Servitudes (Easements)

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.

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.

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.

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.

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.

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

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

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 Nevertheless it can be rescinded after five years, with notice having been given before the last six months.

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

Can the confessor at least sometimes, or when, use knowledge of Confession? - According to all theologians he can do this in the following cases: 1. to pray for the penitent, or to act more kindly toward him; 2. to consult books or wise men, prudently however, with danger of revelation excluded; 3. to direct himself by the experience acquired from Confessions, e.g., to temper rigor, and to direct himself from the Confession of one person toward prudently questioning or instructing others, while giving no suspicion of the prior Confession; 4. to reform his own morals, to correct his own defects, or to perform his office better, e.g., to cast off sloth, to watch more diligently over subjects generally, with suspicion of revelation in a particular case nevertheless excluded, and with any burden of the penitent and hatred toward Confession excluded, because each person is bound to correct his own defects as soon as he notices them; nor can any penitent reasonably be offended because the confessor, on account of things heard in Confession, changes his own life for the better, with no inconvenience or burden to him at all. 5. The same indeed is lawful in other similar cases, with the same restrictions always: that no revelation of Confession be had, no burden of the penitent, no hatred toward Confession. - L. 657.

What is the impediment of error, condition, and fury? As regards consent, there are impediments of marriage from error, condition, fury, fear, and abduction. Error dirimently impedes marriage by natural law if it is concerning the person, since it is a substantial error in the present matter, even if it is gross and concomitant, e.g., if Titius, falsely thinking that he is marrying Caia, says within himself: I would marry this woman even if she were not Caia. It is otherwise if he said: I wish to marry this woman, even if perhaps she is not Caia. Error concerning the qualities of the person, or concerning the nature and properties of marriage, provided that it is not concerning the thing itself of the contract, does not dirimently impede marriage. For it is very much in the interest of the public good that marriages not be dissolved because of any other error besides a substantial one, e.g., if someone contracts marriage with an error of fact, thinking that he is marrying a virgin, healthy, noble woman, and on the contrary marries a prostitute, a leprous woman, one born in the street, although he errs through the efficacious fraud of the spouse and certainly would not have contracted with such a woman; for this is an interpretative will, which, since it does not exist, can effect nothing. The same is to be said if someone errs with an error of law, thinking, for example, that marriage can be dissolved. And the same must be said if someone contracts while ignorant of the nature of the use of marriage. For for the validity of the contract of marriage it suffices to wish to contract as others contract, to wish to enter marriage as it was instituted by God and by Christ the Lord. A certain confused knowledge of marriage suffices, the general will of marriage prevailing and absorbing the aforesaid ignorance or error. Benedict XIV, de Syn., book 13, chap. 22, n. 7.

Three cases of accidental error must be excepted, which dirimently impedes marriage. The first case is when the quality is a condition under which consent is given; for it is manifest that when the condition is lacking, the conditioned thing, that is, consent, is also lacking.

The second case is when the quality is determinative of the person with whom one intends to contract; or when he does not know or determine the person with whom he contracts except from the indication and mark of that quality. Concerning this matter Pirhing, book 4, tit. 1, n. 163, says: "If by the quality in which there is error a certain and individual person is designated and conceived in the mind, who was previously unknown by sight, then error redounds into error of person." Likewise Sanchez, book 7, disp. 18, n. 38, says rather clearly: "To explain when error concerning a quality redounds into error of person dirimently impeding marriage, I say briefly that this happens when there is error concerning a quality which designates a certain person who was not previously known to the contracting party apart from that quality, namely except from that quality; and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person may be."

The third case is error concerning the servile condition of the spouse, which dirimently impedes marriage by ecclesiastical law, as is established from book 4 of the Decretals, tit. 9. This impediment no longer has place in Europe, not because the law ceases, but because the occasion is commonly lacking, unless perhaps in parts of the Turkish empire, or if some persons still bound to slavery should come from elsewhere into other parts of Europe. But error in this matter, according to the common opinion of doctors, dirimently impedes marriage even if it was gross. L. 1019; Schmalzgrueber, book 4, tit. 9, nn. 29-31.

