Who May Own Property

Our Lord not only inculcated the duty of fraternal correction,¹ but he taught that in the first instance it was to be done in private, then in the presence of witnesses, and finally the delinquent was to be denounced to the public authorities in order that public morality might be safeguarded and the sinner more effectually corrected. This order should, of course, be followed per se, for charity and justice demand that our neighbour’s secret fault should not be made known to others except in special cases and for good cause. However, cases are not infrequent in which it is lawful to denounce a delinquent immediately to the superior without first attempting to correct him fraternally. Such cases are the following:

(a) If the sin be public, the sinner’s reputation is not injured unjustly by at once informing the superior, which accordingly may be done.

(b) If the paternal admonition of the superior will in all likelihood be more sure and efficacious than the fraternal correction of a private person, the superior may be immediately informed as a father, whose duty it is to correct his children for their good, not as a judge, whose duty it is to safeguard public interests by punishing crimes.

(c) If harm threatens the community from the action of the delinquent, and it can only be effectually prevented by the intervention of the superior’s authority.

(d) If the delinquent be one of a religious community whose members have voluntarily renounced their rights in this matter, and agreed that anyone who becomes aware of their faults may straightway inform the superior, such a one suffers no injury if the rule be acted on. However, even in this case there must be good reason for making the fault known to the superior, such as the sinner’s correction, the good name of the community, the preservation of discipline. If the sin was committed in the past, and there is now no good reason for making it known to the superior, it would be sinful to make it known to him. Religious have a right to their reputation.

Sometimes members of communities, and boys or girls at school, who know that serious harm to morals is being done by a black sheep among the flock, are bound under penalty of grave sin to give information to superiors so that the suitable remedy may be applied. Such cases require careful treatment from the confessor, who is bound to instruct his penitents concerning their obligations, and to refuse them absolution if they are not prepared to fulfil those obligations which bind them under penalty of grave sin. On the other hand, the seal of confession must be safeguarded at any cost.

¹ Matt. xviii 15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¹ Stephen’s Commentaries, 2, p. 277.

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

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

The Right of the Church to Possess Property

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

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

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

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

¹ Can. 1519-1521, etc.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 18 passages (filed under the subtopics)

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § I, Point I, I. On the Notion, Division, Legitimacy, and Necessity of Ownership

n. 760.

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.

n. 761.

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

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.
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.

n. 762.

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.

n. 763.

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:

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

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

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

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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § I, Point I, Scholion. On High or Eminent Ownership

n. 764.

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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § II, Point I. On the Ownership of Children of the Family

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Titles to Property · Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Theft and Robbery

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

n. 778.

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:

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.
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).

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.
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.
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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § II, Point II. On the Ownership of Spouses

n. 779.

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:

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.

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:

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).
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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § II, Point III. On the Ownership of Clerics

n. 780.

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

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

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.

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.

n. 781.

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.

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).
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).

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § II, Point V. On the Ownership of Moral Persons

n. 785.

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.

n. 786.

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.

n. 787.

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.

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

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.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § III, Point IV, Scholion. On Prescription for Ecclesiastical Goods

n. 811.

I. The Church recognizes prescription as a mode of acquiring ecclesiastical goods and of liberating oneself from a debt arising either from a disposition of ecclesiastical authority or from a contract entered concerning an ecclesiastical good (can. 1508). Nevertheless:

The following are not subject to prescription: 1° those things which are of divine law, whether natural or positive; 2° those things which can be obtained by apostolic privilege alone; 3° spiritual rights of which laymen are not capable, if it is a question of prescription for the advantage of laymen; 4° the certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys or prelatures nullius; 5° alms and burdens of Masses; 6° an ecclesiastical benefice without title; 7° the right of visitation and obedience, so that subjects could be visited by no Prelate and would now be subject to no Prelate; 8° payment of the cathedraticum (can. 1509).
Sacred things which are in the ownership of an ecclesiastical moral person cannot be prescribed either by a private person or by a non-ecclesiastical moral person, but only by an ecclesiastical moral person. But sacred things which are in the ownership either of private persons or of a non-ecclesiastical moral person can also be acquired by private persons and by non-ecclesiastical moral persons, who nevertheless cannot apply them to profane uses; but if they have lost consecration or blessing, they can be freely acquired even for profane uses, though not sordid ones (can. 1510).

II. For acquisitive prescription there are required: possession, established time, and good faith; for liberative prescription: established time and good faith.

Possession - which it suffices to note - is the detention or enjoyment of a thing which someone has in his power by himself or through another as if it were his own (n. 775).
Established time. a) Immovable things, precious movable things, rights, and actions, whether personal or real, which pertain to the Apostolic See, are prescribed by a span of one hundred years; those which pertain to another ecclesiastical moral person, by a span of thirty years (can. 1511).¹ If a cleric who possesses a benefice has proved that he has been peacefully in possession of the same benefice for an entire three-year period in good faith, even perhaps with an invalid title, provided simony is absent, he obtains the benefice by legitimate prescription (can. 1446).

b) Other things are prescribed in the time determined by the civil legislator for a thing of this kind (can. 1508).

Note 1. Concerning the prescription of actions, consult canons 1702-1705, 2240.

Note 2. Interruption and suspension of prescription have place according to the norm of civil law (n. 808).

Good faith. No prescription has force unless it rests upon good faith, not only at the beginning of possession, but throughout the whole time of possession required for prescription (can. 1512).

¹ Concerning possession begun, but not yet completed when the Code had been issued, cf. Ius Pontificium, 1924, p. 23.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. II, § VI, Point II, Scholion. On the Sale of Ecclesiastical Goods

n. 905.

Besides those things which we are going to say about every alienation of ecclesiastical goods - for these things also must be applied to sale, since it is one of the modes of alienating - it suffices, as regards sale, to add these things:

I. Immovable ecclesiastical goods are not to be sold or let to their own administrators or to those joined to them in the first or second degree of consanguinity or affinity without the special permission of the local Ordinary (can. 1540).

II. In the sale or exchange of sacred things, no account of consecration or blessing is to be had in the estimation of the price (can. 1539, § 1).

III. Administrators can exchange titles to bearer, as they are called, for other titles more or at least equally safe and fruitful, with any species of commerce or trading excluded, and with the consent of the Ordinary, of the diocesan administrative Council, and of others whose interest is involved (can. 1539, § 2).

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. II, § VII, Point I, Scholion. On the Letting-Hiring of Ecclesiastical Things

n. 911.

I. The contract of lease of some ecclesiastical fund should not be made except according to the norm of canon 1531, § 2;¹ and in these contracts there should always be added conditions concerning the boundaries to be guarded, good cultivation, duly paying the rent, and suitable security for fulfilling the conditions (can. 1541, § 1).

II. For the lease of ecclesiastical goods, with the prescription of canon 1479 preserved:²

If the value of the lease exceeds thirty thousand lire or francs and the lease is beyond nine years, the Apostolic beneplacitum is required; if the lease is not beyond nine years, the prescription of canon 1532, § 3, must be observed³ (can. 1541, § 2, 1).
If the value is contained between one thousand lire and thirty thousand lire or francs and the lease is beyond nine years, the prescription of the same canon 1532, § 3, must be observed;⁴ if the lease is not beyond nine years, the prescription of the same canon 1532, § 2⁵ (can. 1541, § 2, 2).
If the value does not exceed one thousand lire or francs and the lease is beyond nine years, the same prescription of canon 1532, § 2, must be observed;⁶ if the lease is not beyond nine years, it can be made by legitimate administrators, with the Ordinary having been notified (can. 1541, § 2, 3).

¹ Canon 1531, § 2, establishes: Alienation is to be made by public bidding or at least made known, unless circumstances suggest otherwise; and the thing is to be granted to him who, all things weighed, has offered more.

² Canon 1479 declares: In the lease of benefice goods, anticipated payments beyond a half-year are prohibited without the permission of the local Ordinary, who in extraordinary cases should take care by suitable prescriptions that such a lease not turn to the damage of the pious place or of successors in the benefice.

³ Canon 1532, § 3, has these words: If finally there is question of things whose price is contained between one thousand lire and thirty thousand lire or francs, it belongs to the local Ordinary, that is, the local Ordinary must grant the permission, provided that the consent has been added both of the Cathedral Chapter, of the Council of administration, and of those whose interest is involved.

⁴ Cf. the preceding note.

⁵ Canon 1532, § 2, establishes: But if there is question of things which do not exceed the value of one thousand lire or francs, it belongs to the local Ordinary, that is, the local Ordinary must grant the permission, after the Council of administration has been heard, unless the matter is of lesser importance, and with the consent of those whose interest is involved.

⁶ Cf. the note above on canon 1532, § 2.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. II, Art. II, § XIII, Point III, Scholion. On the Alienation of Ecclesiastical Things

n. 973.

I. The matter about which the law is concerned. The Church has subjected to special rules the alienation of ecclesiastical immovable or movable things which can be preserved by being preserved, or kept in their substance (can. 1530). It is said:

Alienation. Under the name of alienation here are included both alienation properly so called and every contract by which the condition of the Church can become worse (can. 1533). Alienation properly so called includes: donation, exchange, sale, the cession of a right, for example of a credit, lawsuit, or action already acquired. To the contracts by which the condition of the Church can become worse are referred: hypothec, pledge, usufruct, emphyteusis, servitude. Likewise, under the old law, a long-term lease; but now leasing seems exempt from the rules of alienation, since by canon 1541 it is subjected to distinct rules.

The norms soon to be set forth also bind that alienation which takes place between two ecclesiastical moral persons.

Of ecclesiastical things; under this name come things which belong to an ecclesiastical moral person (n. 786).
Which can be preserved by being preserved, or which are not consumed by first use. Things are not touched by these rules which must be consumed or alienated lest they perish, or which have no use unless they are alienated: thus money. Hence the rules to be assigned do not govern, for example, the payment of a debt by means of money, the first investment of money, money given as a loan; nor, as it seems, the exchange of securities into others. "And if money destined for the building of a church is meanwhile profitably invested, it will not be thought to be an alienation, nor will the simple sale of those securities, so that the money obtained may be able to serve for the building."¹

¹ Vermeersch, loc. cit., n. 852.

n. 974.

II. The statutes of the law. 1. In order that alienation may take place, with due regard for the prescription of canon 1281, § 1, these are required:¹ 1° an appraisal of the thing, made in writing by upright experts; 2° a just cause, that is, urgent necessity, or evident utility of the Church, or piety; 3° the permission of the legitimate Superior, without which the alienation is invalid. - Other suitable precautions also, to be prescribed by that same Superior according to diverse circumstances, are not to be omitted, so that damage to the Church may be avoided (can. 1530).

The thing must not be alienated for a lower price than that which is indicated in the appraisal. - Let the alienation take place by public bidding, or at least let it be made known, unless circumstances suggest something else; and let the thing be granted to him who, all things considered, has offered more. - Let the money received from alienation be invested cautiously, safely, and usefully for the advantage of the Church (can. 1531).
The legitimate Superior, of whom under 1, is:

a) If there is question of things which do not exceed the value of one thousand lire or francs, the Ordinary of the place, after the administrative Council has been heard, unless the matter is of very slight importance, and with the consent of those whose interest is involved (can. 1532, § 2).

b) If there is question of things whose price is contained between one thousand lire and thirty thousand lire or francs, the Ordinary of the place, provided the consent has been added both of the Cathedral Chapter, of the administrative Council, and of those whose interest is involved (can. 1532, § 3).

c) If there is question either of things which exceed the value of thirty thousand lire or francs, or of precious things,² the Apostolic See is the legitimate Superior (can. 1532, § 1).³ But the permission of the Holy See is also required "for alienating in the manner of one thing ecclesiastical things of the same person which, taken together, exceed the value of thirty thousand lire or francs."⁴ If, however, the experts lawfully appraised the price below 30,000 lire, and, after bidding has been announced or on another occasion, a higher price is offered, the consent of the Apostolic See is not required for carrying out the alienation.⁵

d) If there is question of alienating a divisible thing, in seeking permission or consent for the alienation, the parts previously alienated must be expressed; otherwise the permission is void (can. 1532, § 4).

The Church has a personal action against him who has alienated ecclesiastical goods without the due solemnities, and against his heirs; but a real action, if the alienation was null, against any possessor whatever, saving the right of the buyer against the one alienating badly. - Against an invalid alienation of ecclesiastical things there can act the one who alienated the thing, his Superior, the successor of each in office, and finally any cleric enrolled in that church which has suffered damage (can. 1534).
With the nullity of the act and the obligation remaining firm, even to be urged by censure, of restoring goods illegitimately acquired and of repairing damages perhaps inflicted, one who has presumed to alienate ecclesiastical goods, or to give consent in alienating them against the prescriptions of can. 534, § 1, and can. 1532, according to can. 2347:

a) If there is question of a thing whose price does not exceed one thousand lire, let him be punished with suitable penalties by the legitimate ecclesiastical Superior.

b) If there is question of a thing whose price is above one thousand, but below thirty thousand lire, let a patron be deprived of the right of patronage; an administrator, of the office of administrator; a religious Superior or economus, of his proper office and of capability for other offices, besides other suitable penalties to be inflicted by Superiors; but let an Ordinary and other clerics who hold an office, benefice, dignity, or function in the Church pay double in favor of the church or pious cause harmed; let other clerics be suspended for a time to be defined by the Ordinary.

c) But if the apostolic beneplacitum prescribed in the mentioned canons has knowingly been omitted, all guilty persons in any way, whether by giving, by receiving, or by giving consent, are moreover subject to excommunication latae sententiae reserved to no one.

Note. As regards religious, see the treatise on the duties of religious.

¹ Canon 1281 states: notable relics or precious images, and likewise other relics or images which are honored with great veneration by the people in any church, cannot validly be alienated nor perpetually transferred into another church without the permission of the Apostolic See (§ 1). Notable relics of Saints or Blessed are the body, head, arm, forearm, heart, tongue, hand, leg, or that part of the body in which a martyr suffered, provided it is whole and not small (§ 2).

² Precious things are those "which have notable value by reason of art or history or material" (can. 1497, § 2). The Sacred Congregation of the Council, February 14, 1922, in response I, declared that for the alienation of things precious in any way the beneplacitum of the Holy See is required (cf. A.A.S. 1922, p. 160).

³ The Apostolic See is understood as the Sacred Congregation of the Council, for seculars; the Sacred Congregation of Religious, for religious institutes and Third Orders; the Sacred Congregation of Propaganda Fide, for regions subject to it, or also for religious institutes and associations which are placed under its full jurisdiction; the Sacred Congregation for the Oriental Church, if the goods belong to moral persons of that rite, insofar as they are bound by these laws; the Sacred Consistorial Congregation, if the goods are of dioceses; the Sacred Congregation of Seminaries and Universities of Studies, if the goods belong to a Seminary.

⁴ P.C., July 20, 1929 (A.A.S. 1929, p. 574).

⁵ P.C., November 24, 1920 (A.A.S. 1920, p. 573 sq.).

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 2 passages

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Titles to Property

n. 1873.

The Chief Kinds or Ways of Occupation

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.

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Theft and Robbery

n. 1891.

Unauthorized Use of Another’s Funds

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.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 1 passage

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

n. 838.

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

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

Bucceroni, Commentaries (1910)

Gennaro Bucceroni, S.J. — 4 passages (filed under the subtopics)

Bucceroni, Commentaries (1910), Third Commentary: On the F…, VII. The Rights and Obligations of Spouses Concerning Goods

n. 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.

n. 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.

n. 106.

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.

n. 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.

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

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 59 passages (filed under the subtopics)

Vol. I, Treatise on Justice and Ri…, First Part. On the Nature …, Ch. II, Art. I, § II, Point II. On the Dominion of Wives · Vol. I, Treatise on Justice and Ri…, First Part. On the Nature …, Ch. II, Art. I, § II, Point III. On the Dominion of Clerics

Vol. I, Treatise on Justice and Ri…, First Part. On the Nature …, Ch. II, Art. I, § II, Point II. On the Dominion of Wives

- The goods of a wife are of three kinds, namely:

Dotal goods, whose fruits the husband enjoys for sustaining the burdens of marriage.

Paraphernal goods (παρὰ φερνὴν, besides the dowry), which the wife has besides the dowry, and which she specially reserves to herself.

Common goods, which by the pacts of the spouses or by determination of law are brought into a certain partnership.

Spouses can, before entering marriage, determine the conditions to which their goods are to be subjected, with certain statutes of law being preserved; if they have omitted to do these things, the law will supply.

I. Dispositions of Roman Law

- I. 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 the personal creditors of the husband, and even during life she can juridically reclaim the dowry if she fears that the husband will become unable to restore it. If the dowry consists in money or in other things consumptible by use, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion having been transferred for the wife into all the goods of the husband according to the rate or quota of her dowry ¹. - St. Lig., n. 489.

¹ This is valid if the dowry consists in things which are counted by weight, number, or measure, or certainly in appraised things handed over; for then the husband becomes by full right the owner of those things. But if non-appraised species are given as dowry, then the wife alone is mistress of the dowry; but to the husband only two things pertain from the right of dominion, namely vindication of the thing given, and the right of using and enjoying.

II. The wife holds full dominion and administration of paraphernal goods, so that concerning these the husband is able to dispose of nothing against her will. Hence as to these she depends in no way on her husband. - St. Lig., ibid.

III. The property and utility of common goods belong to each spouse; but the administration of the same belongs to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be paid to the various dispositions of places. - Elbel, n. 69.

II. Dispositions of French Law

Pacts which can be entered into by spouses before marriage constitute three classes, or a threefold regime, namely: 1. the dotal regime; 2. the regime of community; 3. the regime excluding community.

- I. Dotal regime. Dotal goods are those which constitute the wife's dowry: the husband has full administration of these and receives the usufruct. But the wife preserves direct dominion alone (art. 1549).

If the dotal goods consist in movable goods, either partly or totally, the husband has perfect dominion of them, and is bound only concerning their value consigned in the contract preceding the marriage (art. 1554).

Dotal goods can in no way be alienated, even with the wife consenting, except certain particular cases excepted by law (art. 1551 and following).

But all goods whatever of the wife, not constituted in the dowry, remain altogether her own, or are held as paraphernal; and the woman also has the administration of them and receives the usufruct (1574, 1576). Yet she cannot alienate immovable goods, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without a sentence of the tribunal of first instance (art. 1576); the same must be said if the wife is entirely separate in goods (art. 1536).

To paraphernal goods also belong those which the wife procures for herself by singular industry or extraordinary labor, with sufficient care of the family estate having been applied, or those which she accumulates by subtracting something from what is granted to her for food, clothing, recreations, etc.; and also those things which have been given to her with the express condition that they not yield to the husband.

Vol. I, Treatise on Justice and Ri…, First Part. On the Nature …, Ch. II, Art. I, § II, Point III. On the Dominion of Clerics

n. 558.

- The goods of Clerics are distinguished as of four kinds, namely: 1. patrimonial, which come from paternal inheritance, or from any other profane cause, for example, from donation, succession, etc.; 2. quasi-patrimonial, which are acquired on occasion and with regard to functions, for example, by celebrating Mass, preaching, etc. They are also called quasi-ecclesiastical, or casual; 3. ecclesiastical, which are received from benefices of the Church, for example, from revenues of benefices, etc.; 4. parcimonial, which a Cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably.

