in the mind of his flesh.” (Migne, P. L., XV, 1650). —Cfr. A. Winterstein, Die christl. Lehre vom Erdengut, pp. 173 sqq.

"Cheerful poverty is an honorable thing," says Epicurus,³⁰ and Seneca, who quotes this sentiment with approval, adds: "Not he is poor who has little, but he who attempts to gain more by dishonest means."³¹ In another place the great Roman philosopher says: "Great is the man who remains poor [i. e., in spirit] amid riches, but safer is he who does without them."³²

³⁰ “Cheerful poverty is an honorable thing”; quoted by Seneca, Ep., II, 5.

³¹ Ep., II, 6: “Not he who has little, but he who desires more, is poor.”

³² Ep., XX, 10: “Great is he who is poor amid riches, but safer is he who lacks riches.”

c) Those who devote themselves entirely to intellectual or mental labor, have a just claim to such material goods as they require, not merely to satisfy their necessities, but to enable them to live according to their rank or station. St. Paul's dictum that "they who serve at the altar share with the altar,"³³ applies in a wider sense to all who devote themselves to spiritual and intellec- tual labor for the benefit of their fellowmen, and includes pre-eminently the members of contemplative orders. d) As the individual, so also each social group (the family, the Church, the State, etc.) has the right and the duty to acquire property. But the group no less than the individual is exposed to the dangers that arise from wealth. History furnishes abundant examples of the truth of the Apostle's saying: "They that will become rich, fall into temptation and into the snare of the devil, and into many unprofitable and hurtful desires, which drown men into destruction and perdition."³⁴

³³ 1 Cor. IX, 13.

³⁴ 1 Tim. VI, 9; cfr. Ps. XXXIII, 11; Luke XII, 15-21.

Man is not the absolute owner, but rather the steward of his possessions, and as such must give a strict account to God. Material wealth should never be the ultimate aim either of the individual or of society, but should be regarded and employed merely as the basis and foundation of a higher life. "Charge the rich of this world," says St. Paul, "not to be proud, nor to trust in the uncertainty of riches, but in the living God, who giveth us abundantly all things to enjoy, to do good, to be rich in good works, to give easily, to communicate to others, to lay up in store for themselves a good foundation against the time to come, that they may lay hold on the true life."³⁵

³⁵ 1 Tim. VI, 17-19; cfr. Matth. VI, 19-21.

The concentration of great fortunes in the hands of a few is becoming a serious danger, not only to the individual, since, as St. James says, the rich oppress the poor by might,³⁶ but also to society, because so many rich men now-a-days employ their wealth to establish monopolies, obtain excessive profits, defraud their fellowmen, purchase political power, etc. The fact that it is possible under present conditions, for the exceptionally able, the exceptionally cunning, and the exceptionally lucky, to accumulate enormous riches through the clever and unscrupulous utilization of special advantages, natural and otherwise, has given rise to a just demand for the legal limitation of fortunes. Various methods are suggested. The law might directly limit the amount of property to be held by any individual. One of our leading Catholic authorities on social and political science, Dr. John A. Ryan, thinks that if the limit were placed fairly high, say at one hundred thousand dollars, such a law "could scarcely be regarded as an infringement on the right of property. In the case of a family numbering ten members, this would mean one million dollars. All the essential objects of private ownership could be abundantly met out of a sum of one hundred thousand dollars for each person. Moreover, a restriction of this sort need not prevent a man from bestowing unlimited amounts upon charitable, religious, educational, or other benevolent causes."³⁷

³⁶ Jas. II, 6; cfr. Henry H. Klein, Dynastic America and Those Who Own It, New York, 1921; Andrew Carnegie, The Gospel of Wealth, New York 1900.

³⁷ J. A. Ryan, Distributive Justice, New York 1916, pp. 292 sq.; cfr. Hy. H. Klein, Dynastic America, N. Y., 1921, pp. 164 sqq.

On the other hand, "the dangers and obstacles confronting any legal restriction of fortunes are so real as to render the proposal socially inexpedient. It would easily lend itself to grave abuse. Once the community had habituated itself to a direct limitation of any sort, the temptation to lower it in the interest of better distribution and simpler living would become exceedingly powerful. Eventually the right of property might take such an attenuated and uncertain form in the public mind as to discourage labor and initiative, and thus seriously to endanger human welfare. In the second place, the manifold evasions to which the measure would lend itself would make it of very doubtful efficacy."³⁸

³⁸ Ibid., p. 293.

Another suggestion is that the amount of property capable of being received by heirs of any person be limited, say, to one million dollars.³⁹ This would be a restriction of the rights of bequest and succession, which are integral elements of the right of ownership. Is such restriction admissible? The answer to this question, according to the same authority, "depends upon the effects of the measure on human welfare.... A person needs private property not only to provide for his personal wants and those of his family during his life-time, but also to safeguard the welfare of his dependents and to assist other worthy purposes, after he has passed away.... All the necessary and rational ends of bequest and succession could be attained in a society in which no man's heirs could inherit more than one million dollars. Under such an arrangement very few of the children of millionaires would be prevented from getting at least one hundred thousand dollars. That much would be amply sufficient for the essential and reasonable needs of any human being. Indeed, we may go further, and lay down the proposition that the overwhelming majority of persons can lead a more virtuous and reasonable life on the basis of a fortune of one hundred thousand dollars than when burdened with any larger amount. The persons who have the desire and the ability to use a greater sum than this in a rational way are so few that a limitation law need not take them into account. Corporate persons, such as hospitals, churches, schools, and other helpful institutions, should not, as a rule, be restricted as to the amount that they might inherit; for many of them could make a good use of more than the amount that suffices for a natural person."⁴⁰

³⁹ Final Report of the Federal Commission on Industrial Relations, p. 32; H. E. Read, The Abolition of Inheritance, N. Y., 1919; A. Carnegie, The Gospel of Wealth, N. Y., 1901, pp. 11 sqq.

⁴⁰ Ryan, Distributive Justice, p. 294.

The limitation of inheritance would, of course, also be liable to abuse, and while its bad effects would probably not be as great as those following a similar abuse with regard to possessions, they are, in Dr. Ryan's opinion, "sufficiently grave and sufficiently probable to suggest that the legal restriction of bequest and succession should not be considered except as a last resort, and when the transmission of great fortunes had become a great and certain public peril."⁴¹

⁴¹ Ibid., p. 295.

An indirect way of limiting large fortunes would be through a progressive tax on incomes and inheritances. This is a more feasible method, though the maximum limit that justice would set to the rate of taxation is not easy to determine. Some years ago Andrew Carnegie⁴² recommended an inheritance tax of fifty per cent on estates amounting to more than one million dollars. While no country has yet reached this high level, the proposal cannot be stigmatized as unjust either to the testator or his heirs, nor can it be proved that it is in any other manner injurious to human welfare. In a general way, all that can be said with confidence concerning the just rates of inheritance taxation is that "the increments of the tax should correspond as closely as possible to the diminishing intensity of the wants which the tax deprives of satisfaction; in the case of each heir a certain fairly high minimum of property should be entirely exempt; on all the highest estates the rate should be uniform, and it should fall a long way short of confis- cation; and the tax should at no point be such as to discourage socially useful activity and enterprise."⁴³

⁴² The Gospel of Wealth, pp. 11 sqq.

⁴³ Ryan, Distributive Justice, p. 300.

It would be still better, perhaps, instead of clipping off wealth from the top, by limiting possession and transmission, to prevent these things by going to the root, i. e., by abolishing the wage system and admitting workingmen to a share in the possession of the means of production. This, too, could best be brought about, not by legal enactment, but by molding public opinion.⁴⁴

⁴⁴ See Social Reconstruction, brochure issued by the four bishops constituting the Administrative Committee of the American Catholic War Council, Washington, D. C., 1919; Cardinal Bourne's Lenten Pastoral for 1918, "The Nation's a Crisis," London, Catholic Social Guild, 1918.

e) We will close this chapter with a few remarks on the duty of distributing superfluous wealth. Here, also, we shall follow Professor Ryan.

It is the fundamental teaching of Christianity that ownership is stewardship and that he who possesses superfluous goods must regard himself as a trustee for the needy. St. Thomas clearly and concisely formulates this principle as follows: "As regards the power of acquiring and dispensing material goods, man may lawfully possess them as his own; as regards their use, however, a man ought not to look upon them as his own, but as common, so that he may readily minister to the needs of others."⁴⁵ This teach- ing is in perfect conformity with reason. Since the goods of the earth were intended by the Creator for the common benefit of all mankind, the possessor of a surplus is reasonably required to use it in such a way that this original purpose of all created goods will be fulfilled. To refuse to do so is to treat one's less fortunate neighbor as something different from and less than oneself, as a creature whose claim upon the common bounty of nature is something less than one's own.

⁴⁵ Summa Theol., 2a 2ae, qu. 66, art. 3.

Is this obligation one of charity or of justice? In the case of wealth unjustly acquired it is clearly one of justice. But how about wealth honestly acquired? St. Thomas says: "The goods which a man has in superfluity are due by the natural law to the sustenance of the poor."⁴⁶ This is the official teaching of the Church, for Pope Leo XIII says: "When one has provided sufficiently for one's necessities and the demands of one's state of life, there is a duty to give to the indigent out of what remains. It is a duty not of strict justice, save in case of extreme necessity, but of Christian charity."⁴⁷

⁴⁶ Ibid., art. 7.

⁴⁷ Encyclical "On the Condition of Labor," 15 May, 1891; The Pope and the People, p. 192.

There seems to be a contradiction between this teaching and that of certain Fathers, but the contradiction is apparent rather than real. "The truly important fact of the whole situation," says Dr. Ryan, "is that both the Fathers and the later authorities of the Church regard the task of distributing superfluous goods as one of strict moral obligation, which in serious cases is binding under pain of grievous sin. Whether it falls under the head of justice or under that of charity, is of no great practical importance."⁴⁸

⁴⁸ Distributive Justice, pp. 303 sq., 307 sq.

What portion of his superfluous wealth is a man obliged to distribute among the needy? Dr. Ryan, proceeding from the unanimous teaching of moral theologians that the entire mass of superfluous wealth is morally subject to the call of grave need, and from the principle of the moral law that the goods of the earth should be enjoyed by the inhabitants of the earth in proportion to their essential needs, attempts to answer this question from the standpoint of common welfare. He thinks that, in view of available statistics, the conclusion is inevitable "that the greater part of the superfluous income of the well-to-do and rich would be required to abolish all grave and ordinary need." He adds: "The proposition that men are under moral obligation to give away the greater portion of their superfluous goods or income is, indeed, a 'hard saying’.... No Catholic, however, who knows the traditional teaching of the Church on the right use of wealth, and who considers patiently and seriously the magnitude and the meaning of human distress, will be able to refute the proposition by reasoned arguments. Indeed, no man can logically deny it who admits that men are intrinsically sacred, and essentially equal by nature and in their claims to a reasonable livelihood from the common heritage of the earth. The wants that a man supplies out of his superfluous goods are not necessary for rational existence. For the most part they bring him merely irrational enjoyment, greater social prestige, or increased domination over his fellows. Judged by any reasonable standard, these are surely less important than those needs of the neighbor which are connected with humane living. If any considerable part of the community rejects these propositions, the explanation will be found not in a reasoned theory, but in the conventional assumption that a man may do what he likes with his own. This assumption is adopted without examination, without criticism, without any serious advertence to the great moral facts that ownership is stewardship, and that the Creator intended the earth for the reasonable support of all the children of men."⁴⁹

⁴⁹ Ibid., p. 314.

READINGS. —St. Thomas, Summa Theologica, 2a 2ae, qu. 66, art. 1 sq. —Theodore Meyer, S.J., Institutiones Iuris Naturalis, Vol. II, pp. 126 sqq., Freiburg 1900. —V. Cathrein, S.J., Moralphilosophie, 4th ed., Freiburg 1904, Vol. II, pp. 285 sqq. —IDEM, Das Privateigentum und seine Gegner, 4th ed., Freiburg 1909. —A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 240 sqq.—Ch. Perin, De la Richesse dans les Societes Chretiennes, 3rd ed., 2 vols., Paris 1881. —F. Walter, Das Eigentum nach der Lehre des hl. Thomas von Aquin und des Socialismus, pp. 266 sqq., Freiburg 1895. —H. Pesch, S.J., Lehrbuch der Nationalökonomie, Vol. I, Freiburg 1905, pp. 179 sqq.—Michael Cronin, The Science of Ethics, Vol. II, Dublin 1917, pp. 113 sqq.—R. I. Holaind, S.J., Natural Law and Legal Practice, New York 1899, pp. 203 sqq. —Jos. Rickaby, S.J., Moral Philosophy: Ethics, Deontology and Natural Law, 4th ed., London 1918, pp. 278 sqq. —J. A. Ryan, Distributive Justice: The Right and Wrong of Our Present Distribution of Wealth, New York 1916, pp. 3 sqq., 291 sqq., 303 sqq. —J. Husslein, S.J., The World Problem: Capital, Labor, and the Church, New York 1918, pp. 232 sqq. —H. Noldin, S.J., Summa Theologiae Moralis, Vol. II, 11th ed., Innsbruck 1914, pp. 387 sqq. —Thos. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 344 sqq., 350 sqq., New York 1919. —A. Lehmkuhl, S.J., Theologia Moralis, Vol. I, 11th ed., Freiburg 1910, pp. 499 sqq. —J. Kelleher, Private Ownership, Dublin 1911. —J. E. Ross, C.S.P., Christian Ethics, pp. 271 sqq., New York 1919.—H. Belloc, The Catholic Church and the Principle of Private Property, London 1920. —J. A. Ryan, The Christian Doctrine of Property, New York 1923.

A particularly offensive sin against the precept here under consideration is involved in the grosser forms of slavery. It is true that the treatment of slaves is usually softened by natural compassion and kindliness on the part either of the master or of public opinion, or by the precepts of religion; that the law has in some instances granted the wretched slaves a certain measure of protection, and that it is not necessary to assume that every slaveholder is a cruel tyrant. Yet the status of a slave is by its very definition not that of a person, but rather that of a brute beast or an inanimate object that is bought and sold according to the whims of its owner. Dr. Devas is undoubtedly right when he says that “slavery by its very nature encourages immorality, hinders proper family life among the slaves, gives the master an arbitrary power with which no man can be trusted, fosters the scorn of manual labor, as a degradation for the freeman, and thus is always a social evil, any incidental advantages which it may give being attainable by serfdom.”¹⁷

¹⁷ Political Economy, 3rd ed., pp. 529 sq.—Cfr. Leo XIII, Epist. ad Episc. Brasil., 5 Maii 1888; P. Allard, Art. “Slavery,” in the Catholic Encyclopedia, Vol. XIV, pp. 36 sqq.; J. J. Fox, ibid., pp. 39 sqq.; A. Ebeling, Die Sklaverei von der ältesten Zeit bis auf die Gegenwart, Paderborn 1899; J. E. Ross, C.S.P., Christian Ethics, N.Y. 1919, p. 328.

"In modern times," writes Archbishop Simar, "the working classes live under conditions similar to those of pagan antiquity. All too frequently the laborer is degraded to the level of a mere tool for money-making, and no regard is paid to his bodily health, his social and economic welfare, and his spiritual, religious, and moral development. The evils and dangers which threaten humanity in consequence of this social injustice have their fountain-head in un-Christian views and principles, and therefore cannot be successfully and permanently abolished unless Christianity is again allowed to govern all social relations. The fundamental postulate of reform is respect for the personal dignity of every man as a man and as a Christian, for in no other soil can true charity and its concomitant spirit of self-sacrifice thrive." ¹⁸ The keynote of the famous Labor Encyclical of Leo XIII, "Rerum Novarum," is the principle that conditions of labor shall be made more human and less servile, and that the worker be placed in a condition of greater economic freedom both as regards his security against want and the conditions of his labor. The worker is to be regarded as a human agent, not as a mere tool; and as one who has the right by means of his labor to achieve a wholesome human existence, since, as the Pope says, it is only by his labor that he can preserve and develop himself. His necessity gives him the right to such conditions of labor as will enable him to achieve a thoroughly human existence. Moreover, the same necessity demands that he should claim this right; since, as Leo XIII declares, "a man cannot give up his soul to servitude." Yet that is just what he is required to do under the system now largely prevalent in modern industry.

¹⁸ Simar, Moraltheologie, 3rd ed., p. 372.—Cfr. Th. Meyer, S. J., Die christlich-ethischen Sozialprinzipien und die Arbeiterfrage, 4th ed., Freiburg i. B. 1906; Reuter-Lehmkuhl, S. J., Neoconfessarius, pp. 214 sqq.; J. Biederlack, S. J., Die soziale Frage, 7th ed., pp. 206 sqq.

1. The right of ownership (dominium) is defined as “the permanent and exclusive right of retaining, controlling, and disposing of an object in one’s own interest and according to one’s own wishes.”¹ It is derived from nature itself and protected by the natural law.²

¹ Cfr. M. Cronin, The Science of Ethics, Vol. II, p. 113.—J. P. Gury, Comp. Theol. Mor., Vol. I, n. 533: “Ownership is the legitimate faculty of disposing of some thing as one’s own. Ownership is chiefly divided into perfect and imperfect, according as there is a right to dispose both of the thing itself and of its utility, or only of one of the two. Imperfect ownership, however, is subdivided into direct and indirect, that is, useful, according as it regards solely the ownership of the thing or solely its utility. They also commonly distinguish high and low ownership. The former is ownership improperly so called and is termed the right which the supreme authority has, for the gravest cause and for the good of the community, sometimes to dispose of the goods of private persons with due compensation, insofar as this can be done. The latter is the ownership of private persons, to which the definition properly applies.” Cfr. Pruner, Lehre vom Recht, Vol. I, pp. 248 sqq.

² Leo XIII, Encycl. “Quod apostolici,” Dec. 28, 1878: “The right of property and ownership, proceeding from nature itself, is sanctioned by natural law.”—IDEM, Encycl. “Rerum novarum,” May 15, 1891: “The right to possess things privately as one’s own has been given to man by nature. . . . The right of ownership which we have shown to have been bestowed by nature upon individuals must be transferred to man insofar as he is the head of a family. . . . Therefore, when relief for the people is sought, this must be held above all as a fundamental principle: private possessions must be preserved inviolate.”—IDEM, Encycl. “Graves de communi,” Jan. 18, 1901: “Therefore let nothing be more sacred to it [Christian democracy] than justice; let it command that the right of acquiring and possessing be kept intact.”

All ownership is based on some ground, usually called title. A title is a factor or an event by which a particular owner comes to have a right to his property. There is a variety of such titles, partly original or primary, partly derivative or secondary. An original title of ownership is one by which objects that belong to no one are appropriated, or by which existing private property is increased or improved. A secondary title is one based upon donation or legitimate purchase from a previous owner.

2. The chief original titles of ownership are: occupancy, accretion, and labor.

a) Occupancy (occupatio), the first and most primitive title of private ownership, is defined as the actual appropriation of ownerless objects with the intention to keep them as one’s own. This title of ownership (ius primi occupantis) presupposes that the object in question is by nature fit to become private property (res capax dominii privati). Hence it must not belong either to State or Church, nor be of such a nature that it cannot be occupied, e. g., the sea or air. Secondly, it must be actually ownerless, that is to say, it must never have belonged to anybody (res nullius), or, if it did, have been relinquished by the former owner (res relicta); third, the occupant must have the intention of acquiring the object as his own and of exercising the right of ownership in future. Fourth, the act of occupancy must be such as to convey to others some intimation that proprietary possession has been taken.³ This is usually done by some external act, e. g., in the case of a movable object, keeping it and turning it into something else; in the case of soil or real estate, by the act of cultivating it, fencing it in, setting out plants on it, and so forth.

³ M. Cronin, The Science of Ethics, Vol. II, pp. 139 sq.—Gury, op. cit., I, n. 558: “Occupancy is the actual taking possession of things which belong to no one. It is a legitimate mode of acquiring ownership, provided that the required conditions are present, namely: 1. That the thing be capable of private ownership and belong to no one; 2. That the occupant wish to make it his own and take possession of it; 3. That no law stand in the way of occupancy. The more frequent practical cases concerning this matter relate to the occupancy of animals.”

The principle that ownerless land in uncivilized countries may be occupied and thereby become private property is recognized by the law of nations.

The most common kinds of occupancy are: hunting (venatio), fishing (piscatio), and discovery (inventio). In civilized countries the right of hunting and fishing is regulated by positive laws and hence may not be exercised ad libitum, or if it is so exercised, entails the duty of making restitution for damage done. Hence the right of occupancy may be exercised:

I. What Is Intended in the Treatise. This treatise can occupy too small a place in this manual volume. Yet it will by no means lack its peculiar utility, if it exhibits, as it were synoptically, the principles of conclusions, with a brief demonstration added; if it teaches especially how to distinguish what is required or advised by the very law of nature, and what is left to be defined by positive statutes; if finally it supplies norms for detecting the way by which human laws influence the offices of conscience. Therefore our effort will tend here.

II. On various positive laws. We must by no means dissemble that difficulty is increased by the very multitude of laws which today, among so many various peoples, are passed almost daily. Yet it is lawful to bring into a few genera the laws to which we must chiefly attend. For besides canon law, which is by far the principal for the moral theologian, it seems sufficient, for our intention, that we consider three genera of legislations: the Latin, which borrows many things from ancient Roman law and from European customs; the Germanic, which does not stand far from the preceding, but shines by scientific elaboration; and the Anglo-American, which, in several points, is distinguished from the others by more proper marks, although it itself has by no means been withdrawn from the authority of Roman law (cf. Catholic Encyclopedia, under the word Law (Roman), art. Jos. I. Kelly).

As far as the matter allows, we shall put the documents of natural law before positive sanctions. But where separation cannot be made, we shall bring forward Italian law as an example or specimen, while not neglecting a sober sketch of other laws: which, in this international Institute, did not seem to have to be passed over.

Yet let no one think that we are deceived by that error that we hope to instruct our readers in civil laws in a few pages. This alone can we strive for, which moreover of itself suffices: that the fundamental ideas, which can be called as it were the soul of particular laws, be communicated, and that a few elements of positive law be handed down by which the theologian may be able to perceive the state of the question concerning various cases of conscience, and to recognize the frequent necessity of approaching experts in law.

For the easier understanding of the juridical exposition, certain things remain to be observed. 1. The Code of France, to which Napoleon gave his name, by brevity of speaking and method of arranging matters, far surpassed prior Bodies of Law, so that it introduced a new method of writing laws, which almost all cultivated nations, indeed recently the Church herself in her Code of Canon Law, have imitated. And since it sufficiently expressed the juridical persuasions and propensions of the declining eighteenth century, and at the same time composed Roman laws and the customs of the Franks, or of Germanic origin, not only because of the political authority of Napoleon I did it become common to several peoples ¹, but it also was author of the manner of ordering civil laws for several others, e.g. of the Brazilian republic and many States of Latin America.

Later Codes nevertheless did not omit to perfect the French accidentally. This, e.g., must be observed particularly concerning the Code of Italy. Besides, since the French Code sinned by the note of individualism, from the middle of the nineteenth century it had to be reformed or completed in France itself by several social laws.