But if the contracting party knows the servile condition of the other, or if a marriage contracted in ignorance is afterwards ratified after the error has become known, according to the opinion of all it is certain that the marriage is valid. But from the disposition of Canon Law, C. Si viduam 15, d. 34, one knowingly contracting with a female slave becomes irregular, L. 1018; Schmalzgrueber, l.c., nn. 15-18. And in the second case consent would have to be renewed before the pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent again emitted by the free party would suffice. Schmalzgrueber, book 4, tit. 3, n. 121, and tit. 9, n. 18. This impediment, moreover, as is clear, has force only as regards the marriage of a free person with a slave; for, and this must be carefully noted for places in which slavery still flourishes, marriages between slaves, beyond controversy, Schmalzgrueber, l.c., n. 7, are to be held valid, cf. C. 2, q. 2, c. 29, and St. Thomas, II-II, q. 104, a. 5, even if they are contracted without the consent of the master, C. Dignum 1, de Coniug. serv.; Schmalzgrueber, l.c., n. 10. Therefore just as a slave licitly contracts marriage even against the will of his master, so the master sins gravely against justice if he either positively impedes a slave from marriage, or treats him more harshly for this reason after he has contracted. Leo XIII, Letter, May 5, 1888; Sanchez, book 7, disp. 21, n. 15; Schmalzgrueber, l.c., nn. 13, 14. Italian Civil Code, 105; French Civil Code, 180; Austrian Civil Code, 57-59; German Civil Code, 1332-1334. "It must be said that madness either precedes marriage or follows it. If it follows, it in no way dirimently impedes it; but if it precedes, then either the madman has lucid intervals, or he does not. If he has them, then although, while he is in that interval, it is not safe for him to contract marriage, because he would not know how to educate offspring, nevertheless if he contracts, it is marriage. But if he does not have them, or if he contracts when he does not have them, then because there cannot be a contract where the use of reason is lacking, it will not be a true marriage." St. Thomas, Suppl., q. 58, a. 3. German Civil Code, 1325; L. 1009 ff.; St. Thomas, Suppl., q. 51, q. 52.

From defect of liberty, slaves are irregular where slavery is still in force, unless their masters have consented to ordination. Chap. 1 ff., de Serv. non ordin.; chap. Nulli 2, chap. Si servus 20, Dist. 24. To this somehow pertain, although in reality they are not irregular, married men, unless their wives consent and vow chastity, cf. 899; curials, i.e., those bound to a secular court by an oath having been given, as judges, advocates, etc., as long as they have such offices; soldiers, as long as they are bound by oath; treasurers, public depositaries, and those who administer the Republic, until they have renounced the office and rendered accounts, or satisfied creditors. Since these are not properly irregular, although they are prohibited from receiving sacred orders, if nevertheless they have received them, they are prohibited by no law from exercising them. Chaps. 1, 2, 3, Dist. 51; chap. Magnus un., de Oblig. ad rat. ord.; L. 455, 456; book 3, n. 838. St. Thomas, supplement, q. 39, art. 3; Pichler, book 1, tit. 17, n. 4 ff.; Schmalzgrueber, book 1, tit. 17, n. 2 ff.

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.

133. I. State of the question. That men can preside over other men is clear from the fact that some are superior to others, and also from the hierarchy which God willed to exist among men. It is likewise certain that no man has full dominion over other men, with the right of life and death; for this belongs to God alone, inasmuch as He is the supreme Lord of all things, as was shown above (n. 34). From this it follows that full dominion belongs to no man over the person itself or even over the internal faculties of other men: for each one has useful dominion not only over life and members, but also over the faculties, and can exercise them at will, provided he does not usurp the rights of God or of citizens. - But the external exercise of liberty can be restricted, lest that exercise harm other citizens or the public good.