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

II. A Cleric has perfect dominion of quasi-patrimonial goods, or quasi-ecclesiastical, or casual goods. The reason is that these goods are not the fruits of a benefice, nor the price of a sacred office, but as it were a certain stipend for extrinsic labor to which the Cleric is not bound, or also a certain largess bestowed by the faithful for the support of the Cleric. - Thus commonly. - St. Lig., n. 491. - Lugo, d. 4, n. 23, etc. - It is also established from the response of the Sacred Penitentiary given on August 9, 1824, which declared that the offerings of the faithful are not ecclesiastical goods, as will be reported below, n. 563.

III. A Cleric can use the fruits of a benefice for honorable support; but he is bound to spend all superfluity on the poor, or on other pious works. The first reason is that one ministering to the Church can live honorably from the goods of the Church, since benefices were established especially for this end. The second reason is drawn from the precept of the Church, which is evident from innumerable decrees of Councils and of the Sacred Canons. For the Canons of the Church impose this obligation on Clerics, or suppose it to have been imposed, says Benedict XIV, De Syn., l. 7, c. 2, n. 4.

IV. A Cleric enjoys perfect dominion of parcimonial goods, and therefore can dispose of them as a true owner. The reason is that a Cleric has a strict right to honorable support; therefore whatever he takes from this support by living more sparingly belongs to him and remains in his free power, since that right is altogether absolute. - St. Lig., n. 491. - Lessius, c. 4, and others commonly.

n. 560.

- Questions. Q. 1. Whether Clerics badly spending the superfluities of ecclesiastical goods are bound to restitution?

n. 560.

Resp. Probably negatively, because although the precept of the Church is established, nevertheless the obligation from justice is not established. Indeed from the Council of Trent it seems to be gathered that they make the fruits their own, although with the obligation of spending the superfluity in alms or other pious works. For the Council says of non-resident Clerics: "Let them not make the fruits their own." - Lugo. - Billuart. - Lessius. - St. Thomas, etc.

n. 560.

Yet others probably affirm, because Clerics are only administrators and stewards of ecclesiastical goods. Collet. - Laymann. - Antoine. - The first opinion, that is, the negative, says St. Lig. in Retract., q. X, seems no less probable in practice, especially on account of the authority and reason of St. Thomas, 2. 2, q. 185, art. 7 ¹. But as regards the guilt of the violated precept of the Church, for grave matter there is required a much greater quantity than in theft, namely, according to the truer opinion, approximately a twentieth part of the superfluities ². - St. Lig., n. 491, IV.

¹ ** St. Thomas asks (Quodl. 6, art. 12), "Whether clerics sin mortally if they do not bestow in alms those things which are superfluous to them." And (ibid., ad 3) he responds: "In the second things," namely in those goods which are principally attributed to the uses of ministers, such as are the prebends of clerics and other things of this kind, "they do not commit sin except through abuse, as was said concerning patrimonial goods. Hence one is not bound to restitution, but only to doing penance."

And hence it is easily clear in what place they are to be held who, for the contrary opinion, boast of Sacred Scriptures, Sacred Canons, the primitive Church, being fortified by the prescription of fifteen centuries, by the authority of the Holy Fathers and Pontiffs, confirmed by traditions, etc., as may be seen in the compendium of the Salamancans (tr. XI, c. 9, n. 120). For where, I ask, will they find St. Thomas contradicting the Scriptures, Fathers, Decrees of Pontiffs, Sacred Canons, etc.?

They allege also the authority of St. Charles Borromeo in the Synod of Milan. But Benedict XIV, being carried away by the zeal of no party (De Synod., lib. 7, cap. 2, n. 12): "But we," he says, "have found nothing of this kind decided by St. Charles." Then (ibid., n. 14) he says that the method of those is not to be approved who inculcate that this obligation arises from the office of justice in such a way that they wish the question to be held as defined; but he advises that the obligation indeed be inculcated, but that they cease in Synods to ask whence this arises.

² This norm will be able to have place only when the superfluities so abound that a twentieth part of them much exceeds the common gravity of matter in theft; and here, moreover, that gravity of matter seems to have to be understood not as relative, but as absolute. I said, "much exceeds"; for St. Alphonsus (lib. 5, n. 491, IV) with St. Thomas requires for this a great excess beyond the common gravity.

- Q. 2. What is understood as superfluous per se?

Resp. That is judged superfluous which remains over after honorable support. Moreover the honorable support of a Cleric is that which befits a Cleric by reason of his state, dignity, etc. Wherefore it does not exclude honorable recreations, moderate donations, and other expenses of this kind; but these can be determined by the judgment of a prudent and timorous conscience rather than by a general rule. - Billuart, art. 5.

Q. 3. Whether Clerics can preserve the superfluity for the future?

Resp. Affirmatively, because per se there is no obligation of immediately spending superfluities; indeed they can laudably be preserved for a pious foundation, provided good faith is used and the danger is absent lest afterward they be converted to profane uses. - St. Thom., 2. 2, q. 185, art. 7. - St. Lig., n. 491.

- Q. 4. Whether a Cleric who has from patrimony that by which he may live can support himself from the fruits of a benefice?

Resp. Affirmatively with St. Lig., n. 491. - St. Thom., 2. 2, q. 185, art. 7. - Billuart, diss. 3, art. 5, and others commonly, against a few. The reason is that it is just that he who labors in the Church be supported by the same, and it is entirely per accidens that he is rich or poor. Therefore not by reason of poverty, but of labor, does a Cleric have a right to support. Hence a Cleric can spare his patrimony, while he uses the fruits of the benefice for support befitting his dignity. It is also established from the words of the Apostle, I Cor. 9: "Who ever serves as a soldier at his own wages?... Do you not know that they who work in the Sanctuary eat the things that are of the Sanctuary; and they who serve the Altar participate with the Altar?"

Q. 5. Whether pensioners also ought to spend the superfluity on the poor?

Resp. Negatively, because the Supreme Pontiff, by drawing pensions from the fruits of a benefice for a just cause, already applies those same fruits to pious uses; hence those fruits do not carry with them the obligation of another application. - Lugo, d. 4, n. 32. - St. Lig., n. 491.

- Q. 6. Whether the pension which in France is paid to Priests by the Government has the character of an ecclesiastical good ³?

³ It is best done that theories of this kind are set forth in this and the following question; nevertheless, only for merely theoretical regions, namely for sterile erudition, do these things serve. For in practice, since that which those atheist governments give especially to priests of the Catholic Religion is so slender and utterly miserable - for a government truly is atheist which holds in the same place both religion and any superstitions whatever - the question concerning revenues superfluous to suitable support is altogether idle.

Resp. Affirmatively, because from the Concordat of the year 1801, the aforesaid pension seems to have been established in compensation for ecclesiastical goods which were snatched away during the French upheaval. Therefore it has the same nature as the goods for which it is substituted. This is also established from these responses of the Sacred Penitentiary.

"1. Whether the salaries which in Belgium are paid by the Government to Pastors and Canons take on the character of benefices or ecclesiastical goods, and have attached the obligation inherent in these goods, namely the strict and canonical obligation of spending superfluities on the poor or on pious causes, and of residence under the penalty of not making the fruits their own?

"The Sacred Penitentiary, the matters set forth having been weighed, responded: That already at other times it had been answered affirmatively by the Holy See, by the counsel of the secret Congregation.

"Given at Rome, on January 19, 1819.

"2. The Sacred Penitentiary, consulted whether that response ought to be applied to salaries which are paid by the Government to Pastors and Canons of the kingdom of the Gauls, judged that it should be answered: Affirmatively.

"Given at Rome, in the Sacred Penitentiary, on August 19, 1821.

"3. Whether the response for Belgium of January 19 ought to be applied only to fixed salaries of 1,000 livres for Parish Priests and 750 livres for Assistants, or ought to be extended to the offerings of the faithful?

"The Sacred Penitentiary, concerning the matters newly set forth, judged that it should be answered: Affirmatively as to the first part, negatively as to the second."

n. 564.

- Q. 7. Whether supplements also are to be reckoned ecclesiastical goods, which in France are bestowed on Priests by parishes or municipalities?

…and 19 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 2 passages

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part I — Chapter I: On the Existence of Right

n. 181.

§ V. On the Dominion of Moral Persons. — I. Notion and Species of Moral Persons.

Notion. A moral person in general is an aggregation of several persons,³ who form one moral or juridical body, enjoying the perpetual right of existing and of possessing goods collectively. It is also called a society, college, association.

³ In some regions, however, Great Britain, the United States of America, etc., one single person can be recognized as a moral person (corporation sole).

Species. (A) By reason of the end, moral persons are some civil, which directly pursue a temporal good, e.g., the State, Municipalities, industrial Societies, etc.; others, however, ecclesiastical, which directly pursue the spiritual good of the members or of other citizens.

(B) Again societies are either public or private, according as the good to which they tend is a common or particular good. Thus the State, Provinces, Municipalities are held as public societies; but colleges of workmen, or industrial societies, are regarded as private.

n. 182.

Now all concede that public societies can exist and possess goods by natural or civil right. And in fact among all Nations, the City and the Municipality legitimately possess certain goods exclusively and permanently.

Thus, in France, the Republic possesses two kinds of goods: certain ones which can neither be alienated nor prescribed, such as public ways, rivers, sea-shores, fortified citadels, and other things of this kind; but certain ones which can be alienated, such as places left by the sea, islands formed in rivers, goods which lack an owner, forests, public buildings. - Likewise Provinces (Departements) and Municipalities (communes) possess certain goods collectively.

The principle is that it is no more licit to invade public goods than the goods of private persons; for the right of dominion exists equally in legitimate societies and in individuals.

But with regard to common goods (communaux), which citizens can enjoy, the conditions determined beforehand by legitimate authority must be observed, so that in this way the rights of all may remain intact.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 2 passages

Vol. II, Bk. II, Tractate V: On Justice, Ch. II, Article IV: On Religious

n. 381.

General View. From the religious state itself, as such, no incapacity flows. And of themselves religious preserve their rights entire, to reputation, members, body, soul, but they must satisfy the special obligations of obedience.

As to goods of fortune, solemnly professed religious, by common law, can neither keep the goods which they possessed nor acquire other goods for themselves (cc. 579, 581, 582). The incapacity which follows solemn profession had its first origin civilly. Simply professed religious must, before profession, cede the administration of their goods to whom they wish, and, unless the constitutions provide otherwise, they can freely dispose of the use and usufruct of the same goods (c. 569). In a religious Congregation, before the profession of temporary vows, the novice must freely make a testament concerning present goods or those perhaps to come, which testament he cannot lawfully change after the vows without the license of the Holy See or, if a cause urges, without the license of the Superior. Nor is it lawful for those professed in religious Congregations to abdicate dominion of their goods by gratuitous title through an act between the living (cc. 569, 579, 583). - Finally, it is common to professed religious that whatever they acquire by their industry or in view of religion, they acquire for the religion (c. 580, § 2).

n. 382.

Summary

— I. The subject of right can be physical persons and moral persons, i.e. beings which indeed do not subsist physically, but which, on account of a true unity perceived by us, participate in the character of person in our moral estimation. And this fully indeed, if there is question of the Catholic Church and the Apostolic See, which by positive divine law, or of perfect civil society and the State, which by divine-natural law, exist inviolably for themselves on account of their end or the common good, and therefore have rights; less fully, if there is question of inferior moral persons, whose personality is either created or completed by formal recognition of public power. It is completed, if there is question of associations which of themselves have a certain unity; it is created, if there is question of certain things or patrimonies which are assigned to some end in such a way that they seem to exist quasi-separately.

II. The rights of inferior moral persons are often greatly restricted by public law.

Today indeed all physical persons of this earth are capable of dominion; but the capacity of certain persons is circumscribed by positive law for various causes. Thus:

Children under family power, as long as they are incapable of human acts - no otherwise than the demented - acquire and possess goods through those who represent them. And afterwards also, by various dispositions of law, they are protected against the weakness of age. Generally they do not administer their goods; indeed often some usufruct of their goods and whatever they gain conjointly with their parents is attributed to those exercising paternal power. Parents, from piety, owe support to them, at least when they are in need, and they cannot be unwilling that a son, in necessity, take for himself as much as is owed to him from this title. A son of himself is held to compensate reasonably the expenses made for him and to bear help to needy parents.

It must be estimated from the express or tacit will of the parents what a son can or cannot do concerning the goods of the parents: thus what has been given for a certain end he cannot, with justice preserved, apply to another end, especially a less useful or reasonable one. Likewise, from the circumstances it must be estimated what labor the son is judged to render gratuitously to his parents: as if they are poor, or if the gain is modest, if he cooperates together with others, if the labor gives him skill. - On account of a proportionate cause, it will be lawful for the son himself to seize some administration of the family property. - Even things which have been done unjustly will not rarely, because of tacit condonation, induce an obligation of restitution. - Finally, an occult compensation already made can more easily be excused than permitted beforehand. But it is desirable that by clear agreements the occasion of compensations of this kind be avoided.

The wife's patrimonial regime is defined very much from nuptial pacts. Often the husband administers the wife's goods and must give the consent of his wife in several juridical acts. She, as subordinated to the husband and, by presumption, less fit, must admit this. But as companion she is permitted to give modest alms and can reasonably presume several things.
Secular clerics possess and administer their patrimonial goods, indeed, of themselves, those which they gain on the occasion of a sacred function, just as other goods. Nevertheless, beneficial fruits which are superfluous to honorable support, if you except Cardinals, must, at least from religion, be deputed to the poor or to pious works. Which oblations freely made by the faithful fall to them must be judged from the intention of the faithful, which received usage declares. Today only oblations made during Mass at the altar, or for certain ministries, are presumed to fall to the pastor.

And now, on account of c. 1410, it must further be observed whether perhaps oblations have been constituted in dowry of the benefice.

Religious, by positive law alone, become incapable of certain acts and are obliged to do or omit certain things, as is explained in tome III, n. 125-134.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 3 passages

Vol. II, Tr. XI, Sect. I, Q. I, Chapter III. On The Subject Of Right Or Dominion

n. ¶11.

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.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, CHAPTER II: On the Object and Subject of Ownership · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, ARTICLE I: On the Object of Ownership · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 1. On Man's Ownership Over Other Men · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 2. On Man's Ownership Over the Offspring of His Own Genius · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 1. On the Subject of Ownership in General · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 2. On the Subject of Ownership in Particular · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 3. On the Ownership of Moral Persons

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.

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
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.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 34 passages

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, CHAPTER II: On the Object and Subject of Ownership

Cf. Encyclical of Leo XIII, December 28, 1878 (A. S. S., 11, p. 369), May 15, 1891 (A. S. S., 23, p. 641), concerning Socialism and concerning the condition of workers; besides the authors cited, Leroy-Beaulieu, Le Collectivisme, passim; Cathrein, Sozialismus, Moralphil., II, p. 124; Pesch, Die soziale Frage, III vol.; Biederlack, same; Weiss, same; Schrijvers, Man. d'Econ. polit.; Vermeersch, o.c., n. 231 seqq. and 529, where there is discussion of moral persons.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, ARTICLE I: On the Object of Ownership

n. ¶851.

The object of human ownership is all things that are subjected to man's use. Hence Scripture: You have subjected all things beneath his feet, sheep and oxen, etc. (Ps. 8, 8). But he gave the earth to the children of men (Ps. 113, 16).

Private ownership is founded in natural law, insofar as this postulates that things belonging to no one become the things of the first occupant, and that he be able to receive the fruits of his own labor. Moreover, ownership is altogether inviolable: 1. by natural law; for, with ownership taken away, society would be overturned: each one would wish to rule over all, to serve no one, and to be free from every labor; - 2. by divine law, as is clear from the prohibition of theft; - 3. by human law, both ecclesiastical and civil, which is wholly occupied in this, that it protect for each one the right of property (Salmant., tr. 12, c. 2, n. 1).

Therefore deservedly there was reproved by Pius IX (Encyclical Qui pluribus, November 9, 1846) the doctrine of communism and socialism, as "abominable and exceedingly opposed even to the natural law itself; once it is admitted, all rights or properties and even human society itself would be utterly overturned."

n. ¶852.

The objects of human ownership are divided in many ways:

There are internal and external goods. - External goods are all sublunary things placed outside man; internal goods are those that man possesses in himself and that accompany him everywhere.

These are of a diverse kind: for either they are not distinguished from man, as life, members; over these man has only useful ownership; or they proceed from man, for example actions: over these he has full ownership; or they are mixed, insofar as he himself concurs toward them by acts, although they are external, as reputation, honor: over these also he has full ownership, but to be limited in many things (cf. n. 753, 1198).

External goods are corporeal or incorporeal. - Corporeal are those that are subjected to the senses, as garments, land, a house; incorporeal are those that are perceived only by the intellect, and consist in some right, for example the right of enjoying, of using, an obligation assumed by the Public Debt.
Corporeal goods are divided into movable and immovable. - Movable are those that, their proper form preserved, can be moved in place; immovable, those that cannot be moved in place, because they adhere to the soil or to a house.

Moreover, in the new codes, the determination of things is often made minutely; rights themselves also, according to their nature, by determination of law, are referred to one or the other species.⁰² The word movables, if it is used alone, has a restricted sense; otherwise if it is opposed to immovables. The word furniture (meubles meublants) comprehends only movables destined for the use and ornament of houses and rooms.

Movable goods are subdivided into fungible and non-fungible. Fungible are those that can function in the place of other things, and thus can be equivalently substituted for them, provided they are of the same genus and the same quality. Things of this kind are oil, wheat, wine. - Non-fungible are those that must be handed over in their own proper nature, for example a painting.

To fungible things are to be referred those that consist in weight, number, measure; - likewise counted money;⁰³ - likewise things consumable by the first use, as bread, meat, wood for burning; but not regularly things to which detriment is brought from successive use, as garments, furniture.

Finally, external goods are constituted either in commerce or outside commerce. Things are said to be in commerce that, as they can be destined for private uses, so also can be brought into obligation, and be alienated and acquired. Outside commerce are (according to Roman Law):⁰⁴ a) things of divine right, i.e. sacred things and sacred places; b) common things, namely those whose ownership belongs to no one, but whose use belongs to all, as air, light, water; - c) public things, whose use pertains to all citizens, as rivers, ports, fortified citadels, and public roads. It must be said otherwise of other goods, for example fields, forests, and public buildings, which the state enjoys after the manner of private persons (cf. n. 872).

Note. In England, where the feudal system continues to flourish in many matters, a special mode of distinguishing goods also flourishes, which must be learned from authors who have written concerning English Law (cf. Crolly, o.c., n. 253 seqq.).

These things having generally been set down beforehand, it remains to inquire specifically: 1. concerning man's ownership over other men; 2. concerning the same man's ownership over the offspring of his own genius.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 1. On Man's Ownership Over Other Men

n. ¶853.

Principles. I. Man does not have full ownership of property over another man. For this ownership belongs to God alone (cf. n. 729 and 753). In no way can it be conceded that man, as regards personality, is directed to another as to an end. Hence the commerce of Black persons is illicit. Cf. Leo XIII, Constitution In plurimis, May 5, 1888, and Encyclical Letter Cath. Eccl., November 20, 1890.

n. ¶854.

II. Man can have useful ownership over another man, i.e. there can belong to him the legitimate faculty of disposing, for his own advantage, of another man's acts and of the fruits of these acts.