2. While the Austrian Code is commended by solicitude concerning natural law, no other Code has been composed with more methodical preparation and long-lasting deliberation (of more than twenty years) of doctors and jurists than the Code which from the year 1900 began to rule the German Empire. Joined to that Code is the Law of Introduction, which sought accurately to define what could be retained from various particular laws. The promulgation of a Code of this kind had to exercise a certain force even in other regions; which is seen especially in Switzerland. For the Swiss Federation, from the beginning of the year 1912, is ruled by a new civil Code, which differs more than the preceding law from the Code of France; yet not so that we ought to separate proper Swiss law from the Latin. In Switzerland, moreover, besides the civil Code, there is a special Code of Obligations, to be consulted for contracts, and this, corrected in the first two sections, also obtained the force of obliging from January 1, 1912. In the Canadian dominion, the province of Quebec is ruled by its own civil Code, which approaches very closely to French law; while the other eight provinces, even in civil matters, use English law.

3. Concerning the laws of England and the federated States of North America, this must be observed: that by the name Common Law there is designated there the ancient English regime, resting not on written acts but on custom. This law, in each region, has often been derogated both by positive statutes and by jurisprudence which consulted equity.

Therefore, looking especially to the nature of the laws, by the name of Latin law we include the civil law of Latin America, Austria, Belgium, the Canadian province of Quebec, France, Switzerland, Spain, Italy, and Lusitania.

By the name of Germanic law, we designate the law introduced by the civil Code of Germany in 1900.

By the name of Anglican law, the law in force in England, in the eight provinces of the Canadian dominion, and in various parts of the British empire.

By the name of American law, the law of the U.S.A., if nevertheless you except the Philippine Islands and the State of Louisiana, which are ruled by Latin laws.

III. As to the contents of this treatise, this remains to be said. Since the last five precepts of the Decalogue, at least in their explicit formula, pertain to justice, our treatise will exhibit under one common rubric those things which writers are accustomed to place under various titles concerning the fifth, seventh, and tenth precepts. For concerning the sixth and ninth precepts we act in the brief Volume IV; to the eighth precept we reserve a special place after this treatise. But in the treatise itself we shall briefly propose those things which sometimes are inscribed concerning certain states of lay persons.

IV. Division. There will be three sections of this treatise: the first appointed to general notions; the second concerning the rights and offices of threefold justice; the third treating and discussing injustice and the connected obligation of restoring.

¹ Yet soon those nations endeavored to review the Code of France and to make a peculiar one for themselves. Thus in Holland, in the year 1833, its own civil Code was promulgated; the fundamental law of Belgium obliges the legislator to make new Codes, which work nevertheless, concerning civil law, has not yet been perfected. And just as Spain and Lusitania adapted the civil Code of France to their own character, so various colonies of each Nation, when they had grown into autonomous republics, began to prepare special civil Codes. Nor, after the laws have once been perfected, is labor ceased, so that, e.g., in the Mexican republic, the Code of December 13, 1870, was suppressed by the Code which began to be in force there from June 1, 1884, and to which a more recent law de relationibus familiaribus has partly derogated.

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.

Definition. Justice, a special cardinal virtue, is a moral virtue by which we are inclined to render to each one his own right.

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.

2. 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.

3. 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.

4. 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.

5. 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?

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.

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.

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.

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.

3. 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.

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.

2. 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.

3. 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."

Utility. The few things which we hand down here explain more the notions of legal and distributive justice; and at the same time they touch the grave question concerning the force and obligation of laws, especially civil laws.

Definition. Legal justice, which is rendered to society as such, makes citizens inclined to do those acts which, either by common necessity or from the use of jurisdiction, are owed on account of the common good. - Those acts are formally honest; for indifferent acts, as such, do not conduce to the common good. They are, however, acts of various virtues. And hence legal justice is called general, because it does not have special matter to which, as chastity or charity does, it gives first honesty; but it exercises acts which are already honest from elsewhere, or even commanded, as owed on account of the common good.

The citizens, in whom the virtue exists as in its subject, are some princes, or those exercising public power, others subjects. Princes, as such, legal justice disposes to making good laws, whence it is said to exist in them architectonically, or to administering the republic well. Subjects, as such, it disposes to observing just laws well. Hence, since most acts of legal justice are commanded by law, it borrows the name of legal justice. Hence at the same time it is clear why, according to the various matter which is commanded, an act commanded by jurisdiction pertains to various virtues, so that the faithful man who observes the ecclesiastical fast cultivates temperance, and the Catholic who performs servile work on Sunday sins against religion. But to establish good laws, to administer well the republic or the Church is for rulers an office of commutative justice.

To piety or to other virtues belong the various good acts which citizens freely do with regard to the common good. This escapes not a few writers today, who confusedly ascribe those honest acts to legal justice.

You Ask Concerning the Force of Positive Law. Both canonical and civil human positive law can efficaciously dispose many things concerning the actions and things of subjects, on account of the common good. Many things also are not so terminated by divine law, natural or positive, that they can suffice for the mutual relations of men; but they must rather be further defined and accommodated to the present utilities of society: the matrimonial regime, inheritances, wills.

Positive law can, for the protection of weaker persons, make the same incapable of firm obligation; make certain agreements null with regard to the common good; impose certain solemnities to be observed in graver juridical acts, in order to forestall abuses and doubts; on account of the common good, create and extinguish rights; add new things to the conditions of agreements. By these various decrees, the human legislator can bind conscience. Now it is asked how far he has willed to bind it.

First of all the words of the law must be attended to, if they are clear; and one must answer for an obligation of conscience if they formally address conscience, or if, from a reasonable interpretation of the law, to which legislators are judged to have accommodated their mind, an obligation of conscience is gathered. This interpretation can vary with time and circumstances. Here also the force of some custom accedes.

Today, above all, a distinction must be made between ecclesiastical and civil laws. Ecclesiastical laws, as we observed in I, 253, of themselves oblige conscience, so that the presumption is for obligation. But the contrary must be said in our civil laws.

For today, in our civil laws, it seems one must answer rather for the least obligation of conscience: the common good itself suggests this, so that citizens may be in a more equal place before the law; and the profession of religious indifference on the part of many legislators demonstrates that such was the mind of the legislator. There also accedes the more vigilant and strong action today of the external forum, which brings it about that the legislator can more easily be content with external coercion.

Accordingly not a few writers, with whom we agree, establish this rule. In matter of justice, civil laws oblige conscience as much as is sufficient that public order and common peace be provided for. Wherefore they will oblige conscience: a) just laws after the definition of the judge by which a thing is adjudged to someone; b) before the sentence of the judge, laws which complete the silent natural law by their definitions. - But if the case can be solved by natural law, and there is a conflict between a natural title (say occupation) and a civil title, the thing seems able, up to the sentence of the judge, to be preserved by the natural title ¹. And this double criterion can be proposed: laws which immediately define real rights oblige conscience, at least when the definition is necessary; but after the sentence of the judge, laws which immediately prescribe certain acts to citizens. Cf. Van Gestel, De iustitia et lege, pp. 141, 203, 224, 225.

So long, however, as the matter concerns private patrimonial relations, not even the reason of the common good, or affection toward the fatherland, stirs citizens to execute those laws beyond what conscience commands.

Concerning the obligation of laws which impose taxes, we shall act below, where we treat of injustice.

¹ This formula, however, is rather our own. Often, from the principle which they have in common with us, they gather that in all laws which immediately and honestly define real rights there is of itself a force of binding conscience, while laws which impose an obligation hold conscience less immediately. But others, according to the testimony of R. P. Cornelisse himself, II, 10, 3°, restrict this force more to necessary things.

Legal justice commands various acts of virtues on account of the common good. But because those acts are already honest from elsewhere according to themselves, and pertain to all virtues (at least moral virtues), it is a general virtue, lacking special matter and commanding in the matter of all virtues. It is called legal because, except for manifest necessity of the common good, law defines its act.

Princes, as such, legal justice disposes to fulfilling their own office of commutative justice, that of making good laws, administering the republic well. Wherefore in them it is said to exist architectonically.

How far human law, which can directly oblige conscience, has willed to oblige it in matter of justice: this we can learn first of all by the common interpretation of the law. Today, however, according to approved authors, civil laws directly oblige conscience only so much as is sufficient that public order and common peace be provided for. Therefore just laws oblige conscience after the sentence of the judge by which a thing is adjudged to someone, lest there be a perpetual conflict between the external forum and the forum of conscience; and also before sentence, laws which supply the silent natural law, lest rights and goods remain in uncertainty.

Distributive justice, in an equal proportion, which varies according to the nature of the things and of Society itself, as far as the common good allows it, directly distributes common goods, and indirectly common burdens, among citizens. Through it, in this way, Society renders to its members what is owed to them as such.

1. We say that the proportion must be observed as far as the common good allows this, because the things of which there is question are destined first of all to the community, and therefore can reach private persons only with that destination preserved. Therefore distributive justice is in a certain way subordinated to legal justice, so that citizens must not rarely tolerate the very inequality which the common good has demanded.

2. Moreover, since only goods are of themselves desirable, through the distribution of goods alone does Society directly render to its members what it owes them. Yet indirectly it is advantageous not to be too much burdened; and so the equal distribution of burdens itself is commanded by distributive justice.

Indeed, since public power can deprive citizens of their goods only on account of the common good, an inequitable distribution of burdens would offend commutative justice itself.

We have said that material rules vary according to the various society. For in a society of autocratic government, it can happen that all public functions are judged to be in the possession of the monarch, who therefore can legitimately exercise them through suitable persons, but persons acceptable to himself; in an aristocratic society, the ratio of equal distribution will have to be accommodated to privileges. But in our societies, citizens are equal by right, and public offices must be placed among common goods. Therefore these will have to be distributed, not according to the political parties to which citizens belong, but according to the title which exists in them.

The title itself will vary according to the nature of the goods. Hence: a) if goods, such as public offices, even after they have been assigned to one person, retain a principal relation to the common good, they will always have to be conferred first of all with regard to the republic. Therefore all those things must be observed in candidates for offices which permit one to hope for a better procuration of the office, and, other things being equal, account will have to be taken of merits, because offices also possess some ratio of reward; b) if, concerning certain utilities deservedly hoped for from the community, all citizens are pressed by the same necessity in species, even if perhaps not in the same degree, e.g. if there is question of protecting quiet possession of rights and goods, this will have to be furnished equally to all according to the quantity of goods and rights which are exposed to danger, unless nevertheless the particular necessity of certain persons imposes greater solicitude; c) the means by which excessive misery is repelled will have to be procured more for the indigent; and the means by which the arts and science are promoted will have to be procured more for the deserving.

Distributive justice, in an equable proportion, directly distributes common goods, indirectly common burdens, among citizens.

Because it distributes common goods, which by their first destination ought to serve the community, that equality must be observed as far as the common good allows it. Among those goods today public offices also must be counted, which therefore must be conferred, not according to the parties to which citizens belong, but, with the common good preserved, according to the title which exists in the citizens.

Order of speaking. Since these offices look to this, that each one's own right be rendered to him, their explanation is contained and completed by the explanation of rights. The order of speaking will be this: that we treat successively of the rights which are to be distinguished; - of the subject of rights; - of the object of rights; - of the modes of acquiring rights, in general; - of original modes; - of derived modes of acquiring rights through contract, through an office entrusted or admitted; through inheritance and testament; through another's delict or quasi-delict.

Utility. From this title the theologian ought especially to gather this fruit, that he sufficiently know various juridical acts and titles, at least for understanding the cases which are proposed, I do not say for solving them without the assistance of an expert in law; and that at the same time, once a solution of the external forum has been obtained, he may know how far that solution is efficacious in conscience, and may be able rightly to estimate the connected moral obligations.

All rights, as the very ratio of right demonstrates, when the object is considered, imply some dominion, more or less perfect; and from the dominion of jurisdiction, of which we treated above, there is distinguished the dominion of property, which immediately, although not exclusively, exists and is exercised on account of the utility of the one having it. This alone we consider in this title. Again, with the subject considered, there can be singular dominion, or dominion of one person, or condominium of several.

Division From the Amplitude of Right. Full or perfect dominion is the right of disposing for one's own advantage concerning the substance and utility of a thing. To this is opposed imperfect dominion, which, in Roman law and in several laws derived from it, is distinguished into direct, naked, or also radical dominion, and into useful or indirect dominion. The former excludes the right of perceiving utility and is called direct, because it immediately affects the substance; naked, because it is a title without use and fruit; radical, because it regards the source or root of utilities and fruits. The other embraces utility alone, and is called useful, because it gives the advantages of dominion; indirect, because only by reason of the fruits or utility does it subordinate the fund itself to the owner of the utility. Useful dominion can exist more or less broadly; and thus, when there is question of external things, there exist various rights which are called by various names and are, as it were, drawn off or dismembered from perfect dominion.

In Latin and Germanic law there are numbered, as rights which subsist through themselves, usufruct, use, habitation, servitude, superficies, emphyteusis; as rights which suppose a principal obligation and accede to it: pledge, antichresis, privilege, hypothec.

American and English law by no means ignores many ratios by which fruits or utilities can be separated from the dominion of a thing; but it is not accustomed to use proper names of rights subsisting in a thing (or principal rights).

In English law imperfect dominion is designated by the generic word entail; and it is already judged imperfect on account of a merely nominal dependence on the republic, in which every private proprietor of an immovable thing is judged to be placed. But a multiple estate in immovable things is distinguished (in things real): in fee simple, when the right passes from the one having it to all heirs in perpetuity; in fee tail, when the right passes from the one having it to natural descending heirs in perpetuity; for life, when it is bounded by the life either of the owner, or of another, or even of several; for years, when it exists for a determinate epoch (for a month or for a thousand years); at will, when it can be ended at the discretion of the landlord (lessor) or tenant (occupier); estate on sufferance, when, after the end of the right, the occupier continues, as it were from the tolerance of the owner, to use or enjoy the field. The three former are called freehold estates, when their possessor must furnish nothing unworthy of a free citizen; the others are called less than freehold.

Often, however, the word estate designates property in the full sense; and practically freehold estates do not differ from property.

There is distinguished, moreover, real property, which is in immovable things (things real or realty) conceded for a non-defined time, i.e. in perpetuity or, for example, for life; and personal property, which affects movable things (things personal) or even immovable things but conceded for a defined time. Things real are all immovable things and connected rights: as the right of rent from fields, the right of having a road through another's field; even the dignity of "peer" (peerage), the office of judge.

I. Perfect dominion is the full right of property. Wherefore it permits the owner, with justice alone considered: a) use at will, even that use which accidentally harms one's neighbor, provided that the use is not prohibited by law; b) exclusion of others; c) disposition of the thing. That is, that right is the right of using and abusing exclusively (by which word the faculty of disposing or changing the substance is juridically designated).

Nevertheless this dominion is subject to the high dominion or jurisdiction of perfect society. This, with regard to the common good, can order and moderate the exercise of the right of property: indeed, can deprive a subject of his things, provided: a) that this be done as much as the necessity of promoting the common good requires; b) that the equality of justice be observed, and therefore that the damage inflicted on the subject be compensated from common goods. For, as we have said, that justice, in distributing burdens, easily becomes commutative.

Therefore a law cannot be approved which assigns to a citizen from whom it takes dominion only a ratable part of the value; while, on the contrary, a progress of justice must be acknowledged in the effort by which, after the immense war, they endeavored to distribute among all citizens the peculiar damages inflicted on certain persons on occasion of the war.

II. 1. Usufruct is the right of using and enjoying the things of another, with their substance preserved.

2. The usufructuary can make all fruits his own. Moreover, a fruit is "whatever is accustomed to be born and reborn from a thing." Fruits are some natural, others civil. In a somewhat broader use, under this name there also comes what is regularly extracted from coal-bearing veins, etc.

Natural fruits are truly produced from the thing: either by nature alone, and then they are called simply natural; or with the industry of men joined, and then they are industrial, or rather mixed. For that is properly called industrial which is owed wholly to industry.

Civil fruits do not arise from the body itself of the thing, but consist especially in money which, from a contract concerning the thing, must be paid constantly after individual intervals: say, the annual price of a leased house ².

3. Natural fruits are acquired by perception or separation (these, in the case, are not distinguished); civil fruits are judged to be acquired from day to day, so that, if the usufruct should have an end in the middle of the year, the rent belongs for one half to the owner and to the usufructuary.

Fruits pending at the beginning and at the end of usufruct, say crops mature but not yet cut, by mutual turn belong to the usufructuary and to the owner.

What is understood under the name of fruit can be defined differently in different law. A "treasure," however, is not customarily placed among fruits.

These things can be said generally. Yet various laws must be consulted. Thus English and U.S.A. law abstains from the name usufruct, although it does not ignore the thing, "right to the 'fructus' from property belonging to another." The Code of Germany, on the contrary, treats of usufruct at length, arts. 1030-1089, distinguishing the usufruct of things, of rights, of patrimony.

Must the usufructuary at the beginning of the right compensate expenses made for the fruits which he will collect; can he at the end exact compensation of the expenses of fruits which he does not acquire? Austrian, Canadian Q., and Spanish law concedes expenses of cultivation, while by the law of Latin America, Belgium, France, Holland, Germany, nothing must be paid to him: which, as not very equitable, is also censured by jurists, e.g. by Colin and Capitant, Cours de droit civil francais, I, p. 803.

4. Usufruct of itself cannot be constituted except in things which are not consumed by first use. Nevertheless in other things, say in oil, wine, a quasi-usufruct, or usufruct said more broadly, is admitted. - When it is ended, what must be restored is defined by the Italian Code (art. 483) somewhat otherwise than by the French Code. If things are consumed not by first but by slow use (say garments, furniture), it suffices that the thing be returned in the state in which, without deceit or fault of the usufructuary, they are found when the usufruct is ended (art. 484 Cod. it.).

For more, cf. the civil laws.

¹ Thus C. Gall., art. 578.

² The Code of Germany, omitting these distinctions, rather distinguishes (art. 99) fruits of a thing and fruits of a right; fruits which arise from a thing or right according to its destination, and fruits which must be attributed to some juridical relation.

III. Use and habitation. By Roman law, by canon law (before the Code), and by certain laws today, as the Austrian (arts. 504-508, 521), Belgian, French (arts. 625-635), German (arts. 1000-1003), Italian (arts. 476, 521-530), and that of the Argentine republic (art. 2537), there is designated by the name of use and habitation the real right of inhabiting another's house or of perceiving from another's field a utility circumscribed by the proper necessity and that of the family of the one using or inhabiting. - They can also, with usufruct, be designated by the general name of personal servitudes.

IV. A servitude is a certain real burden inhering in an immovable thing in favor either of another fund or of a definite person. - This is passive servitude, while the right born from it is active servitude.

Division. 1. A personal servitude is that which is constituted for the utility of a definite person; and certain of these, in several laws, we have just seen to be designated by a proper name (usufruct, etc.). A real servitude, or servitude of estates, exists for the utility of an immovable thing. Thus, besides the personal servitude of use, various uses of an immovable thing can be constituted for the utility of another fund (or of its proprietor), and this by law or agreement. Individual uses of this sort will be a certain ratio of real servitude. In a real servitude there is distinguished the servient fund, on which the burden is imposed, and the dominant fund: it is a kind of quality of this latter which cannot exist separately.

3. Real servitude is called urban or rustic, according as it is constituted for the utility of an urban estate, i.e. a building, or does not inhere in buildings. This division is absent from the Italian Code.

It is continuous or non-continuous, according as it has a perpetual cause: servitude of prospect, of aqueduct; or, because it must be exercised by human action, it serves at intervals: servitude of a path.

It is apparent or non-apparent, according as it is manifested by an external sign or not.

It is affirmative, which gives an active right of doing something, e.g. of passing through another's estate; negative, which merely prohibits, e.g. lest another build higher. Observe that a servitude cannot consist in doing, i.e. a servitude obliges no one to a positive act, but merely to tolerating or not doing.

The distinctions made must be attended to in the modes of acquiring, exercising, and extinguishing servitudes.

Legal servitudes are imposed by the law itself so that the right of property, especially among neighbors, may be prudently ordered.

V. In certain laws there is acknowledged, as a distinct right in the thing of another, superficies, by which someone has dominion either of all things (complete superficies), or at least of certain things (incomplete superficies), which are built or planted on another's fund.

In Belgium the right is ruled by the special law of January 10, 1821, which circumscribes the right by fifty years. Concerning that special right the Codes of the Argentine republic, France, and Italy are silent, although the French Code, arts. 552, 553, 661, and Italian Code, arts. 140, 448, 562, do not omit to treat of the dominion of things which exist below the soil or on the surface. That right then gives place to various doubts and controversies, concerning which jurists must be approached. - Concerning superficies the Code of Germany treats in arts. 1012-1027.

VI. Emphyteusis is a right in another's thing, by which someone can fully enjoy that thing, under this law, that he pay something (money or other species) to the owner annually, at least in acknowledgment of dominion. What must be paid is called the canon.

In Italian law, art. 1556, the obligation of improving the fund is placed in the description of emphyteusis, although, with the exception of a few dispositions, arts. 1562, 1563, 1564, full liberty of agreeing concerning mutual rights is conceded. In German law, under the name Erbpacht, as a right of certain States, it is named and admitted by art. 63 of the introductory law of the Code. Certain laws, like the Code of Holland and of Italy, admit that it be constituted in perpetuity; but the law of Italy makes that perpetual right essentially redeemable, once the capital which corresponds to the canon has been paid. In Belgium, by force of the law of January 10, 1824, its minimum time is 27 years, its maximum 99 years. Nor do the laws of the U.S.A. permit a perpetual lease of land; but they define the maximum time in various ways.

The Austrian Code, arts. 1122 ff., distinguishes hereditary lease-hire, for a just price; emphyteusis, for which a canon, far below a just price, is paid; and ground-rent, which is paid by him who enjoys by hereditary title the surface to the owner of the fund who at the same time enjoys those things which are below the soil. Concerning that right several Codes, e.g. that of France, are silent, but the law of June 25, 1902 acknowledges emphyteusis as a right in a thing, and assigns to it a minimum time of 18 years and a maximum of 99 years.

A fief, insofar as it still exists in England and Germany, designates a real, perpetual, and hereditary right in another's fruitful thing, with the added obligation of the feudatary (or vassal) of exhibiting homage and fidelity to the direct lord. By art. 59 of the introductory law of the Code of Germany, the laws of the States concerning fiefs are confirmed.

VII. On accessory rights. 1. General matters. Certain rights exist merely for strengthening the execution of a principal obligation, so that with this they fall: "the accessory follows the principal."

Every debtor obligates his patrimony, i.e. the universality of movable or immovable things of which it consists or will consist. But this obligation impedes no alienation, confers no right in a thing, and offers the same advantage to all creditors.

Nor must special things be said concerning the faculty which the law sometimes concedes of retaining certain things of another until he has satisfied certain debts connected with that thing.

But certain things must be indicated concerning pledge and antichresis, privilege (of exacting), and hypothec.

2. On pledge and hypothec. Pledge designates both the special right which falls to the creditor in the thing pledged, and the very object of that right, and the contract by which it is constituted. But the special right looks to this, that the creditor obtain possession of the thing, which the Code of Germany calls indirect, and then, either by sale or by acquisition of the thing, satisfy himself before other creditors.

By pledge properly so called, the thing is handed over to be possessed by the creditor formally or equivalently. Wherefore, of itself it is not constituted except in movable things and in titles (bearer titles) which represent rights.

Thus it differs from hypothec, by which name we understand the right in another's immovable thing, by which this thing, for the thing principally owed, is specially obligated to the creditor, so that he may be satisfied before others from the price of the thing. Even when the possessor has been changed, the obligated thing remains.