¹ St. Thomas, 2. 2., q. 57, a. 3 ad 2; a. 4 ad 2; De Lugo, disp. III, n. 19-63; disp. VI, n. 10-31; Lessius, l. II, cap. 4, n. 13-17; Carriere, n. 42-54; Meyer, II, n. 119-123; P. Allard, Les Esclaves chretiens, Paris, 1876; Esclaves, Serfs et Mainmortables, Paris, 1884.

134. But the question is whether dominion can be acquired over the works of others, or the fruit of labor. Now all concede that it is permitted to anyone to acquire a right over the works of others for a time, as will be said where we speak of the contract of labor. But the question is whether the same right can be acquired in perpetuity, or in other words, whether servitude is licit.

For servitude is perpetual service for perpetual food and clothing, or, more fully, that service by which, for the whole time of life, works are sold or leased, under the condition that the master furnish necessary food and clothing. - This is servitude theoretically and considered in itself; for historically many things were generally attached to servitude which are opposed to natural or divine right, namely the separation of little children from parents, of husbands from wives, the right over life or members, and other things of this kind.

135. II. Principle: Servitude considered in itself, when it is free from every abuse, is not intrinsically opposed to natural or divine right, but nevertheless is less consonant with human dignity and is liable to grave dangers.

1. The former is proved. (A) By reason. For servitude consists in this, that someone promises to furnish all his works to a master throughout his whole life; now if someone can, for wages received, oblige himself to serve for a year, why will he not be able to do this for a longer time, indeed for his whole life? For although he ought to retain the right over his internal faculties and their free exercise, nothing prevents him from renouncing the external liberty of disposing of his own labor and its fruits for a just wage, whether for a time or in perpetuity; for the right of disposing of one's own labor is not necessary to man, but only useful.

136. (B) Scripture did not condemn servitude as intrinsically illicit, but only restrained its abuses, and inculcated principles from which logically and gradually servitude had to be abolished.

(a) Moses did not prohibit servitude already existing,¹ but tempered it; for he forbids anyone to covet the male servant or maidservant of his neighbor;² he indeed permits them to take servants from strangers and foreigners;³ but if one of the sons of Israel has been reduced to servitude, he will become free in the year of jubilee.⁴

¹ Gen., XVII, 23.

² Exod., XX, 17.

³ Levit., XXV, 45-46.

⁴ Levit., XXV, 54-55; cf. Exod., XXI, 2.

(b) Under the New Law, the Apostles command that servants be subject "in all fear to masters, not only to the good, but also to the harsh";⁵ they counsel that servants be made free, if this can be done, but otherwise that they patiently tolerate servitude;⁶ they admonish masters to treat servants kindly,⁷ and sometimes exhort, but do not command, that they free them.⁸

⁵ I Pet., II, 18; cf. Coloss., III, 22; Ephes., VI, 5.

⁶ I Cor., VII, 20-24.

⁷ Ephes., VI, 9; Colos., IV, 1.

⁸ On this matter let the whole Epistle to Philemon be read.

(c) Nevertheless they set forth principles from which the abrogation of servitude logically flows. For all are sons of God, brothers in Christ, members of one body whose head is Christ, so that before God there is now neither Gentile nor Jew, servant nor free;⁹ for all have been redeemed from the servitude of sin by the merits of Christ.¹ Thus, as if from the root, whatever was inhuman in the manner of acting with servants was cut away, and at the same time the way was prepared for their full emancipation.²

⁹ Galat., III, 26-28; Coloss., III, 11; I Cor., XII, 13.

¹ Rom. VI, 15-23.

² How the Church gradually took care that many servants be freed and extinguished servitude we briefly set forth in De Vera Religione, n. 157, and Wallon, Histoire de l'Esclavage dans l'antiquite, Paris, 1879; Allard, Les Esclaves chretiens, Paris, 1876, declare it fully. Leo XIII also sets this forth splendidly, Encyclical In plurimis, May 5, 1888.