The reason is that any man has ownership of his own acts and of the fruits of his own labor, and therefore he can lease them to another, as happens in the state of service, or even, unless something opposes, alienate them in perpetuity.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. I, § 2. On Man's Ownership Over the Offspring of His Own Genius

The question regards both writers and ingenious craftsmen, who illustrate the arts, whether liberal or industrial, with new inventions.

n. ¶855.

Principles. I. From natural law, full ownership of his works or inventions belongs to an author or inventor, certainly before their publication, probably also after publication.

As regards works not yet published, the thing is clear of itself. Therefore he who publishes such things is guilty of theft. And the same thing seems to have to be said concerning him who would print the public lectures of a professor or the sermons of a sacred orator; because to teach publicly, or to preach, is not to publish one's work, to hand it over publicly in such a way that anyone can subject it to the press. Except if it is certain that the author is not unwilling.
Then, as regards works already published in public, certain authors judge that after publication the exclusive right in a work of genius is lost (ap. Vermeersch, o.c., n. 246). Others contradict this, saying: ownership and the right of further publishing remain with the author, who grants only the use of the published work (Noldin, II, 379).

At least it must be admitted to be consonant with equity that to any author there be attributed a right of property in the fruit of his labor or industry, and indeed an exclusive right, so that without his consent, or after him the consent of his heirs, no one can publish those works again in public (Carriere, l.c., n. 61). Since there was question of a thing too uncertain, it belonged to public authority to determine all things more clearly.

n. ¶856.

II. From positive law, after publication (provided certain conditions are fulfilled), a monopoly belongs to the author or inventor, which attributes a strict right as regards principal things, a less strict right as regards accessory things. This privilege is conceded by reason of the common good, both for fostering industry, and for compensating the expenses that often must be made, and for remunerating labors that yield to the common utility. Therefore civil law confers on authors a strict right both in the external and internal forum (Carriere, l.c.).

We distinguished between principal and accessory things. The principal thing in these laws is the prohibition of reproduction that would be made for taking profit, by way of commerce. Those who thus violate the right of the author act unjustly. - The accessory thing is the prohibition of reproduction that would be made by help of a machine for a restricted group, the prohibition of printing and diffusion in distant regions, or of translation into another language, the insertion of many parts into another work under another form and another title, according to, for example, Noldin, II, n. 379; Ami du Cl., 1910, p. 113. These accessory things do not certainly oblige in conscience. The reason is that the author, on account of this transcription and reproduction, does not suffer so appreciable a damage; besides, the fine imposed on transgressors is disproportionate to the delict.

In France, a privilege is granted to inventors of industrial arts for 5, 10, or 15 years, at the will of the petitioner, provided he pays a proportionate sum of money. He who has received such a privilege or patent of invention can call violators of his right into judgment; and unless the accused proves either that the patent was obtained by a false title, or that imitation does not exist on his part, the inventor obtains confiscation of the adulterated objects and compensation of damages. - As regards books, paintings, musical compositions, etc., the exclusive right of reproduction (of translation into another idiom and of sale) is granted for the life of the author, and for 50 years after his death. - The conditions for books are that two copies be deposited in the public archive of the prefecture, and that the certificate of deposit be retained by the author. - But the right is alienable in whole or in part, for example to a bookseller, with the right of the heirs preserved for the legitimate portion. Law of July 14, 1866.

In Italy, a writer who fulfills nearly the same legal conditions as in France likewise acquires for himself, for the whole of life, the exclusive right of sale together with the right of reproduction. If he dies before the fortieth year from the first edition of the work, his heirs enjoy the same rights until those forty years have elapsed. But when those have elapsed or the death of the author has followed, the work can be subjected to the press by others and exposed for sale, yet under this condition, that for forty other years there be paid to him who acquired the right of the deceased five per one hundred (as they say), namely from that price which is read inscribed on the several copies, and which was reported before civil authority. - The right of reserved translation does not extend beyond ten years from the first edition of the work. Royal Decree, September 17, 1882.

In Spain, to a writer, during life, and to his heirs for eighty years after his death, an exclusive and alienable right of reproduction is attributed. The same right is obtained by those who, with the author's license acceding, abridge a book or transfer it into another language. Code n. 428, 429; law of January 10, 1879. See Gury-Ferreres, n. 566 seqq.

In Austria, from the law of December 26, 1895, the right of heirs continues as regards all works for thirty years, as regards photographs for ten years. Privileges have been abrogated.

In Germany (from the Introductory law, n. 76), the same law does not flourish in the individual kingdoms. Commonly the privilege of authors is not extended beyond thirty years after the death of the first editor. Cf. Kurschner, Lexicon des deutschen Reiches v. Urheberrecht.

In England, there is granted to the author a right either for life and seven years after his death, or for forty-two years from the first edition of the work (Crolly, t. I, n. 654).

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 1. On the Subject of Ownership in General

n. ¶857.

Principle. Every and only intellectual nature is the subject of ownership. For intellectual nature alone can enjoy the faculty of disposing at will of some thing as its own. - Besides, ownership draws with itself the right of warding off those who, against one's will, would seize what is one's own. But only an intellectual nature can be unwilling.

Hence you will deduce: Infants are not incapable of ownership, nor even the insane; for the use of reason is necessary only for the exercise of right, but not for having radical ownership, as founded in the powers of the soul, which precede the use of reason; otherwise everyone who has given himself to sleep would become incapable of ownership. - Civil law agrees, which attributes to an infant even before his birth the right of possessing. French Code, 906; German, 1923, 2, 2109, 2178.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 2. On the Subject of Ownership in Particular

Positive law, for the good both common and private, has restricted the capacity of possessing that belongs to every intellectual nature. The capacity of ownership has been restricted in children under paternal power and minors, in wives, in moral persons (for example municipalities, convents, etc.), in those civilly dead and interdicted, in religious and beneficed clerics.

n. ¶2.

There will be discussion of those civilly dead and interdicted in n. 1042, of religious and clerics in n. 2156, 2245.

n. ¶3.

1. On the Ownership of Children Under Paternal Power

The goods and rights of children under paternal power (and of other minors) vary greatly among various peoples. We shall here relate the principal laws that exist concerning this matter (recall the things said concerning distinction of persons, n. 698). Since these various laws establish rights for the common good, they oblige in conscience (cf. 838, 1).

n. ¶858.

From Roman Law, in the goods of children under paternal power there are distinguished: 1. camp goods, which the son or ward acquires for himself from military service, or on the occasion of military service; to which quasi-camp goods come nearest, which he acquires from civil service or from public offices, for example of judge, advocate, lector, physician, cleric, etc.; - 2. adventitious goods, which come to a son under paternal power either from his mother, or from the maternal line, or in consideration of his mother, or by another way, for example inheritance, donation, fortune (as if he finds a treasure), business with non-paternal goods, or in his own name, etc.; - 3. profectitious goods, which a son receives from his father, or in consideration of his father, or which he gains from the things of his father by doing business in his name (Doveri, Instit. di Diritto rom., l. 1, § 134).

n. ¶859.

From the new Codes, the goods of children are generally divided into a double class. The former comprehends goods obtained by children by labor and separate industry, or those that are given to them with the express condition that their usufruct not come to the parents. The latter embraces all other goods that come to children, for example by donation or by another similar title.

n. ¶860.

Moreover, as regards both these kinds of goods, one must diligently distinguish between direct ownership, administration, and usufruct. - 1. Direct ownership of all goods that come to children by just title pertains to them, although they are minors and not emancipated, since they are capable of such ownership. Just title is donation, inheritance, separate industry, etc. - 2. Administration of all goods is in the possession of the father or guardian, who must supply the incapacity or inexperience of the children, until they themselves are of age or emancipated. Those of age obtain full administration of their goods, but emancipated persons restricted administration. - 3. Usufruct belongs either to the children or to the parents, according as positive law establishes.

n. ¶861.

In France. Usufruct, generally, pertains to the father (or, he being dead, to the mother remaining in widowhood), until the emancipation of the children or the completed eighteenth year. From the proceeds, however, the offspring must be fed and educated according to their condition. - We said generally, because there are excepted: 1. goods that children obtain for themselves by their own labor and separate industry; - 2. goods that are given to them under the express condition that their usufruct not come to the parents. Civil Code, 384-387.

In Italy. Usufruct is conceded to the father or mother having paternal authority, until the children are of age or emancipated. It is lost by either parent who, after the death of the spouse, contracts new nuptials. Fructuary parents are held to procure for the offspring such education as is consonant with his fortune and condition. - There are excepted: 1. goods that children acquire for themselves by their own labor and separate industry; - 2. goods that are given to them with the condition annexed that the parents not perceive usufruct; - 3. goods that come to them, according to the disposition of law, while the father dissents. Code, 228-239.

In Spain. Usufruct is generally conceded to the father (or mother having paternal power). There are excepted a) goods that are given to children so that they may serve for their education; - b) goods that children acquire by separate industry, if with the father's consent they live at their own expense outside the paternal home; - c) goods of children who have been recognized or adopted; indeed the father cannot even administer the goods of these unless security has been given (Gury-Ferreres, n. 545). Code, 160-162, 166.

In Austria. Usufruct belongs to children even minors and not emancipated, the expenses of education nevertheless being deducted. And although a son not yet emancipated does not have the administration of his goods, nevertheless he can freely (and therefore also validly, if nothing else opposes from another source) dispose: 1. of goods acquired by his own industry, provided he himself does not receive support from his parents; 2. of goods that are attributed to his use, provided he is pubescent (Delama, n. 37). Code, 149 seqq.

In Germany. The new law distinguishes the goods of children under paternal power into free and not free. - Those are called free: 1. which children have obtained for themselves by their own labor and separate industry; - 2. which they have received by gift, the parents being excluded from usufruct; - 3. which, by living sparingly, they have set aside from goods that had been conceded to them in full power for living, while they lived outside the paternal home. - All the rest are called not free. The father has the usufruct of these with administration, until the time at which the son passes out of paternal power. The usufruct of free goods belongs to the son, but administration to the father or to the third person to whom the author of the goods committed it (Pelt, o.c., p. 34 seqq.). Code, 1617 seqq.; 1649 seqq.

In England. Usufruct pertains to the children. But whether the expenses of education must be refunded from the goods of the father, or from the goods of the children, the tribunals are accustomed to decide according to the circumstances of the case (Crolly, n. 456-465).

n. ¶862.

Special Questions. It will not be beside the matter here to institute discussion both concerning the right to wages that children acquire when laboring for their father, and concerning the right in small and movable goods that they receive from parents or kinsmen.

I. Concerning Labor in the Paternal Home. 1. A minor son does not have a strict right to wages for ordinary labor that he performs for the advantage of the family; but he possesses that right for extraordinary labor. Reason for the first: parents can by right require that he labor for conserving and increasing the domestic estate; this labor of minors is owed from piety. - Civil law also agrees, for example German Law, § 1617. Reason for the second: extraordinary labor (i.e. that which exceeds the expenses of living, or by reason of age or condition is not owed) is equated with labor undertaken by strangers, and therefore it merits wages. Cf. St. Alphonsus, III, n. 488, 544, 810; Lugo, o.c., disp. 5, n. 42; Delama, n. 34, q. 1.

A son of age, for labor even ordinary, of itself merits wages: for they are owed to a stranger; hence, by parity, to a son of age. But it must be considered that a son of age is sustained by his father, that by his labor he also amplifies the father's estate. From this it follows that the wage owed to the son often must be diminished, namely with expenses for food, clothing, and habitation deducted, and with attention given to the hope of inheritance.

Note. Some authors attribute to the son, even a minor, a strict right to wages; others deny that a son of age possesses a right to salary for ordinary labor. Cf. the diverse opinions apud Tanquerey, II, n. 149; Noldin, II, n. 354; Lehmkuhl, in Theol. mor. and in Cas. Consc.; Delama, l.c. ad 1. Besides, some civil Laws (for example German Law, n. 1617) in general deny children a right to wages. - From this it follows: parents do not act unjustly if they do not increase the inheritance for laborious children; but children who, before the separation of goods, have set something aside for their labor, after the fact are not to be compelled to restitution, especially if other children contributed nothing toward increasing the domestic estate. But since the right to wages for ordinary labor, on the part of children of age, is not altogether certain, before the fact there is not securely present a right of compensation (n. 917).

II. Concerning Labor Outside the Paternal Home. 1. A minor son laboring outside the home, and hired out by the father, labors in the name of the father. Therefore the profit that he acquires seems to be a profectitious good, pertaining to the father. Reason: the same debt of piety, which we indicated above, flourishes here. Nevertheless, he does not certainly sin against justice if he retains something. Cf. German Law, 1651.

A son hiring out his own labors makes the profit his own. He would be held from justice to pay something to his parents if he were living at the expense of the family; from piety if the necessity of the parents were present.
A son doing business in the name of his father makes his own only that which he has gained from special industry, even if by theft he had procured his father's money for himself. Indeed, in this last case, if namely he intends to do business in his own name, the whole profit is to be ascribed to the son (Lehmkuhl, I, n. 565).

III. Concerning the Right in Goods Received. 1. In goods that are not immediately consumable by use, as garments, books, etc., a child under paternal power possesses only useful ownership; for, from common sense, the child, as regards those things, does not receive property, but only use. Therefore he cannot without the consent of parents or kinsmen, at least reasonably presumed, sell, give, or alienate them.

In goods that are consumable by first use, as foods or money, if they have been given without any condition, a child under paternal power has perfect ownership: therefore he can dispose of them at will. - But if they have been given under some condition, for example of buying books, paying board, etc., he sins against justice by spending them for other uses.

Whether, and when, a child under paternal power is held to restitution, see n. 907.

n. ¶4.

2. On the Ownership of Wives

n. ¶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.).

n. ¶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.).

n. ¶865.

French Law.⁰¹ It concedes to the betrothed, before marriage, the faculty of making as regards their goods all the pacts that they wish, provided these pacts happen before a public notary, and are not opposed to good morals or laws, or to paternal or marital authority. But if the making of a pact of this kind is omitted, the betrothed are judged to enter a legal community. Now:

I. The Legal Community stands thus: 1. Immovable goods acquired before the nuptials, or afterward coming by donation or succession, remain proper to each spouse. But the proper goods of the wife become quasi-dotal, and the husband alone has their usufruct and administration; yet in such a way that without the wife's consent he cannot alienate them. - 2. Common become both movable goods possessed before marriage, and the fruits of immovables and other revenues, and also immovables acquired in marriage from the goods or by reason of the community. The husband can alienate, pledge, etc., these goods without the wife's consent. Yet concerning immovables, or concerning the totality or a quota of movables, he cannot dispose by gratuitous title. When the community is dissolved, the goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus exempt themselves from the burdens.

II. By the Conjugal Pact can be constituted: 1. The regime of conventional community, by which the legal community is extended or restricted with respect to goods. - 2. A regime excluding community (but without separation), namely by which all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without the faculty of alienating. - 3. The regime of separation, by which all goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, and contributes to the burdens of marriage only a third part of her revenues according to the norm of law, or another sum,

and this determined, whose full ownership is transferred to the husband. - 4. The dotal regime, by which dowry strictly such is constituted, nearly as in Roman Law.

It should be noted: a) There is no regime in which the wife is entirely independent from the husband;⁰¹ namely none in which she can alienate her immovable goods, or present herself in civil court, without the authority of the husband or judge. Nevertheless, even against the will of the husband, she can make a testament. - b) In the prenuptial contract, the betrothed can mutually receive certain donations from themselves or from others, which after the nuptials are prohibited by law.

n. ¶866.

Italian Law.⁰² It has these things proper to itself: 1. Dowry is generally constituted according to the rules of Roman Law (n. 864). This can also embrace future goods of the bride; but after the marriage has been entered, it can no longer be constituted or increased by the spouses. - 2. The betrothed before the nuptials can enter community, not indeed of goods, but of the fruits proceeding from those goods themselves, whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the marriage. In other matters, Italian Law agrees sufficiently with French Law.

Spanish Law.⁰³ Dowry can be constituted, as in Roman Law; likewise paraphernal goods. But a prenuptial pact, which can be instituted, being excluded, the legal community flourishes, as in French Law. When the community is dissolved, first dowry and paraphernal goods must be restored, then common debts paid (Gury-Ferreres, n. 551, where all things are treated at length).

n. ¶867.

Austrian Law.⁰⁴ The goods of wives are subjected to almost the same rules as in Roman Law. - Only these things are to be noted: 1. Community of goods can be stipulated, whether before or after marriage has been entered, but under the conditions and in the form prescribed by law. Regularly, community is judged to have been entered only for the case of death; and therefore, during marriage, the property of common goods belongs to both spouses, the usufruct to the one to whom it belonged before the pact, and administration to the husband alone. When the marriage is dissolved, from the common goods that remain, half pertains to the surviving spouse. - 2. A special pact being excluded, either spouse retains the right of property of his or her own goods, and also the exclusive right to all those things that he or she acquires for himself or herself during the marriage, or that come to him or her. Yet the use and administration of the wife's goods are judged to have been handed over to the husband, as long as she has not contradicted. In doubt, because the wife must help the husband, the profit is presumed to have been made by the husband.

n. ¶868.

German Law. There is a legal or conventional regime (cf. Pruner, n. 609; Pelt, o.c., p. 39).

I. The Legal Regime⁰⁵ imitates the dotal law of Roman Law. Administration and usufruct of dotal goods belong to the husband, who nevertheless, if the wife requests it, is held to explain the state of the things;⁰⁶ nor can the husband alienate or pledge those goods without the consent of the wife. But that they may be placed in safety, there belongs to the wife the right of seeking security or separation of goods. But ownership of paraphernal goods and their free administration are in her possession. As regards debts, see § 1410-1426.

II. The Conventional Regime admits various pacts, which can be entered before or after marriage, and even after marriage be dissolved or changed.⁰⁷ - 1. Universal community can be instituted, by which all goods of the spouses become common, both those possessed before marriage and those acquired afterward; but it must be well noted that in this community of goods either spouse can reserve certain goods to himself or herself, which in the dotal regime and in partial community is granted to the wife alone;⁰⁸ or partial community, by which only a determined part becomes common. This community is twofold: a) community of acquisition, in which both profits made by the spouses and revenues of goods brought in become common goods; but goods, both movable and immovable, possessed by either before marriage remain proper to each. The wife (but not the husband) can reserve paraphernal goods to herself; - b) community of movable goods, which adds to community of acquisition the communion of movables possessed before marriage, and is subject to nearly the same rules as the legal community in French Law.⁰⁹ Administration of common goods belongs to the husband, who nevertheless cannot dispose either of immovables, or of the totality or quota of movables, without the consent of the wife.

Separation of goods can also be instituted either from the beginning, or during marriage, in which case the goods of the wife are held as paraphernal.

Under any regime, the wife can, without the consent of the husband, accept or repudiate an inheritance, legacies, and gifts offered to her.

In marriages contracted before January 1, 1900, the condition of goods continues to subsist according to the laws that flourished up to this time.¹⁰

n. ¶869.

English Law. From the year 1870 (August 9), a wife can by full right make her own, without the consent of the man, those goods that she has acquired by separate industry (by separate art or trade), so that both usufruct and administration pertain to her alone. - By the more recent law also (January 1, 1883), a woman who has married remains of full right, like an unmarried woman, concerning possessing, acquiring, and administering her goods. Wherefore, as regards the right of the husband, one must see what goods perhaps were conferred on the husband in the marriage contract.¹¹ - Concerning the inheritance of the husband or wife, see n. 1076-1078.

n. ¶870.