Moreover, a threefold hypothec is distinguished, according to its proximate source, which is law in legal hypothec, decree of the judge in judicial hypothec, agreement in conventional hypothec. Nevertheless, not all laws admit judicial hypothec as formally such.

Concerning conventional hypothec these things especially must be observed: the agreement or constitution, which for the most part must be made by an authentic act or before a notary; publicity, by which care is taken that what is inscribed in the registers can be known by all whom it concerns; the time through which it is preserved: for unless after a defined number of years it is renewed, the inscription is deleted by office, and the creditor at least loses his order; the order of hypothecs, since an immovable thing can be pledged to several creditors. But he who comes first in order, or who is said to have the first hypothec, obtains what is of interest before the others; he who has the second precedes the third, and so on. Finally, in several laws a conventional hypothec must be special, insofar as the obligated goods and the obligations to whose protection they are deputed are accurately defined.

But just as the constitution of a pledge can be so conceived that the dominion itself of the thing is transferred to the creditor until he has obtained payment of the principal debt, so again nothing is opposed to this, that a thing, even movable, without delivery, be affected for the security of some obligation. This can be done, for example, of a credit inscribed in the Code of Debts of the State (grand Livre de la dette publique). And most laws today acknowledge various forms of security of this sort: then, however, they are accustomed to require the solemnity of some inscription in public registers, so that without prejudice to third parties the right can be exercised. Pledge understood in this way scarcely differs from hypothec otherwise than by its object, which is movable.

From common pledge there is also customarily distinguished pledge in a commercial thing, which is constituted with lesser solemnity (e.g. by delivery alone without accompanying writing), and confers a more expeditious right of obtaining payment.

Of itself, the creditor is prohibited from using and enjoying the thing pledged. Nevertheless the contrary can be expressly or tacitly agreed upon, so that the creditor can perceive the utility and fruits first to compensate expenses and interest, then to extinguish the principal debt.

The laws which define the mode by which the creditor can sell or acquire for himself the pledge, and which prohibit certain clauses, endeavor to protect the debtor from abuses, especially those of "usurers."

N. B. Today not only on account of debt or defined obligations of private persons are pledges made and hypothecs conceded, but also several officials, public or private, who have great sums of money to administer, must give security concerning matters which can be imputed to them. This for the most part is done by depositing "titles" in a bank or by a similar pledge; sometimes also by a constituted hypothec, which is called a credit hypothec.

Various Civil Laws Concerning These Rights. 1. Latin law. By Italian law (arts. 1878-1890), French and Belgian law (arts. 2071-2084), Austrian law (arts. 451, 1368), Swiss law (art. 884 c. civ.), Dutch law (art. 1198), pledge cannot be constituted by words alone, but delivery of the thing is necessary; pledge gives the creditor a privilege by force of which, through the sentence of the judge, he either acquires the thing, once he has paid what its value exceeds beyond the debt, or obtains payment before others from the price of sale at auction ¹.

In Italian law, immovable goods, the usufruct of them, emphyteutic rights, titles of obligations of the State can be affected by hypothec (art. 1967). Everywhere today it is required that the hypothec be publicly evident. Wherefore, by Italian, Belgian, and French law it must be inscribed before the official whose name is "keeper of hypothecs." And after a certain time (before 30 years have elapsed in Italy, before 15 years in Belgium, before 10 years in France) it must be renewed.

Among several creditors who have the right of hypothec, those inscribed earlier are preferred to others. In Italian law (art. 2008), provision is made that those who present the document at the same time be placed under one number of inscription. But in Belgian and French law, they are estimated from the day of inscription, so that those who have obtained inscription on the same day are equal in time. In Canadian Q. and Dutch law they receive their order from inscription; except, in Canadian law, the hypothec by which provision is made for premiums which are owed to mutual societies of insurance against fire. The hypothec must be constituted through an authentic instrument (before a notary), and the conventional hypothec is subject to the law of "speciality," i.e. both the credit to which it gives security, and the goods which give security, must be defined individually. The possessor of the burdened fund can alienate it, but cannot make the thing worse to the prejudice of the creditors. To these belongs the right of "following" (droit de suite) the thing affected by hypothec, unless the new owner wishes, by making payment of the debt, to free it from the burden.

Spanish, Lusitanian, and Latin-American law is similar; in the law of the Argentine republic, however, attention must be given to the special law (n. 9661) which instituted agrarian pledge (prenda agraria) in machines and instruments of agriculture, in animals and movables assigned to the cultivation of fields, and also in the fruits of mines. The debtor becomes, as it were, the depositary of the thing pledged in the name of the creditor. That contract can be constituted by authentic or even private writing, but unless it is inscribed in public registers, it has no effects with respect to third parties.

By the Austrian Code pledge is used as a generic word, and pledge of a movable thing (pledge of French law) and pledge of an immovable thing or hypothec are distinguished.

2. Germanic law (arts. 1205-1257) differs scarcely from Latin law concerning pledge and antichresis, except that art. 232 enumerates various modes of giving security; because, in antichresis (Nutzungspfand) no distinction is made of movable and immovable thing. Concerning hypothec, however, these things come to be noted. First, without any relation to some principal debt, an immovable thing can be burdened with the obligation of paying, either once or also, in the manner of rent, periodically, some sum; and indeed in such a way that the written title by which the right is acknowledged belongs to the bearer: thus a predial debt or predial rent is constituted. Cf. arts. 1191-1198 and 1199-1203. That debt has been called abstract hypothec.

But, this omitted, the Code distinguishes Buchhypothek, which is our ordinary hypothec; Briefhypothek, or a hypothec which is not only inscribed in public registers (the registry), but besides must be proved by a certain written instrument, by the cession of which the right itself is yielded or transferred; finally Sicherungshypothek, by which someone makes secure in advance a credit perhaps future (arts. 1181-1190). Therefore a hypothec can be constituted in this way, so that the very sum whose payment it renders secure is not yet defined, but only the maximum beyond which the fund cannot be obligated is defined (art. 1190).

3. In English and U.S.A. law, pawn or pledge, lien, mortgage must be distinguished. Pledge, or pledge, is a contract by which a thing subject to personal dominion (personal property) is handed over to another for the security of an obligation. - Lien gives neither dominion nor possession to the creditor, but binds the thing, especially an immovable thing, to the security of the creditor's right. - Mortgage, by force of common law, transfers to the creditor himself the dominion of the thing or right until satisfaction has been made to the creditor. It can be constituted in personal or real estate (property). Constituted in personal estate it is called chattel mortgage. Delivery of the thing is not necessary. In most federated States of America, mortgage has been reduced by equity to a simple lien. Lien in an immovable thing comes very near to our hypothec.

In England, from the year 1879 there is a special law concerning Pawnbrokers (usurers) which rules loans which do not exceed ten pounds.

¹ In Italian law, akin to pledge is compulsory distraint (pignoramento) by which, at the request of the creditor, the movable thing and also the harvest of a debtor in mora are sold by public authority for extinguishing debts. But distraint confers on no creditor a privilege by which he is preferred to others. In French this is called saisie, and distraint of a harvest is called saisie-brandon.

3. On antichresis. By the name antichresis is designated a pledge whose fruits can be perceived by the creditor. Repudiated by the Austrian Code (art. 1372), which admits only the concession of use (arts. 459 and 1372), it is admitted by the German Code (art. 1213).

As pledge of an immovable thing, antichresis exists in the law of Italy (arts. 1891-1897), France, and Belgium (arts. 2071, 2085-2091), by which the creditor indeed acquires no privilege in the thing itself, but has the right of perceiving fruits, to be imputed first to interest, then to capital.

4. Privilege is a favor of law, founded in the very quality of the credit, by force of which the goods of the debtor, either all or at least certain ones, must serve for extinguishing certain debts (privileged debts) before others, even those which are protected by hypothec.

Therefore it can be general or special. Thus, in Italy, by general privilege in movable things are protected judicial expenses which redound to the common utility of creditors, funeral expenses; expenses for caring for health during the last six months of life; food, and certain fiscal credits. But a special privilege assigns the things which a traveler has brought into an inn for paying expenses made there. Cf. Cod. ital. arts. 1955-1963.

Privilege is constituted by law alone; nor is it estimated by time but by cause: whence, among the privileged, he to whom the law gives greater favor is preferred to the others; and those to whom the law gives equal favor concur equally.

Privileges of this sort occur in every law.

N. B. Except for perfect dominion, which is confused with the thing itself, all rights in a thing, just as they are a certain dismemberment of the right of property, so also are a certain servitude of one's own thing. This servitude is sometimes called by a proper name, use, usufruct, etc.; sometimes by the common name of servitude. Wherefore any right in a thing, if it lacks a proper name, can be called a servitude. Nor do all laws employ the same proper names in number.

Notions and Principle. With the number of those having the right considered, there is distinguished separated or singular dominion, i.e. of one physical or moral person ¹, and the condominium of several over an undivided thing. The common dominion of several, if it has profit or utility as an end commonly intended, pertains to society, concerning which we shall treat below under contracts; with that common intention excluded, there is mere undivided possession.

Then, with the diverse disposition of laws or agreements preserved, individuals can alone exercise juridical acts concerning their own aliquot part; but every act by which the material state of the thing is changed requires the consent of all. Since the regime of condominium is sufficiently impeded, modern laws favor it little.

Wherefore a right is generally acknowledged to individuals of petitioning for division, yet at an opportune hour or without damage to others, and with a contrary obligation induced by agreement preserved. This, however, by Latin law cannot bind the parties in perpetuity, but by one agreement can be established not beyond 5 years by the Code of France (art. 815); not beyond 10 by the civil Code of Switzerland (616-651), of Italy (673-684); not beyond life by the Code of Austria (831, 832). By one agreement, I say: for when the time has elapsed it can be renewed. (The numbers thus appended to laws are articles of the Codes.)

In Italian law the consent of all is not required for establishing various things concerning a common thing, but the assent of those who possess the greatest part of the common thing suffices.

For a grave cause, the judge can, notwithstanding an agreement, permit division.

The Code of Germany does not reject an agreement of perpetual community, but permits it to be rescinded for a grave cause.

Those things which we have said thus far must not be applied to certain accessory communities, such as walls common between two buildings or gardens, or those which flow from the nature of the thing, as if a house is sold and possessed through various stories. Perpetual common possession of a family tomb, of the family archive, is admitted also in France. Cf. concerning Italian law Pacifici-Mazzoni, III, p. 499 ff.; concerning French law Colin and Capitant, I, p. 770 ff.

¹ For a moral person is only one subject of right. Indeed, by ancient Germanic law, several who together possessed an undivided good were not judged singular possessors of an aliquot undivided part, but all were thought to have the whole thing, as it were, after the manner of one. Cf. Duynstee, C. SS. R., Burgerlijk recht en zielzorg, n. 588.

Possession. A power existing in fact over a thing can accede to right, or right and fact are separated. Joined with right, possession gives to the one having the right all the advantages and privileges of a possessor. And even separated, according to itself, it binds a certain bond between the thing or right and the possessor, by force of which the possessor, as such, by the very law of nature is preferred to all who do not prove their right, and is sometimes also protected by several privileges of positive law.

Lest a more accurate exposition of a laborious question become too involved for the end of the present treatise, we shall use the customary definition, which nevertheless we shall temper or correct by a declaration of the words, reserving a somewhat fuller explanation for the smaller text. Therefore:

1. What possession is. Possession, which, as we all confusedly feel, is the connatural consequence of right, or a fact which regularly coheres with right, is still more commonly defined: detention of a thing with the mind of an owner.

In this definition, detention, which of itself would signify only the effect of corporeal apprehension, impossible in immovable things, must be taken much more broadly and even improperly; for it designates the relation of a thing to a person existing in fact, such as is required for freely taking the utility of the thing; or more briefly, a true apprehension or one equated in moral estimation. - Under the name of thing, they are also accustomed in some way to understand rights, yet in various ways. For some, considering that things alone can properly be possessed, in order to excuse the metaphorical use, add quasi-usufruct and quasi-possession of rights to the usufruct and possession of things; the Codes of France (art. 2228) and Italy (art. 685) equally admit possession of things and of rights, in these words: "Il possesso e la detenzione di una cosa o il godimento di un diritto che uno ha o per se stesso, o per mezzo di un altro, il quale detenga la cosa o eserciti il diritto in nome di lui"; better, in our opinion, and more consequently to the received division of dominion into direct and indirect, the Code of Germany (cf. arts. 854 and 868) acknowledges direct possession of the thing to the owner (true or supposed), but indirect possession to him who, on account of a right in another's thing or on account of a contract, e.g. of lease, readily dominates or is judged to dominate the thing. Finally, by the words "with the mind of an owner" there is excluded the possession of him who detains the thing for another. For someone can detain a thing through himself or through another. Detention itself is sometimes called the body of possession.

This is natural possession, which is born, remains, and ceases with the fact.

But, since possession is protected by positive law and is fortified by various privileges, possession to which positive law gives favor, i.e. civil possession, must also be considered. Moreover, positive law can deny its protection to certain natural possessions: thus certain sacred things cannot be possessed by a private person (c. 1510, §2), and c. 1695, §1, concedes an action of retaining possession only after a year. Of itself indeed it sanctions natural possession itself, so that for the most part natural possession is also civil; but sometimes it treats as possessor one who has lost natural possession: thus, by the laws of France and Italy, possession of land is not lost unless it has naturally ceased for a year; or it even judges him a possessor who never was a possessor. This possession is merely civil; or even most civil when it rests on civil law alone and was never natural. In the U.S.A., merely civil possession is called constructive possession or also possession in law or legal possession.

Fuller Explanation. Only the strange and not very scientific etymologies which once were admitted must be recalled. Thus Paulus, L. 1, Princ. D. De acquirenda possessione, wrote: "Possession is said from the feet, as if a placing of the feet"; others derived the name from the ancient pos, i.e. powerful, and sedeo, as if signifying: I sit with power.

2. But what possession is, jurists, according to Molina, tr. II, d. 12, n. 2, 3, always judged very difficult to define. Wherefore the Gloss on L. Stipulati, § Haec quoque, De verborum obligatione, pronounced: "the most expert have not dared to define possession." Then the definition of Hostiensis in the Summa was received rather commonly: "the detention of a corporeal thing by body and mind and with the support of right." Molina nevertheless judges that definition to be more causal than formal; he, in d. 17 of the same tr. 2, n. 3, proposes this formal one: "actual or habitual insistence in some thing, proceeding from apprehension by body and mind with the support of right." In this description, the word apprehension must be taken broadly and even improperly, and natural possession is not distinguished from civil. - Lugo, d. 2, n. 59, narrates the difficulty of the jurists, but neglects the question. In the nineteenth century, von Savigny (1779-1861), the illustrious interpreter of Roman law, propagated a definition similar to that of Hostiensis; after him, even the prudent men of our civil law began to speak expressly of the body and mind of possession. Recently, the celebrated Ihering, at the end of the nineteenth century, denied the necessity of the mind, since otherwise the demented would be incapable of possession; and he contended that the body of possession consists essentially not at all in physical power over the thing or in detention, or at least by no means formally flows from physical apprehension, since every possession is nothing other than a relation between person and thing existing in fact, such as relation the economic utility of the thing, which varies with the thing, requires. He proposed these things while the civil Code of Germany was being made; and he obtained that silence be kept concerning the mind, but not that possession be described otherwise than by physical power over the thing. (Cf. the text written by Savigny concerning the body of possession in the work of the magistrate de Meulenaere, Code civil allemand, Appendix and p. 230.) Concerning the body of possession we sufficiently agree with Ihering; we think that the difficulty made concerning the mind is none, since the same would return where there is question of the acquisition of dominion by the demented; namely, the persons who represent those incapable persons can have the mind for them.

For us, from the very notion of right handed down above, the description of natural possession is sufficiently convenient. For it is a relation of prevalence and subjection, existing in fact, between a thing and a person, which, if it is inviolable, constitutes the right itself.

What a Juridical Fact Is. A juridical fact is whatever, voluntary or non-voluntary, influences the various rights of persons. Nor can all voluntary things be recalled to contracts. Wherefore, under the name of juridical acts come testaments. Juridical facts are designations of offices, whether these have been sought or imposed on account of the common good. Juridical facts are delicts themselves and quasi-delicts.

I. To every right there is attributed some dominion, either toward the public common good, and it is jurisdiction; or toward the private good of the one having it and of his own, and it is the dominion of property.

II. To the dominion of jurisdiction pertains the so-called high dominion, by which, with regard to the common good, perfect society can order and moderate the exercise of the right of property, indeed, with the equality of justice preserved, which here easily becomes commutative and therefore exacts compensation of damage, can deprive a subject of his things. Now we must treat of private dominion alone.

III. In things there can be full dominion of property, which, with at least justice preserved, permits the owner use or enjoyment at will, exclusion of others even when use ceases, and disposition of the thing. By division it becomes imperfect: either, with utility excluded, there is preserved the right in the substance, which is called naked, direct, or also radical dominion; or it is of utility alone without disposition concerning the substance, which is called indirect or useful. This latter dominion can be dismembered, so that separately, in several subjects, there exist various partial rights which together would constitute full dominion. Concerning the individual ones briefly:

IV. 1. Usufruct is the right of using and enjoying the things of another, with their substance preserved.

A fruit is "whatever is accustomed to be born and reborn from a thing." Those which a thing produces are called natural, at least in a broad sense; in the strict sense, if they are begotten by the nature of the thing alone; those which are owed to the industry of men are called industrial; while mixed are those which, as most are, are produced by the joined forces of nature and man. Finally, civil fruits are understood as monies which, from a contract concerning a thing, must be paid constantly after stated intervals: e.g. the annual price of a leased house.

Thus civil laws are accustomed to distinguish fruits according to their very nature; while the Code of Germany, attending also to the origin from which they come, distinguishes fruits of a thing, fruits of a right, and fruits which are owed to a juridical relation concerning a thing or right (art. 99 Cod. Germaniae).

In things which are consumed by first use, quasi-usufruct is constituted; what then, at the end of the usufruct, must be returned, the civil laws define.

2. Use and habitation, in certain laws, signify a circumscribed right merely of using a thing or habitation.

3. Servitude, passively, is a real burden by which an immovable thing is burdened in favor either of another fund (real servitude), or of a definite person (personal servitude).

For the acquisition, exercise, and extinction of servitudes, continuous and non-continuous, apparent and non-apparent, positive and negative servitudes must be distinguished.

5. Superficies designates dominion over all, or at least certain, things which are built or planted on another's fund.

6. Emphyteusis is a right in a thing, by which someone can enjoy another's thing fully for a long time or in perpetuity, under this law, that he pay something (a canon) to the owner, at least in acknowledgment of dominion. Liberation from that obligation is called redemption of the canon.

7. Thus far concerning rights which consist according to themselves. Besides, as accessory rights, existing merely for strengthening the execution of a principal obligation, there are: a) pledge, or a movable thing which, from a contract, is handed over by the debtor to the creditor, so that from it he may obtain payment of the debt before other creditors. Commercial pledge is distinguished from common pledge by facility of constitution and efficacy.

In certain laws antichresis is also acknowledged, as pledge of an immovable thing. And several other forms of security are acknowledged by laws today.

b) Privilege, or a disposition of law by force of which, for extinguishing certain debts (privileged debts), the goods of the debtor, either all (general privilege), or certain ones (special privilege), must serve before other debts (even hypothecary debts).

c) Hypothec, or, in another's immovable thing, the right by which the creditor can satisfy himself before others from the price of the thing. It is distinguished as legal, judicial, conventional.

Dominion can be singular or pertain to several. Undivided condominium is customarily little pleasing to modern laws, so that it cannot be established in perpetuity.

V. On possession. Possession properly is detention of a thing with the mind of an owner: in which definition detention must be taken very broadly; the thing can also be a right; the mind of an owner is opposed to the mind of possessing for another.

It is acquired by some apprehension of the thing - whether true or symbolic, which legally suffices - with the intention of an owner. But as long as the thing remains in our power, possession is preserved by the mind alone; indeed longer, if the law has so established. Possession itself in fact binds the thing to the possessor, so that deservedly he is preferred to others who do not prove a contrary right.

Besides this natural possession, there is also merely civil possession, which, by positive law alone, is judged to remain or to be constituted. There is also possession of right, which profits him who exercises that right as its owner.

Possession of good faith is distinguished, which, strictly taken, is joined with the persuasion of dominion or right, and possession of bad faith, or of him who knows the thing to be another's, or, in doubt, neglects due inquiry.

Simple detention of good faith is that of him who, without the mind of an owner, at least absolute, detains a thing, judging this to be lawful for himself.

Most broadly, every good faith signifies concord between intention and conscience.

Possession is called vicious with respect to him to whom force has been inflicted or possession concealed. Otherwise it is not vicious.

VI. What a juridical fact is. By this name is called every fact, voluntary or involuntary, which gives, takes away, or changes rights.

Physical and Moral Persons. I. Here on earth, all men and only men are capable of dominion and rights. Public authority can restrict this capacity on account of the common good.

II. Men, however, can be considered either as individuals or as several conspiring toward an end. From that very conspiring there arises a new unity, and therefore a new being, not indeed physical, but one which reason knows and which, through the various rights and offices consequent upon its constitution, enters the moral order. But insofar as this being is a subject of right, it also becomes, in the juridical sense, a true person, which is called juridical or moral.

The conspiring itself can have an origin either voluntary or necessary.

And we know that, by natural divine Providence, i.e. with nature as guide, it came to be that men coalesced into perfect societies of the temporal order, which from Nature itself borrow an inviolable existence and rights for pursuing their end. These are civil societies as such; they are also States, or political powers, independent from the citizens or members, and furnished with all rights which are necessary on account of the common good.

But within perfect Society itself, smaller societies are connaturally formed, whose origin must be referred to the free consent of citizens, not to political authority. Those which, on account of their end or means, are illicit or dangerous can be prohibited or destroyed by political authority; but, contrary to what the liberal school contended, they are neither created by the State nor do they obtain from the State the right of existing with necessary means. That right flows immediately from the very right of physical persons. Formal recognition of them can add protection and rights; but even before that recognition they exist as true persons. Yet because they can more easily than individual men become harmful, and because the faculty of providing for the common good cannot be renounced by the State, there is a more frequent cause and a more frequent use of prohibitions by which liberty of acting or possessing is contained within narrower limits for moral persons.

Historically, however, the laws which ordered the new affairs of France at the end of the eighteenth century were very hostile to societies which associated persons of the same art or profession, or intended a non-economic end; while, on the contrary, they began to favor greatly societies of things, or industrial and mercantile societies. But that intolerance toward personal societies, which hostile inclinations toward the Catholic Church and therefore toward religious Congregations nourished, could not endure for long; and, with unequal speed, for example under the name of syndicates, from the middle of the nineteenth century societies of persons began to be publicly recognized. At the same time lucrative societies have abused persons and things not a little; and now, increasing constantly in extension and wealth, they have become so powerful that they have seemed able to decide about war and peace and to make public authority itself subject to them.

Present civil laws. At present, for every association and destination of things to a special end, even philanthropic or religious, the laws of Holland, of the United States of North America, and of England are most convenient; corporate law has been developed most of all in Germany.