138. The latter is proved, namely that servitude is less consonant with human dignity and is full of dangers.

(A) Less consonant with human dignity. For through Christ man has been freed from the servitude of sin, raised to the dignity and liberty of a son of God; and fraternal communion has been established among all men of all Nations; for all tend toward the same end through the same means: "All are members of the same body, and all sharers of the same divine table: to all the gifts of grace are open, and likewise to all the gifts of immortal life."³ Now those who, for food and clothing alone, expend their whole activity throughout their whole life for the utility of another and at his nod fall into the danger of forgetting Christian dignity, and of putting on a base character and base sentiments which are unworthy of an adopted son of God, indeed of a man conscious of his own dignity.

³ Leo XIII, cited Encyclical.

139. (B) Full of dangers; while servitude flourishes, masters easily become proud, cruel toward servants, idle, and given over to luxury: for they easily judge themselves by nature wholly superior to servants, and that these have no rights, so that it is permitted to use and abuse them. This is moreover confirmed by history: for although masters were not lacking who treated their servants kindly, for the most part servitude gave occasion to many abuses.⁴

⁴ Allard, Esclaves chretiens, p. 148-184; Esclaves, Serfs..., p. 48-75.

140. III. On the titles by which servitude was customarily constituted. - Concerning voluntary handing over of oneself we have already spoken in the thesis itself. Other modes were:

1. Purchase and donation: when someone had been legitimately subjected to servitude, it was permitted to the master to sell or give his services (but not his person) to another. Yet this right was restricted in many ways, lest infants be separated from mothers, wives from husbands, or those worn out by old age handed over to harsh men. - Generally also theologians handed down that a father, oppressed by necessity, when he could be helped in no other way, could sell or pledge his son; yet that he was bound to redeem him as soon as his affairs turned out prosperously. - This is not licit in our days, since there are other means of relieving the necessities of parents.

2. The right of war; for since in antiquity it was judged permissible for the victor to kill the conquered, a fortiori it was thought equitable that an enemy whose life had been spared could be reduced to servitude. But today this is rightly judged to be opposed to the law of Nations.

141. 3. Birth from servants, by force of which those who were born from servants were regarded as servants. This indeed was judged legitimate at the time when servitude flourished as a permanent social institution; but in itself it was not consonant with equity. He who had been born from servants could indeed have been regarded for a time as a servant, by title of compensation for expenses made in his education, but not in perpetuity.

"And so to the Catholic Church... the expeller of servitude, and the effectress of true liberty, fraternity, and equality among men, there can never be enough praise or gratitude."¹

¹ Leo XIII, cited Encyclical.

163. Real servitude, passively considered (servitude; erfdienstbaarheid), is a burden imposed upon a thing in favor of another thing (a. 637), for example, passage through another's land, the right of drawing water from another's spring. Actively considered (erfdienstrecht) it is a real right which the owner of one estate has, on the occasion of the estate itself (the dominant estate), of receiving some advantage from the estate of another (the servient estate).

Whence servitude is real in two ways: because it falls upon an immovable thing, and not upon a person; and because it yields directly to the advantage of another thing, and only indirectly to the utility of him who possesses this thing.⁷

⁷ All species of useful dominion can be called servitudes, because the thing, while remaining to the direct owner, as it were serves another; and thus personal servitudes can be distinguished, when a thing serves another person, and real servitudes, when it serves him as owner. But the French legislators, from love of liberty and horror of merely personal servitude (servage), designated real servitude alone by the name servitude, calling the remaining species by the name droits de jouissance. Thus Waffelaert, o. c., n. 62.

By reason of mode it is either continuous, if it can endure without the act of man, for example, the servitude of aqueduct, of dripping; or non-continuous, if it cannot be exercised without such an act, for example, the right of passing through fields, of drawing water, of pasturing cattle (a. 688). Likewise it is apparent if it is manifested by an exterior sign, for example, by a door, aqueduct, window; or non-apparent if it shows itself by no exterior sign, for example, the prohibition of building in a certain place, or of raising a house or wall higher (a. 689).