From the things said conclude: 1. Before marriage justice is violated: a) by either spouse, when one deceives the other concerning goods, by amplifying them, or concerning debts, by concealing them; - b) by both, when in the prenuptial pact they express what is false (for example if the bridegroom declares that a dotal good was given to him, which in fact was not given), so that a third party is deceived thereby.

After marriage injustice is committed: a) by the wife, if from goods either common or personal to the husband she takes away anything that is necessary neither for her own support nor for the support of her own people (father, mother, or offspring received from a prior marriage); or if in alms and gifts she exceeds the custom that other wives of the same condition observe; if, when the marriage has been dissolved, she renounces the community, or does not make an accurate inventory, in fraud of creditors; - b) by the husband, if he dissipates the dowry of the wife, or her paraphernal goods, or common goods, by juridic acts against the tenor of law, for example by giving by gratuitous title some immovables, or the totality or quota of movables; and in all these cases he is held to restitution.¹²

The question is whether a husband who dissipates common goods unworthily, by living lavishly, yet not against the tenor of civil law, besides the sin against piety that he certainly commits, also sins against justice? It is controverted: authors commonly affirm, in the case in which the wife has handed over all her goods, or the greater part of them, into community; otherwise, if she has handed over only the fruits, as happens from Italian Law (St. Alphonsus, III, 541, 5; Marres, de Just., n. 69).

Things to be noted as regards the wife. The wife is not a maidservant, but a companion, a helper of the man. Therefore it is equitable that there be conceded to her a certain liberty in administering the domestic estate, in making ordinary alms, and this even if the man does not know it, or, from hardness or avarice, is altogether unwilling. Cf. Ami du Cl., 1913, p. 377.

Therefore a wife can, if the man squanders goods to the detriment of the family, hide them and reserve them for the good of the family; or subtract something for the necessary expenses of the family. - She can also, if she does not have paraphernal goods, nor the man wish to give what is necessary, take something from the common goods, provided it is not very notable, for relieving the necessity of parents or children received from a prior marriage (probably, also brothers and sisters). - Finally she can employ means so that, according to her condition, after the man's death necessary things not be lacking to her: understand, if law has not sufficiently foreseen all things (cf. German Law, 2303).

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. I, Ch. II, Art. II, § 3. On the Ownership of Moral Persons

n. ¶871.

Things to be noted beforehand. A moral person, as it is taken here, is a juridic being, or civil body, to which laws have conceded the privilege of perpetual succession. - It consists either of several coexisting persons, as a college; or of one person who never dies, as the Bishop, who always lives in his successors. - It differs, of itself, from a conventional society: for this is entered by contract among private persons, who have co-ownership, and therefore retain a strict right to common goods. Cf. n. 1157. A conventional society (for example industrial) can receive legal existence, but it does not become a juridic being and moral body in the strict sense.

Colleges are held, generally, after the manner of private persons: hence they can enter contracts, act in judgment, etc.

We said generally: for in the ownerships of stable colleges, members have only the right of administering them and perceiving fruits from them, and that according to the norm of the foundation; yet with the substance of the ownership preserved. For this reason, communities are ruled in many things by the law of minors. Thus, for example, immovables and precious movables of churches, monasteries, municipalities, etc., cannot be alienated without the command of the supreme power (D'Annibale, Summ. I, n. 43 seq.; Ferraris, v. Collegium).

These things having been noted beforehand, let there be discussion of moral persons: 1. in the civil order; 2. in the religious order.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § II. On the subject of dominion · Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § I. Whether and of what temporal things the Church can have dominion, and in what way this is recognized by our law · Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § 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 · Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § III. To whom the administration of ecclesiastical goods pertains, and in what way it is to be conducted · Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § IV. What are the various species of ecclesiastical goods, and what is to be observed here concerning each

I. On Moral Persons in the Civil Order

n. ¶872.

Moral persons, in the civil order, are States or republics and communities, whether regional (of provinces or districts) or municipal.

The state and municipalities have the right of possessing temporal goods and administering them. - The reason is that such a right is required for the end of civil society, i.e. for the common good of citizens.

Scope of ownership. I. The ownership of the state, or State, embraces things of a twofold kind: 1. Things generally unfruitful, but devoted to common necessities, for example the more principal roads, navigable rivers, seashores and lands emerging by the recession of the sea, ports, warships, fortified citadels and military garrisons, houses destined for supreme rulers and their ministers, public libraries and museums, etc. - 2. Fruitful things, movable and immovable, acquired by any legitimate title, for sustaining the expenses of the universal government.

II. The ownership of regional and municipal communities consists of common buildings, schools, lay hospitals, prisons, public roads, fields, forests, etc. - To these are numbered, in certain regions, palaces of Bishops, seminaries, canonically erected hospitals, cemeteries, churches, indeed also sacred vessels; which certainly is repugnant to Canon Law, unless some concession has been made by concordats (Carriere, o.c., n. 67; Craisson, Man. Juris can., 936, 5315).

n. ¶2.

II. On Moral Persons in the Religious Order

n. ¶873.

Principles. I. The Church can legitimately acquire and possess temporal things. It is of faith, as is certain from the condemnation of the tenth proposition of Wycliffe: "It is against Scripture that ecclesiastical men have possessions" (likewise, from proposition 32 and 33). To this also pertains the twenty-sixth proposition condemned by Pius IX in the Syllabus: "The Church does not have a native and legitimate right of acquiring and possessing."¹³

n. ¶874.

II. The right of acquiring and possessing, which the Church enjoys, cannot be limited to movable goods. For immovables are necessary for churches, episcopal houses, presbyteral houses, for monasteries, hospitals, seminaries, etc.; and therefore the faculty of possessing goods of this kind inheres in the Church, by natural and divine law, namely by the same law by which it was given to her to exist and to spread herself into the whole world, independently of every secular power (cf. Aichner, Comp. Juris eccl., § 222).

Hence it is inferred: 1. The civil State that does not admit the aforesaid right violates divine law, just as it would violate natural law if it did not permit a singular person at will to become the subject of right (De Angelis, l. 3, tit. 5, n. 4).

Ownership of ecclesiastical goods does not pertain to the state; indeed, not even high ownership belongs to it. For the Church is a society altogether diverse from the state, and superior to it. - Therefore if the state needs some ecclesiastical good, for example to construct a road, it is necessary that it obtain the consent of the Church (cf. n. 149). See the Spanish Concordat of the year 1851, art. 40; Spanish Civil Code, n. 38, 746.
Ecclesiastical goods are regularly immune from taxes and civil burdens; otherwise the right of the Church in temporal goods would not be independent (St. Alphonsus, de Privil., n. 20). Yet these goods can, from privilege, be burdened with taxes, as in fact sometimes happened in certain places, from concession of the Holy See (Aichner, § 227).
Violators of ecclesiastical ownership are always guilty of injustice, indeed often of sacrilege (cf. n. 583), and deservedly are punished with penalties and censures (cf. n. 1325 seqq.).

n. ¶875.

Questions. QUAER. 1. Who has ownership of the goods of the Church?

Resp. 1. Direct Ownership of those goods pertains immediately to particular churches, but mediately to the Catholic society itself, i.e. to the universal Church.

Hence: if some pious institute, parish, monastery, etc., is suppressed, the goods of the suppressed institute continue to belong to the universal Church, by which they are to be destined to another end. Nor does the Supreme Pontiff himself bear himself in this matter as proprietor, but as supreme administrator (Aichner, l.c., § 223).

Usufruct respectively pertains to those special associations or institutes to which the same goods have been left by the faithful.

Whence it happens that the rights of each institute are separate, and cannot be taken away thence by the mere will of prelates, or transferred to other places. This, however, the Supreme Pontiff can do as supreme administrator of all ecclesiastical goods.¹⁴

QUAER. 2. To whom does the administration of ecclesiastical goods pertain?

Resp. 1. The right or power of administering the goods of the Church belongs to those ecclesiastical persons to whom ownership, at least useful ownership, belongs: for the accessory follows its principal.

Therefore by law the administrators are: a) the Roman Pontiff for the whole world; - b) the Bishop for his diocese; - c) Chapters and Superiors of Orders for the goods of the Order, province, convent: all these, however, inferior to the Pope, according to the judgment of the Holy See and according to the laws of the universal Church, in whose possession is the principal ownership and government.

The administration itself pertains, in fact, to those to whom it was legitimately committed by the one having power, and therefore remains necessarily subject to the one committing it.¹⁵

In this administration indeed, laymen are sometimes permitted to have their part; but from this they acquire no right, just as curators acquire none from administration of goods that pertain to minors (Bargilliat, Prael. Juris can., n. 970; Craisson, n. 5303; Aichner, § 225).

n. ¶876.

Note. 1. If the aforesaid rights of the Church are restricted by secular power, for example if by law (which they call amortization) the quantity of goods to be acquired is determined; or if the consent of the civil government is required beforehand: laws of this kind, although contrary to sacred canons, can be observed, insofar as namely the Church does not contradict. Indeed, they often must be observed, lest acts of administration become civilly invalid, and from this a greater detriment come to the Church.

If the right of the Church is entirely denied, recourse should be made to common Law, i.e. to the law that the laws concede to all citizens. Religious communities and pious institutes can acquire and preserve goods especially in three ways; and indeed: a) by obtaining the right of a college or civil corporation, or recognition of public utility; - b) by entering some contract of society, for example that by which goods are possessed in common for attaining a certain end approved by law; - c) by taking care that a simple contract of purchase be entered in a private name. In which case, one must watch that those possessing goods of the community in their own name immediately make a valid testament, which is diligently preserved in the community's archive (Konings, n. 623). Cf. Pelt, o.c., p. 61, as regards religious Congregations.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 40 passages

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § II. On the subject of dominion

n. ¶600.

- The subject of dominion is the owner of some thing, or he whose some thing is.

Hence 1° to God alone belongs supreme and absolute, and therefore independent, dominion over created things, as Scripture cries out: The earth is the Lord's and the fullness thereof, the world and all they who dwell in it.³ Indeed he can communicate this dominion to no one, because it depends on creation and conservation, from which God cannot abdicate himself. Yet this does not prevent God from being able to communicate particular dominion to rational creatures, according to that: but the earth he has given to the children of men.⁴

2° On earth every and only man is capable of dominion. It is proved. "He alone can have a right who is capable of suffering injury ... but he alone suffers injury who suffers it unwillingly; but he ought to be unwilling not indeed by a will by which he wishes a thing to be his, but by a will by which he wishes to retain right to the thing itself, or to obligate others not to take it away. But brutes cannot have such a will, since they can know neither moral obligation nor turpitude; therefore they cannot be unwilling, just as they cannot give permission or transfer dominion for the same reason, because, since they do not know moral right, they cannot yield their own right. ... Therefore only intellectual nature, which can know objects of this kind, is capable of having dominion."¹

3° Nor are infants incapable of dominion, nor even the insane; for the use of reason, of which they lack, is necessary only for disposing here and now of goods, or for the exercise of right (n. 589), but not for having dominion, which is founded in the nature of man and his powers, not in the actual exercise of the powers. (a) p. 475.

We must treat especially of the dominion 1° of children of a family, - 2° of wives, - 3° public and national dominion, - 4° of colleges or corporations, - 5° of the Church and clerics. But concerning the dominion of Religious it will be said below in the Treatise on States, where the vow of poverty is treated.

n. ¶601.

- Children of a family are properly called in this place children of either sex born from legitimate marriage, or legitimated, and still subject to paternal power.

It is said: 1° Born from legitimate marriage, or legitimated. For the dominion of illegitimate children, if and insofar as it is not defined by civil law, is governed by natural right.

It is said: 2° Still subject to paternal power, or minors, not emancipated from paternal power. For although the obligations of children existing from natural right, and which exact offices of honor, love, and reverence toward parents, can never be dissolved, nevertheless this does not have place as to those which natural right does not impose forever, such as obedience, or which draw their origin from civil right alone.

n. ¶602.

- In Roman law various goods of children of a family are distinguished;² but since these distinctions are not found in the laws which we use, we set forth here only the dispositions of these. Hence:

n. ¶603.

- Quaer. 1° How many kinds of goods of children of a family are distinguished, and what right belongs to the father in them?

Resp. Among goods which come to a child of a family, some come from his own labor, others from another title, for example from inheritance, legacy, or donation. The father has the usufruct of these if either by law of the State,¹ or by the will of the testator or donor, this is assigned to him; but he has the administration² in every case, unless perhaps goods have been given or bequeathed to the son on this condition, that custody of them be committed to others and not to the father. But if the father has administration alone, the son who uses those goods against the will of the father or without his knowledge will indeed sin against the fourth precept of the Decalogue, but not against justice strictly so called: for in this case nothing of his own thing or of the fruits of the thing perishes for the father; for both the thing and the fruits of the thing, in the supposition, are the son's, not the father's. Yet in this case the son would sin against justice if the father also had the usufruct: for he would deprive the father of the part of the fruits owed to him.

The proper labor by which a son acquires goods is either private or common with the father. It will be private, if for example he carries on trade in his own name; if he exercises an art entirely diverse from the father's art; if he labors in a workshop outside the paternal house; if as a hired man he has hired out his work in his own name. Those things which the son acquires by private labor, with law forbidding this set aside,³ or with the father's consent, whether express or tacit,⁴ supposed,⁵ he acquires for himself, yet with the burden of compensating the father for the expenses of food, clothing, and shelter.

What if the son exercises a common industry with the father?

Resp. Setting aside a contract, for example of partnership, the son lacks right both to a part of the gain procured by his labor, because in this supposition he conducts the father's affairs only as helper or mandatary, and, if at least his labor is already compensated elsewhere by a just wage, to a stipend: for a double wage cannot be asked for the same labor. I say: if his labor is already compensated elsewhere by a just wage, for example by the increase of inheritance through equal labor of the brothers, or by food, clothing, etc., provided to him. Hence, that is, because of defect of compensated labor, he has a right to a stipend; and therefore he can demand it as owed to him by strict right, or, if from reverential fear or from another cause he has not demanded it, he can procure it for himself by hidden compensation, if his labor was certainly not owed. Such would be the case if either from his condition he was not bound to such labor, or by an indubitably extraordinary and undue excess he labored more with the father than the other brothers.¹

n. ¶604.

- Quaer. 2° Does a son have perfect dominion in movable goods given to him by parents or relatives?

Resp. 1° Affirmatively, if they are consumable by first use, because they are given absolutely to him for use, as for example money granted for amusements (pocket money). Make exception if they are given for a determined use, as money for buying clothes or books, etc.

Resp. 2° If they are not consumable by first use, such as books, clothes, etc., the son generally has, that is, outside the case of consent of the parents either express or reasonably presumed, only useful dominion of them, because parents commonly intend to confer nothing else upon them. Wherefore, if the son disposes of these things against the right granted by the parents, a burden of restitution arises.

n. ¶605.

- By English and American common law, the goods of a wife can be said to be of three kinds, namely dotal, paraphernal, and common.

Under the name of dotal goods (Dowry or Dower) among us comes that which, according to the laws of each State, must be left from the goods of the husband to the surviving wife, namely, by common law, the usufruct of the third part of immovables during her life.

In Louisiana dowry "means the effects which the wife brings to the husband to support the expenses of marriage."¹

That which is termed by the civilians vidualitia, though we call it also dowry or dower, in the legal sense of the word is not a dower, but only that part of the goods of which the wife, after her husband's death, is heiress ad intestato, which, according to the common law, is the third of the personalty of the husband leaving issue, or a moiety, if he dies without issue.

n. ¶606.

- Paraphernalia are called those things which have been wholly reserved in the full dominion of the wife.

What these are from common law would be said almost uselessly, since the dispositions of common law concerning this matter have been changed in almost most States. Consult, if you please, Wells's Every Man, etc.² - But see the dispositions of common law, if you please, apud Kent.³ - For the law of Louisiana see Civil Code of Louis.⁴

Everywhere the following can be held as paraphernalia: both 1° paraphernalia strictly so called, or the wife's personal apparel and ornaments, suitable to her rank and condition in life; and 2° that which is called "pin-money," i.e. a sum payable by the husband to the wife, in virtue of a particular arrangement, and to be applied by the wife in attiring her person in a manner suitable to the rank of her husband, and in defraying other personal expenses. Finally 3° those things also ought to be held as paraphernalia which either by the laws of each State, or by antenuptial agreement, are reserved to the full dominion of the wife.

n. ¶607.

- Common goods among us can be called immovables which are given simultaneously to husband and wife during the marriage, or which are bought by them together. Concerning these our law establishes: "They" (the husband and wife) "are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole."¹

Except Louisiana, where "the partnership ... of acquets or gains ... arising during coverture" (i.e. while the marriage stands) "exists by law in every marriage contract in the State, where there is no stipulation to the contrary."¹ "The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property."²

n. ¶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.

n. ¶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

n. ¶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

n. ¶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.

n. ¶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

n. ¶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

n. ¶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).

n. ¶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

n. ¶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.

n. ¶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

n. ¶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

n. ¶5.

Point V. On the dominion of the Church and of clerics.

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.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § I. Whether and of what temporal things the Church can have dominion, and in what way this is recognized by our law

n. ¶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

n. ¶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.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § 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

n. ¶621.

- There are three sentences concerning the subject to which direct dominion of ecclesiastical goods inheres. The first holds that it inheres in the churches themselves, or institutes, for whose use they have been acquired. The second holds that it resides with the Supreme Pontiff. The third, which according to St. Alphonsus¹ is truer and more common, holds that it exists with no man, whether public or private, but with the Catholic Church, while administration alone consists with the ministers of the Church.²

n. ¶622.

- So that ecclesiastical institutes may canonically acquire temporal goods, it generally suffices that those things be observed which are required among private persons for the forum of conscience. Thus, so that something may be acquired by donation, acceptance by the legitimate Superior of the ecclesiastical institute to which the donation is made suffices.

But so that they may be acquired and held among us by a civilly valid title, it is necessary that either 1° they be conceded to someone in trust, or 2° they be acquired by right of a college or corporation, or 3° they be handed over to a Bishop or to some other person in property (in fee simple).

But none of these titles is canonical or altogether safe. Not the first. For they can be conceded in trust in a double way, namely to the Bishop, or to trustees, whom the adults, whether women or men, who profess that they pertain to some religious Communion, have chosen from their own body. But to the Bishop as such, and thus also to his successors in perpetuity, generally there has been conceded only a certain species of ecclesiastical goods, namely churches and presbyteries, to be acquired in trust, and this only in certain States. - That this title is not canonical is clear even from this, that it is restricted to a certain species of goods. But experience proves that it is not altogether safe; for in political disturbances those things which are possessed in the name of the Church or of some religious community are more liable to so-called legal depredations. Yet that title is more canonical than the rest, since by force of it the Bishop possesses in the name of the Church, and through him the dominion of the Church over her goods is recognized. It is also safer than the rest, as will be clear from what is to be said.

The worst of all is the other manner of acquiring, namely through trustees elected by the adults of some Congregation. For to these elected in this way the right will belong of repairing and changing the church, of building a new one, of erecting a pastoral house and other buildings for the use of the Congregation; of making statutes according to which the temporal affairs of the Church are to be administered; of disposing of the revenues of the church, leasing seats, choosing and removing ministers, and determining their salaries and even offices, etc. Moreover at appointed times, by majority of votes, either the Congregation itself or the college of trustees substitutes new trustees in the place of those whose trust, which has been defined to a certain number of years, expires, or confirms the old. It is sufficiently clear how greatly all these things are opposed to the discipline and even to the constitution of the Church, and this although the Bishop or Pastor is from the number of trustees, or is elected by them as President of their college, or even statutes are made by which the right of the Church is preserved. For those statutes, just like the election of the Bishop or Pastor as President, by which moreover little is obtained, can be annulled by the same majority by which they exist.