• Although the German Code, art. 21, for the juridical capacity of societies which do not pursue an economic end, requires only inscription in the register of the Amtsgericht (inferior tribunal), nevertheless by article 81 of the introductory law the laws of the States are confirmed by which the law alone can confer the same capacity on religious associations. The more liberal Code of Austria, art. 26, regularly confers on lawful societies the same rights by which singular persons enjoy. For the rest, the Codes of Latin law do not agree in this matter. After the Code of France, which seems completely to ignore juridical persons, the Codes of Spain, art. 35; of the Mexican republic, art. 39; of Portugal, art. 33, require the intervening authority of law in order that a moral person come to be; while the civil Code of Switzerland, art. 52, exempts ecclesiastical and family foundations, and all honorable associations which do not pursue gain as their end, from inscription in the commercial registers which is necessary for societies which have profit as their end, in order that they become juridical persons; and art. 54 sanctions the principle of the capacity of these persons. The Code of the Brazilian republic, art. 16, is content with inscription in the public registers in order that civil or religious associations be constituted and be moral persons. The recent Belgian law of 27 July 1921 now procures great facility for obtaining civil personality ¹, while France so arranged the law of 1 July 1901 on the liberty of associations that by force of that law very many religious were punished with exile.

It is helpful to compare briefly the liberal regime of Holland with the regime of France. In Holland, the juridical constitution of the Church is sanctioned by art. 168 of the Fundamental Law itself. But the law of 22 Apr. 1855 reserved to a special law the recognition of a moral person which wished to exist indefinitely or for at least thirty years; but below thirty years, royal approval of the statutes suffices, which can be denied only for reasons of the common good, to be expressed in the decree itself. Wherefore most associations are constituted by this more level way for 29 years and 11 months; when that space has elapsed, they are again confirmed. Thus religious houses exist civilly. But those ecclesiastical associations which pertain more intimately to the organic constitution of the Catholic Church borrow their juridical character from the law of 10 Sept. 1853. The laws of the Church and the ordinations of bishops concerning these associations obtain civil firmness as legitimate statutes. But as to capacity, moral persons of themselves are equated to physical persons; nevertheless they cannot have usufruct beyond 30 years, and certain of them, e.g. churches and religious institutions, need royal approval in order to accept legacies and donations. Cf. Duynstee, op. c., n. 25-40. - In France, however: a) undeclared associations are not a moral person; but alongside them a certain society, as existing in fact, has been admitted by judges; b) declared associations can receive no donation, no legacy, but only assessed contributions of members; c) associations instituted because of or on the occasion of the war, if they have been permitted, can receive, besides the contributions of members, also liberal gifts; d) associations which have been declared "publicly useful" (d'utilité publique) must be erected by decree; then they have full faculty of acquiring by gratuitous title; e) associations of religious congregations (congréganistes) are forbidden to exist without the authority of law. The law by which they are permitted defines in what way they must exist; f) syndical associations can freely have every kind of possessions and acquisitions ². - Recently also, as legitimate for ecclesiastical goods, there have been recognized diocesan associations, concerning which there is the encyclical letter of the Supreme Pontiff Maximam gravissimamque, 18 Jan. 1924. - We omit lucrative societies, which continue to enjoy protected liberty.

Therefore civil society still must be purified more fully of the errors of the liberals who contended: a) that moral persons can be created and suppressed by the State alone; b) that while everything which is not prohibited is lawful to physical persons, moral persons can do only what has been conceded to them; c) that associations which go beyond an economic end must be regarded as dangerous and suspect; d) that the goods of an extinct moral person can be usurped by the treasury.

Furthermore, of itself, not only by public power but also by private agreement, certain goods can be devoted to a definite end, for so long a time or in perpetuity, that that universality of things seems to imitate a person in some way.

Thus far concerning civil society. But religious society, or the Church, by the positive will of Christ its founder has been so constituted that all its rights, for dispensation, have been committed to Peter and his successors.

Hence, independently of the members of the Church, the Church and the Holy See, from the divine ordination itself, have the character of a moral person (c. 100, § 1); while the rights of lesser societies in the Church exist dependently upon hierarchical power. Moreover this dependence can assume various forms, so that it can be more or less open and explicit. But the discipline of today, by force of c. 100, § 1, is that "the other inferior moral persons in the Church receive that [character of a moral person] either from the prescription of the law itself or from a special concession of the competent ecclesiastical Superior given by formal decree for a religious or charitable end."

By the prescription of the law itself religious Institutes and religious houses are persons.

Canonical law distinguishes collegiate moral persons (or persons composed of persons) and non-collegiate ones, such as benefices and universals of things applied to a definite end.

Nothing further would have to be said in this chapter, unless the peculiar condition of certain persons, of itself or by positive law, gave place to a peculiar regime which affects the capacity of acquiring and disposing. They are children under family power, wives, clerics, and religious. But the cause of the peculiar regime is one thing for the first two classes of persons, another for the latter two.

¹ Loi sur les associations sans but lucratif. Cf. on that law the annotations of R. D. Ferdinand Claeys Bouuaert^†.

² Cf. Colin and Capitant, I, p. 953.

I. Principles. 1. From the very nature of marriage, rather than a spoiler of goods, the wife obtains the husband as a helper of administration, and the husband assumes the burden of supporting the wife insofar as she is in need. At the same time, however, it is consonant with the wishes of nature that a certain society of goods be entered between each spouse.

2. But because the wife is not a maidservant but the companion of the husband, she can easily presume the consent of the husband in order to make expenses from common goods which the wife is accustomed to care for; she is permitted to give modest and daily alms; if the husband squanders goods, she can, in order to avert grave damage to the family, or to preserve the right which the family has of being supported from the common goods, withdraw those goods, hide them, or place them safely. But hallucination must be guarded against.

3. Often among the common burdens of marriage are the supports which must be given to needy parents of the wife or to offspring received beforehand. Indeed, where the goods of the wife do not suffice, the husband himself will be held according to his powers to furnish these supports.

With these things set aside, they permit the wife, even beyond what she can give to other poor, moderately and with attention to the condition of the husband, to succor parents or offspring who live miserably according to their state. If, however, she must greatly exceed the limits of customary alms, she ought to take from her own goods whence she may furnish these things. If these are lacking, she should ask the consent of the husband. If he were not reasonably unwilling, the wife could compute what she gives into the part of the goods which will fall to her after the dissolution of the marriage.

4. Thus far those things which already have force of themselves without consideration of positive law. But the positive regime itself of goods, which is introduced variously according to various laws and private agreements, affects obligations of conscience not a little. Since they are many and sufficiently complex, the exposition of them exceeds the province of the moral theologian. Indeed care must be taken lest, by an exposition which could be regarded as sufficiently complete, those ignorant of law be deceived. Wherefore we shall recall those laws by certain summary heads, so that at least an occasion may be given of prudently doubting and interrogating experts.

Moreover, for the utility of conscience, each one ought chiefly to see these things in his own region: 1. from what goods the burdens of marriage must be satisfied; - 2. what goods are freely administered by the wife, or at least pertain fully to her as to dominion and usufruct; - 3. what rights belong to each spouse in common goods. For it happens that, during marriage, the husband himself is the sole arbiter and master of the community, only certain acts being prohibited to him. And then, as long as he has contained himself within the limits of the law, he cannot be accused of injustice. But if he were merely the administrator of the society, he will not be able to injure the wife's part.

II. An Adumbration of Positive Laws. 1. Various beginnings of positive law. a) The assumption of a woman as wife can be considered as an acquisition which procures for the man useful work for managing the domestic matter and necessary work for begetting children: then the bride will have to be redeemed for a certain price from those in whose hand or power she was detained; which custom belonged to the ancient Romans, for a long time represented by the symbolic ceremony of coemption (cf. Vidal, Institutiones iuris civilis Romani, n. 317), and of the Orientals; and it still perseveres among the barbarians of Africa today. b) It can also, and better, be conceived as the reception of a companion who will share the offices and burdens of common life and of supporting offspring. Then she herself, or those who hand her over, will strive to bring to the husband that whereby the matrimonial burdens may be lightened for him. This can be done in two ways, either by a certain society of goods, or by a dowry constituted, i.e. by a stable deputation of certain goods to compensating the common burdens. - c) Finally, the causes of persons and of goods can remain separated, so that the logical consequences of common matrimonial life seem to be ignored by positive statutes.

Omitting the first way, which today has become antiquated among cultivated peoples, the second has become most common, so that the third can be called proper to the law (common law) of England and the U.S.A.

2. Nuptial pacts. Everywhere it is permitted to the parties to order by private agreements the regime of goods which will be in force through the marriage. And because of their importance, those agreements for the most part must be drawn up by an authentic act before a competent official (notary).

In Latin law, these agreements can no longer be made or changed after marriage. Nevertheless, except the Swiss, Costa Rican, Guatemalan, and Mexican republics (1979), whose laws permit change even after the marriage has been celebrated.

But by Germanic, American, and English law, agreements can be made or changed even after the nuptials have been entered. But in England there is no use of agreements of this kind.

Furthermore, the Latin laws and the Code of Germany are accustomed to foresee and order the chief forms concerning which the parties may easily agree.

Thus by the Code of France and of Belgium the regime of community is distinguished, which for the most part comes into use in Belgium and in the northern part of France, and the dotal regime, which prevails in southern France. In the dotal regime, by the law itself there are distinguished dotal goods, which the woman brought as dowry or which were given to her in the matrimonial contract, and the other goods of the wife, which are called paraphernal. The man administers the dotal goods, enjoys them, but ought to provide for the expenses of common life. During marriage, dotal goods, at least immovable goods, certain cases excepted, cannot be alienated. The wife administers the paraphernal goods and freely disposes of the revenues. If, however, the wife should have no goods except paraphernal goods, she will furnish the common expenses according to the proportionate part which agrees; and if nothing agrees, she will expend a third part of the revenues for this (art. 1575).

Community is distinguished by this mark, that not only (which is common to every regime) is a certain common mass constituted for bearing the burdens of marriage, but besides this, a certain society of goods is effected, whose passive obligations are also determined both by agreement and by law.

N. B. The burdens of marriage are properly the expenses of common life, and the obligations which flow to the spouses from marriage itself; among these, for the husband, the obligation of supporting the wife is placed. Hence, for example, the education of children of a preceding marriage does not come under this name either properly or always.

Concerning common goods, the wife can do certain things as companion of the husband; certain things from the presumed will of the husband, certain things by reason of the destination of the common goods. Cf. Lugo, Iust., d. 16, n. 63.

Community can be constituted with unequal amplitude. For there is distinguished universal community, community of movable things and of things acquired through marriage, community merely of things acquired (di acquisti, communauté réduite aux acquêts). Community can also simply be excluded or the regime of separation positively established. The regime of excluded community indeed takes away usufruct from the husband, but not administration of the goods. The regime of separation of goods takes even this away from him.

The regime to be advised will vary according to the dangers to which the business affairs of the husband are exposed; according to the equal or unequal possession of the family property; according to the condition of the spouses, who either both marry for the first time, or have children from a prior union; according to confidence in the prudent administration of the husband. Negotiations concerning these pacts are accustomed to take place between the parents of each party.

Observe that, in the nuptial pacts of Belgium and France, certain things can be established concerning a future inheritance, although, outside those pacts, clauses of this kind are altogether prohibited and invalid. Nevertheless that faculty is not conceded in every Latin law.

3. If no nuptial pacts have been made, the law itself is accustomed to define the regime; and:

a) In Latin law there is established the regime of some kind of community, whether universal, as in Holland, Lusitania, and the Brazilian republic; or of union of goods, as in Switzerland ¹; or of movable things and things acquired through marriage, as in the Code of France and in several Codes of Latin America and in the Canadian Code Q.; or only of things to be acquired through marriage, as in the Code of Spain; - b) By the Code of Germany there is established a community of administration in the possession of the husband, and there is attributed to the husband the usufruct of the goods of the wife with the burden of bearing the expenses of marriage; - c) in England and the U.S.A. goods remain separated. Nevertheless, a few States of North America render common the goods which are acquired through marriage.

¹ In Switzerland there is distinguished, besides the regime of separation of goods, the regime of union of goods and the regime of universal community. In both, one patrimony is effected from the goods of the spouses, pertaining to each; but universal community embraces more, indeed all, goods.

I. On Dowry. By the name of dowry there is generally understood a certain sum of goods which are donated either to the wife, or even to the husband, for compensating the burdens of marriage. In every regime a dowry of this kind can be brought; and, according to the chosen regime itself, it will remain the property of one or the other or will become common, nor is it ruled by a special law. - In the dotal regime, the dowry brought by the woman has a peculiar statute, in the manner sketched above. - But in England and the U.S.A. (from common law) and also in the Canadian Code Q., by the name of dowry they understand goods by which provision is made rather for the support of the wife and children. For dower, dowry (from the ancient word douaire), in North America and in England, is the life usufruct which the widow obtains in part of the goods of the deceased husband. In the Canadian region, dowry, which can be legal or conventional, falls to the surviving wife; or if she herself dies first, to the children born from that marriage. - Besides, while other laws, e.g. those of Belgium and France, create no obligation of dowering, the Code of Spain (1340, 1341) obliges the father or mother or surviving parent to give to a legitimate daughter in dowry half the part of the presumed legitimate portion, unless, as a minor, she married without the consent of the parents, or unless the daughter already has equivalent goods of her own.

For the security of the dowry, when the dowry must be restored, laws either themselves constitute a legal hypothec in the goods of the husband, or permit a constitution of this kind.

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.

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.

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.

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.

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

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

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

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

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).

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

2. 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.

3. 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.

848. The rights and obligations of servitudes depend on the nature of the thing, on law, on convention.

1. 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

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.

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

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.

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."

852. The objects of human ownership are divided in many ways:

1. 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).

2. 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.

3. 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.

4. 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.

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.

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.

The question regards both writers and ingenious craftsmen, who illustrate the arts, whether liberal or industrial, with new inventions.

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.

1. 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.

2. 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.

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).

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.

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.

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).

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).

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.

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.

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).

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.

2. 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.

2. 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.

3. 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.

2. 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.

863. Things to be noted beforehand. 1. Goods serving in marriage can be ordered in many ways; hence it is necessary to know the diverse regimes of goods, so that the ownership of each spouse may be rightly delimited. - 2. The goods of wives can be either dotal, or paraphernal, or common (III, 489; H. Ap., tr. X, n. 5). This depends either on the will of those about to marry, or on law.

Dotal goods are those that are handed over by the wife, or by parents, or by another to the husband, for sustaining the burdens of marriage, i.e. for providing for the family.

Paraphernal goods (extra-dotal) are those that the wife has besides the dowry, and in which there is no right of the husband, except that which she herself has committed to him. - To paraphernal goods are to be reckoned those which a wife acquires for herself by peculiar skill, by administering the family estate more prudently and attentively, or by subtracting for herself from the goods conceded to her by her husband for food, clothing, and recreation.

Common goods are those that from the pact of the spouses (or from law supplying the place of pact) are brought into society. To these are rightly referred those things that either spouse acquires by ordinary labor and by care of the family estate.

Authors sometimes speak of goods of the family. These are those that have been given for the prosperity of the family or are acquired by common labor, although they cannot always be called common, because the husband can have ownership of them (Noldin, II, 376, c.).

864. Principle. From natural law, either spouse remains owner of his or her own goods, with the obligation of sustaining, according to a proportionate part, the burdens of marriage; but from positive law and from pact, the rights of spouses in goods can be very diverse. Therefore let us see the principal dispositions that the various Codes, or laws, of various peoples contain concerning this matter.

Roman Law. 1. It adjudicates the usufruct and administration of dotal goods to the man, but property to the wife; and therefore, when the man is dead, she is preferred to all his personal creditors for reclaiming the dowry. She can also reclaim the dowry during his life, if it is feared that the man may become unable to restore it. But if the dowry consists in money or consumable goods, or even in stable goods that are handed over to the man valued and with the intention of sale, then the man acquires full ownership, with the obligation of restoring the value when the marriage is dissolved; and therefore, if goods of this kind perish, they perish for the man. - 2. Of paraphernal goods the wife has full ownership and use. - 3. Of common goods (if they are present from a special pact) the property and use pertain to both spouses; but administration to the husband alone (III, 542; H. Ap., l.c.).

The principal species of right are dominion, use, usufruct, and servitude.

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

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.

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.

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.

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.

593. • Goods of fortune are distinguished in our law in this way. Property is ... divided:

1. 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

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

594. Questions. - Quaer. 1° Does man have dominion of his reputation?

Resp. See n. 525.

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.

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

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

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

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."

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.

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.

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:

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

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.

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.

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.

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

608. Questions. - Quaer. 1° Can a wife distribute alms from goods that are not paraphernal?

Resp. In the affirmative, even if otherwise she has paraphernalia or her own goods, provided this is done according to the custom of other women of that place and condition. The reason is that a wife is not a slave, but a partner; therefore she ought to have a certain administration in the house of the husband. - Then the husband, merely ignorant, is deservedly presumed to consent in those things which are done by the wife according to the honest custom of the region and of her condition; and if he shows himself unwilling, such dissent is judged irrational, because a husband cannot deprive his wife of a right conceded to her by legitimate custom. - So with the common sentence, Lugo, St. Alphonsus.³ - Moreover, if a wife were to acquire something by extraordinary labor after having spent due care upon the governance of the family; or if by thrift she were to subtract something from what has been conceded to her for solace, clothing, etc., she can likewise dispose of it for other uses, if nothing else stands in the way. So theologians from the rules of equity.

609. • Quaer. 2° Does a wife sin by taking something from goods that are not paraphernal in order to relieve the necessity of parents or children who were received from a prior marriage?

Resp. In the negative, if she does not have paraphernalia and the husband is unwilling to give what is necessary, because by natural right a wife is bound to feed the aforesaid blood-relations, and the husband is bound to consent to this.⁴ What is said here of parents and children certain authors also extend to brothers and sisters of the wife.⁵

610. • Quaer. 3° Is a wife bound to restitution of goods received in this way, either from paraphernalia, if she has or is going to have them, or from those things which will come to her when the husband has died?

Resp. In the negative, if these goods are of small moment, because then they are held as alms (n. 608). In the affirmative, if they are of greater moment,¹ such as those whose subtraction has brought notable detriment to domestic administration.

Note. - If the husband squanders or wastes goods to the detriment of the family, the wife will be able to hide them and reserve them for the good of the family; likewise from common goods she can disburse, or even, when the husband resists, secretly take for herself, those things by which she may procure for herself and the children from the present marriage what is suitable to their state, or avert spiritual or temporal damage from the husband or family, for example that sacred rites may be performed for the dead.²

611. • Quaer. 4° Is a husband bound to restitution who spends prodigally or badly a notable part of common goods?

Resp. Affirmatively; because in our law these goods are possessed whole by each spouse, and indeed in such a way that neither can sell them without the consent of the other, and, when either has died, the other obtains perfect dominion in them.

It is disputed as to States where community of goods is held in the meaning of French law. To us the affirmative sentence seems more probable, since the husband is only the administrator, not the sole owner of the common goods.

612. • Public dominion is called the dominion of the republic over all things destined to the public and common use of citizens. Thus each State has dominion over bridges, canals, and roads.

Over roads which we are accustomed to call national, namely those which were made by authority of the supreme assembly, Congress, through various States on account of the transmission of letters and documents, the easier passage of soldiers, and other uses common to the whole nation, authority belongs to the general government. But this authority should scarcely be called by the name of dominion, since each State is supreme and would bear with difficulty dominion in the true sense of the name exercised by the general assembly.¹

613. • It pleases one to call national dominion the public lands which namely the President, in the name of the Federated States, buys from the Indians by the right, as they call it, of pre-emption, with money or merchandise handed over for them. In this way it has happened that the Indian tribes have little by little withdrawn farther away; and these, each year, by a new cession of lands made for a very small price, easily supply the general treasury with a means of increasing the public treasure, by selling to new settlers the lands thus bought.²

614. • Not only physical persons (individuals), but also moral persons are capable of dominion. Among these colleges (corporations) obtain the chief place.

Definition. - "A corporation is a franchise possessed by one or more individuals, who subsist as a body politic under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual." Therefore it differs from a contract of society or partnership (n. 1018).

615. Division. "Corporations are divided: 1° Into aggregate and sole. A corporation sole consists of a single person, who is made a body corporate and politic, in order to give him some legal capacities and advantages, and specially that of perpetuity, which, as a natural person, he cannot have. A bishop ... is given in the English books as an instance of a corporation sole; and he and his successors in perpetuity take the corporate property and privileges; and the word successors is generally necessary" (in the grant) "for the succession of property in a corporation sole.⁴ The corporations generally in use with us are aggregate;⁵ but there are instances also in this country of sole corporations.

2° Into religious and lay.¹

Lay corporations are again divided into eleemosynary and civil.²

Civil corporations ... are either public or private. Public corporations are such as are created by the government for political purposes, as counties, cities, towns, and villages. ... If the foundation be private, the corporation is private, however extensive the uses may be to which it is devoted by the founder, or by the nature of the institution."⁴

616. How they are created. - "With us they are created by authority of the legislature," and also de facto by that of the Congress,⁵ which has exercised it twice by the incorporation of a national bank.

617. The powers and capacities of corporations. - "The ordinary incidents to a corporation are: 1° To have perpetual succession, and, of course, the power of electing members in the room of those removed by death or otherwise. 2° To sue and be sued, and to grant" (except by will) "and to receive" (except also by will unless specially authorized by their charter) "by their corporate name. 3° To purchase and hold lands and chattels. 4° To have a common seal. 5° To make by-laws for the government of the corporation; this power, however, must be exercised within the limits of the charter, and in subordination to the Constitution and general law of the land, and the rights dependent thereon. 6° The power of amotion, or removal of members." But this power also must be exercised for good cause, and for some offence that has an immediate relation to the duties of the party as a corporator.

"It is now very generally the practice to specify, in the act or charter of the corporation, the powers and capacities with which it is intended to endow the corporation."⁶

618. Dissolution of corporations. - A corporation may be dissolved, 1° by statute; 2° by the natural death or loss of all the members, or of an integral part; 3° by surrender of its franchises; 4° by forfeiture of its charter through negligence or abuse of its franchises.

For Louisiana see "Civ. Code of Louis."²

Since the condition of the temporal things of the Church in our Federated States is altogether peculiar and because, on account of circumstances, in many things it cannot be arranged according to the norm of the sacred Canons, a fuller treatment concerning them is necessary. We comprehend the whole matter in four questions. I. Whether and of what temporal things the Church can have dominion, and in what way this is recognized by our law. II. What is the subject in which direct dominion of ecclesiastical goods resides, and what is required so that they may be legitimately acquired and held. III. To whom the administration of ecclesiastical goods pertains, and in what way it is to be conducted. IV. What are the various species of ecclesiastical goods, and what is to be observed here concerning each.

619. • I. The Church can legitimately acquire and possess temporal things. This proposition is of faith, as is evidently clear from the condemnation of propositions 10, 32, and 33 of Wycliffe. Cf. Syll. pp. 26. p. XLII.

II. The Church can acquire and possess not only movables, but also immovables, and indeed by divine right, both natural and positive, and independently of secular power.

III. Therefore it belongs not to secular power, but to the Church, to judge how far the right of acquiring and holding temporal goods ought to extend; and civil laws commonly called laws of amortization, excluding a special privilege conceded by the Church, are iniquitous and injurious to the Church. - But by laws of amortization are understood those civil laws by which provision is made lest the Church acquire temporal goods, especially immovables, without the consent of secular power, or at least beyond a certain quantity, lest, as they say, she become rich beyond measure.