By reason of origin, servitude is (a. 639) either 1st. natural, which is founded in the natural situation of places, for example, the lower land must receive waters which naturally flow down from the higher land; - or 2nd. legal, which arises from the disposition of law, whether for the public good (for example, the obligation of leaving a way for the drawing of ships on the banks of rivers, of constructing or repairing a public road), or for the private good (for example, obligations by which proprietors are legally bound to one another and which especially pertain to a common wall or ditch, the distance to be observed for certain constructions, windows and openings onto the property of a neighbor, dripping from roofs, the right of passage); - 3rd. conventional, which can be acquired by legitimate title from mere convention, e.g., donation, sale, testament; indeed also by prescription of 30 years without title, provided it is a servitude that is continuous and at the same time apparent, for example, the servitude of an aqueduct which runs through another's land (a. 690). Such servitudes are similarly extinguished (a. 703 sq.).

As to rights and obligations, let it be noted:

a) The possessor of the servient estate who suffers the servitude is bound to abstain from all things by which the right of another would be impeded, diminished, or taken away (a. 701); but if by the title of servitude he is bound to something further, he can always free himself from that burden by abandoning the servient estate (a. 699).

b) The possessor of the dominant estate who enjoys the servitude can do at his own expense, even on another's land, whatever is necessary for the use of his right; but he must take care lest he render the condition of the servient estate worse or more burdensome (a. 697-698; 702), otherwise he is bound to furnish indemnity.

It is useful to note here:⁸ "1. Those things which concerning ... servitudes have been wisely established by the legislator for the mutual concord of citizens are to be observed in conscience.

⁸ Waffelaert, o. c., n. 86; cf. Marres, De Iustitia, n. 447-460. - Of servitude there is treatment in the Italian Code, a. 531 sq.; Spanish, a. 530 sq.; Dutch, a. 721 sq.; Austrian, a. 472 sq.; German, a. 1018 sq.

2. Since lawsuits which are usually brought about these matters, being generally intricate, easily furnish cause for hatred among citizens, and for the ruin of families, let the parish priest and confessor attempt either to forestall them or to remove them before they wound the litigant; and therefore let him himself know legal principles and examine the matter, and at the same time exhort others, especially litigants, to observe the laws, so that in a matter so uncertain they may rather yield somewhat in right than expose fortune and concord to danger."

Servitude is a right belonging to someone in the thing of another, by virtue of which the owner of the thing is held to suffer something in it, or not to do something, for the utility of that person. - It is called a right in a thing, not in a person; for if a person only were obligated to suffer or not do something, it would be called an obligation, not a servitude. Whence servitude is properly something of dominion which is taken away from him who owes the servitude, and accedes to him to whom it is owed. The taking away of this dominion is customarily called passive servitude, and the accession active servitude. Cf. Scavini, lib. 2, n. 517.

Servitude is divided in many ways. 1st. By reason of origin it is natural, legal, and conventional, according as it arises from the disposition of places, or from law, or from the mere agreement of the parties; 2nd. by reason of mode it is continuous and not continuous, according as it can last without an act of man, as is the servitude of aqueduct, or cannot be exercised without it, e.g., the servitude of passage. Again, it is apparent or not apparent, according as it is openly declared by an exterior sign, e.g., a door, window, etc., or lacks such a sign, as, e.g., the prohibition of building in some place, etc.; 3rd. by reason of object it is urban or rural, according as it is attached to an urban or rural estate. An urban estate is called any building erected for the sake of dwelling, whether in a city or in a village, and the garden annexed to it. - Rural estates are called a field, vineyard, meadow, stable for livestock separated from a house. Urban servitudes are four: 1st. that a beam be admitted into your wall; 2nd. that dripping water be received into your house; 3rd. that a wall not be raised higher; 4th. that a window not be opened in a wall. These two last do not seem to be in force among us. Some rural servitudes are called named, and are path, driving, road, aqueduct; and others unnamed, from the fact that they lack a special name in law. - Cf. Kenrick, nn. 97 and seq.