Nor can the second title be called canonical or altogether safe. For the right of a college or corporation is liable to the infidelity of directors; it can also be revoked (see n. 618), and regularly has the attached condition that goods beyond a certain defined value not be acquired for the college.

Finally neither can the third title be held canonical or safe. "For those things which," says Kenrick,¹ "have been handed over to the Bishop in property are liable to very many dangers, since they can be burdened by debt, or, if the testament is not rightly made, pass into the hands of others."

Moreover one from these three titles (or perhaps even that which exists from a contract of partnership, and concerning which below), although not canonical nor altogether safe, must necessarily be chosen, so that the goods of the Church may be protected at least in that manner in which it can be done. But which of the three is to be preferred, and what cautions must be employed so that the dangers joined with each may be removed as far as it can be done, is clear from the following statutes of the Second Plenary Council of Baltimore.

n. ¶623.

- 1° Bishops, priests, and all others "with whom goods, whether movable or immovable, given for ecclesiastical uses are held, are admonished that they take care as soon as possible that those things, in that way which in the individual Federated Provinces will seem safest, be preserved according to the civil laws for the uses designated by the donors."¹ From these words it is sufficiently clear that trustees can in no way be employed in that signification which was declared at n. 622. But if somewhere, where formerly they were brought in, they seem still to have to be tolerated, they are to be restrained within just limits, concerning which below. For Pius VII not undeservedly pronounced their right, insofar as it does not depend on Bishops, immoderate and unbridled, in letters given to the Archbishop of Baltimore on 24 Aug. 1822.²

2° In States in which Bishops, because of defect of another civilly legitimate title, are forced to take care that the property of ecclesiastical goods be ascribed to themselves as physical persons, their conscience is burdened by the Sacred Congregation de Propaganda Fide,³ that by testament, which also must be drawn up if any other method whatever of holding and protecting ecclesiastical goods is brought into effect,⁴ or by another legitimate instrument, they provide for the security of those goods; but let them deposit a duplicate exemplar of this testament with the Archbishop, but the Archbishop with the senior Bishop; and this within three months from their consecration. But if some Bishop neglects this, the Archbishop will remind him of his office, and report him, if he ceases for a long time, probably if he delays, to the Sacred Congregation.⁵

3° "Let them" (Bishops) "also have an inventory of ecclesiastical goods, and all titles and instruments duly arranged."¹

4° "If it happens that they," for a longer time, "reside outside the diocese, let them leave letters of procuration" (power of attorney) "with some approved man who can preserve these goods for ecclesiastical uses."²

5° "We most greatly desire," say the Fathers, "that no church be erected or consecrated in the future unless it has been assigned to the Bishop in whose diocese it is to be erected, by written instrument, for divine worship and the utility of the faithful, whenever this can be done; with the privileges of Regulars" (concerning which below) "preserved whole and untouched."³

6° Bishops are admonished "that they not allow priests to retain with themselves in their own name those things which have been donated by the faithful for public and ecclesiastical uses, and committed to their trust."⁴

7° Religious communities, both of men and also of women, and whatever other pious institutions, are forced to provide for the security of their goods in one of the four following ways.

a) By obtaining, where it can be obtained, right of a college (Right of Corporation). b) Through a contract of partnership, by which goods are possessed in common by three or four members of the Community, so that all the partners possess that right during the time of their natural life; but, when any one of them has died, the right of possessing all the goods remains with the surviving partners, with no power having been made to any of them of alienating in his lifetime, or of leaving by testament after death, the aforesaid goods. In this case, care will only have to be taken that, when one of the partners has died, another from the members of the Community be admitted into the partnership. c) "If only the way of testament remains for transmitting goods to successors, he who possesses the goods of the Community in his own proper name must take care that immediately he perfect a testament according to the civil laws, which is to be diligently preserved in the archives of the Community."⁴ d) "As to Communities" whose "goods are possessed by the Bishop, ... through the testament of the Bishop sufficient provision is made for the security" of those goods. These things according to the mind of the Decree of the Sacred Congregation de Propaganda Fide, 15 Dec. 1840.¹

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § III. To whom the administration of ecclesiastical goods pertains, and in what way it is to be conducted

n. ¶624.

- Administration of right, or the very right of administering ecclesiastical goods, pertains to that authority to which dominion of those goods pertains; for the accessory follows its principal; but administration is the accessory of dominion; therefore, just as the dominion of ecclesiastical goods, from the sentence of St. Alphonsus (see above n. 621), pertains to the Church, so likewise the administration of them belongs to the same.

But under the name of the Church here comes the Supreme Pontiff for the whole world; the Bishop for his diocese; Chapters and Superiors of Orders and Congregations for the goods of the Order, Province, or Convent; the parish priest for the goods of his church; and the Pope indeed with subordination to divine right, but the rest with subordination to the Pope and to the laws sanctioned for them.

But administration of fact pertains to those to whom it is legitimately committed by those to whom administration of right belongs, and is necessarily subject to the one committing it.

n. ¶625.

- In what way administration is to be conducted.

I. As to the goods of the diocese generally, the Second Plenary Council of Baltimore has these things:²

"It would turn very much to the solace of the Bishop and utility of the Church, if ... he named a Steward, or in temporal affairs a Procurator, lay or cleric, whose duty it would be to have care of the episcopal house in temporal matters, and also to conduct the temporal administration of churches and ecclesiastical goods at the nod of the Bishop, and to render an account to him at appointed times of all things committed to him."

II. The goods of individual churches are administered by the Missionaries set over them and the Lay Trustees.

A) As to Missionaries, Bishops are admonished by the Fathers of the Second Plenary Council of Baltimore:

1° "That they watch lest priests, either by rashly erecting or repairing churches, or by contracting debt in another way, burden the affairs of the church, or break faith to the disgrace of Religion; therefore let them exact an account at least each year, and let them not allow them to contract debt without a license given in writing, in the name or for the cause of the church.

2° That "priests be admonished not to mix their own affairs with the affairs of the church, with danger to their reputation or offense to the faithful, who easily think an injury is being done to the church. Therefore let them have a book in which all the things of the church are catalogued; and, if they themselves have contributed money for the use of the church, let this be done with the Bishop approving, and with the knowledge of trustworthy men, and let it be recorded in the book, so that the Bishop, when holding visitation, can inspect individual things and protect the rights of all."²

3° "Priests who administer churches whose title has been handed over to Bishops are not to establish lay trustees in them without the authority of the Bishops, or permit them to be elected by the faithful, lest perhaps some impediment arise to the administration of them."³

See moreover those things which above, n. 623, 1°, 5°, 6°, we reported from the same Council.

n. ¶626.

- B) As to lay trustees, "that they may be restrained within due limits, in whatever way finally they are chosen" (therefore comprehended by this decree are not only those who have been constituted by the authority of the Bishops alone, but also those who were formerly constituted in that way which was mentioned at n. 622), the Second Plenary Council of Baltimore:⁴

a) Declares "that it is the universal law of the Catholic Church that all those who in any way administer the goods of the Church do this licitly only with the Apostolic See or Bishop consenting, and that in the administration of them they are subject to the authority and jurisdiction of the Bishops, or, if they are exempt, to the authority and jurisdiction of those whom the Apostolic See shall have designated."⁴

b) The Fathers extend to all the churches of these provinces, and counsel that everywhere there be observed, the following statutes of the Third Provincial Council of New York.⁵

1° "That he not be admitted into the number of the Lay Trustees concerning whom, under the election itself or a little before, it has been established that he has given his name to any secret Society, or has not received the Easter Sacraments."

2° "Let the Lay Trustees thoroughly understand that it is altogether wicked for them to divert the least part of the goods of the Church to their own uses under any title or pretext, or to strangers, except by permission of the Bishop and with the Apostolic Constitutions concerning alienation of ecclesiastical things observed."

3° "Ordinary expenses excepted, let it not be licit for the Lay Trustees to expend a sum of money beyond three hundred dollars" ($300) "upon any particular work, unless the Bishop assents in writing."

4° "Let the Lay Trustees know that the decision of naming and creating the Pastor of the church, and of retaining him in office or the contrary, rests with the Bishop. It also belongs uniquely to the Bishop himself to assign a certain sum of money to pastors of souls for their support; nor is it licit for the Lay Trustees to retain, lessen, or increase stipends of this kind."

5° "It belongs to the Pastor to designate the Organist, Singers, Sacristan, Custodian or Apparitor, Schoolmaster, if some school exists in the parish, and other men of this kind who serve the altar or temple."

6° "Let the Lay Trustees beware lest, without consulting the Pastor, they prescribe anything to the Parishioners as law or norm. But if some discrepancy should arise between the Pastor and the Lay Trustees consulting about things to be done, and they are not able by themselves to compose the dissension, the Bishop will settle the controversy, and all will obey his judgment and sentence."

n. ¶627.

- III. As to Regulars, they have either undertaken diocesan works to be governed, that is, works which are sustained by money and other means drawn from the diocese, for example a quasi-parish, or they have not. In the former case, in the administration of goods which pertain to those works and which cannot be proved by a written document to have been handed over to the Order for use, or is not clear of itself, they are subject to the jurisdiction of the Bishop or to the agreements entered between him and the Order. It is said: or is not clear of itself, so that movables of religious houses, for example furniture, books, etc., may be excluded. For Regulars acquire these from their own monies or monies given to them for this purpose. - In the latter case they are not subject to the Ordinary, unless otherwise it was agreed between them and the Ordinary at the threshold of the foundation.

As to Nuns, see what is to be said in the Treatise on Particular States, n. 1189.

Vol. I, TREATISE ON RIGHT AND JUST…, FIRST PART: ON THE NATURE …, Ch. II, Art. I, § IV. What are the various species of ecclesiastical goods, and what is to be observed here concerning each

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, First Part: On Justice in …, Ch. II, Question Four: On the Subject of Right and Dominion · Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, First Part: On Justice in …, Ch. II, Question Four: On the Subj…, Article V: On the Dominion of Religious

Note. - Under the name of ecclesiastical goods in this place come not only those things which are held as such in the strict sense, but also those in the broad sense. Therefore we shall treat 1° of beneficial goods; 2° of taxes to be paid to the Bishop; 3° of the remaining ecclesiastical goods.

n. ¶628.

- A benefice is defined by Canonists: A perpetual right of receiving fruits from the goods of the Church on account of some spiritual office constituted by the authority of the Church and to be exercised in one's own name.

It is said: 1° perpetual right. But this perpetuity can be understood in a double way, namely by reason a) of the benefice, which once erected always remains; b) of the beneficiary, who obtains the right of receiving the fruits of the benefice not for a time, but as long as he shall have lived. Commonly the Doctors assert that perpetuity accepted in both senses is of the nature of an ecclesiastical benefice; yet this is not admitted by all, and Leurenius, cited by Cardinal Soglia,¹ admits only perpetuity of the former kind as essential to benefices. Bouix,² St. Alphonsus,³ and others embrace the sentence of Leurenius.

It is said: 2° of receiving fruits from the goods of the Church. Ecclesiastical goods from which those fruits are received are called the dowry of the benefice, and consist either in rural or urban estates, or in pastures, woods, or similar things, or in those rights which obtain the place of fruits and in Roman Law are equated with immovable things, such as rents or annual revenues.

It is said: 3° on account of some spiritual office, as for example on account of the obligation of reciting the canonical hours, of serving some Church by administration of the Sacraments, preaching, celebration of Mass, etc. But this spiritual office is indeed the foundation and cause of the benefice, but it is not the benefice itself.

It is said: 4° constituted by the authority of the Church, namely of the Supreme Pontiff or of the Bishop.

n. ¶629.

- From the given definition of a benefice it is sufficiently clear that the question concerning the dominion of Clerics is almost useless as to these provinces. For goods pertaining to the dominion of Clerics are distinguished as of four kinds, namely: - 1° patrimonial, which come from paternal inheritance or from any other profane cause, for example from donation, etc.; - 2° quasi-patrimonial, which are acquired by occasion and with regard to ecclesiastical functions not attached to a benefice, for example by celebrating Mass, preaching, etc. They are also called quasi-ecclesiastical or casual, and to them pertain the Offerings of the faithful for the support of priests, as is clear also from the response of the Sacred Penitentiary given on 9 Aug. 1824; - 3° ecclesiastical, which arise from benefices of the Church; - 4° parcimonial, which a Cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably. - Now, scarcely one Parochial benefice is yet known certainly to exist in these Provinces;¹ therefore the goods of Clerics here are no others except patrimonial and quasi-patrimonial; for there can be no question of parcimonial goods where there are no beneficial goods which may be spared. Therefore our Clerics have perfect dominion of all their goods, and the question is useless for us whether they are bound to restitution when they spend badly the superfluous things of ecclesiastical or beneficial goods, and the other questions connected with it: namely, what is understood by superfluous; whether Clerics can preserve the superfluous for the future; whether a Cleric who has from patrimony whence he may live can also sustain himself wholly from the fruits of a benefice; whether also pensioners, whose pension is extracted from the fruits of a benefice, ought to expend the superfluous upon the poor. Concerning all these things, if a case were to occur as to priests arriving in these Provinces from elsewhere, where they had a benefice, or concerning our Bishops, for whom the so-called Cathedraticum is the dowry of a benefice, either St. Alphonsus¹ or Kenrick² can be seen.

n. ¶630.

Note. - Kenrick³ contends that the offices which in several States are committed to a priest with the fruits of the lands which are joined to presbyteries, and likewise the pension which is paid to priests by lay trustees on account of the care of souls and is annexed to it, are to be held after the manner of benefices. But undeservedly, as indeed it seems to us. For as to the fruits of those lands, although they are immovables and given on account of a spiritual office, and committed to the trust of the Bishop or another, nevertheless they are not benefices; for the spiritual office on account of which they are given is exercised among us not in one's own name, but in the name of the Bishop. Therefore at least one of the conditions required for a benefice is lacking (see n. 628). Nor is the pension paid by lay trustees a benefice or given in place of it. Wherefore, in our judgment at least, Kenrick⁴ does not rightly apply to this pension the response which the Sacred Penitentiary⁵ gave concerning salaries which in France and Belgium are paid to priests by the Government. For these are paid in compensation for beneficial goods which were taken away at the time of the French disturbance, and therefore they have the same nature as the goods for which they are substituted; and no one will affirm this of a pension paid by lay trustees.

There is only one case in which among us a priest receiving revenues from those lands, or a pension paid by lay trustees, would be guilty of injustice and bound to restitution, namely if he neglected the office on account of which they are given, i.e. duties which regard the care of souls. For then the title by which they are received is lacking. Moreover, it cannot easily be defined how much is to be restored if one has neglected some duties, for example to receive Confessions or to preach the word of God. For the most part it will suffice to shake off sluggishness and show himself liberal toward the poor.

n. ¶631.

- Taxes to be paid to the Bishop are either ordinary or extraordinary.

Among ordinary taxes the principal is the Cathedraticum, to be paid by all parish priests, beneficiaries, and secular churches, but not by those churches of Regulars which are not subject to the Bishop. Among us the name of Cathedraticum has been transferred to the contribution to be paid for the support of the Bishop.¹

An extraordinary tax is especially constituted by the Procuration, or that which is given to the Bishop in the name of sustenance by the churches which he canonically visits.² See what was said at n. 356, Resp. 3° a).

n. ¶632.

- The remaining ecclesiastical goods are A) Tithes,³ which are none here. B) First-fruits,⁴ which now have almost everywhere ceased, nor here were they ever to be given by right. C) Daily distributions, which come to Canons present in choir,⁵ and concerning which among us, with no Chapters erected up to now, a question would be moved uselessly. D) Offerings, concerning which now, and indeed more fully for us, we must treat.

n. ¶633.

- The uncertain generosity of the faithful, which up to now generally has not failed, is the chief, and in very many places the only, means by which our Clergy is supported. Now:

Quaer. 1° Whether and in what way are our faithful bound to contribute to the support of the Clergy, and generally of religion?

Resp. with Kenrick:⁶ "This ... ought to be persuaded to all: that it is fitting that individuals contribute something for their own part, lest priests" and religion "lack necessary support; but as long as no certain law enjoins and defines the burden, we do not dare to condemn of mortal sin him who omits to contribute an equal portion, whenever there is no danger lest priests be in need on that account, or other faithful be excessively burdened. But those who through avarice refuse to give anything, in the circumstances which we have indicated" and these circumstances occur more rarely, "seem gravely guilty and unworthy of sacramental pardon; for they violate the law of Christ the Lord concerning the support of the Ministers of the Gospel, and expose themselves and others to danger of salvation."

n. ¶634.

- Quaer. 2° What are the principal species of offerings in these Provinces?

Resp. Comprehending those things which can be called offerings only in the broadest sense, the principal are: a) monies which are accustomed to be collected in individual parishes for determined pious causes; b) pious donations and legacies; c) contributions of various Societies; d) subsidies given in certain States by civil power to Catholic schools, orphanages, hospitals, and similar pious places or institutes; e) subsidies furnished by European Mission Societies; f) collections which are accustomed to be held during divine Offices; g) revenues from the leasing of seats or benches; h) stipends of Masses; i) Offerings properly so called, or stole fees.

n. ¶635.

- Offerings of which in n. 634 under a), b), c), d), from justice are to be spent for the special ends for which they are made. Yet limit this according to L. IV. 931. q. II.

Monies of which in the same n. 634 under a), namely those which are accustomed to be collected in individual parishes for determined pious causes:

1° Cannot be collected by a priest outside the congregation entrusted to him or in another diocese without written license of the Ordinary, and this under penalty of suspension ferendae sententiae. "But let Religious remember to bring with them the license of their Superior."²

2° If it is a question of giving a Mission in some parish, "the Fathers judged it would be advisable ... that before Missionaries approach collections, or even sell, either by themselves or through others, pious books, Rosaries, Crosses, Medals, and other things of this kind in congregations where Missions are made, they obtain both the previous assent of the Pastor and the approbation of the Ordinary."³

3° "It seems that by no excuse can there be covered the practice of procuring monies for ecclesiastical uses by those means which provide a direct occasion of sinning, are not infrequently causes of public scandal, and expose the Catholic name to the mockeries and reproaches of outsiders."⁴ - Therefore the Bishops in Pastoral Letters given to the Clergy and faithful say: "We forbid all Catholics from having anything to do with them" (the Fairs, Excursions, and Picnics), "except when managed in accordance with the regulations of the Ordinary, and under the immediate supervision of their respective Pastors."¹

4° The conscience of Bishops is burdened that they take care lest priests depart from the altar during the solemnities of Masses and go around the sacred building, asking alms from individual faithful.²

n. ¶636.

- The collection of money which is accustomed to be gathered during the solemnities of Masses, and the revenues of seats or benches, since they come on the occasion of the Sacrifice, pertain to the parish priest, unless there is either another custom or another intention of those offering.³ It is clear that among us they must be held as revenues of the churches under each of these titles.