IV. Therefore the Republic does not even have eminent dominion (n. 590) in the goods of the Church, and therefore, if it needs the goods of the Church, it is necessary that it obtain her consent.

V. Therefore the immunity of ecclesiastical goods from taxes, at least within certain limits, is also to be asserted by divine right, both natural and positive; for if this immunity were entirely denied, it would also have to be denied that the right of the Church concerning temporal goods is independent of civil power.

See these propositions more fully developed and proved, if you please, apud Craisson, Elem. Jur. Can.,¹ Devoti, Inst. Jur. Can.,² or Kenrick.³

620. • In what way dominion of the Church is recognized by our law. The Fathers of the Second Plenary Council of Baltimore wisely observe: "Since in these Federated States it is intact for all citizens and inhabitants to conduct themselves freely and without punishment according to the precepts of their religion, and the civil laws recognize and proclaim this; nothing at all would seem to stand in the way of our accurately observing those laws of the Church which have been passed up to this time by Councils and Pontiffs for rightly acquiring Ecclesiastical Goods and preserving them whole and untouched." Yet they no less wisely note that these laws are not yet recognized in certain States.⁴

And indeed, in truth, the Church among us 1° is subject to a law of amortization, at least in this sense, that, unless they are handed over in property (in fee simple) to a Bishop or another, generally she can acquire and have only a determined species or quantity of immovables. 2° She is generally subject to the eminent dominion of the Republic. 3° The immunity of ecclesiastical goods is circumscribed by narrow limits; for only churches and places adjacent to them, and colleges (corporations), are accustomed to be exempted from taxes, and these not everywhere. 4° Not everywhere can she acquire and hold goods in her own name.

159. Full dominion (pleine propriete; volle eigendom) is defined as the real right of perfectly disposing (i.e., of enjoying and disposing) of some thing as one's own for one's own advantage, unto any use not prohibited by law (C.C., a. 544²). It is said:

² In the notions handed down here we indicate the articles of the French Civil Code, which also has force in Belgium. But similar things are found in almost all modern legal systems.

1st. right in a thing or real right, attached to the thing itself, so that it may be distinguished from a mere right to a thing;

2nd. of perfectly disposing, i.e., both of using the emoluments and fruits of the thing, and of disposing of the thing itself as to substance; in one word, it is the right of destining it to all uses, or of alienating, selling, donating, exchanging, using, enjoying, destroying one's thing, or, as the ancients said, of using it up, i.e., of destining it to a use which cannot be renewed, or of using it even to destruction;

3rd. of a thing, namely, of any thing whatever, whether corporeal (field, house) or incorporeal (right, office, benefice, servitude, mortgage), whether movable or immovable, from which an advantage of stipend or honor is perceived;

4th. as one's own, all others being excluded, i.e., in one's own name and authority, and thus it is distinguished from the power of him who holds a thing without ownership, such as a depositary, procurator, curator, usufructuary, or user, who dispose of the thing but not as their own;

5th. for one's own advantage, even if it were nothing other than the exercise of one's own liberty, for example, in a thing to be given gratuitously, and thus it is distinguished from dominion of jurisdiction, which a superior cannot exercise for his own utility but for the common utility;

6th. unto any use not prohibited by law, i.e., by civil law, whose part it is to circumscribe the exercise of right for the common good, and a fortiori by natural or divine law, and similarly by ecclesiastical law, because right cannot be given against a just law; - indeed, neither unto acting against any law or virtue. And yet dominion remains full, because the restrictions of law do not remove one part of dominion, but only impede its exercise; whence he who uses his own thing unjustly against another sins against justice because he injures the right of another, but not because he uses his own thing badly.

160. Corollary. - From the nature of dominion there follow four principles of right which govern dominion:

1. The thing cries out to its owner, or toward its owner.

For a thing legitimately pertaining to an owner is so connected with him that, if it has been separated from him, it always strives to return to him, and thus as it were cries out to its owner. Therefore the owner can reclaim his thing wherever he finds it; and for that reason the possessor is bound to return it as soon as morally possible, unless he proves that he holds it by a just title.

2. The thing fructifies for its owner, because the fruits are an accessory of the thing; but the accessory follows the principal.

Therefore if the thing pertains to the owner, the fruits, insofar as they belong to the thing as cause, pertain to the owner of the thing; but the fruits of the possessing person, or of mere industry, insofar and to the extent that they proceed from the industry of another, pertain to the possessor, not to the owner: for then the thing was only the occasion or condition of the fruit, not its cause.

3. The thing perishes for its owner.

For if the thing pertains to the owner, if it fructifies for the owner, it is also equitable that it perish for the owner, unless it perishes through the fault of another. For when the thing is taken away, and consequently the bond to it which was the foundation of dominion, by that very fact the right in that thing perishes. Yet if the thing subsists virtually or in an equivalent, the foundation of dominion and the right remains, for example, if the possessor has received the price of the thing, or by using it has spared his own goods, or preserves its fruits.

4. No one ought to be enriched from another's thing, as from a cause, with the injury or loss of another; otherwise the thing would not fructify for the owner.

For it is repugnant to natural right that someone become rich from an injury inflicted upon another. Yet it is not repugnant that someone become richer on the occasion of another's thing, if, by using that thing, he produces something by his own industry alone: for this is truly the fruit of his own labor, in no way of the thing which then was not the cause of the fruit but a mere condition.

396. Thesis. The private, permanent, and exclusive right of dominion over external goods and over the land itself, circumscribed by just limits, flows from natural law, and therefore is legitimate, and in the present state morally necessary. - It is said:

1. the private right of dominion, i.e., dominion not only useful but full, belonging to individual men independently of the State, not to society itself: for although society can possess certain goods as its own, nevertheless the right of dominion belongs also to private persons, indeed primarily to them;

2. permanent and exclusive, in such a way that it is exercised not only transiently but in a stable manner and can be transferred to others, or also to natural heirs; and that it is so proper that the owner is able to exclude all others from his possession;

3. over external goods, whether movable or immovable, whether ordered to the new production of things, or to use or consumption;

4. circumscribed by just limits: that right is not absolute, but, like other rights, is limited by its immediate end. That end is that for which earthly things have been created, namely, that all may be able to live from them. But it is limited in three ways:

a) in a case of extreme necessity, each one can occupy that which is necessary for the support of himself and his own;
b) by reason of the common good, social authority can decree fitting laws, so that no prejudice be brought to the end of things, which is that all may be able to live from them; and at times it can restrict private dominion, or partially take it away if this is necessary for the good of the whole republic, though this last cannot be done without a grave cause, nor regularly without due compensation;
c) charity toward one's neighbor demands that the rich give to the poor out of their superfluities.

This is the doctrine of St. Thomas, which Leo XIII made his own: "Concerning an external thing two things belong to man: one of which is the power of procuring and dispensing (dominion), and as to this it is lawful that man possess things as his own...; but the other... concerning external things is the use of them, and as to this man ought not to have external things as his own, but as common, namely, so that one may easily communicate them in the necessity of others."⁹ II-II, q. 66, a. 2.

⁹ Yet this necessity of the poor man is not a right, otherwise there would be an obligation of justice; but it is a title for obtaining that they be assisted from superfluities, because superfluities by natural ordination are destined for them, in such a way that the rich have a strict obligation of giving them generously from charity.

These obligations of owners can also proceed from legal debt, inasmuch as it pertains to the common good not only that in extreme necessity all be assisted and no one be deprived of necessary things, but also that there be a good use of superfluities in society and that from superfluities there be given to the needy.¹⁰ - Whence human law, on account of the common good, can compel to this: for no one has superfluous goods except for their good use and good dispensation; and therefore society could take away the dispensation from one who does not use well, as from one unworthy. "Wherefore," says Pius XI, in the encyclical Quadragesimo anno, May 15, 1931, "what, with the reality of the common good considered, is lawful for those who possess, what is unlawful in the use of their goods, public authority, with natural and divine law always shining before it, can investigate more accurately."

¹⁰ Thus conformably to St. Thomas, q. 118, a. 4, ad 2, and to the commentaries of Cajetan. This also P. Vermeersch conceded, his confreres dissenting, while the controversy stood which arose on occasion of the book of P. Horvath, O.P., Eigentumsrecht, and of certain writings by others, concerning which see Theol.-Prakt. Quartalschrift, Linz, 1929.

5. flows from natural law, and therefore is legitimate. For it is not a primary natural right, which belongs to nature considered in itself and absolutely; but it follows by way of conclusion from the consideration of human nature, and for this reason is legitimate.¹¹

¹¹ The law of nature comprises those things which are required by the nature of things. If the nature of the things to be possessed is considered in itself and absolutely, the division of possessions is not required: there is not in them a requirement that they be possessed by one or by another, in common or in particular. Private dominion is neither required nor excluded; whence it is not against nature. Only this is required by the nature of things considered in itself, that the things to be possessed not be turned aside from their immediate and intrinsic end, which is that they serve the necessities of all men: the land does not cease, says Leo XIII, to serve the common utility of all, and there is no one who is not nourished from those things which it produces. Whence in a case of extreme necessity, private dominion ceases and all things are common: the division of possessions cannot prejudice such necessity, and from the human application of the law of nature the primary end cannot be impeded... But private dominion is of natural law according to something which follows from nature and is concluded by reasoning. Thus Pottier, o. c.

To this it is no obstacle that, according to St. Thomas and many scholastics, the right of private dominion arises from the law of nations. According to the ancients, natural law designates only that which is required by the nature of things considered according to itself and absolutely; the law of nations designates that which, not according to itself, but in order to a certain end, or in a certain supposition, is derived from the nature of things by reason, according to a certain utility, fittingness, and consequent moral necessity, as a necessary conclusion, not very remote, so that the nations easily agree in it (I-II, q. 95, a. 4). According to more recent authors, both are called natural law, namely, primary and secondary; and rightly, for according to St. Thomas, the law of nations has something of its force from the natural law (I-II, q. 95, a. 2), and "natural reason instituted it" (II-II, q. 57, a. 3, ad 3). Whence Ethics V, lect. 2: "Whatever follows from the naturally just as a conclusion, is naturally just."

6. in the present state morally necessary. A state of things is possible in which common possession in a certain place or in a certain society would sufficiently provide for the necessities and happiness of men: thus in the state of innocence or original justice, among pastoral tribes, when men are not many. But in the present condition of things, in which men with their defects commonly seek only themselves, and have little care for their neighbor and for society, and given the state of present-day civilization, in which men cannot lead a pastoral life but, being greatly multiplied, need great labor to procure necessities for themselves, private dominion is now morally necessary for the happiness and perfection of citizens and for the peace of society, as will be clear from the demonstration of the thesis.

Therefore the division of goods has arisen not from civil law, as Hobbes, Bentham, Montesquieu said; - nor from a social pact, as Grotius, Puffendorf, Heineccius held; - nor from a merely human institution, or from theft as Proudhon proclaimed, but from natural necessity. Whence Leo XIII: "to possess things privately as one's own is a right given to man by nature"; and to divide the land and to possess it privately, "the universality of the human race... has found in the very law of nature the foundation of the partition of goods, and has consecrated private possessions by the usage of all ages, as things which most of all accord with man's nature and with peaceful and tranquil living together."

If, however, the nature of things is considered not in itself but in order to the necessities of men, and they are considered together with the very nature of man, which must be regarded not in a certain ideal state but in the concrete and actual condition and according to its proper psychology, then there arises a requirement for the partition of goods which positive law must determine from natural law.

Cf. St. Thomas, II-II, q. 66, a. 2, ad 1: "Community of things is attributed to natural law, not because natural law dictates that all things are to be possessed in common and nothing is to be possessed as one's own; but because according to natural law there is no distinction of possessions, but rather according to human agreement, which belongs to positive law... Whence the property of possessions is not against natural law, but is added to natural law by the devising of human reason."

It is concluded: "The division of goods and the appropriation of things... has proceeded not according to natural law, but rather from human agreement, which pertains to positive law. Whence the property of possessions is not against natural law; but it is added to natural law by the devising of human reason" (II-II, q. 66, a. 2, ad 1), i.e., from a requirement of human nature, dependently on natural law.

397. The thesis is proved. Demonstrations are taken from the Scriptures, from Tradition, and from reason: the Scriptures and Tradition show the legitimacy of private dominion, reason also its necessity.

A. The Scriptures suppose and acknowledge the right of private dominion to be legitimate. God, in creating men, indeed handed earthly things over to them undividedly (Gen. I, 28-30), but so that they would be possessed in the manner more apt for procuring for themselves the necessary and useful things of life; but that the manner of possessing by private dominions is legitimate is shown:

1° In the Old Testament: a) the first division of goods already appears among the sons of Adam, since Abel is presented as a shepherd of sheep, offering to the Lord from the firstborn of his flock, Cain as a farmer, offering from the fruits of the earth, and afterward building a city which was his own and which he called by the name of his own son Henoch (Gen. IV, 2, 4, 17).

b) At the time of Abraham the right of private dominion already existed widely: Abraham was rich in possession of gold and silver; - Lot had flocks of sheep, and herds, and tents (Gen. XIII, 1-2, 5); fields and caves were under private dominion, since Abraham bought the field of Ephron and the double cave in it, that he might bury Sarah there when she had died (XXIII, 1-20), with a stable and permanent right indeed, so that Abraham, Isaac, Leah, and Jacob were buried there; just as Joseph was buried in the part of the field which Jacob had bought from the sons of Hemor (Jos. XXIV, 32). But pastures were common; yet when, because of the multitude of flocks, a quarrel arose between the shepherds of Abraham and of Lot, they were separated, one from his kinsman (Gen. XIII, 7-11).

c) The right of private dominion was confirmed as legitimate by the divine law itself, which not only prohibits theft but also the very covetousness of another's good (Ex. XX, 17), wherefore it strictly forbids that the boundaries by which fields are circumscribed be transferred (Deut. XIX, 14); but the earthly possessions of each family, which had been sold, could be redeemed, and when the year of the great jubilee recurred they returned to the former possessor (Lev. XXV, 23-28).

2° In the New Testament: a) Christ confirmed the law, by condemning theft; and he gave only the counsel of selling all things and giving the price to the poor (Mt. V, 3); but to those possessing he commanded the good use of goods, by generous almsgivings (XXV, 41-43).

b) The Apostles, applying the counsel of the Lord, instituted common possession of goods in the first communities (Acts IV, 34-35); nevertheless Peter himself proclaimed that the renunciation of possessions is of counsel only, not of precept, when addressing Ananias: "While it remained, did it not remain to thee, and when sold was it not in thy power?" (V, 4). Whence, when the disciples had been multiplied, community of goods did not endure, and provision was made for the necessities of the poor by collections of alms (XI, 28-30). Hence Paul admonishes that it must not be prescribed to the rich to leave their goods, but that they "not be high-minded, nor trust in the uncertainty of riches, but in the living God..., to be rich in good works, to give readily, to communicate, to treasure up for themselves a good foundation unto the future" (I Tim. VI, 17-19).

From these it is established that, according to the Scriptures, a) the right of private property such as existed is legitimate; b) nevertheless it is in some measure limited by the precept of almsgiving.

B. The Tradition of the Church acknowledges and vindicates the right of private dominion:

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:

1. Socialism which is called scientific adheres to atheism and materialism, so that on this side it is heretical.

2. 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.)

3. 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).

4. 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).

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.

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.

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.

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.

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.

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.

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.

In this first section we shall treat 1. of right itself, which is the proper object of the virtue of justice, and which it is of much importance to understand rightly; for several false notions of right also harm Catholic Moral Theology and are not only errors in juridical science. 2. The character of the virtue of justice in general must be explained. 3. But since man, from frailty or malice, often wounds the obligations imposed from justice, it is then necessary to treat both of the wounding and of the reparation of justice. 4. Finally, because a great part of the obligations of justice arises from contracts entered into, lastly it is necessary to treat of contracts. Thus the whole treatise concerning the virtue of justice itself is contained in the four following questions:

1. On right itself.
2. On the virtue of justice considered in itself.
3. On the wounding of justice and on the reparation of wounded justice.
4. On contracts.

We divide this question into four chapters, namely 1. on the notion of right and its division; 2. on the object of right; 3. on the subject of right; 4. on the modes of acquiring right.

1. Notion. The name of right is taken in various ways; but among the various acceptions of right the following seem to be more notable for us:

1. The sentence or decree of the judge. Whence the judge says the right, when he pronounces a judicial sentence.

2. Law, or rather the complex of laws, by which it is determined what is just. In this sense we say: canon law, civil law, to study law, etc. Many authors call right accepted in this sense right taken objectively, and they attribute to it those things which pertain to laws.²

3. That which is just and which is owed to someone (δίκαιον). In this sense we say: to render to someone his right. This right is also called passive right, and it is the proper object of the virtue of justice, since justice is the constant and perpetual will of rendering to each one his right.

4. A moral faculty or power of doing, having, demanding, omitting something, etc.³ In this sense we say: someone uses his own right, the right of property. Concerning this last acception of right, which is also called active right or right taken subjectively, we shall chiefly treat in this chapter.

The given definition is explained. It is said, first: a moral faculty; therefore right is not a physical faculty, or a physical fact, as several non-Catholics have taught. Hence the following propositions were condemned in the Syllabus of Pius IX:⁴ Prop. 59: "Right consists in a material fact, ... and all human facts have the force of right." Prop. 61: "A fortunate injustice of fact brings no detriment to the sanctity of right." Therefore true right arises from natural law alone, or from that positive law which is conformable to natural or divine law; but it is false that civil government can concede some right contrary to natural or divine law. Therefore in the same Syllabus the proposition defended by the Positivists was deservedly condemned (39): "The status of the republic, as being the origin and source of all rights, is endowed with a certain right circumscribed by no limits."⁵

It is said, second: of doing something, etc.; from which words it follows that a right belonging to some man produces in others a strict debt or obligation not to violate that right. Right (Recht) and debt (Pflicht) are correlatives. But if nevertheless another wounds the right of another and despises his own debt, then he commits a true punishable injustice. Both, namely human right and debt, are ultimately derived from eternal law, since it is the source and principle of all other laws, rights, and duties. Hence it can be said briefly: there is no right without debt; there is no debt without God.

Note. The assertion of several Positivist jurists cited above, that the republic is the origin and source of all rights, was deservedly proscribed by Pius IX; for this assertion is not only most false,⁶ but in reality heretical, because it denies that natural and divine rights precede the very existence of the republic; moreover, it is injurious toward the native dignity of man, because it hands the individual man over into the narrow servitude of the state. Hence St. Thomas⁷ says forcefully: "Written [human] law, just as it does not give force to natural right, so neither can it diminish or take away its force, because neither can the will of man change nature."

The three acceptions of right enumerated above under nn. 2, 3, 4 can be coordinated in the following schema:

Corollary. From what has been said it follows that rights do not belong to animals, because they are not endowed with moral faculties. Therefore no one ever commits injustice properly so called against an animal. For this reason theologians are accustomed to say briefly: animals are indeed an object, but not a subject of right.⁹

² Although those things which are predicated of this objective right can also ordinarily be predicated of law, nevertheless objective right and law are not altogether the same. Wherefore St. Thomas says: "Law is not right, properly speaking, but a certain account of right" (S. theol. 2, 2, q. 57, a. 1 ad 2; "The law is not the Right, but a norm of Right"). Hence not all laws can properly be called right, but only those which are concerned with passive right; for example, police laws are incongruously called police right; the law of loving oneself or one's neighbor is not right.

³ In German it is said: authorization (Befugnis) (cf. Gopfert, Moraltheol. II, § 74).

⁴ Denz. n. 1759, 1761.

⁵ Denz. n. 1739.

⁶ Cf. Cathrein, Moralphil. I, § 3, 1.

⁷ S. theol. 2, 2, q. 60, a. 5 ad 1.

⁸ Ground of right, laws of right, norms of right.

⁹ Cf. Gopfert, l.c.

2. Divisions Of Right. Among the multiple divisions of subjective right, the following seem to be the more principal:

1. By reason of origin, right is divided into natural, positive-divine, and human. Natural right is the moral faculty, belonging to man from the very principles of human nature, of doing, demanding, etc., something;¹⁰ for example, the right of defending one's own life, the right of possessing goods, etc. Positive-divine right is that faculty which belongs to man by force of a special divine decree; for example, the right of receiving the sacraments, the right of hearing the Gospel. Human right, which again is divided into ecclesiastical and civil, is that which emanates either from ecclesiastical law or from civil law. Thus parishioners have a right that the pastor administer the sacraments to them; citizens of the state, however, have a right that they be protected as to life and goods by the civil government.

Natural rights are either innate¹¹ or adventitious,¹² according as they arise of themselves from birth itself or from some contingent fact. An innate right is, for example, the right of children to receive suitable support from parents. An adventitious right is, for example, the right which someone acquires by the purchase of some thing. Natural right, and the same holds for positive right, is also divided into abdicable right,¹³ for example, the right to some possession, and inabdicable right;¹⁴ for example, a husband cannot abdicate his right over his wife, so that another may licitly live with her maritally.

Finally, natural right is divided into natural right strictly so called and the right of nations, which comprises conclusions necessarily deduced from natural right and therefore observed among all nations. The right of nations, therefore, is as it were a middle between natural right and civil right. Moreover, the right of nations is not always taken in the same sense.¹⁵

2. By reason of effect, strict right and non-strict right are distinguished. Strict right is that which is so closely connected with man that it cannot be taken away from him without manifest injury. A right of this kind is, for example, the right of legitimate property. For when someone takes away my legitimate property from me, he wounds my strict right and is held to repair the wounded justice. Non-strict, or broad, or imperfect right is that whose wounding does not constitute injustice properly so called, but a certain inconvenience more or less grave. The common poor man has a non-strict right to alms; a man who has deserved well of the republic has a non-strict right to honors, etc. Sometimes strict right is also divided against equitable right, which is then taken as a certain correction of excessively hard positive right, and which attends rather to the mind of the legislator than to the letter of the law. Cf. what was said above, I, n. 231, concerning epikeia.

3. Strict right is subdivided into ius in re and ius ad rem. This division is very celebrated both in ecclesiastical law and in civil law. Ius in re, or real right,¹⁶ is that by which someone enjoys some thing already legitimately existing, at least in some way, in his disposition. But what conditions are necessary in order that some thing be legitimately in the disposition of someone is usually determined by positive laws.¹⁷ This right confers a real action, that is, an action which immediately reaches the thing itself, wherever finally this thing may be found, for example, if someone has a mortgage over some thing.

Ius ad rem,¹⁸ or personal right or acquired right, is that which someone has so that some thing not yet possessed may become his. This right gives a personal action,¹⁹ which immediately reaches the person detaining the thing and only mediately the thing itself. Hence if someone has only ius ad rem, he cannot occupy that thing, but must first, if this is possible, call into judgment the person who detains the thing and refuses to hand it over; for example, if Peter owes me 1000 francs, I cannot licitly take away an equal value from him, but I must first demand from him the return of the money owed. Thus at least ordinarily. Ius ad rem is therefore the way to ius in re.²⁰

¹⁰ S. theol. 2, 2, q. 57, a. 2. Concerning other acceptions of natural right less customary today, see Suppl. q. 65, a. 1 ad 4. That natural right truly exists is denied by some modern jurists, but it was already admitted in the Code of Justinian and manifestly follows from the existence of natural law; cf. above I, 152.

¹¹ Innate right.

¹² Acquired right.

¹³ Alienable right.

¹⁴ Inalienable right.