Note. - Seats or benches:

1° To lease them is not simoniacal; for although here the temporal is concomitantly annexed to the spiritual, namely to assistance at the divine Offices, nevertheless it is annexed to the same only extrinsically, since one need not necessarily assist at the divine Offices in some seat or bench, and this convenience, as entirely temporal, is worthy of a price. But "the Supreme Pontiff Pius IX declared that the practice, if it exists, of exacting money at the doors of Churches so that the faithful may enter and be present at the divine mysteries is very displeasing to him, and he wished it to be entirely eliminated."⁴

2° To guard against most grave inconveniences and evils "it is necessary," says Kenrick,⁵ "to abstain from selling benches, lest the buyers obtain full right (n. 590) in them, since it is enough that they be able to occupy them while the solemnities of Masses are performed, with the laws and rules otherwise observed."

n. ¶637.

- Concerning Mass stipends the Second Plenary Council of Baltimore established:

1° "That no one exact more, nor regularly less, than what shall have seemed opportune and just to his Bishop."⁶

2° "That foundations" of Masses, whether for a time or in perpetuity, "not be accepted without the prior assent of the Bishop, if it is a question of a secular institute, or of the regular prelate, if the foundation is made in favor of an exempt Community."¹ - But as to the stipend of these, the Fourth Decree of the First Synod of Cincinnati is commended as a norm, by which it is established "that for a private Mass there exist a principal of at least 50 dollars" ($50), "but for a sung Mass 100 dollars" ($100).² - The Fathers also establish that the abuse by which "public and frequent invitations to alms to be spent upon foundations of this kind, for several continuous months, are inserted in popular newspapers among other profane business," is to be removed "without delay by Bishops and prelates."³

3° "That in individual secular and regular churches there be a catalogue or table of burdens which have been imposed upon them in perpetuity or for a certain prefixed time, and respectively accepted; and that in the sacristy of the same place there be preserved books, in one of which perpetual or temporal burdens of this kind, but in the other manual and adventitious Masses, are inscribed, together with a faithful and distinct notation of the subsequent fulfillment of each."⁴

As to stole fees, see n. 356.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 21 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, First Part: On Justice in …, Ch. II, Question Four: On the Subject of Right and Dominion

n. 171.

171. God alone has universal, absolute, independent, and principal dominion over all created things, insofar as He is their first principle of creation and conservation (Ps. XXIII, 1; Wis. XII, 16).

n. 171.

He cannot abdicate this dominion, nor communicate it to any creature, nor exempt any creature from it, because He cannot communicate its title, nor can anyone be exempted from Him. But to the intellectual creature, created to His image, He communicates a particular and relative dominion, subordinated to His universal dominion, just as also He communicates the power of acting under the supreme cause. Hence the dominion which belongs to man has been conferred on him in order to other men; but not in order to God Himself, who alone is always and remains the essential and absolute lord of all things, to whom all will render an account of their dominion.

n. 171.

On earth every man and only man is of himself capable of dominion.

172. Only a being of intellectual nature is capable of right and dominion. - And thus not only the individual is understood, but also a collection of men, which makes a moral person. - It is proved:

He alone is capable of dominion who can morally dispose of some thing as his own, and suffer injustice. But:

intellectual nature alone can morally dispose of some thing as its own, because to every intellectual nature and to it alone there belongs the foundation of dominion, namely, intellect and will, through which it has the power of disposing at will of its own acts, and consequently of external things;

likewise it alone can suffer injustice: for no one suffers injury unless he is reasonably unwilling; but he who lacks intellect and will cannot be unwilling in this way: for he is unwilling who by will wishes to retain his right concerning the thing, or to obligate others not to take it away.

Therefore intellectual nature alone is capable of dominion.

Brute animals are incapable of this will, as also of the use of dominion, for which it is required to refer one thing to another, which belongs to reason; and therefore properly they do not have rights. Moreover, they are subjected to rational beings as to their end, and consequently as to all things which serve them as means to this end. Whence they can be injured or killed without injury properly so called. Yet man owes it to himself and to the natural order not to injure or destroy animals without a reasonable cause or sufficient reason.

n. 173.

173. For radical dominion and strict right the use of reason is not required, but rational nature suffices. - For although for the actual use or formal exercise of right and dominion the use of reason is required, nevertheless it is not required for habitual dominion, which is immediately founded not in act, but in rational powers ordered to act.

n. 173.

Hence children and the insane possess internal goods; moreover, the common good demands that external goods at once be bound to them (for example, on account of their necessities), so that they may remain proper to them; - on the contrary, a right for which the use of reason is necessarily required cannot belong to them, for example, the right of contracting. And therefore civil law acknowledges their right, but establishes that the administration of goods is to be exercised by curators or tutors.

n. 174.

174. Matter To Be Treated. - The right of dominion is circumscribed by positive law, and therefore it can happen that someone becomes incapable of right in several matters, or that power in him is restricted. Hence we shall speak of those who are not fully capable of dominion, namely: 1. of children under paternal power; 2. of wives; 3. of authors and inventors; 4. of secular clerics; 5. of religious; 6. of moral persons.

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, First Part: On Justice in …, Ch. II, Question Four: On the Subj…, Article V: On the Dominion of Religious

197. Principles. - Religious of themselves preserve entire rights in the internal goods of body and soul and in reputation, although they must satisfy special obligations of obedience. But as to external goods of fortune, they are bound by the vow of poverty; by reason of which:

The solemnly professed are incapable of private dominion, so that the goods which they possess they cannot keep, and other goods they cannot acquire (can. 579, 581, 582); yet they can possess in common, unless by their special constitutions they are prohibited from this, as the Friars Minor and Capuchins.

Yet by dispensation they can in certain regions, as in Belgium, acquire and retain goods in particular, but only in order to civil law (S. Poen., Dec. 1, 1820; and Leo XIII, July 31, 1878).

The simply professed remain capable of possessing goods (c. 580, § 1), but they cannot dispose of them without the express or tacit consent of the superior; consequently:

a) before profession, they must cede the administration of their goods to whom they wish, and, unless the constitutions provide otherwise, freely dispose of their use and usufruct (c. 569);

b) in a religious congregation, the novice must, before the profession of temporary vows, freely make a testament concerning present goods or goods perhaps to come (c. 569, § 3), which, when vows have been emitted, he cannot licitly change without the permission either of the Holy See or, if a cause is urgent, of the Superior (c. 583);

c) the professed in a religious congregation cannot licitly abdicate dominion of their goods by gratuitous title through an act among the living (c. 583);

d) whatever any professed acquire by their own industry or in view of religion, they acquire for the religion (c. 580, § 2).

More particular matters pertain to canonical legislation concerning religious.

Billuart, Summa Summae

Charles-René Billuart, O.P. — 63 passages (filed under the subtopics)

Billuart, Summa Summae, Tomus III. On the Secunda …, On Right and Justice, On the Subject and Object …, On the ownership of clerics

Note 1° that the goods of clerics are of three kinds, namely patrimonial, quasi-patrimonial and ecclesiastical. — Patrimonial are those which come to them independently of all ministry as well as ecclesiastical benefice, and are common to them and to laymen. — Quasi-patrimonial are those which come to clerics not by reason of an ecclesiastical benefice, or from goods offered and appropriated to the Church itself, but by reason of personal ecclesiastical ministry, as it were its wage and stipend; or, what is the same, those which are offered by the faithful, to be appropriated not to the Church itself, but to particular ministers of it for the stipend of the work, e.g., for the celebration of Mass, funeral offices, sermon, singing, etc. — Ecclesiastical are those received by clerics by reason and title of benefice, say canonries, deaneries, etc. As to distributions called among those present, more probably they are to be referred to ecclesiastical goods, if, as ordinarily happens, they be given out of the goods of the Church.

[Distinguished also are parcimonial goods, which indeed by their nature pertained to ecclesiastical goods, but which the cleric alienated from his own suitable sustentation, by living more sparingly than he could live honestly. They seem reducible to quasi-patrimonial.

Note 2° that in the first times of the Church the goods of clerics were common, as now they are in monasteries, dispensation left with the bishop. But truly, as the multitude of faithful and clerics daily grew, and because of the cupidity of some the common manner of living became more difficult, supreme Pontiffs ordered these goods to be divided into four portions : the first assigned to the bishop; the second to the clergy; the third to the fabric; the fourth to the poor. So it is read in the Decree, cause 12, q. 2, cap. Concesso; cap. Quatuor; cap. de Reditibus; cap. Cognovimus, etc.

This division first begun under B. Sylvester, about the year 324, as is evident from cap. 4 of the Roman council celebrated by him, did not everywhere straightway prevail, but advanced little by little.

n. 5.

With progress of time however it happened that this fourth part of the poor is found no longer in many churches, perhaps because it perished through injury of times, or pillage of enemies, or other calamity; or perhaps because it was not constituted in lands, but in moneys which distributed at last came to an end; or finally because neither by founders nor by prelates of the Church was any portion assigned to the poor, which at least for the most part is true regarding churches erected after the time when the division was made.

n. 6.

Note 3° that the fruits of benefices can be regarded either insofar as they are necessary to honest sustentation, or insofar as they are superfluous to that honest sustentation, which does not consist in an indivisible, as we shall say below.

n. 7.

I suppose 1° as certain that clerics have dominion over patrimonial goods, so that validly they can dispose of them at pleasure; because in their ordination they did not abdicate such dominion, nor does ordination or clerical office bind them to that. Whence, in this respect, they are of like condition before and after received clericate.

n. 8.

I suppose 2° with the more common opinion that clerics have absolute dominion over quasi-patrimonial goods, just as over patrimonial ones; because these goods are given to clerics as a certain stipend of sustentation, not merely gratuitous, but owed them by reason of personal work, and therefore left to their free dispensation. For the faithful conferring do not intend to impose any burden upon them, but to satisfy their own obligation, nor can any canon of law evince that any burden be imposed by the Church on such goods.

n. 9.

I suppose 3° also with the common opinion that clerics have absolute dominion over the portion of ecclesiastical revenues congruous to necessary sustentation, so that concerning it and patrimonial goods they can dispose at pleasure. The reason is, because this portion is the just stipend of the office which a benefice has annexed; for he who serves the altar has right to live of the altar, according to the Apostle, I Cor., IX, 13. Whence the same must be said as of quasi-patrimonial goods.

n. 10.

It is confirmed. Every manual laborer, and what touches us more closely, a singer, e.g., organist, sacristan, laymen, become absolutely masters of the portion which is granted to them out of ecclesiastical goods for the stipend of their office, and can dispose of it at pleasure. Why not the cleric too?

n. 11.

The difficulty therefore chiefly concerns the part of ecclesiastical revenues superfluous to congruous sustentation. Indeed all agree that clerics cannot licitly dispose of it at pleasure, as of patrimonial or quasi-patrimonial goods, or the necessary part, but that they are bound, at least by law of charity and ecclesiastical precept, to expend it upon the poor or other pious uses. Whether truly they are also bound by justice, so that they be liable to restitution if they spend it on profane uses, is greatly disputed.

n. 12.

Among those who defend the affirmative part there is not one principle. Some affirm it because they think clerics have nowise dominion of this superfluous part; others, who although they acknowledge true dominion, wish it bound, as, e.g., the dominion of an heir over an inheritance burdened with legacies or debts. This opinion resting on one or other foundation we confess outright to be probable, safer in practice and to be counseled to clerics. However, with the more probable and now more common opinion,

I say 1° : It is more probable that clerics, at least now after benefices have been created, have absolute dominion of the part of ecclesiastical revenues superfluous to congruous sustentation, so that concerning it they can validly dispose at pleasure (though illicitly, as I shall say below); nor are they bound by justice to bestow it upon the poor or pious uses, and consequently are they not liable to restitution, if they spend it on other uses. So Ostiensis, Barbatus, Adrianus, Dominicus Soto, Bannez, Lorca, Valencia, Lopez, Covarruvias, Lessius, Sarmiento, Banat, Garcias, Wigers, Sylvius, Cabassutius, and more.

Vol. I, Tr. VIII, Pt. I, Ch. II, Art. I, § II. On the Subject of Dominion · Vol. I, Tr. IX, Pt. I, Ch. II, Art. II, § I. On Minors · Vol. I, Tr. IX, Pt. I, Ch. II, Art. II, § II. On Wives

Proof. of conclusion 1° by authority of canons. Cap. Consuetudinem, on clerics not resident, lib. III, tit. 3, in 6°, it is enacted that those absent from choir do not acquire dominion of daily distributions, nor make them their own. The same is enacted by Trent, sess. XXII, cap. 3 On Reform. Cap. Commissa, On election., in 6°, it is said that one accepting a parish without intention of receiving priesthood within the year ought to restitute the fruits of the parish, because he makes them not his own. Pius V, bull 138, declares that a beneficed man not reciting the office does not make the fruits his own. The same Trent declares, sess. XXIV, cap. 12 On Reform., of him who within two months emits not profession of faith. Ergo, a contrario sensu, those who satisfy the imposed obligations acquire dominion of these fruits and make them their own, else otherwise those who satisfy the office and those who do not satisfy would be equal.

n. 15.

Nor say that this dominion is bound; for nothing of the kind is intimated by the cited authorities, nor can it be proved by other authority or sufficient reason, as will appear from the solution of objections. Nay rather the contrary is evinced from the following reasons : unless perchance you say the bond affects not the things themselves, but persons, insofar as they are bound by law of charity or burden of restitution.

n. 16.

Proof. 2nd by reason. According to the common opinion, which the greater and saner part of adversaries admits, beneficiaries are absolute masters of certain fruits, namely those necessary to their sustentation, and concerning these they can dispose at least validly at pleasure. Ergo also of all. —

n. 17.

Proof of the consequence. Beneficiaries receive all revenues of their benefices indistinctly, and can apply these or those to their sustentation, and consequently concerning these or those, validly at least, dispose at pleasure. Ergo on the side of fruits they cannot be said masters of certain determinate ones, and not of others; but, since all are received indistinctly, indistinctly they undergo the same lot regarding reason of dominion. Ergo of all : so that the obligation they have of expending superfluous goods on pious uses is not real, that is, annexed to the thing itself, but personal, that is, imposed on the person itself. Which obligation neither repugns true and absolute dominion, nor impedes valid disposition of things, nor induces burden of restitution, as appears in the obligation of almsgiving.

n. 18.

Proof 3°. Whoever possesses a thing is judged master of it, nor can he be compelled by justice to abdicate it unless it appear to be another's, according to rule 65 of law in 6°: «In equal fault or case, the condition of the possessor is better.» But clerics possess all the fruits of their benefice, nor can it be proved from any head that they have not dominion of them, or are held to restitution if they expend them ill. Ergo.

n. 19.

Proof of the minor. That cannot be proved, neither on the part of the donors, nor on the part of the Church receiving.

n. 20.

Not on the part of donors; because the faithful gave these goods simply and absolutely to the Church and ecclesiastics, not truly under a condition at least expressed and reduced into pact of bestowing superfluous goods on pious uses. Although perchance they hoped and intended this, yet they did not draw this intention into pact as a condition sine qua non; which would be necessary that the donation be judged conditional, and not absolute. For the inner mind of the contractor affects not the contract, nor obligates the other contractor by justice, unless it be expressed and reduced into pact : e.g., Caius bequeaths to Titius his student nephew a thousand florins, likewise to Sempronius, another nephew, head of a family, a thousand aurei, intending and hoping that the latter expend a thousand florins on studies, and the former a thousand aurei for relief of family; if nevertheless he express not this intention, nor apply it as condition, Titius becomes absolute master of the thousand florins, and Sempronius of the thousand aurei, nor are they held to restitution if they spend them on other uses. So again you give alms to a pauper, intending and hoping that he pray for you; the pauper prays not for you, nevertheless he becomes absolute master of the alms, nor is he held to restitute it.

n. 21.

— Proof therefore of the antecedent. 1° This condition expressed and reduced into pact is read nowhere, let the adversaries show. 2° If such donation of the faithful were conditional, it would follow that clerics who bestow not superfluous goods on the poor are masters of no part of their revenues (which the greater part of adversaries denies), since a donation under unfulfilled condition falls. Ergo.

n. 22.

Not on the part of the Church receiving. If the Church judged or wished clerics held by strict right to restitution of fruits ill spent, doubtless she would have declared it somewhere in clear and express terms. But she declared this nowhere in clear and express terms. Ergo. — The major seems necessarily to be admitted, since this matter is of greatest moment, seeing that it regards the conscience of all beneficiaries, public edification and relief of the poor, and by several is recalled into doubt or denied.

n. 23.

— Proof therefore of the minor. No canon whatsoever either of councils or Pontiffs could the adversaries bring forward hitherto which clearly and expressly import or signify this obligation of restitution. Ergo nowhere does the Church declare it, or let them say where.

n. 24.

You will say : The Church in many canons enacts that clerics ought to dispense ecclesiastical goods not as proper but as common, that they are not masters but administrators only. Similarly the holy Fathers, Jerome, Aug., Chrysostom, Ambrose, Gregory, say ecclesiastical goods are the poor's, whereby while defrauded there is rapine and sacrilege, and everywhere these goods are called «things of God, goods of the Crucified, patrimonies of the poor.» Ergo.

n. 25.

I answer. As to canons and holy Fathers who flourished before the eighth century, they are to be understood of ecclesiastical goods before their division; for although by B. Sylvester this division was begun, yet only in the eighth century did it begin to be received in many places. As to those who follow the eighth century, thus they spoke according to pious exaggeration, or, as it is said, concionatorily, not theologically, on account of the strictest obligation by which clerics are bound to bestow these goods on pious uses, as I shall say below; for in similar fashion they speak of secular rich men, whom nevertheless no one denies absolute masters of their own goods. Thus St. Basil, of secular misers : «It is the bread of the hungry, he says, which thou retainest; the garment of the naked which thou keepest in thy chest, etc.» Aug., Serm. 206²⁶³, of seculars says, they invade others' goods who bestow not superfluous goods on the poor. ²⁶³ Formerly de Diversis 70.

n. 26.

Likewise ecclesiastical goods are called «things of God, goods of the Crucified, etc.,» because for Christ's sake and unto worship of God and sustentation of his ministers were they donated; but not that none besides Christ or God be master of them : unless perchance thou understand it thus, that none be master of them as of patrimonial goods, as though concerning these as licitly as concerning those he could dispose at pleasure.

n. 27.

Similarly they are called patrimonies and aliment of the poor, because they are owed to them by rigorous precept of the religion and charity of the Church, though not of justice. Thus by the same holy Fathers sometimes the superfluous goods of laymen are equally called patrimonies of the poor, although most certainly they are not owed them by justice, but by charity only. Moreover these and like manners of speaking can rightly be understood of ecclesiastical goods, insofar as they embrace not only goods of clerics, but fabric and poor.

n. 28.

The mind of D. Thomas is expounded in proof of the conclusion. The holy Doctor, Quodl. VI, q. 7, a. 12, where he discusses whether clerics are bound under mortal sin to give alms from superfluous goods, when in the body he had spoken generally of ecclesiastical goods as such, that clerics are not masters but dispensers, and had resolved that they can sin twofoldly in administration of their goods : one way, from condition of the thing itself, namely while he usurps to himself as own what belongs to another; another way, from disordered use of those things which fall to his part, as of others, that is of patrimonial goods, he had said at the beginning of the body (which already plainly asserts our opinion), he proposes to himself argument third in order in these words : «Whoever consumes what belongs to another is held to restitution. But goods of clerics are the poor's, as is evident by the gloss of Jerome above that Isai., III, 14 : The spoils of the poor are in your house. Ergo, if clerics uselessly consume ecclesiastical goods, they are held to restitute elsewhere to the poor, if they have wherewith.» Behold the very argument of the adversaries. Let us hear the answer of the holy Doctor : «To the third, he says, it must be said that ecclesiastical goods are to be dispensed not only to the poor, but also to the ministers of the Church. Whence, according to the canons, they ought to be divided in this way, that some part fall to uses of the poor, and some part to uses of the ministers and to the worship of the Church. Otherwise therefore must be said of those ecclesiastical goods which are principally to be attributed to needs of the poor, and consequently to needs of ministers, such as are goods of hospitals and other suchlike; and otherwise of those goods which are principally attributed to uses of ministers, such as are prebends of clerics and other suchlike. For in the former goods sin is committed not only by abuse, but even from the very condition of things, while someone takes to his own uses what belongs to another; and therefore he is held to restitution, as a defrauder of another's property. In the latter goods truly sin is committed only by abuse, as was said of patrimonial goods. Whence one is held not to restitution, but only to performing penance.»

n. 29.