¹⁵ Cf. St. Thomas, S. theol. 1, 2, q. 95, a. 4; 2, 2, q. 57, a. 3; Cathrein, Moralphil. I, 8, 6, § 2.

¹⁶ Real right, right in a thing.

¹⁷ Cf., for example, Cod. civ. Germ. § 854 sqq.

¹⁸ Right of claim.

¹⁹ Personal right of action.

²⁰ Cf. especially Gopfert, Moraltheol. II, 51 b; or Tanquerey, De iustitia n. 18; or Muller, Theol. mor. II, § 93.

3. On dominion.²¹ Ius in re is also called dominion, which is commonly defined: the legitimate faculty of disposing of some thing as one's own.

It is said, first: legitimate faculty, that is, a faculty granted by right, whether natural or positive. Therefore a man having dominion over some thing can dispose of it only within the limits placed by law. Hence a rich man dissipating his own goods does not indeed sin against commutative justice nor against positive right, but he sins against natural right, committing the sin of prodigality, which indeed is against liberality, which is a potential part of justice.

It is said, second: of disposing of some thing as one's own. Therefore curators and dispensers of things belonging to another do not have dominion over those things, since they do not dispose of their own things but of another's. The exercise of this faculty of disposing is sometimes bound by civil law or statute; for example, children cannot dispose of their own goods.

Divisions Of Dominion. Dominion has received many divisions, of which the principal are the following:

a) Divine dominion and human dominion.

To God there belongs, by the title of creation and conservation, the most perfect dominion, according to that saying: "The earth is the Lord's and the fullness thereof, the world and all who dwell therein."²² By delegation from God, dominion belongs to man, who therefore cannot use it according to his own will, but according to the will of God delegating. Man is the steward of God. Human dominion is subdivided into:

b) Full dominion and semi-full dominion.

The first is the perfect faculty of disposing both of the thing itself and of its fruits. The other is the faculty of disposing either of the thing or of its fruits. But this semi-full dominion is subdivided a) into radical, or direct, or naked dominion, if someone indeed retains the ownership of the thing, but does not have free disposition either of the thing itself or of its fruits;²³ and b) into indirect or useful dominion, which extends either to the proper use of the thing and its fruits, with the substance of the thing preserved, without the fruits of the thing being able to be alienated, and then it is called use (Gebrauch); or it extends to total dominion of the fruits, even with the faculty of alienating them, while nevertheless the substance of the thing itself is preserved, and then there is usufruct (Niessbrauch). These two modes of dominion especially have place in contracts of leasing, emphyteusis, etc. Use and usufruct legitimately obtained introduce certain rights and debts both for the owner of the thing and for him who has useful dominion. The civil laws of each region must be attended to.²⁴ Generally speaking, the usufructuary has full dominion of all fruits which in any way arise from the thing. Treasures perhaps found in that thing are excepted,²⁵ since they are not properly fruits of the thing. But the usufructuary is held to pay annual taxes, which are considered to be burdens of the fruits; he is held to preserve the thing in the state in which he received it, and therefore he must make small repairs. Greater repairs, however, must be made by the owner himself. Then he is held to administer the thing as a good father of a family.

c) High dominion and low dominion.

The first is that which the supreme legitimate power has of disposing, sometimes from grave cause, of the goods of private persons for the good of the community. The other is the dominion of private persons, to which the definition given above applies. High dominion²⁶ is not dominion properly so called, since the supreme legitimate power is not a mistress possessing the goods of all subjects, nor can it convert them to its own advantage. Such high dominion may not licitly be exercised unless a) the true necessity of the community demands it, b) equivalent compensation has been given, and one subject is not burdened more than another. High dominion is exercised not rarely in our days in so-called expropriations for the construction of railroads and other roads.

To low dominion, which sometimes is also called private dominion,²⁷ there is opposed community of goods. Since in our days Socialism proclaims with a loud voice that private dominion is nothing other than theft, and that community of goods must be established, it is necessary here to say a few things:

On The Origin And Licitness Of Property And Private Dominion

²¹ Right of ownership, right of disposal, droit de propriete.

²² Ps. 23:1.

²³ Dominion of this kind, radical dominion, is had, for example, by religious over their goods after simple profession, and generally by all to whom free disposition of their own goods is forbidden by law, as, for example, wards.

²⁴ Cf. Cod. civ. Germ. § 1030 sqq.; Cod. civ. Gall. art. 578 sqq.

²⁵ Cod. civ. Germ. § 1040; cf. below n. 46.

²⁶ Superior ownership right, haut domaine, right of expropriation.

²⁷ Private ownership right.

4. Authors do not agree whence private dominion first arose. Some (Hugo Grotius, Pufendorf) wish that it arose from a social pact, by which men agreed that goods previously common to all would thereafter be divided among individuals. Others (Hobbes, Montesquieu, Bentham, several moderns) teach that the division of goods was first made by civil law. Others, namely modern Socialists, teach that the division of goods was introduced by violent occupation, so that the stronger, having overcome the weaker, violently and unjustly occupied goods previously common. Others have devised still other theories.²⁸

These opinions being left aside, it is better and more correct to distinguish in this matter the question of right and the question of fact. Certainly, sometimes private dominion was made by first occupation, as when inhabitants arrived in a land up to that point uninhabited. Sometimes, however, private dominion is constituted by civil law, as when the civil government assigns lands to be cultivated to certain farmers. Finally, sometimes the division of properties was made from a social pact, as we read in Sacred Scripture concerning the division of lands between Abraham and Lot.²⁹ But as to the question of right, without doubt private dominion (circumscribed by just limits) follows as a conclusion from natural law itself, not indeed in the sense that community of goods is directly against natural law,³⁰ but that, all circumstances considered, for the most part it is not so conformable to natural law. This is explained in this way by the Angelic Doctor:³¹ a) Because each person is more solicitous in procuring something which belongs to himself alone than that which is common to all or to many. For care concerning things exacts fatiguing labor, and if one must labor for the common good, many shrink back from the fatigue. b) Because human affairs are treated in a more orderly way if to each person there is incumbent the proper care of procuring some thing; but there would be confusion if each one indiscriminately procured anything whatever. c) For the preservation of peace. Hence we see that many and frequent quarrels arise among those who possess one and the same thing in common.

Deservedly, therefore, Leo XIII said in the Encyclical Rerum novarum: "To possess things privately as one's own is a right given to man by nature." Pius X proposed the same doctrine in the Motu proprio of 18 Dec. 1903 (Prop. 5). But if St. Thomas (and with him several theologians) teaches that private dominion was introduced from the ius gentium, under the name of the ius gentium he does not understand the so-called international law of peoples, but a right derived from natural law itself.³² Behold his words: "In another way something is naturally commensurate with another, not according to the absolute account of itself, but according to something which follows from it, for example the property of possessions; for if this field be considered absolutely, it has nothing by which it should be this man's rather than that man's; but if it be considered in respect to the suitability of cultivating it and to the peaceful use of the field, according to this it has a certain commensuration to this, that it be of one man and not of another."³³ And the same Angelic Doctor says: "Those things belong to the ius gentium which are derived from the law of nature, as conclusions from principles."³⁴ From all these things it is manifestly drawn out that private dominion is something licit, but Communism preached by the Socialists must be rejected.

²⁸ Cathrein enumerates seven diverse theories (Moralphilos. II, 44).

²⁹ Gen. 13:8 sqq.

³⁰ Hence St. Thomas says: "The property of possessions is not against natural law, but is superadded to natural law through the devising of human reason" (S. theol. 2, 2, q. 66, a. 2 ad 1).

³¹ S. theol. 2, 2, q. 66, a. 2. Franc. Walter, Das Eigentum nach der Lehre des hl. Thomas von Aquin und des Sozialismus (1895) 7 sqq., and Franc. Schaub, Die Eigentumslehre nach Thomas von Aquin und dem modernen Sozialismus (1898) 259 sqq., wrote more broadly concerning this matter.

³² Concerning the diverse acceptions of the ius gentium, cf. Cathrein, Moralphil. I, 8, 6, § 2.

³³ S. theol. 2, 2, q. 57, a. 3.

³⁴ Ibid. 1, 2, q. 95, a. 4.

5. Scholion. On The Enemies Of Private Dominion. That private dominion is illicit and therefore to be abolished was taught by: a) the Apostolics (Apotacticae, Renuntiators), asserting that a man cannot be saved unless, after the example of the apostles, he lives free from any possession;³⁵ b) the Manichaeans, saying that to possess fields, houses, and money is illicit;³⁶ c) the Waldenses and Albigenses, teaching that at least perfect men must renounce every possession. But especially with all their strength there fight against private dominion: d) modern Socialists and Communists.

Modern Socialism is usually joined with Anarchism, with Indifferentism in matters touching religion, indeed almost always with a fight against every positive religion. In present times Socialism widely rages almost everywhere on earth and grows day by day. Although the Socialists are divided among themselves, nevertheless almost all agree in the principle stated by Karl Marx: Capital is pure and putrid theft, because it has been born from the retention of that money which was owed to workers for their labors. Likewise the following demands are proposed by all Socialists:

1. The right of choosing deputies completely general both for men and for women (from the twentieth year of age).

2. The right of choosing all superiors and officials of the state.

3. Religion is a private matter, that is, each person should exercise the religion which he prefers.

4. A lay school without religious instruction.

5. Separation of Church from State.

6. Abolition of all indirect taxes.³⁷

Things To Be Noted For Practice. Certainly it is not forbidden that workers and other men of lesser condition strive by any legitimate means both to have a better wage and favorably to raise their condition; nevertheless it is never licit to employ means forbidden by Catholic moral Theology in order to obtain that end. Several associations imbued with Christian principles already exist for improving the lot of workers. The priest must cautiously and prudently foster associations of this kind; but all workers must be deterred from socialist associations and especially communist ones, since these, as mournful experience bears witness, almost always ruin the religion and good morals of workers, and do not make their material lot better. Hence the priest with all his strength should teach workers that private dominion is licit, and that the possessions of the rich are not always theft; that one must labor in the sweat of his brow, as already after the fall of Adam was foretold by God to the whole human race; that true human happiness is not situated in great possessions, but in the good use of material things, and that it is better to need less than to have more, as St. Augustine says. Above all he should also promote the fervent exercise of religion both among the rich and among workers. For because charity has grown cold, thence hardness has arisen among the rich. But since faith has become tepid among all, thence workers no longer with all their strength long for eternal happiness, but through right and wrong seek earthly happiness and are carried away by monstrous passions.

Socialism does not everywhere have the same degree of perversity, whence the circumstances of individual regions must be considered. But generally speaking, all who freely and positively adhere to the sect of the Socialists (and a fortiori of the Communists) are not worthy of sacramental absolution unless they seriously promise to leave that sect as soon as they can. More mildly can those be treated who adhere to the Socialists not freely but compelled by grave fear, and not actively but merely passively. For if these seriously promise the confessor faithfully to observe the precepts of religion and to guard against scandal according to their powers, they can receive the sacraments. Nevertheless they must gradually, according to their powers, separate themselves from the socialist sect. Several authors, such as Heiner, D'Annibale, Ballerini-Palmieri, etc., teach that positive socialists fall into the excommunication laid upon those who plot against civil or ecclesiastical power. Whatever may be said of this opinion,³⁸ this is certain: socialists greatly harm the Catholic religion.

³⁵ Cf. St. Epiphanius, Adv. haer. 61; St. Augustine, De haer. 40; St. John Damascene, De haer. 61; see also Wetzer and Welte, Kirchenlex., s. v. "Apostoliker."

³⁶ Cf. St. Augustine, De mor. eccl. l. 1, c. 35, n. 78.

³⁷ The history and diverse forms of Socialism may be seen in Tanquerey, Theol. mor.: De virtute Iustit., n. 54 sqq.

³⁸ Cf. below in the treatise on censures, III 516.

The whole doctrine concerning the object of dominion is comprised in five principles:

6. Principle 1. Man has useful dominion, but not absolute dominion, in the goods which are intrinsic to him, namely those of soul and body.

The reason is that man is as it were God's steward, to whom diverse talents of body and soul have been entrusted to be administered for attaining his supernatural end. Moreover, a steward does not have absolute dominion of the goods entrusted to him, but is held to administer them according to the good pleasure of the lord; nevertheless he can use the talents given for his own advantage. From this principle there follow very practical corollaries, namely:

Corollary 1. Man arrogates to himself a right which he does not have when he destroys the life of the body by suicide. "You are, O Lord, he who has power of life and death," it is said in Sacred Scripture.³⁹ Likewise man commits an injury against God if he corrupts bodily health or calls it into danger without sufficient reason. But much greater is the injury brought against God when man through mortal sin loses the life of his own soul.

Corollary 2. Man cannot treat his own body just as it pleases him. Hence man cannot licitly cut off his own members, procure for himself surgical sterilization or vasectomy, unless this is necessary for driving out a grave sickness; he cannot use his own body for lust; but he can, indeed he must, even with bodily detriment, guard the life of the soul; he can also, on account of the exercise of virtues and for the great utility of the soul, expose bodily health to danger or diminish it, for example by fasting, undertaking grave labors, setting out to foreign missions for the preaching of the Gospel, etc.

³⁹ Wis. 16:13.

7. Principle 2. To man there belongs strict dominion (although limited) over his own reputation.

The reason is that reputation truly is a property which man has acquired for himself by his own labor, namely by the honorable exercise of his faculties, or at least from inheritance. A good reputation is a most precious good. Hence it is said in Sacred Scripture: "A good name is better than many riches."⁴⁰ Hence he commits a great injury who takes away or diminishes another's good reputation by calumny or detraction.⁴¹

Nevertheless man's dominion over his own reputation suffers limitations. For since a good reputation is so necessary for the happy and fruitful operation of man, a grave cause is truly required in order that its voluntary loss may be licit. Hence Sacred Scripture also admonishes: "Have care for a good name: for this will remain for you more than a thousand precious and great treasures. The number of days of a good life: but a good name will remain forever."⁴² Therefore, just as it is not licit to dissipate one's temporal goods, so a fortiori it is not licit to call one's reputation into danger without grave cause. But man is gravely prohibited from diminishing his own reputation, especially if his infamy redounds upon his neighbor, for example upon his family, upon the convent in which he lives, if a good reputation is very necessary for exercising the duties of his state. Hence, for example, a priest cannot permit (without seriously contradicting) the wounding of his own reputation, because the faithful will not have confidence in a priest whose reputation is stained. Nevertheless, from a reasonable cause, man can voluntarily make a loss of his own reputation, for example for exercising humility, for celebrating the mercy of God, etc. Hence St. Augustine wrote the book of the Confessions, St. Francis of Assisi wished to be regarded as foolish, etc. Therefore the general rule is: it is licit to suffer the loss of one's own reputation if the good effects following from it prevail over the evils. In practice it is usually safer not to trust too much in one's own judgment in this matter, but to seek the counsel of a prudent man.

⁴⁰ Prov. 22:1.

⁴¹ How restitution must be made after such an injury, see below n. 187, where damage-inflicting is treated.

⁴² Ecclus. 41:15 sq.

8. Principle 3. Man has dominion over the offspring of his own intellect and industry, according as, however, it has been determined by individual civil laws.

The offspring of intellect are: books published by an author, images, musical rhythm, medicinal remedies newly invented, and other artifacts made by an artisan. All indeed teach that it is pure and putrid theft if someone secretly takes away from another manuscripts or artifacts or inventions not yet made matters of public right, because the legitimate owner is reasonably unwilling on account of grave damage and grave injury brought against him. But when a manuscript has already been printed, or if an invention (commonly, Patent) has already been divulged, theologians dispute whether a new printing of the book made without the author's permission or imitation of the invention is against natural right and obliges to restitution. Some deny this, because a work once published already becomes a common good, which can licitly be occupied by all;⁴³ but the more common and truer opinion affirms it, yet with the restrictions indicated by positive law. And indeed it seems to be a great injury that he who perhaps with hard labors wrote a book, or invented something new, should be frustrated of the fruits of his labors because another publishes the book again or makes an imitation of the invention. Nevertheless, from another side, it would be very harmful to the common good if the publication and imitation of such works remained reserved forever. Wherefore it is necessary that positive laws indeed protect the rights of the author, but also limit them; and thus in fact it has been done among all cultivated nations. Indeed, concerning this matter there exist international pacts among several nations. Already in the year 1886 at Bern in Switzerland such a pact was entered into among some nations, and it was augmented at Paris in the year 1896. But afterward certain nations entered into still special pacts.⁴⁴

Things To Be Noted For Practice. Since natural right does not have special determinations concerning the dominion of authors, and since the determinations of diverse civil laws seem sufficiently just and constitute true rights, they also oblige in conscience, and transgressions induce not only sin but also the obligation of restitution, if the true owner has suffered grave and certain damage. Thus is the opinion today more common. In practice the quantity of restitution can be determined with difficulty, because it is almost impossible to weigh the damage which the author has suffered. Lehmkuhl writes to the matter: "He is held to that restitution which the judge will have defined, if he is called into law. If the author is unwilling to pursue the matter in judgment, and nevertheless does not renounce restitution, that must be restored to the author and publisher in which, according to equitable estimation, they have suffered damage or have been defrauded of profit."⁴⁵

It must be noted that sometimes restitution must be made not only to the inventor but also to buyers. For example, someone has produced a liquor similar to the very celebrated liquor commonly called "Chartreuse" and sells it as true "Chartreuse." In this case the damages brought must be repaired: 1. to the legitimate proprietors producing true "Chartreuse"; 2. to all those who bought false "Chartreuse" in error, since that false liquor has much less value than true liquor, and besides perhaps diminished the health of those drinking it. Since the buyers for the most part are unknown, something must be given in their place to the poor or to pious causes. But how much and how it must be restored can hardly be defined easily. The falsifier does not deserve great indulgence. If he has been detected, even by civil law itself he is most gravely punished and is held to pay the imposed penalty. But if he has not been caught by the civil judge, nevertheless there falls upon him the moral obligation of repairing the damages. Perhaps restitution can then be made in this way: after deducting the expenses which the adulterator made in the fabrication of the thing, let him divide the whole profit into two parts, of which let him expend one upon pious causes, but restore the other to the legitimate proprietor producing it. Thus, saving a better opinion and with circumstances altogether particular, sometimes occurring, set aside.

Often the permission of the author can be presumed for publishing small articles published by him or for transcribing music for private use; the same is valid concerning translations into another language, provided nevertheless that it is a matter of lesser moment. For thus common usage bears. But many authors in these cases require that it be indicated by the translator or new publisher whence he took the written article. But if it is a matter of translations of greater moment, for example of an entire book, then the permission of the author or publisher cannot be presumed, and therefore such an illegitimate translator must be treated in the confessional almost as was said above concerning an illegitimate publisher.

⁴³ Thus especially Bucceroni, Theol. mor. I, n. 878; somewhat also Morres, De iust. I, n. 24; Vermeersch, De iust. n. 246 sqq.

⁴⁴ Cf. Herders Konversations-Lex., s. v. "Urheberrecht."

⁴⁵ Casus consc. I, n. 580.

9. Scholion. On The Dominion Of Authors According To Some Modern Civil Laws. The dominion of authors is protected by Spanish civil law during the life of the author and after his death for 80 years;⁴⁶ by French civil law during the life of the author and after his death still for 50 years; by German, Austrian, and Swiss law during the life of the author and then for 30 years; by British law for 42 years after the first appearance of the work; by the law of North America for 28 years from the day on which the book was sent to the "Librarian of Congress, Washington"; the duration of 28 years can be prolonged for another 14 years.

Concerning the laws of diverse regions about the right of a new invention (commonly Patentrecht, Patent right, droit sur les brevets d'invention), since those laws are not easy either for understanding or in practical application, there is no leisure to speak here. If a case occurs in the confessional, the confessor should first consult an upright man who is skilled in this matter (commonly Patentanwalt); for it is morally impossible that the confessor be able to render a right judgment in so arduous a matter without the previous counsel of someone skilled in civil law.

⁴⁶ Cf. Larraga-Sarollegui, Comentarios al P. Larraga n. 703; Cod. civ. a. 428 sq.

10. Principle 4. To man there belongs strict dominion over external goods legitimately possessed.

This is clear from what was said above, n. 4, concerning the licitness of such private dominion and concerning the absurdity of Communism.

11. Principle 5. Man does not have full dominion over another man, but he can have useful dominion.

The reason is that each man has received from the Creator some inalienable rights. Hence no private man can dispose of the bodily or spiritual life of his neighbor. For as to this all men are equal. Whence it is a most grave injustice if someone by his own authority kills another, unless nevertheless he acts from legitimate defense or with the moderation of inculpable self-protection, as will be explained below concerning an unjust aggressor. A legitimate judge can inflict the penalty of death as bearing the place of God, as will be said below, n. 118.

Useful dominion over the faculties and works of a neighbor can belong to some man, because this follows necessarily from the inequality of the states of diverse men. This diversity indeed has been instituted by God himself, since he willed some to be masters and others to be servants. Wherefore all theologians teach that, pagan slavery being rejected, by which a slave was regarded altogether as a material thing or a brute animal, even slavery properly so called, by which someone is held through his whole life to serve another in all licit things, is prohibited neither by natural right nor by positive-divine right. Hence we see slavery existing not only among barbarous nations, but also among the Jews.⁴⁷ Slavery is manifestly presupposed as something in itself licit also in the New Testament. For the Apostles command that slaves be subject "in all fear to masters, not only to the good, but also to the harsh";⁴⁸ they exhort masters to treat slaves kindly;⁴⁹ they sometimes advise them, but do not command them, to free them.⁵⁰ Nevertheless, history bearing witness, slavery has almost always involved many abuses; and therefore both civil and ecclesiastical law gravely prohibit slavery properly so called in our days.⁵¹

⁴⁷ Cf. Ex. c. 21; Lev. c. 25; Deut. c. 20-21.

⁴⁸ 1 Pet. 2:18; similar things are found in Col. 3:22; Eph. 6:5.

⁴⁹ Cf. Eph. 6:9; Col. 4:1.

⁵⁰ Almost the whole Epistle to Philemon.

⁵¹ Cf. Gregory XVI, Const. In supremo apostolatus, 3 Dec. 1839, and Leo XIII, Encycl. In plurimis, 5 May 1888.

12. Scholion. On The Various Kinds Of Goods. After what has been said concerning the object of dominion, it is useful to add small explanations concerning the various kinds of goods which fall under dominion. For diverse civil codes distinguish very carefully among diverse kinds of goods. They are:

1. Movable and immovable goods. Movable goods⁵² are those which can easily be transferred from place to place. Immovable goods are those which either cannot be transferred, or are considered to be inseparably joined with an immovable thing. In individual codes it is usually determined which goods are considered immovable and which are not. Both in German law and in French law there are considered immovable goods, besides houses and fields and other things which adhere to the soil, also: a) crops and other fruits, as long as they are joined with the soil, but not after they have been separated from the soil by harvest; b) rights which are joined with some immovable good, for example the right of patronage, active servitudes, etc.; c) machines necessary in some workshop; animals necessary for carrying out agriculture, etc.⁵³

2. Fungible and non-fungible goods.⁵⁴ Fungible things are movable goods which can function in place of others; moreover, they are those things which in commerce are customarily numbered, weighed, or measured, and are consumed by the first use, for example money (which among all fungible things, according to modern practice, obtains the first place), oil, grain. For if someone has lent me, for example, 100 francs, I am not held to return altogether the same little coins of gold or silver, but in place of the coins loaned, any other coins of the same value can function. But non-fungible things are those which cannot be substituted by others, but, if they have been loaned or taken away, must be returned altogether identically; for example, if someone has loaned this horse, it does not suffice to return another horse, but altogether the same horse must be returned.

3. Consumable and non-consumable goods.⁵⁵ Consumable goods are considered to be those things which, as such, are consumed by the first use, for example food, drink, money, etc. But I say: which as such are consumed by the first use; for it is not required that they be altogether destroyed or receive another nature. Thus, for example, the cloth from which a garment has been made indeed remains, but it has now been made clothing and ceases to be cloth. Therefore it is considered a thing consumable by the first use. But non-consumable goods are things which are by no means consumed by the first use, but remain in their first state, for example a garment, a house, books, etc.

These divisions must be committed to memory, because otherwise several expressions of civil codes can be understood only with difficulty.

⁵² Fahrnis, fahrende Habe.

⁵³ Cf. Cod. Civ. Germ. §§ 93-98, where these things are called: Wesentliche Bestandteile einer Sache und Zubehör.

⁵⁴ Vertretbare und nicht vertretbare Sachen (cf. Cod. civ. Germ. § 91).

⁵⁵ Verbrauchbare und nicht verbrauchbare Sachen (ibid. § 92).

The subject of dominion is called he who is the master of some thing, or he to whom dominion belongs. It is clear of itself that to God the creator there belongs the most perfect dominion of all things. But it is asked what creature is the subject of dominion.

13. Principle. Only the rational creature can be the subject of dominion (but not the irrational creature, nor a fortiori the inanimate creature).

The reason is: a) Because only the rational creature is the image of God, since he has a spiritual soul endowed with intellect and will; but other creatures are nothing except a vestige of God. But that this is the cause of human dominion is drawn out, not obscurely, from the words of the Creator saying: "Let us make man to our image and likeness, and let him rule over the fishes of the sea and the beasts of the earth."¹ For the Creator granted to man dominion over the fishes and beasts, that is, over the whole creature, because he is the image of God; or because he has intellect and will.

b) Because dominion is a moral faculty of disposing concerning some thing, as was said above, n. 3. Now no being except a rational one has a moral faculty, since this supposes intellect and will.

¹ Gen. 1:26.

14. Resolves. 1. Animals are not the subject of right, as was already said above, n. 1. Therefore if someone wantonly slaughters or cruelly treats animals, he wounds no right, nor does he even commit injustice. Nevertheless, cruelly to treat and harass animals (without sufficient reason) is sinful, both because it is opposed to right reason, and because man in such torture often seeks pleasure that is plainly perverse. And indeed man is held in all actions to act for an honorable end. Now cruelly to treat animals without sufficient reason evidently is not done for an honorable end. Therefore man sins by uselessly tormenting animals.² This sin indeed of itself is nothing except venial, since it is nothing except excess in an otherwise licit use;³ but by accident it becomes mortal, for example on account of sexual lust caused not rarely in the torturer (Sadism). If the torture of animals is done from an honorable end, as in vivisection scientifically and rationally performed, it is not a sin.

2. Even the insane and children before the use of reason are capable of dominion habitually; for they too have intellect and will, although they cannot actually use these powers. But the actual use of reason and will is by no means required for dominion; otherwise even those sleeping and the drunk would lose dominion. Hence St. Paul attributes to little children true dominion of an inheritance left behind in these words: "As long as the heir is a little child, he differs nothing from a slave, while [i.e. although] he is lord of all; but he is under tutors and guardians until the time prefixed by the father."⁴ Thus also modern civil laws establish.⁵ Since man even before birth (at least in the last months after conception) certainly possesses a rational soul, hence as to some things at least, already after conception he is capable of dominion, for example as to the capacity of receiving an inheritance.⁶

3. Not only physical persons can be the subject of dominion, but also moral or juridical persons; for they are usually formed from several physical persons. Ecclesiastical juridical persons are, for example, parishes, monasteries, etc.; but civil juridical persons are, for example, commercial associations legitimately instituted, such as banking institutions (commonly Bank). But what is required in order that some ecclesiastical or civil juridical person have all the rights of dominion is determined by ecclesiastical or civil law.

The subject of dominion is not rarely rather restricted in the exercise of his dominion by both civil and ecclesiastical law. It is long to treat all these matters, which pertain rather to jurists than to theologians. But since there are special difficulties concerning wives, sons of families, and ecclesiastics, according as these are the subject of dominion, moralist authors also are accustomed to treat each of all these matters individually. Several theologians also treat separately of the dominion of authors, but those things which were said above concerning dominion over the offspring of one's own intellect plainly suffice.

² Cf. St. Thomas, Contra Gent. III, 112.

³ Thus also Gopfert, Moraltheol. II, n. 141; Noldin, De praeceptis n. 346.

⁴ Gal. 4:1 sq.

⁵ For example, Cod. civ. Germ. § 1; Cod. civ. Gall. a. 8.

⁶ Cf. Cod. civ. Germ. § 1923.

15. General Principles. A man and a woman contracting marriage enter into an undivided companionship of life, of which the man is the head. Nevertheless each one in the matrimonial society retains natural rights, as is clear of itself. Therefore each one remains capable of dominion. Both spouses must strive strongly for the suitable support of offspring; one must also suitably support the other. From these things it follows (however civil laws have been established and although the wife has contributed nothing to the material good of the family), nevertheless she has a strict right to suitable support according to her condition, or just as other women of the same condition.

16. The honorable support of a spouse comprises: a) suitable food and clothing (and probably also after the death of the other spouse).⁷ For the wife is not a maidservant but the companion of the husband. b) The faculty of spending certain things for honorable recreation, of giving small gifts, of giving alms, just as other spouses of the same condition are accustomed to do. Hence the wife does not sin against justice if she does all these things without consulting the husband or against his will. Nevertheless, in practice it is not expedient that a wife, against the husband's will, dispose thus of common goods (the matter stands otherwise if the wife disposes of her own peculiar goods), unless true necessity, at least moral, demands it; because otherwise great abuses and very many quarrels can easily arise between spouses. This indeed is especially valid if it is a matter of alms and gifts; for it is better to abstain from these than to procure discord. There is a greater difficulty if the wife is held to help her parents or sons perhaps had from a prior marriage. In which case, if the parents or those sons are in grave necessity, the wife is held to help them from her own goods, if she has any; but if she has no goods of her own, she can help them from common goods, but she must not notably exceed the quantity concerning which she can dispose as alms. Certain theologians⁸ permit the same toward brothers and sisters if they are very poor. In practice wives are to be exhorted first to make the husband more certain about extraordinary alms to be given; but if this cannot be done, then wives are to be induced to acquire for themselves, by special industry or extraordinary labor, certain goods from which they can licitly give those alms; or also, from those things which are granted to them by the husband for clothing, amusements, etc., to save money for giving these alms.

If the husband is too prodigal and dissipates the goods of the family, then the wife can laudably hide certain goods, lest they be dissipated. Generally speaking, since the wife is not the servant but the companion of the man, she can prudently dispose of small goods of the family, because the husband cannot reasonably be unwilling concerning such a manner of acting.

The administration of common goods pertains to the husband, since he is the head of the family; but if the husband by gravely bad administration, dissipation, gambling, drinking, etc., has brought grave damage upon the wife, he is held to restitution. Nevertheless, in practice it must be seen what system of goods has been established in the matrimonial contract; whence also in the forum of conscience those things must be attended to which will be said below concerning the diverse statutes of civil laws.

As to practice, let the confessor strongly insist that both spouses administer material goods with united strength and minds. Although sometimes the wife does not commit injustice strictly so called if she disposes of common goods, and therefore is not held to restitution, nevertheless such clandestine dispositions are accustomed to produce many inconveniences, as was already said. Since these things are so, in this matter not only the virtue of justice must be observed, but also the virtue of prudence and charity.

These are the things which are valid in general concerning the dominion of spouses. Older moralists in this matter attended only to Roman civil law. But since in our times Roman law has almost everywhere been removed by other civil laws, we touch only briefly upon the statutes of Roman law and insist more on modern laws.

⁷ Cf. Lehmkuhl, Theol. mor. I, n. 1068.

⁸ Lessius, Lugo, St. Alphonsus (Theol. mor. l. 3, n. 542), Aertnys, etc.

17. Roman law distinguished the wife's goods of three kinds, for example: 1. paraphernal, 2. dotal, 3. common.

1. Paraphernal goods (so called from the Greek words παρά, that is, besides, and φερνή, that is, dowry) are goods handed over to the husband besides the dowry,⁹ and which the wife is accustomed to receive from gifts, inheritance, her own industry, etc. But in order that those goods be regarded as paraphernal, the wife must reserve them for herself explicitly or implicitly; otherwise they are considered dotal, since by marrying the wife is thought to give herself and all her things to the husband.

2. Dotal goods are those which the woman hands over to the husband for the relief of the burdens of matrimony and for the support of the family.

3. But common goods are those which are acquired by the labor of each spouse during matrimony.

With these distinctions established, the following principles are valid:

1. The wife has perfect dominion (that is, direct and useful) and also administration of paraphernal goods.¹⁰

2. The wife indeed has direct dominion of dotal goods, but neither their administration nor useful dominion, both of which pertain to the husband.¹¹

3. The wife has direct dominion of one half of the common goods, so that when the husband dies this half of the goods falls to the wife; but useful dominion and the administration of all common goods pertain to the husband.

⁹ In the German and Swiss civil Code paraphernal goods are called Vorbehaltsgut, Sondergut.

¹⁰ Cod. lib. 5, tit. 14, l. 8.

¹¹ Dig. lib. 23, tit. 4, l. 7.

Preliminary Note. The civil codes of diverse nations, in almost the same way as Roman law, distinguish between dotal, paraphernal, and common goods, and also, just as Roman law, attribute to the husband the administration and use of all goods, excepting only paraphernal goods, although sometimes they limit the husband's faculty somewhat. Therefore this must be kept before the eyes as a general rule: The husband has the use and administration of all the goods of the wife. Paraphernal goods are excepted.

Very briefly there are added the civil statutes of certain nations, which the confessor must know and according to which he can judge occurring cases. But if greater difficulties occur, let the confessor not omit to seek counsel from one skilled in law.

18. 1. German law obliges, in the whole German Empire from the day 1 Jan. 1900, all citizens of that kingdom contracting marriage within the borders of Germany. If a German man contracts marriage outside Germany, he is still bound by German law; but not if a woman does this same thing.

2. A twofold regime of goods in marriage is distinguished, namely: a) legal regime (gesetzliches Güterrecht) and b) conventional regime (vertragsmäßiges Güterrecht), which nevertheless is subdivided into four species.

A. Legal Regime.

1. This regime is presumed unless it is certainly established concerning a conventional regime.

2. In this regime there are distinguished: the wife's brought-in goods (eingebrachtes Gut) and reserved goods (Vorbehaltsgut).

Reserved goods are considered to be:¹²

a) Things destined for the wife's use alone, for example garments, feminine ornament, etc.

b) Things acquired by the wife in an altogether independent business, for example by exercising the office of midwife.

c) Things received by inheritance or by donation between the living, provided nevertheless that the testator or donor expressly established that things of this kind constitute the wife's reserved goods.

d) Fruits of reserved goods.

All other goods are brought-in goods, if the legal regime is in force.

3. Over reserved goods the wife has completely free disposition; nevertheless from their proceeds, if this is necessary, she must contribute to the family estate.¹³

4. Over brought-in goods the husband indeed has usufruct and administration,¹⁴ but he cannot alienate them (at least if they are immovable) without the wife's consent; he must administer them diligently, otherwise he is held to restitution; their fruits he must spend first of all upon the suitable support of the family.

5. The wife can petition in court that the administration and usufruct of her goods be taken away from the husband, if a true danger of bad administration is present, or if the husband does not provide suitable support to the wife and children.¹⁵

B. Conventional Regime.

Those about to marry can enter into a pact concerning their own goods before a judge or notary; and this pact, after marriage has been entered, can again be dissolved or changed by them before a judge or notary.

Moreover, a pact of this kind is fourfold, namely: a) universal community of goods (Allgemeine Gütergemeinschaft); b) community of gain (Errungenschaftsgemeinschaft); c) community of movable goods (Fahrnisgemeinschaft); d) separation of goods (Gütertrennung).

a) Universal community of goods.

1. This universal community of goods causes that from the goods of the man and woman there coalesces one common good (Gesamtgut),¹⁶ whose administration pertains to the husband, who nevertheless in several cases needs the wife's consent.

2. It is also licit to exclude certain goods from this union (Vorbehaltsgut), according as it may please the contracting parties themselves.

3. This universal union of goods seems rarely to be advised from the beginning of marriage. But it could be fitting for avoiding inconveniences on account of an inheritance to be taken.

b) Community of gain.

1. In this regime, which is as it were a composition of the legal regime and the universal community of goods, there are the wife's reserved goods, as in the legal regime. Moreover, still other goods can be designated as reserved. But the husband does not have reserved goods.¹⁷

2. Reserved goods excepted, the administration and usufruct of the remaining goods pertain to the husband.

3. The brought-in goods of each spouse remain under his or her direct dominion, but the fruits of those goods become a common good.¹⁸

4. If this union of fruits is legitimately dissolved, then the obtained fruits are divided equally between the man and the woman.¹⁹

5. A union of fruits of this kind can especially have place in second marriages of either spouse, namely lest the offspring of the first or second marriage suffer damage.

c) Community of movable goods.

1. In this regime there exists a broader union of goods than in the union of gain. For to the union of all gain perceived from the brought-in goods there is added the union of all movable goods.

2. The wife, but not the husband, can have reserved goods.²⁰

3. From this union of goods there are excluded (as is clear of itself) immovable goods, which must be treated just like brought-in goods.

But what goods are considered immovable was said in n. 12.

d) Separation of goods.

1. If by pact before or after the nuptials separation of goods has been stipulated, then the husband has no right to the use and administration of the wife's goods. Nevertheless, the wife can according to her own judgment concede to him the administration or use of those goods.²¹

2. The husband is indeed held to bear the burdens of matrimony, but the wife also must contribute something from her own fortune.²²

3. The pact of separation of goods must be made according to legal form, otherwise it produces no effect.²³

4. A pact of this kind seems advised if the goods of either spouse are in great danger, for example on account of commerce.

¹² Cod. civ. Germ. §§ 1366-1370.

¹³ § 1371.

¹⁴ §§ 1373-1374.

¹⁵ § 1418.

¹⁶ § 1438.

¹⁷ § 1526.

¹⁸ § 1519.

¹⁹ § 1546.

²⁰ § 1555.

²¹ § 1430.

²² § 1427.

²³ § 1431.

19. General Rules:

1. Before marriage, the betrothed (if they are minors, the assistance of the father or guardian is required), as to their goods, have the faculty of entering into all pacts which they wish, provided that these be made before a public notary and are not opposed to good morals or laws.²⁴ If a special pact is lacking, the marriage is considered to have been entered under the regime of community.²⁵

2. After the marriage has been celebrated, pacts previously entered can in no way be changed, unless nevertheless in the case of divorce or through the sentence of a judge.²⁶ This determination is hard, and therefore those about to marry must be very cautious in making matrimonial pacts.

3. Under any regime whatever, the wife cannot without the express consent of the husband: a) give her immovable goods between the living, alienate them, burden them with mortgage, or acquire another's goods (the husband's consent can be supplied by the authority of the judge);²⁷ b) appear in civil judgment.²⁸ Nevertheless, exceptions are given, especially those introduced by the law of 13 July 1907.

A twofold regime of goods is in force: a) legal (communauté légale), b) conventional (régime conventionnel), of which nevertheless the second is again subdivided, so that there are five systems of the regime of goods according to French law.

A. Regime Of Legal Community.

1. This legal community is always presumed unless the contrary is expressly established.²⁹

2. This community coalesces: a) from all movable goods, both present and future; b) from all revenues of immovable goods; c) from immovable goods which, while the marriage stands, have been acquired from common goods. But to each spouse there remain as his or her own: a) immovable goods possessed before marriage; b) immovable or movable goods acquired after marriage by donation or inheritance under the explicit condition that they be one's own.³⁰

3. The wife indeed retains ownership of her own goods, but she has neither administration nor usufruct over them, nor (a fortiori) over common goods (nevertheless she can make a testament concerning her own goods).³¹ But the husband has administration and usufruct over all these goods, and he is held to furnish suitable support to the wife and family. He cannot alienate immovable goods without the wife's consent.

4. This community of goods can be dissolved, not indeed by the consent alone of each spouse, but a) by the death of either spouse, b) by a sentence of divorce or separation of bodies, c) by a sentence of separation of goods.³²

5. When the union has been dissolved, the common goods and debts are divided into two parts between the spouses or their heirs. The proper goods of each spouse remain intact, as is clear of itself. In this separation of goods the wife enjoys certain privileges: a) besides her own goods, she can claim for herself an indemnity to be taken not only from the common goods, but also from the husband's goods; b) she can repudiate the half of the common goods falling to her. The effect of this repudiation is that from the goods left behind the wife can demand nothing except her garments, and her heirs nothing at all; but, conversely, she is not held to pay the debts of the community.

B. Conventional Regime.

This regime is divided into four parts: a) conventional community (communauté conventionnelle); b) regime without community (régime sans communauté); c) regime of separation (clause de séparation des biens); d) dotal regime (régime dotal).

a) Conventional community.

1. Future spouses can by an express pact extend or restrict the legal community just as they wish, provided nevertheless that they stipulate nothing against laws or good morals. "The principal modifications are those which occur by stipulating in one or the other of the following ways, namely: 1) That the community will embrace only the acquisitions [acquisitions which the spouses make by onerous title during marriage. This clause of community reduced to acquisitions is very frequent]. 2) That the present or future movable property will not enter into community, or will enter into it only for a part. 3) That all or part of the present and future immovables will be comprised in it by way of rendering movable. [To render an immovable movable is, in the proper sense, to make it movable. The clause of rendering movable is that which has the effect of making an immovable fall into conventional community in the same way that movables fall into legal community. But under all other respects, the immovable rendered movable remains immovable.] 4) That the spouses will pay separately their debts prior to marriage. [This clause is often to be advised.] 5) That in case of renunciation, the woman will be able to take back her brought-in goods free and quit. [In this case the woman must have the value of the things which she brings at the time of her marriage established.] 6) That the survivor will have a preciput. [The word preciput comes from the Latin praecapere, signifying: to take beforehand. The preciput is the portion of common goods which a spouse, having already exercised his or her prior takings, takes by force of a convention before the division of the community, that is to say, before the composition of the lots.] 7) That the spouses will have unequal shares. 8) That between them there will be community by universal title."³³

2. For the confessor, difficulties cannot easily arise from all these forms of conventions. If some doubt occurs, the words of the contract and the intentions of the contracting parties must be attended to.

b) Regime without community.

1. This regime is very similar to the regime of legal community, concerning which above. In this regime all the wife's goods are dotal.

2. The wife has and retains radical dominion of all her own goods, but the husband has full administration and usufruct of them and is held to the support of the wife and family. In one word: the husband is as it were the wife's steward.³⁴

3. When the marital union has been dissolved, all the wife's goods return under her full dominion.

c) Regime of separation of goods.

1. In this regime all the wife's goods are paraphernal, and therefore the wife has full dominion and administration of them, with this sole exception: the wife cannot alienate an immovable good without the consent of the husband or of the judge.

2. Each spouse, according to the proportion freely established, is held to concur in the support of the family. If a fixed quantity is lacking, the wife is obliged up to a third part of her proceeds.³⁵ "The woman can therefore keep two-thirds of her revenues."

3. But if either spouse is reduced to want, the other must bear the expenses of the family estate.³⁶

d) Dotal regime.

1. This regime agrees with the regime of separation of goods in this, that all the wife's goods are considered paraphernal, unless a) they are expressly determined by the wife as dotal, and b) they are given to the wife in the matrimonial contract.³⁷

2. The husband has usufruct and administration of dotal goods; but he cannot alienate immovable goods constituted as dowry or burden them with mortgages, unless this has been established in the matrimonial contract and in certain other cases designated by law.³⁸

3. While marriage stands, a dowry can neither be constituted nor increased.³⁹

4. The wife has full dominion over her own paraphernal goods. Nevertheless she cannot alienate immovable goods, nor appear for them in civil judgment, without the consent of the husband or of the judge.⁴⁰

Scholion. From what has been said, it follows that in none of the five regimes of French law is the wife altogether independent from the husband; for she can never alienate immovable goods or appear in civil judgment without the husband's consent or the authority of the judge. Nevertheless, she can make a testament against the husband's will. This dependence of the wife upon the husband is fitting to the nature of marriage, because thus many damages are avoided which could arise for the whole family from a bad alienation of immovable goods made by the wife. Nevertheless to some this dependence seems exaggerated, especially if the husband is endowed with bad morals. Hence in almost all the codes of other nations greater liberty is conceded to wives.

In order that the rights of children from a prior marriage be preserved whole, French law provides that from the goods of a spouse married a second time, who has children from a prior marriage, too great a part should not fall to the new spouse. Hence it establishes that a widowed spouse can never give to the new spouse beyond a fourth part of his or her goods. But if he or she has had more (than three) children from the prior marriage, then he or she can concede to that spouse the same part which one legitimate child has.⁴¹

²⁴ Cod. civ. Gall. a. 1387-1390, 1394, 1398.

²⁵ Art. 1400, concerning which below.

²⁶ Art. 1395 and 1443.

²⁷ Art. 217, 219, 1449, 1538.

²⁸ Art. 215, 216.

²⁹ Art. 1400.

³⁰ Art. 1401-1408.

³¹ Art. 226.

³² Art. 1441.

³³ Art. 1497-1527. Cf. C. Picot, Code Napoléon expliqué II, 172 sqq.

³⁴ Art. 1530-1535.

³⁵ Art. 1537.

³⁶ Art. 1448.

³⁷ Art. 1541.

³⁸ Art. 1554, 1557-1559.

³⁹ Art. 1543.

⁴⁰ Art. 1576.

⁴¹ Art. 1098 sqq.

20. 1. Just as French law and German law, so also English law recognizes two regimes of goods, namely legal and conventional.

2. The legal system now in force must be taken from the Married Women's Property Act, 1882, which law indeed is in force from the day 1 Jan. 1883.

3. During marriage the husband retains scarcely any right in the wife's goods, and therefore all the wife's goods are paraphernal in the most perfect sense, so that the wife can freely dispose of all her own goods.

4. During marriage the wife has a right to the suitable support of herself and her children from the husband's goods. If nevertheless the husband himself is constituted in necessity, the wife is held to support him insofar as it is possible.

5. When the husband has died, the wife has a right, during her own life, to the third part "of all the lands and tenements of which her husband was seized or possessed in fee simple or fee tail at any time during the coverture, and of which any issue that she might have had could have been heir."

6. A conventional system of goods can be entered most freely, both before and after marriage, between spouses according to their own wishes.⁴²

⁴² Cf. Slater, Princ. theol. mor., de iust. c. 7, § 3.

21. 1. The United States of America does not, even today, have a uniform law concerning the goods of spouses, but diverse laws are in force in diverse states.

2. Nevertheless, generally there exists between spouses a perfect separation of goods, so that all the wife's goods are not only paraphernal, but also so that the wife has free administration and use of her own goods. Nevertheless common goods can also be constituted.