The same opinion and for the most part the same manner of speaking the holy Doctor holds constantly in the Summa, 2a 2ae, q. 185, a. 7, c, where he asks : «Whether bishops sin mortally, if they lavish not on the poor ecclesiastical goods which they administer.» Whatever moreover he resolves of bishops in this part, the same must be said of other beneficed men. Therefore, since he had premised that bishops have absolute dominion of their proper goods, and by virtue of such dominion can validly dispose of them at pleasure, nor are they held to restitution if they expend them ill, seeing that they sin not from condition of things, but because of disorder of affection; but of ecclesiastical goods, namely generally and indistinctly, that they are not masters, but administrators and procurators only, because among ecclesiastical goods, besides goods of the bishop, are numbered also goods of other clerics, of fabric and of the poor, of which bishops are not masters but administrators only : these things, I say, premised, the holy Doctor subjoins : «If therefore the goods which ought to fall to the use of the bishop be distinct from those which are to be bestowed on the poor and ministers and worship of the Church, and if the bishop retain something to himself of those which are to be bestowed on the poor, or even to be expended on the use of ministers or divine worship : there is no doubt that he acts against faith of dispensation, sins mortally and is held to restitution. Of these however (note well) which are specially assigned to his own use, there seems to be the same reason as concerning proper goods : namely that on account of immoderate affection and use he sins indeed, if he retain immoderately to himself and aid not others as required debt of charity.» Here this clause is wanting by error of typographer or copyist : «He is held however not to restitution,» notes Sylvius, after Dominicus Soto and the Douai edition, and well; else the sentence will be imperfect, nor will there be any distinction which the holy Doctor intends, between goods assigned to the use of bishop and not assigned, but everywhere will be sin and obligation of restituting.

n. 30.

Truly, although St. Thomas expressed not this clause, that he indicated it more than sufficiently and that it certainly is of his mind the following moments evidently prove. 1° The disparity of which just now, which the holy Doctor intends between both goods, as is evident from text; which otherwise does not subsist. 2° That he says the same reason is of goods assigned to use of bishop as of proper goods. This parity moreover St. Thomas understands doubtless, not indeed as regards everything generally (for it is certain that ecclesiastical goods are more strictly tied to poor and pious uses than patrimonial ones, and this the holy Doctor openly signifies ad 2, where he says those cannot be expended to enrich parents, which nevertheless is licit of patrimonial goods); but this parity, I say, he understands as regards all those things which he previously attributed to patrimonial goods. For of this proposition : «There seems to be the same reason as concerning proper goods,» the natural and plain sense is : There seems to be need to say what I said of proper goods. I said moreover of proper goods, that bishops «have true dominion of them,» and thence are not obligated «from the very condition of things to confer them on others,» but can «at pleasure» validly dispose of them, although sometimes illicitly, on account of «disorder of affection,» either retaining to himself more than behooves, or bestowing less than charity requires on the poor; in which case however, «they are not held to restitution, because such things are assigned to their dominion.» Ergo the same throughout he judges and says of goods assigned to use of bishop, unless you wish to accuse him both of falsehood and of drowsiness. And by these all evasions of adversaries are cut off.

n. 31.

Father Henno answers that the holy Doctor speaks «manifestly» of the portion necessary to congruous sustentation, not of superfluous. And I say this evasion «manifestly» repugns the text of St. Thomas. For the holy Doctor speaks, as is evident to the reader, of the whole portion specially assigned to use of bishop, and as it is distinct from the other portions of poor, fabric and other clerics. And besides, if clerics be masters of any part, they are masters of the whole, as we proved above.

n. 32.

Nevertheless the praised author confidently proceeds in these words : «That moreover D. Thomas favors not the adversaries but us most formally, is evident from Quodlibet VI, where he says : «Of ecclesiastical goods clerics are not true masters», but dispensers.» With peace to the religious man I would say : He reads not St. Thomas in the place cited; else he would have seen there the same «most formally» asserting that the cleric unduly spending ecclesiastical goods assigned to his own uses sins only by abuse, as he had said of patrimonial goods, «nor is held to restitution, but only to performing penance.» Let the text cited above be re-read.

n. 33.

When truly St. Thomas says, not only in the cited Quodlibet but also in the Summa, cited, but also in the Summa, question now often cited 185, that clerics are not masters of ecclesiastical goods but dispensers, he speaks not of ecclesiastical goods which are specially destined to uses of clerics, unless you wish him speaking contradictory things within few lines, but of ecclesiastical goods, either considered before division, or, which is truer, of those indeed after division, but indistinctly and in common, insofar as they comprehend goods of fabric and those which «are principally to be attributed to needs of the poor, and consequently to needs of ministers, such as are goods of hospitals and other suchlike.» These things not gratis nor from us, but «most formally,» as you see, from St. Thomas, the cited Quodlibet. Moreover of such ecclesiastical goods we say not that clerics are masters, but dispensers only. Such ecclesiastical goods moreover are called such, both because, as St. Thomas says, «consequently they are to be attributed to needs of ecclesiastics»; and because they are goods given first to the Church, and by the Church assigned to the aforesaid uses; and finally because their administration is entrusted to ecclesiastics.

n. 34.

Let the fair reader judge now by what species of truth the most illustrious Pontas said, word Beneficier, case 13, that St. Thomas «persevered even unto death in the opposite opinion, as, he says, is evident in his Summa, where he most clearly and without ambiguity teaches the same opinion.» This Parisian Doctor would need to be far more sharp-sighted than the older and sharpest interpreters of St. Thomas, who saw in him most clearly and without ambiguity what those highest and sharpest men turning over night and day his Summa Angelica never saw the shadow of; nay rather whose opposite they acknowledged handed down most clearly and without ambiguity.

n. 35.

I say 2nd : Clerics by stricter right than seculars are bound to bestow ecclesiastical goods superfluous upon the poor or pious uses, so that they sin mortally if they spend them on profane uses. It is common.

n. 36.

Proof. 1° from the strictest precept of the Church which renews from ancient canons Trent, sess. XXV, On Reform. cap. 1, in these words : «He altogether forbids them (bishops) that they strive to enrich kinsmen and household servants from revenues of the Church, since also the Canons of the Apostles prohibit giving ecclesiastical things, which are God's, to kinsmen, but, if they be poor, distribute to them as to the poor; nor sell or dissipate them for their sake.» Which he extends below to all beneficed men.

n. 37.

Where this particle is to be noted, «which are God's,» whereby the motive of this precept is signified. Since these goods are offered to God, or rather to the Church, that they may fall to worship of God (for God cannot be visibly approached, nor does he need these things), it is fitting, from their very condition, that they be expended on uses grateful to God, howsoever God himself would spend them, if as man he disposed of them. And therefore the Church commanded that they be expended on such uses.

n. 38.

Because however the Church commanding or forbidding something from motive of some virtue transfers the matter commanded or forbidden to species of that virtue; thus, e.g., because she forbids theft in sacred place from motive of religion, to steal in sacred place is sin against religion : hence follows that clerics, not only by obedience due to the Church, but even by virtue of religion, are bound to expend superfluous goods on pious uses.

n. 39.

Proof. 2nd. Clerics, by reason of grade obtained in the Church, are as fathers and tutors of the poor. Ergo they are bound by stricter precept of charity than seculars to succor them.

n. 40.

Therefore, according to us, beneficiaries are bound threefoldly by title to expend fruits superfluous to themselves of their benefice toward relief of the poor, or other pious uses, 1° from law of the Church; 2° from virtue of religion; 3° from precept of charity²⁶⁴ ²⁶⁴ Because the doctrine here expounded had been attacked unjustly and violently by Daniel Concina, of the Dominican family, Billuart had defended his opinion and himself most sharply against his Brother, inserting here a Christian Admonition to R. Father Daniel Concina, author of CHRISTIAN THEOLOGY, in defense of the preceding doctrine. Since truly this prolix apology brings forth no new argument, and would occupy place now in vain, we judged it to be done away. Should anyone perhaps please to read it, let him approach the fuller Summa.

…and 23 more passages — all of them are listed on the topic page.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 20 passages (filed under the subtopics)

Vol. I, Tr. VIII, Pt. I, Ch. II, Art. I, § II. On the Subject of Dominion

n. 354.

I say. Every man, and only man, is capable of dominion. The reason is that, according to St. Thomas, the foundation of dominion is rational nature. And indeed, every man, and only man, can know the utility of things, will to apply them to himself if they belong to no one, and dispose of them thus applied to himself for his own end and his own advantage. Besides, he alone is capable of right or dominion who is capable of injury; but he alone suffers injury who suffers it against his will: however, he must be unwilling not indeed through the will by which he wills his own thing, but through the will by which he wills to retain the right to the thing itself, or to oblige others not to take it away. But brute animals cannot have such a will, since they can know neither moral obligation nor turpitude. Therefore.

Hence neither little children nor the insane themselves are incapable of dominion, as is clear from the practice of all peoples and from the reason just given; for, as was said, dominion is founded in the rational nature of men and its powers, but not in the actual exercise of those powers. Cf. St. Thomas, 2-2, q. 66, art. 1. - Lugo, disp. 3, n. 1.

n. 355.

Point I. On the Dominion of Children of the Family

Children of the family here are properly called those who, born from legitimate marriage or legitimated, of whatever sex they may be, are still subject to paternal power. - I said 1st. born from legitimate marriage or legitimated, because concerning the dominion of those who are spurious, judgment must be made only according to the equity of the right of nature, but not according to the special dispositions of the law. - I said 2nd. still subject to paternal power, because since only children not yet emancipated are reputed by law as infants, limitations are given only concerning their dominion, and therefore the question can be raised concerning them alone.

But emancipation can take place either by general law or by privilege and special declaration, and at a diverse age of children of the family, according to the diversity of regions. - Among us, with two or three States excepted, emancipation takes place in the twenty-first year both for males and for females. Cf. Wells, Every Man His Own Lawyer, p. 240.

n. 356.

You Will Ask. What can be the diverse goods of children of the family, and what dominion can they exercise?

Response 1st. From Roman Law the goods of children are: 1st. castrensia, that is, acquired on occasion of military service; 2nd. quasi-castrensia, or acquired from some public office, e.g., of judge, physician, etc.; 3rd. adventitia, which come from inheritance or donation, yet not made by the father or with a view to the father; 4th. profectitia, which the son gains from paternal goods, e.g., by carrying on business with the father's money, or which are given to him with a view to the father. - Moreover, of castrensia or quasi-castrensia goods the son has both dominion of property and usufruct; he also has administration if he has attained puberty. But the property of adventitia belongs to the son, but usufruct and administration to the father; finally profectitia in all respects belong to the father. Cf. St. Alphonsus, n. 488.

Response 2nd. Since, as Kenrick says, "these distinctions are not in force in the law which we use," the proposed question must be answered by distinguishing between the case in which the child of the family receives goods by title of donation or inheritance, and the case in which he acquires them by virtue of labor or industry. - In the first case, administration belongs to the father, but dominion of property and usufruct to the son. In the other, there is need of a new distinction; for either 1st. the son labors outside the paternal house and is not fed by the father, and then he will be able to make the goods which he gains his own, because he has been dismissed or is reputed dismissed; or 2nd. the son labors in the paternal house or outside it and is fed by the father, and then all things which he gains belong to the father.

But in that last case a threefold exception must be made in favor of the son, namely: 1st. if the father remits from his right, and he is considered to remit if he permits the son to contract marriage; 2nd. if the son by reason of his condition is not held to labor; 3rd. if he has evidently and undoubtedly labored more than the others of the family. - Although this last opinion can sometimes be held in practice, at least after the fact, nevertheless it is not to be taught publicly everywhere on account of the inconveniences which would follow through abuse. - Cf. St. Alphonsus, nn. 488 and 544. - Lessius, lib. 2, cap. 12, n. 81. - Kenrick, tract. 10, part. 1, n. 41. - Kent, Comment., vol. 2, nn. 191 and seq.

See Bouvier, Law Dictionary, 8th Edit., Parent and Child. Cf. Right to earnings of the child.

n. 357.

Point II. On the Dominion of Wives

From Roman Law the goods of a wife are of three kinds, namely:

1st. Dotal goods, or goods which the wife already possessed, or which her father conceded to her for contracting marriage: the administration and usufruct of these are in the possession of the husband, but direct dominion is in the possession of the wife.

2nd. Paraphernal goods, or goods which the wife reserved to herself besides the dowry: these belong to her by full right.

3rd. Common goods, or goods which, by agreement had between the spouses or by determination of law, are brought into a certain partnership: of these, both direct and useful dominion belong to both spouses. - Cf. St. Alphonsus, n. 489. - Elbel, n. 69.

n. 358.

But in this region the three aforesaid names are taken otherwise, and the dominion of wives is different in it. For:

1st. "The dotal goods of a wife, according to our customs," says Kenrick, "are the third part of the immovable goods which the husband has possessed during marriage, which therefore he cannot alienate to the prejudice of the wife, unless she herself, questioned separately by a magistrate, has freely consented, and by her signature has renounced her right. If the husband by testament has left certain goods to the wife, that her dowry be excluded, it is in her power to reject them so that she may enjoy her right. Moreover, only during her life does her right remain, and when she has died, it passes to the heirs of the husband." Cf. Kenrick, n. 45. - Bouvier, Law Dictionary, under the word Dower.

2nd. Paraphernal goods among us mean all goods which pertain to the clothing or ornament of a woman, according to her condition, and which she used during marriage: these after the death of the husband belong altogether to the wife. - Cf. Kenrick, n. 42. - Bouvier, Law Dictionary, under the word Paraphernalia. - Wells, Every Man, etc., p. 82.

3rd. Common goods are those which are acquired by husband and wife together by title of purchase or of donation had during marriage. Each spouse possesses these goods as if the two spouses were one person, so that neither can sell them without the consent of the other. Cf. Kenrick, n. 44. - Kent, Comment., vol. 4, part 6, lect. 55. - Bouvier, Law Dictionary, §§ Dower, Husband and Wife.

n. 359.

Questions

Question 1. Can a wife give alms from common goods?

Response. Affirmatively, even if otherwise she has her own goods, provided that it is done according to the custom of other women of the same condition. The reason is that a wife is not a servant but a partner; therefore she must have a certain administration in the house of the husband. Besides, the husband is deservedly presumed to consent to those things which are done by the wife according to the respectable custom of condition and region; and if he shows himself unwilling, such dissent is considered irrational, because the husband cannot deprive the wife of a right conceded to her by legitimate custom. - Cf. St. Alphonsus, n. 540. - Kenrick, n. 46.

n. 359, Q. 2.

Question 2. Does a wife sin by giving something from common goods for relieving the necessity of parents or children whom she has had from a prior marriage?

Response. Negatively, if she does not have her own goods, and through this necessary things are not lacking to the husband and his family. The reason is that by the right of nature the wife is held to relieve the aforesaid blood relatives, and therefore the husband is reasonably presumed to consent to this. Cf. St. Alphonsus, n. 542. - Kenrick, n. 46.

n. 359, Q. 3.

Question 3. Is the wife held to restore goods given in this manner when, the husband having died, she comes into the inheritance of dotal goods, or before his death she has acquired paraphernal goods?

Response. Negatively, if the goods given are of small moment, because then they are held as common alms, which, if they are made moderately, do not carry with themselves the burden of restitution. Indeed, the response must also be negative, at least probably, if the goods withdrawn are of greater moment; because all burdens which, while marriage stands, naturally befall one of the spouses are considered common to the other, and therefore the husband cannot be reasonably unwilling.

n. 360.

Point III. On the Dominion of Clerics

The goods of clerics are distinguished into four kinds, namely: 1st. Patrimonial goods, which come from paternal inheritance or from any other profane cause, for instance from donation, succession, etc.; 2nd. Quasi-patrimonial goods, which are also called quasi-ecclesiastical or casual, and these are those which are acquired on occasion and in view of functions, e.g., by celebrating Mass, preaching, etc.; 3rd. Ecclesiastical goods, which are received from benefices of the Church, e.g., from revenues of benefices, etc.; 4th. Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably.

n. 361.

I say. Clerics have perfect dominion in patrimonial, quasi-patrimonial, and parcimonial goods, so that they can dispose of them at will. The reason is both that that dominion is nowhere found restricted, and that in this all theologians, even the stricter ones, agree.

Although a benefice-holder may have other non-beneficial goods, he can freely use and enjoy benefice fruits which are necessary for his honorable support; but he is held by the obligation of expending superfluous fruits for the poor or for pious causes, with the prescription of can. 239, § 1, n. 19 being saved (Can. 1473).

§ 1. Unless the contrary is proved, those things which are donated to rectors of churches, even of religious, are to be presumed to have been donated to the church.

§ 2. A donation made to the church cannot be repudiated by its rector or Superior without the license of the Ordinary.

§ 3. If a donation has been illegitimately repudiated, on account of the damages which have arisen thence an action is given for restitution in full or for indemnity.

§ 4. A donation made to a church and legitimately accepted by the same cannot be revoked on account of the ungrateful disposition of the Prelate or rector (Can. 1536).

n. 362.

Questions

Question 1. Are clerics badly expending the surplus of ecclesiastical goods held to restitution?

Response. Certain strict theologians, such as Collet and Antoine, respond affirmatively, because they say: clerics are only administrators and stewards of ecclesiastical goods. But the opinion denying is probable, because although it is established concerning the precept of giving these superfluous goods, nevertheless it is not established concerning the origin of this obligation, namely whether it proceeds from justice. This opinion is also called probable by St. Alphonsus in his reformed propositions, especially on account of the authority of St. Thomas. Observe moreover that for the gravity of fault in the violation of this ecclesiastical precept there is required a quantity much greater than in theft, namely, according to the truer opinion, about a twentieth part of the superfluous goods. - Cf. St. Thomas, 2-2, q. 185, art. 7. - St. Alphonsus, n. 491; and QQ. Reform., n. 10.

n. 362, Q. 2.

Question 2. Whether the annual pension which is given to our Missionaries from the renting of pews is to be assimilated to ecclesiastical goods?

Response. According to the Constitution Romanos Pontifices, this annual pension is to be held as ecclesiastical goods.

§ 1. Temporal goods, whether corporeal, both immovable and movable, or incorporeal, which belong either to the universal Church and to the Apostolic See or to another moral person in the Church, are ecclesiastical goods (Can. 1497).

n. 363.