3. The wife is not held to pay the husband's debts, nor the husband the wife's debts, unless nevertheless it is a question of debts contracted on account of the family.

4. As dotal goods there can be considered the third part of the immovable goods which the husband possessed during marriage and which therefore cannot be alienated without the wife's consent. These dotal goods the wife can claim for herself after the husband's death, and therefore concerning this third part the husband cannot make a valid testament. In some states this right also belongs to the husband in the wife's immovable goods. "So in Maryland according to the new law of 1898 every husband shall acquire by virtue of his marriage an estate for his life in one third of the lands held or owned by his wife at any time during the marriage whether by legal or equitable title."⁴³

5. Since so great a liberty of disposing has been conceded to spouses in the United States, a difficulty will not easily occur for the confessor. If some nuptial pact exists, its clauses must be attended to.

⁴³ Cf. Tanquerey, Suppl. pro Mai. Britannia p. 11, and Sabetti, Compend. theol. mor. n. 358.

22. 1. Austrian law presumes separation of goods, unless the contrary has been established by an authentic pact. "If spouses have made no special agreement concerning the use of their property, then each spouse retains his or her previous right of ownership, and upon that which each party acquires during the marriage and in whatever way obtains, the other has no claim. In doubt it is presumed that the acquisition comes from the man."⁴⁴

2. Unless the wife has contradicted, it is presumed that the husband has administration and usufruct of all the wife's goods.⁴⁵ The husband is held to preserve the very substance of these goods; otherwise he is obliged to restitution. But he can dispose freely of the fruits.

3. The husband can before the nuptials demand a dowry, but he can also yield his right. The husband, during conjugal life, has usufruct of the dowry and its increase, but he is obliged to return the substance or an equivalent value of the dowry in case of death or divorce or cession of goods. Indeed those who hand over the dowry can from the beginning demand assurance of it.⁴⁶

4. The wife has a strict right to suitable support from the husband's goods according to the condition of his state.⁴⁷ Those things which the wife receives from her husband, for example ornaments, jewels, etc., pass into the wife's full dominion, unless the contrary has been expressly stipulated.⁴⁸

5. From Austrian law no difficulties can arise for the practice of the confessor. Liberty between spouses is very great. If a nuptial pact has been entered, its clauses must be observed, just as those of any legitimate contract.

⁴⁴ Cod. civ. Austr. § 1237.

⁴⁵ § 1238.

⁴⁶ § 1245.

⁴⁷ § 91.

⁴⁸ § 1247.

23. 1. In many things Italian law agrees with French law set forth above, and especially in the clause of the immutation of a contract entered after marriage. ("Matrimonial conventions of whatever species cannot be changed in any way after the celebration of marriage.")⁴⁹

2. The determination of the dowry can be made from the wife's present or future goods, but once the dowry has been determined it cannot be increased during marriage.⁵⁰

3. The husband indeed has administration and usufruct of the dowry, but not direct dominion over it, just as it has been established in French and Roman law.

4. For making changes concerning the dowry, alienation of goods, and the nuptial pact itself, the authority of the judge is required.⁵¹

5. In case of the dissolution of marriage, whether by the death of either spouse or by divorce, restitution of the dowry must be made according to the norms of art. 1409-1418. But the sentence of a judge is always required ("every extrajudicial separation is null").⁵²

6. The wife indeed retains full dominion and administration of paraphernal goods,⁵³ but she cannot alienate her own immovable goods without the authority of the husband.⁵⁴

7. Italian law does not admit another union of goods except the union of fruits (communione degli utili);⁵⁵ it is almost the same as Errungenschaftsgemeinschaft in German law and communauté des acquêts in French law.

8. For the confessor according to Italian law, difficulties can more easily arise on the part of the husband, whose rights are rather limited, than on the part of the wife, whose rights are broader.

⁴⁹ Cod. civ. Ital. a. 1385.

⁵⁰ Art. 1389 and 1391.

⁵¹ Art. 1405.

⁵² Art. 1418.

⁵³ Art. 1427.

⁵⁴ Art. 134.

⁵⁵ Art. 1433.

24. 1. In Spain Roman law still is in force, with a few modifications applied. Thus, for example, in Roman law dotal goods are greatly distinguished from paraphernal goods; but in Spanish law dotal and paraphernal goods are indeed distinguished verbally, but in fact there is a small difference between them. Hence Larraga-Saralegui⁵⁶ says: "According to our Code, paraphernal goods are scarcely distinguished from dotal goods."

2. Unless there is a special antenuptial pact, the community of gain (sociedad legal de gananciales)⁵⁷ is supposed by the Spanish code, and all goods pertain to this union unless the contrary has been expressly proved.

3. From these common goods there must be paid not only all debts contracted by both the husband and the wife during marriage, but also expenses for the education of common children and even legitimate children of either spouse. This last rule seems to be altogether particular to Spanish law, just as also the other rule, namely that from these common goods fines perhaps imposed upon either spouse are not paid.

4. For the confessor, difficulties do not seem able easily to arise from these norms of Spanish law.

⁵⁶ Comentarios al P. Larraga n. 697.

⁵⁷ Cod. civ. Hisp. a. 1315; Errungenschaftsgemeinschaft, communauté des acquêts.

25. General Rules.

1. According to the new Swiss law obliging in all Switzerland from the day 1 Jan. 1912, a conjunction of goods is in force between spouses (Güterverbindung), unless something else has been expressly stipulated.⁵⁸

2. If spouses do not wish to adopt the legal conjunction of goods, they must before or after marriage⁵⁹ choose one of the two other systems, which are called: unity or participation of goods (Gütergemeinschaft), and separation of goods (Gütertrennung); nevertheless it is licit to stipulate certain modifications concerning the individual systems.⁶⁰

3. In order that these stipulations and their modifications and introduced changes be valid for the contracting parties themselves and their heirs, it is required that they be signed by the contracting parties themselves (or their legitimate curators) and made by public instrument. In order, moreover, that they have value with respect to external persons who are not heirs of the contracting parties,⁶¹ it is necessary that they be inscribed in the register (Güterrechtsregister) of the husband's domicile, and if the husband changes domicile, that this inscription be made within three months in the register of the new domicile.

4. Stipulations which are made after marriage has been entered are not valid unless the permission of the tutelary tribunal has first been had ("without permission of the guardianship authority").⁶² Moreover, by no stipulations can any goods already burdened by debts be withdrawn from the payment of those debts.⁶³

5. The new civil code distinguishes: a) the wife's goods (Frauengut) and the husband's goods (Mannesgut), b) reserved goods (Sondergut) and brought-in goods (eingebrachtes Gut). As reserved goods there are considered:

a) those which are designated as such in the matrimonial contract;⁶⁴

b) goods pertaining to an altogether personal use (garments, ornament);⁶⁵

c) revenues had by the wife from independent labor (for example, the art of midwifery, a wage obtained outside the home, etc.).⁶⁶ All other goods are brought-in goods. Revenues had by the wife must be used for the support of the family insofar as this is necessary.⁶⁷

A. Legal System Of Conjunction Of Goods.

1. This system, as is already indicated from the words themselves, conjoins the goods of each spouse into one whole, whose administration and usufruct pertain to the husband.⁶⁸

2. The husband not only has administration and usufruct of the wife's goods (excepting fruits from reserved goods), but also full dominion of them;⁶⁹ nevertheless some administration of the goods of the family is conceded to the wife.⁷⁰

3. The wife is held from reserved goods to pay debts which she contracted without the husband's consent.⁷¹

4. In case of collapse of fortune (im Konkurs und bei der Pfändung), the wife can reclaim her own proper goods, if they still exist intact, and for others already consumed demand compensation. Indeed, if she cannot recover at least one half part of her own goods, the compensation owed to her must be made before the demands of other creditors are paid.⁷²

B. Conventional System Of Unity Of Goods.

1. This system produces a much stricter union of goods than the preceding system, since through it there is effected a perfect union both of the goods themselves and of the revenues, so that both spouses have altogether the same dominion over the united goods.⁷³ ("In the system of general community of goods, a separate ownership of the man and of the wife is no longer to be distinguished. The assets and liabilities of the property-complexes on each side, all that is brought in, inherited, acquired, given, earnings and increase become one common mass, and the owners of this total mass are the spouses.")⁷⁴

2. The administrator of the united goods is the husband, and sometimes the wife, but only as taking the husband's place.⁷⁵

3. The wife is held from reserved goods (if she still has any) to pay debts which she contracted without the husband's consent.⁷⁶

4. In case of collapse of fortune, the same things are valid which were said above in the prior system, n. 4.⁷⁷

5. When this union of goods is dissolved (by death or another legitimate cause), the goods are divided into two equal parts,⁷⁸ unless nevertheless something else has been established by the nuptial pact.⁷⁹ But in no case is it licit to withdraw from the heirs of the deceased spouse a fourth part (1/4) of all the united goods.⁸⁰

6. In this system difficulties can arise for the confessor if the wife has made debts without the husband's consent. These debts must be paid from the wife's reserved goods, or otherwise from savings or extraordinary labors made by her.

C. System Of Separation Of Goods.

1. This system among the goods of spouses arises either from pact, or from law, or from the sentence of a judge.⁸¹

Separation of goods arises by law by the fact itself: a) by collapse of fortune ("when the creditors in the bankruptcy of one spouse come to loss"),⁸² and b) by the death of either spouse.

Separation of goods arises from the sentence of a judge in several cases, which you may see in art. 183-185.

2. In this system each spouse has full dominion and administration of his or her own goods. The husband is held to support the family; nevertheless he can demand that the wife suitably assist him from her own goods.⁸³

3. In this system no difficulty can arise for the confessor.⁸⁴

⁵⁸ Cod. civ. Helv. n. 178.

⁵⁹ Art. 179.

⁶⁰ Cf. a. 214, 226, 239, 247.

⁶¹ Art. 181, 248, 250.

⁶² Art. 181.

⁶³ Art. 188. Certainly a very good law, forestalling deceitful attempts!

⁶⁴ Art. 190.

⁶⁵ Art. 191.

⁶⁶ Ibid.

⁶⁷ Art. 192.

⁶⁸ Art. 194-214.

⁶⁹ Art. 195.

⁷⁰ Art. 203.

⁷¹ Art. 208.

⁷² Art. 210 sq.

⁷³ Art. 215.

⁷⁴ Cf. Huber, System und Geschichte des schweiz. Privatrechts I, 258 sq.

⁷⁵ Art. 216.

⁷⁶ Art. 221.

⁷⁷ Art. 210 sq.

⁷⁸ Art. 225.

⁷⁹ Art. 226.

⁸⁰ Ibid.

⁸¹ Art. 241.

⁸² Art. 182.

⁸³ Art. 246.

⁸⁴ For a fuller explanation of the dominion of spouses according to Swiss law, see P. Tuor, Das neue Recht, eine Einführung in das schweizerische Zivilgesetz (Zürich 1912) 147-185.

26. Notions. Children of families are called all children of each sex, whether legitimate or legitimated, who are still constituted under paternal or maternal power. For having greater clarity and avoiding confusions, the following names must be distinguished:

a) An infant, or child, or little one, who has not yet completed the first seven-year period.

b) An impubes, who has not yet arrived at legal puberty, that is, at the 14th year of his age if he is a boy, or at the 12th year of age if she is a girl.⁸⁵

c) A minor or minor-aged person, who (whether impubes or pubes) has not yet attained the age of majority established by canon or civil law. In diverse nations there are diverse statutes concerning the age of majority; thus, for example, in Switzerland the completed 20th year constitutes majority, in Germany and in France it is the completed 21st year. The same is in canon law c. 88, § 1; in Austria it is the 24th year.

d) A major-aged son is not the same as an emancipated son, but as to practice there is a small difference, since an emancipated son does not indeed have the age of majority prescribed by law, but by the authority of a judge has been declared major-aged. Thus, for example, in Switzerland nuptials by that very fact give emancipation;⁸⁶ whence if some girl of 16 years has rightly entered nuptials according to civil law, by that very fact she is emancipated.

e) A legitimate child is he who was born from a valid or at least putative marriage.⁸⁷ Concerning him those things are valid which will be said below concerning the dominion of children of families.

f) But an illegitimate child, who was born from parents not joined in marriage, is not considered to be under the power of the father, but is of his own right. Hence those things which will be said below are not valid concerning him. And indeed an illegitimate child is not bound by so great gratitude toward his parents as a legitimate child; for he must often bear the disgrace of the parents and suffer many other inconveniences. Hence he is rightly considered to be of his own right. Whence German law establishes that an illegitimate child with respect to the mother and her blood-relatives has the same right which a legitimate child has with respect to his own parents; but the right of a parent does not belong to the mother.⁸⁸

⁸⁵ Cf. Cod. Iur. can. c. 88, § 2.

⁸⁶ Cod. civ. Helv. a. 14.

⁸⁷ Cod. iur. can. c. 1114.

⁸⁸ "The illegitimate child has, in relation to the mother and the relatives of the mother, the legal standing of a legitimate child" (Cod. civ. Germ. § 1705). "The mother does not have parental power over the illegitimate child" (ibid. § 1707).

27. Distinction Of Goods Which Pertain To Children Of Families. Roman law distinguishes the goods of children as castrensian, quasi-castrensian, adventitious, and profectitious.

Castrensian goods were those which a child of the family acquired by military service.

Quasi-castrensian goods were considered to be those which a child of the family acquired from the toga-wearing service, that is, from public offices, for example from the office of judge, advocate, physician, cleric.

Adventitious goods were those which came to the son from the mother, or from the maternal line, or by some other way, for example donation, inheritance, singular industry and labor; in one word: all those goods which came to the son without respect to the father.

Profectitious goods were considered to be those which came to the son from the father, or in view of the father, or which the son gained by doing business with the father's goods.

Modern civil codes are accustomed to distinguish only goods of two kinds of children of families, namely free goods, concerning which the son can dispose freely, and non-free goods, which pertain to the administration of the father and sometimes also to his usufruct. Which goods are free and which are non-free according to diverse civil codes will be said below.

28. According to Roman law,⁸⁹ the following principles were established by theologians:

1. The son has full dominion of castrensian and quasi-castrensian goods.

2. The son of a family indeed has direct dominion of adventitious goods, but not administration and usufruct; these pertain to the father. Nevertheless certain cases are excepted in law.

3. Of profectitious goods the son has neither direct nor useful dominion, but the whole is the father's.

Concerning the second and third principle, the Corpus iuris civilis establishes:⁹⁰ "It has been sanctioned by us that, if anything from the father's thing comes to him [namely, the son], according to the ancient observance he acquires this whole for the parent. (For what envy is it, that what has proceeded from the occasion of the father should return to him?) But what the son of the family has acquired for himself from another cause, of this he will acquire the usufruct indeed for the father, but the dominion will remain with him, lest what has come to him by his own labors or by prosperous fortune should, by passing to another, proceed mournfully for him."

To anyone considering it, wonder immediately occurs why the son has full dominion in castrensian and quasi-castrensian goods, but not in adventitious goods. Looking only at natural law, there does not seem to be a sufficient reason for establishing such a difference. For why, for example, could a young physician living in the paternal house retain goods acquired through the exercise of medicine (they are quasi-castrensian goods), but his full brother living in the same paternal house, but conducting commerce with goods received gratuitously from an uncle (they are adventitious goods), would be held to give the acquired profit to his father, who has usufruct of that profit? Likewise, if a son receives certain goods from his father and with them makes profit, all these things according to old Roman law belong to the father, as being profectitious goods; but if the same son receives those goods from his mother and with them makes profit, they pertain to him, as being adventitious goods, although the father has administration and usufruct. All these things indeed in present times would be admitted by the faithful only with difficulty, and nevertheless all moral theologians established the principles stated above as obliging in conscience. Therefore no other sufficient reason seems able to be assigned for the moral obligation of those principles except Roman civil law, which at that time was accepted by the Church as sufficiently agreeable to right reason and natural law. Since these things are so, in this matter the same obligation in conscience seems to be attributed to present-day civil codes, since their statutes are likewise sufficiently conformable to right reason, natural law, and the circumstances of places and times. Thus also several modern theologians, for example Aertnys, saying: "Laws which absolutely define property are valid in conscience. Such are, for example, those which establish modes of acquiring dominion through accession, usucaption, invention, etc.; likewise those which attribute property to children of families and authors of books; which concede to the father usufruct in the goods of children and of the wife; and also those which define succession from intestacy beforehand."⁹¹ This at least seems certain: present-day cases concerning the goods of children of families cannot be resolved according to ancient Roman civil law, as is done by certain authors. For the distinction of castrensian, quasi-castrensian, profectitious, and adventitious goods today seems to be of no use. Whence for modern practice only free and non-free goods must be distinguished.

General rules in our times can be had:

1. A major-aged (or emancipated) son does not sin against justice if he retains for himself everything rightly acquired (even by working in the paternal house), after deducting those things which are spent by the parents for his support. Thus is the common opinion.

2. A minor-aged son living and working outside the paternal house does not sin against justice if he retains his own wage. Thus also several modern codes establish, for example, Cod. civ. Helvet. a. 295, Cod. civ. Gall. a. 387.

3. A minor-aged son living in the paternal house but receiving a wage for labor performed outside the house does not sin against justice if he pays the expenses for his own support, but retains the rest for himself. But some modern codes establish that those wages pertain to the parents, for example Cod. civ. Helvet. a. 295.

4. A minor-aged son living and working in the paternal house seems to sin against justice if he secretly takes something from paternal goods which is not necessary for his own suitable support.

5. Against piety all children of families, whether major-aged or minor-aged, sin whenever by the retention of goods they cause an undue burden to their parents.

How children wounding justice must restore to parents, cf. below n. 83.

⁸⁹ Dig. l. 49, 17, 10; C. 12, 36.

⁹⁰ Lib. 2 Institutionum, tit. 9 "Per quas personas."

⁹¹ Suppl. ad VII praec. according to German law, p. IV.

29. Preliminary Notes.

1. According to German law, every man is capable of dominion (rechtsfähig) immediately after birth,⁹² indeed he is capable of taking an inheritance (erbfähig) immediately after conception.⁹³

2. Only minor-aged sons and major-aged sons are distinguished; to the latter are equated emancipated sons (großjährig erklärte Kinder).

3. Minor-aged persons are considered to be those who have not yet completed 21 years of their age. To them are equated those who are declared by law altogether unfit or at least insufficiently apt for doing business (entmündigt werden).

4. Major-aged persons are considered to be men after the 21st year of their age. To these are equated emancipated children. But in order that someone be emancipated, three conditions are required, namely: a) that the son have completed the 18th year of age; b) that both he himself and sometimes also his guardian give consent; c) that the tutelary tribunal (Vormundschaftsgericht) authentically pronounce this emancipation, and indeed on account of the utility of the one to be emancipated.⁹⁴ Therefore according to German law emancipation is not had by the very fact that someone licitly enters marriage, as, for example, is established by the Swiss code.⁹⁵

Dominion Of Minor-Aged Persons.

1. Minor-aged persons before the completion of the seventh year of their age and after this seven-year period until the time of majority or emancipation are distinguished.

2. Minor-aged persons before the completion of the seventh year of their age are altogether unfit (geschäftsunfähig) for the exercise of any act of dominion. The same is valid concerning those who on account of insanity have been declared unfit by a judge.⁹⁶

3. Minor-aged persons after the completion of the seventh year of their age are limited as to the exercise of dominion (beschränkte Geschäftsfähigkeit).⁹⁷ The same is valid concerning those who have been declared by a judge not sufficiently apt. Moreover, not sufficiently apt for the exercise of any dominion can be declared: a) not only the insane, but also the demented; b) dissipators exposing their own or the family's fortune to danger; c) those addicted to drunkenness.⁹⁸ Nevertheless, minor-aged persons can have the free exercise of perfect dominion if with due permission of the tutelary judge and guardian they carry out some business or hire out their labors.⁹⁹

4. The administration and usufruct of goods proper to minor-aged persons pertain to the father or mother, unless nevertheless these goods are free goods.¹⁰⁰

5. Free goods of minor-aged persons are:

a) things pertaining to the personal uses of the son, for example garments, ornaments, utensils;

b) wages and revenues which the son has either from his labor or from some business legitimately undertaken;

c) inheritances or gifts received, if nevertheless the testator or donor expressly established that those gifts constitute the son's free goods.

Although the usufruct of these goods does not pertain to the father, but to the son, nevertheless administration seems ordinarily to pertain to the father, unless the contrary has been established concerning the goods enumerated under n. c). Whence the father can demand that sons hand over the wage received from labor done in another's workshop. Nevertheless, he must spend that wage for the good of the son. It is greatly to be advised (at least for the most part) that parents administer all goods of minor-aged persons, which otherwise, as experience proves, are often dissipated. But this paternal right of administering the free goods of minor-aged sons does not seem to induce so grave an obligation that the son of itself sins mortally if he wounds it. Hence minor-aged sons indeed are greatly to be warned that they hand over the wage received for their labors to the parents; if nevertheless they refuse this and at least compensate the parents for the expenses of support, they can be absolved in the confessional. A fortiori this must be said if the sons retain only a small part of the wage and hand over the rest to the parents.

6. Minor-aged persons not having free goods can make no onerous contract without the permission (at least presumed) of the father or guardian.¹⁰¹ Hence their purchases and sales are not valid, contracted debts do not oblige, etc.

7. Minor-aged sons have no right to a wage if they labor in the paternal house or workshop.¹⁰² Hence they sin against justice and are held to restitution if they secretly take anything from paternal goods. Concerning the quantity of this restitution and the causes excusing from it, the discourse will return below, n. 83.

Dominion Of Major-Aged Persons.

1. Major-aged sons have full dominion of their own goods; for they are perfectly of their own right.

2. Nevertheless, according to their powers and state, they are held to serve the parents as to the family estate and their affairs.

3. Unless a major-aged son has expressly demanded compensation for the fruits perceived by the parents from his own proper goods, he is presumed to have conceded fruits of this kind gratuitously to the parents.¹⁰³

4. Major-aged daughters have a right to a competent dowry, unless nevertheless the parents have legitimately objected against the marriage to be entered.¹⁰⁴

5. For the confessor, the following things seem to be noted in practice:

a) A major-aged son working outside the paternal house or workshop is indeed held to contribute to sustaining the paternal family, but the wage obtained is his property, and therefore he can dispose of it without wounding justice.

b) A major-aged son working in the paternal house or workshop does not have a strict right to a suitable wage, and therefore he cannot secretly compensate himself. But when the son by extraordinary labor increases the family estate of the father, and otherwise he would be of a much worse condition than his brothers or sisters, he can demand indemnity.

Scholion. In regions where the German civil code is in force, let this be the general rule: Before the fact, let the confessor generally admonish all children of families, whether minor-aged or major-aged, that they expend their labor gratuitously for the paternal family estate and be content with those goods which the father or mother liberally concedes. After the fact, namely if children of families, whether minor-aged or major-aged, have retained something of their wage, but have handed over a sufficient part for their own support, they are not to be compelled to restitution.

⁹² Cod. civ. Germ. § 1.

⁹³ § 1923.

⁹⁴ §§ 3-5.

⁹⁵ Art. 14.

⁹⁶ § 104.

⁹⁷ § 106 sqq.

⁹⁸ § 6.

⁹⁹ § 112 sqq.

¹⁰⁰ §§ 1649-1651.

¹⁰¹ §§ 102, 110-112.

¹⁰² § 1617.

¹⁰³ § 1618.