Point IV. On the Dominion of Authors

I say. Any man from natural right has a right in the fruit of his own ingenuity or industry. For if a thing bears fruit for its owner, a fortiori this must be true concerning internal faculties, since nothing can be more proper to a man. Wherefore the inventor of some art has a strict right that his secret not be stolen and, against his will, divulged to the public; but if this is done, the one causing damage will be held to restitution according to the measure of the injury inflicted. - Cf. Wells, Every Man, etc.; qq. 243 and seq.

n. 364.

Questions

Question 1. Does he violate another's right who publishes in type a manuscript work without the consent of the author?

Response. Affirmatively; and the reason is that it is established among all that a manuscript work is not in the public domain, but lies under the dominion of the author. The same must be said of one who would publish in type the public lectures of some professor or the sermon of an orator; for to teach publicly or to preach is not to hand over one's work to another for publishing and selling. - Yet except the case if someone delivers again from the pulpit a sermon already heard as if composed by himself, both because through this he does not properly claim the thing of another for himself, and because he does not necessarily and of itself harm the prior orator. - Cf. Carrière, n. 61.

n. 364, Q. 2.

Question 2. Does he who has published a book in type have the right of preventing anyone from committing it to the press and selling it with damage to the author or to the bookseller to whom the author has transmitted his right?

Response. Affirmatively, by positive right prevailing in most places, just as in these States, provided nevertheless that the conditions or formalities required by law have been fulfilled. But if there is question of natural right, it is controverted, and to some the denying opinion seems probable, because the author has a right in his work as long as it remains his own, namely is not handed over to the community, and thus as it were becomes of common right. Wherefore according to these, if someone in this region committed to type a book published in Europe without the permission of the author, strictly speaking and looking only to the right of nature, he does not seem to be accused of the temporal pecuniary damage which the author would suffer thence. I said 1st. strictly speaking, because by such a manner of acting, if not a right properly so called, public uprightness and natural decency seem to be injured. - I said 2nd. looking only to the right of nature, because if the contrary has been provided through international stipulation, the violator certainly would be held to paying the fine and congruous compensation. I said 3rd. concerning temporal pecuniary damage, for if the same or almost the same book were published under another name, then the true author would be damaged in the goods of reputation, which can never be lawful, and a sin of this kind is designated by a special name among all nations. - Cf. Carrière, ibid. - Kenrick, tract. 10, part. 1, nn. 13 and 14. - Bouvier, Law Dictionary, Ed. 8th. Cf. Copyright, De lege lata among us (March 4, 1909).

Vol. I, Tr. IX, Pt. I, Ch. II, Art. II, § I. On Minors

n. 481.

Those are called minors who have not yet reached that age at which, apart from the authority of the father, or tutor, or curator, they can act civilly. A person who has not completed the twenty-first year of age is a minor.

A minor, if male, is judged pubescent from the completed fourteenth year; if female, from the completed twelfth year.

One not pubescent before the full seventh year is called an infant or boy or little child, and is judged not master of himself; but after the seventh year has been completed, he is presumed to have the use of reason. All who are habitually lacking the use of reason are assimilated to an infant. - Cf. Can. 88. A minor in the exercise of his rights remains subject to the power of parents or tutors, except in those things in which the law regards minors as exempt from paternal power.

n. 482.

I say, 1st. By Roman law, minors not pubescent, even if they have the consent of the father, are not obliged if they contract concerning camp goods or quasi-camp goods; but those who are pubescent are obliged, provided it is not a question of alienating immovable goods or precious movable goods. But concerning profectitious and adventitious goods they can by no means dispose, because regularly they do not have their administration. But wards, by the authority of a tutor, and pubescent minors bereft of a father, with the consent of a curator, validly contract in all things, except immovable goods or precious movable goods, for which the decree of a judge is required.

I say, 2nd. By our law, minors can contract for things necessary for life and education, when the father or tutor does not supply them. But in other things they can indeed contract, but not irrevocably, so that if the contract certainly and evidently favors them, they can stand by it; otherwise they are able to rescind it. Cf. Wells, Every Man, etc., p. 240. - Kent, Comment. vol. 2, part 4, lect. 31, n. 235. - Kenrick, tract. 11, n. 5.

n. 483.

You Will Resolve. - 1st. A minor can use the benefit of the law with a safe conscience, excluding the case of bad faith, since the law was enacted in his favor. Nevertheless he cannot ask for rescission so that he may be exempted from restitution of money which he accepted as a loan and squandered, although he has derived no profit therefrom; for he is held to fulfill the obligation which he certainly knew while he was asking for and receiving the money. Nevertheless others deny this, because civil law, by establishing this incapacity of minors, intends to prevent minors from squandering their goods and wicked men from abusing their inexperience; but it would not attain this end unless it took away in both forums the obligation arising from these contracts. Therefore let others impute to themselves the damage which they suffer. - Cf. Genicot, n. 580. - Marres, n. 127. - Noldin, n. 474.

2nd. He who has contracted with a minor can stand by the contract until nullity is invoked by the minor or by his father or tutor. Nevertheless, private request is sufficient for him to be held to rescission, when the injury is entirely open.

3rd. The minor alone, both by himself and through others by whom he is represented, can ask for rescission of the contract; whence those who have contracted with him cannot oppose his incapacity.

4th. A minor can no longer impugn an act carried out in minority when, having now become of age, he has ratified it; because he was fully capable of contracting when he ratified the act.

Vol. I, Tr. IX, Pt. I, Ch. II, Art. II, § II. On Wives

n. 484.

I say, 1st. By Roman law a wife cannot contract or dispose concerning the dowry and its fruits, nor concerning the goods of the family, when the husband is present and able to administer these goods, when he is reasonably unwilling. It is otherwise if the husband is absent, insane, or foolish, or if he expressly or tacitly consents, or if he is not reasonably unwilling. But she can, at her pleasure, contract or dispose, even when the husband is unwilling, concerning paraphernal goods.

I say, 2nd. By our law she can contract concerning all those things which are required for her nourishment and decent sustenance, even if the husband contradicts, provided nevertheless that she does not live with an adulterer or has not departed of her own accord from the house of her husband. But in those States where wives are permitted to be engaged in separate commerce, they can contract in all those things which are directed to this commerce. - Cf. Kenrick, tract. 11, n. 4. - Kent, Comment. vol. 2, part 4, lect. 28, n. 154.

n. 485.

You Will Resolve. - 1st. If a wife contracts without the consent of the husband with injury to his rights or goods, the contract is altogether void. But a wife of bad faith, although in that case she cannot oblige the husband, is nevertheless held to repair the damage inflicted upon another.

2nd. The nullity of a wife's contract can be invoked by the husband in conscience, even if he has not suffered injury properly so called, because the nullity was sanctioned chiefly in his favor.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 56 passages (filed under the subtopics)

Tr. VII, Disputation II: On the Sta…, Question V: Whether the Church, and bishops, have dominion over certain temporal things · Tr. VII, Disputation II: On the Sta…, Question VI: Whether bishops, and other ecclesiastics, have dominion over revenues that are superfluous to their state

Tr. VII, Disputation II: On the Sta…, Question V: Whether the Church, and bishops, have dominion over certain temporal things

THERE WERE certain heretics, whom Valencia disp. 5. quaest. 10. punct. 2. relates, whom Vuicleph followed; he was condemned for it in the Council of Constance, sess. 8., as were those also denying that dominion over things is lawful to ecclesiastics.

I ASSERT, however, as of faith, that dominion over temporal things is lawful to the Church, and to Bishops.

IT IS PROVED by D. Bonaventure, in Apol. pauperum, responsionis tertiae cap. 2., from Iosue 21, where the priests of the old law had possessions and fields.

IT IS PROVED secondly by the holy Doctor, resp. tertiae cap. 1. ex 5. Actorum, where Peter says to Ananias: While it remained, did it not remain to thee, etc., as Chrysost. observes, homil. 12. in Acta, and Valencia notes, disp. 5. quaest. 10. punct. 2. It was declared also by the Church, as the holy Doctor teaches, cap. 2. resp. quartae; and it was declared in the Councils of Antioch, cap. 24, Agath. cap. 48, Carthag. III. cap. 49, and it is had in multis decretis, which the holy Doctor brings forward, loc. cit.

n. 5.

FIRST, Can. si quis de clericis 12. quaest. 2. it is had: if any of the clerics should presume, with damnable and punishable obstinacy, either to suppress, or deny, or take away, or perhaps hand over to adversaries, the documents by which the possession of a Church is firmly held, whatsoever loss has been brought upon the Church through the absence of the documents, let him restore from his own means.

n. 6.

D. GREGORY the Great, registr. lib. 2. epist. 43., and it is related at 12. quaest. 2. c. Sicut, where it is had, as the Church ought not to lose her own things, so she ought not with the heat of rapacity to invade things belonging to others.

n. 7.

IN the Council of Agath.: If a Bishop shall have granted liberty to slaves of the Church, those things which had been given to them in the manumission they shall hold with perpetual firmness. The Church therefore has slaves; but where there is servitude, the correlative dominion is present, as the holy Doctor infers.

n. 8.

MOREOVER, that distinct dominions belong to distinct Churches is proved by the holy Doctor, 16. quaest. 2. Can. Si quis, Nicholas P., where he says: if any of the Bishops should arrange to build a church in the territory of another city for whatever advantage of his own, let him not presume to make the dedication, which belongs to him in whose territory the church arises.

n. 9.

THE SAME cause, quaest. 3. Can. Praesulum, Gelasius Pope: it has also pleased that this be annexed, that if, which God forbid, the means of a Church, and likewise Dioceses, should be possessed by certain Bishops, claiming them to themselves by right, the tricennial law has closed it: because the authority of our sons the Princes has so commanded.

n. 10.

THE SAME quaest., among the things mentioned, where the question of boundaries is decided, Innocent says: cap. 6. inter, si a legitimate boundary does not enclose the same Basilica, and yet a long-time prescription is proven to be alleged, the appeal of the present Bishop shall not avail: since the tricennial objection imposes silence upon them. These things also secular Princes enjoin, as the Roman authority decreed for prelates.

n. 11.

Hence the holy Doctor gathers not only that Churches have distinct dominion, because they prescribe mutually against each other, but also that they have it according to Divine law equally, and human, for the reason that prescription, as is evident in the alleged canon, arises from the edict of Princes; yet the approval rests on the authority of the supreme Pontiff.

n. 12.

He proves this more openly from 11. quaest. 1., the words of Ambrose against Auxentius: If the emperor demands tribute, we do not deny it; let the lands of the Church pay tribute (the holy Doctor infers) but he who is bound to tribute to Caesar by reason of estates — those estates are held not so much by divine law as by human, the Savior bearing witness, who says, Matth. 22: Render to Caesar the things that are Caesar's; and to God, the things that are God's.

Further, dist. 8. cap. 1., from D. Augustine on John: By what right do you defend the villas of the Church? Divine, or human? Divine right is had in the Divine scriptures; human in the laws of kings. Whence by what right does anyone possess what he possesses? Is it not by human right? Not by Divine right: The earth is the Lord's, and the fullness thereof, Psal. 23. The same he has on John: Do not say, what is it to me, and to the king? What then to thee, and to thy possession? for by the laws of kings possessions are possessed. Thou hast said: what is it to me, and to the king? Do not call them thy possessions, for thou hast thyself renounced those human laws by which possessions are possessed. What can be said clearer than these things (the holy Doctor says) to show that the Church truly possesses temporal goods by Divine and human right? Wherefore he proclaims him importunate and impudent who denies these things.

It is proved also by reason by the holy Doctor at the end of that chapter, and D. Thom. art. 6, which Gregorius de Valencia, puncto 6, proclaims evident. To that which is not in the precept, but only in the counsel, no one is bound, unless someone binds himself to it by a particular vow; or it be necessary to execute the duty of the office owed: But the renunciation of temporal things is not commanded by God, nor do ecclesiastics vow it, nor is it necessary for ecclesiastics to rightly fulfill their function: Therefore. Tannerus also uses this argument, disp. 6. quaest. 3. dubio 3. num. 61.

n. 15.

He proves the same from the Fathers, Chrysost. homil. 8. in Matth., Orig. homil. 16. in Genes., Gregor. lib. 3. Dial. cap. 14., August. cont. Adimant. c. 26. See the holy Doctor, resp. tertiae cap. 1.

n. 16.

You will object: as religious ought to be poor in order to serve God, so also clerics according to their name, because they are called into the lot of the Lord.

n. 17.

The holy Doctor answers, that clerics and Religious dedicate themselves to God in different ways; for clerics do not vow poverty.

n. 18.

You will say: the ancient clerics led a common life, 12. quaest. 1. cap. Scimus, from Pope Urban.

n. 19.

The holy Doctor answers, that clerics led the common life only by counsel; afterwards, charity growing cold, it had to be otherwise. And so D. Augustine, who admitted no one to orders who would not live in common, afterwards changed his opinion, as he himself testifies, 12. quaest. 1. cap. Certe ego, from serm. 2. de communi vita clericorum, or: ad fratres in eremo.

Tr. VII, Disputation II: On the Sta…, Question VI: Whether bishops, and other ecclesiastics, have dominion over revenues that are superfluous to their state

I have already shown that they have ownership of certain goods; and indeed the ownership of immovable goods given to the Church resides with the Church, as St. Augustine discusses tract. 6. in Ioan., for the Bishop cannot alienate them, nor even lease them, except under certain conditions. Say the same of consumable goods, for which the same reasoning holds Authent. Praeterea, C. de sacrosanctis Ecclesiis.

But they have ownership of the stipends given them for their own particular ministries, as for Masses, etc.; the same of the distributions (as they are called) which they receive for personal services, as is gathered from cap. un. de cler. non residentibus, in 6.

It is also certain that they have ownership of that part designated to them, namely one of four. For it was the ancient custom that the goods of the Church be held in common and possessed by the Clergy, distributed by the Bishop, as is gathered from Can. 38. Apost. Afterwards, as the number of clerics grew and the dishonesty of dispensers increased, this arrangement was instituted by Sylvester in the Roman Synod, cap. 4., that the total income of the Church be divided, with the first part for the Bishop; the second for the other clerics; the third for the poor; the fourth assigned to the fabric. So it appears also in 12. quaest. 2.

Therefore, where this distribution still prevails, the Bishop has his fourth part in ownership; but where all things are held in common, he has ownership of those things that befit his state. All of this the holy Doctor has, more or less, loco citato.

n. 5.

The question, then, is: whether he is the owner of that part of the revenues that is superfluous, and so is bound to give to the poor only out of charity; or also out of justice, because their ownership resides with the poor.

n. 6.

The first opinion is that of Cajetan here, that other Ecclesiastics besides Bishops are not bound to dispense anything to the poor out of justice, and so are owners of everything. But Bishops ought out of justice to give to the poor that part which by the judgment of the wise is found not necessary for them, because it is too ample.

n. 7.

The second opinion denies to Bishops, and to all Ecclesiastics, ownership of the part of the income that is superfluous, and accordingly teaches that they are bound out of justice to give it to the poor. Thus Alensis 3. part. quaest. 36. m. 5. art. 2. Richar. 4. dist. 45. art. 3. quaest. 1. Palud. in 4. dist. 24. quaest. 3. art. 3. Antoninus 3. part. tit. 15. cap. 1. §. 19. Gabriel. in 4. dist. 15. quaest. 8. concl. 5. Maior. 4. dist. 14. quaest. 17. Petrus a Soto lect. 3. de Sacerd. vita, Michaël Medina lib. 7. de recta in Deum fide, cap. 27. Thomas Vuald. lib. 1. doctrinalis fidei antiquae, l. 4. cap. 42. and others cited by Couar. in can. cum in officiis, de testam. And it is the common opinion of the Canonists, vigorously defended by Nauar. tract. et Apolog. de reddit. Eccl.

n. 8.

The third opinion holds that Bishops and the others have ownership of these revenues. Thus D. Thom. here, and quodlib. 6. art. 12. Adrian. de restit. quaest. 12. Sylvester. verb. clericus, 4. quaest. 20. et verb. restitutio, 3. quaest. 5. Gerson in suis moral. tit. de avaritia, Sotus lib. 10. de iustitia, quaest. 4. art. 3. Driedo lib. 2. de libertate Christiana, cap. 4. Ioan. Arbotaeus in Theoph. disp. 10. quaest. 3. puncto 7. Tannerus disp. 6. quaest. 3. num. 3. dub. 22, where he asserts that the part of the poor is owed by justice when it is set apart.

n. 9.

As for D. Bonaventure, he seems clearly to favor this opinion in the Apology for the Poor, fourth response, cap. 1, toward the end, where he compares Ecclesiastics, in giving their superfluities to the poor, with the religious, and says they bear some obligation, though not an equal one, because they are indeed not bound by so strict a law to give those things to the poor; for it is not of perfection to give to each his own. But he refers us to part 1 of the third response, where he plainly follows the second opinion.

n. 10.

I assert, with the second opinion, that all Ecclesiastics are bound by justice to give their superfluities to the poor.

n. 11.

It is proved first by the holy Doctor by a universal argument, in the fourth response of cap. 1: for by the law of nature all things were common; afterwards, when things were usurped by the powerful, it was agreed by the law of nations that the rich should possess what they had acquired, provided they bound themselves to dispense their superfluities to the needs of the poor. This clearly pertains to justice.

n. 12.

It is proved by the holy Doctor in the third response of cap. 1, from the most weighty arguments of D. Prosper in de vita contemplativa, lib. 2. cap. 9, where he says: The holy men knew that the goods of the Church were nothing else than the vows of the faithful, and the prices of sinners, and the patrimony of the poor: they did not claim them for their own uses as their own property, but dispensed them as entrusted to the poor.

Hence the first argument is drawn: the goods of the Church are said in the decrees of the Fathers to be given to the Lord God, as appears in 12. quaest. 2. cap. Qui Christi, and 12. quaest. 1. cap. Res Ecclesiae, while Ecclesiastics are said to have only their administration. This argument the holy Doctor repeats in the third response, cap. 1, toward the end.

Valentia responds that the meaning is that those goods were given over to the worship of God; otherwise they would not be owners of any necessary portion.

n. 15.

This, however, is frivolous, for the necessary part for the ministers is understood; for the title stands: Who serves at the altar, let him live from the altar. Moreover, it presses the point that they are said to be not owners, but universal administrators. I urge this: for D. Bernard calls the Pope himself by that name in the book de consid.

n. 16.

From this the second argument is also brought out: always in the Church, among holy men and the Fathers, it has been understood that goods of this kind pertain especially to the poor, to widows, etc., as appears from Clem. lib. 2. Constit. Apostol. cap. 29. cap. 30, and 12. quaest. 1. cap. Praecipimus, and cap. ex his.

n. 17.

Valentia responds that by this alone is indicated that the strictest precept of almsgiving presses.

n. 18.

On the contrary: because, when by the intention of the givers they are applied to this use, it is no longer a precept of mercy, but of justice.

n. 19.

The third argument is drawn: for in various decrees they are said to be dispensers, not owners, as in 16. quaest. 1. cap. Decimae, and 23. quaest. 7. cap. Quod autem, and Extra de donationibus, cap. 2.

n. 20.

Valentia responds that either immovables are meant, or utensils; if revenues, it is understood for that time when some part has been set apart for the uses of the poor; or if they speak universally, the meaning is that the precept of Almsgiving presses.

n. 21.

Against this, however: for they plainly deny ownership, and assert mere administration.

…and 16 more passages — all of them are listed on the topic page.

Slater, Cases I

Thomas Slater, S.J. — 12 passages (filed under the subtopics)

Slater, Cases I, The Seventh Commandment—Ju…, Case 4. An Avaricious Priest