Palladium theologicum, Tomus quintus: De virtutibus

Of Theft, and Robbery.

THEFT and Robbery, allied by a close bond, spring from Avarice; both lie in wait for the advantages of peace and of Justice: Theft indeed fraudulently and secretly; Robbery openly and violently. The former is committed either by taking unjustly, or by detaining unjustly, or lastly by circumventing with guile. In either case every law is violated, and indeed the law of nature is transgressed, whose clear voice is: Do not to another what you would not have done to yourself. Likewise the Written Law of Exodus 20. forbids the unjust handling of another's property: Thou shalt not steal: but the Law of grace forbids theft all the more strongly, since it commands each one to give his own to the poor. Yet if, under the pressure of necessity, whereby things return to the common use, or by the command of the supreme Lord of all things, at whose nod all things are licit, another's property is handled — as befell the sons of Israël when they made off with the golden vessels of the AEgyptians — there is no sin, but rather merit of obedience is heaped up; though this merit, however agreeable to each, few attain. These matters I shall discuss, after I have given some preliminary warnings about dominion.

What Dominion is.

DOMINIUM must first be understood, that we may recognize theft and rapine, which assault dominion.

Now DOMINION is defined in many ways. The best is this: Dominion is the faculty which anyone has of using a thing independently of the will of another, and for his own advantage, in any use permitted by law. It is defined in almost this way by Soto l. IV. de Iust. quaest. 1. art. 1. Gregorio de Valentia disp. 5. quaest. 10. p. 1. and others. It is drawn from D. Bonaventure on cap. 6. of our Rule, there: Fratres nihil sibi approprient, where he says dominion signifies the same as ownership of a thing; as ownership is usually distinguished from the bare possession of things. All Theologians and Jurists adhere to this. He examines and expounds this definition in this manner in the Opusculo ad Magistrum innominatum.

He explains THE VERY SAME definition in fact, while handing it on in other places, in the Apologia pauperum, cap. 1. tertia responsionis. See also Soto l. IV. quaest. 1. art. 1. Couar. l. I. var. cap. 15. Valentia quaest. 10. puncto 1. Molina disp. 6. Vasquez p. 2. disp. 169. num. 32. Tanner disputatione 4. quaest. 1. dubio 2.

It is called a Faculty, or proper power, as Soto says. It is said: which anyone has of using a thing for his own advantage, so that the rights of superiors toward inferiors may be excluded, which are not dominions, since they do not regard the advantage of those superiors themselves, but of the inferiors; for superiors do not do those things they establish toward subjects for their own sake, but for those subjects, and on account of the public good.

EXCEPT the dominion of God, which is proper, ordering all things to himself, as to the ultimate end, as the Saintly Doctor discusses in 1. dist. 30. art. unico, quaest. 1. in resol. It is said: in any use permitted by law, so that certain particular dominions may be excluded, which do not extend to all things, for instance to alienating, selling, etc. In almost the same way it is defined by Gerson tract. de potestate Ecclesiae, consider. 13. and tract. de vita spirituali, lect. 3. Conrad quaest. 1. de contract.

HENCE you have also that the description of dominium given by D. Thom. quaest. 67. art. 1. signifies the same, where he says that Dominion consists in the power of using exterior things, as made for man.

From this definition the Saintly Doctor gathers in the aforesaid places that the Friars Minors have no dominion over things, even consumptibles in their use, such as bread, wine, money, etc., which are conferred on them in alms; but only the bare use, as Nicholas III defines in cap. exiit de verb. significatione, in 6. for they cannot use those things independently of their owners; even if they have the use unto consumption, and although those things would not be given to the Friars absolutely by the will of the giver, yet they receive them with a continual dependence on him, until the things be consumed. And in this sense the Friars understood it, and the Pontiff Nicholas declared it, and the Saintly Doctor expounds it, as Valentia notes loc. cit. Sotus de Iust. l. IV. quaest. 1. art. 1. Bannes de dominio, quaest. 1. Bellarminus Tom. 1. l. IV. de summo Pontifice, cap. 14. Azorius lib. XII. cap. ult. Sayrus l. IX. cap. 7. dub. 9. Sanctes on cap. 6. regulae, cum Politio ibi, Suarez Tom. 2. disp. 28. sect. 2. Lessius, l. II. cap. 3. disp. 8. Tanner. disp. 4. quaest. 1. dub. 2.

From which the dispute with others is easily settled — those who obstinately maintain that the dominion of these things is in the hands of the Friars, because in things consumed by use, use does not seem capable of being distinguished from dominion. For he who grants the faculty of using bread and wine — what dominion over them does he reserve to himself? So think D. Thom. quaest. 78. art. 1. D. Antonius 4. p. tit. 12. cap. 4. § 4. Caietanus ad loc. cit. D. Thom. Sylvester v. Dominium, quaest. 2. Turrecremata l. II. de potestate Ecclesiae, cap. 122. in fine, where the definition of John XXII is relied upon, in Extrauag. Ad Conditorem, and in Extrauag. Cum inter nonnullos, and in Extrauag. Quia quorundam, where he declares (short of a definition of faith, however) and proves this opinion. He, then, is to be understood thus: that on the part of the givers, the things are given to the Friars entirely; yet he does not on that account want the Friars to be compelled to receive and hold those things independently of their owners, and so he does not attack our state; as Sanctes malignly murmurs at the place cited; for John did not intend to prove in that sense that our opinion is false, as Valentia warns loc. cit. Tannerus disp. 4. quaest. 1. dub. 2. Bellarm. l. IV. de Pontifice, cap. 14.

NEITHER indeed does use suffice for dominion, but independence is required, and the power of using at will in all things, so that things can be sold, alienated, etc. Just as if someone invite some persons to dinner: those things are exhibited under the dominion of the inviter, as long as they last, until they are consumed. So the Saintly Doctor answers to the Rule of the Minors, and I shall say more in question 2.

But if use in these things does not differ from dominion, since Monks, by the chapter ad Monasterium, de statu Monachorum, have no proper particular property, they could not have use of consumptible things, for thus they would be proprietaries; as the saintly man discusses at the place cited.

They have, therefore, use of fact as regards these things, not use of right, as D. Bonav. teaches, and with him Salonius de Iustitia, quaest. 1. art. 2.

Yet although those giving alms intended to transfer dominion, nevertheless since for dominion the will of the receiver is also necessary, and the Friars Minors do not receive them as owners, it follows that they have no dominion; and in this sense neither does D. Thom. nor the rest protest; nor does John XXII declare the opposite. Moreover this is the apparent controversy of those Pontiffs, which is reduced to concord; whence one would wrongly infer that they declared the opposite; but indeed they agree in our sense, nor had they disputed a matter of faith in the whole Church, but declared a practice for one family only of the Friars.

That dominion is further distinct from use in things consumed by use, S. Bonav. proves on cap. 6. of the Rule, because, as he says with the Lex, ff. de pecul. The garment which the slave uses belongs to the peculium of the Master. And elsewhere he says that what is acquired for the slave is acquired for the master.

In the little work, however, against the Unnamed one, he notes that although those giving alms materially intend to give absolutely to the Friars, yet implicitly they intend to give in such a way that they may licitly receive; for they do not will their perdition, and accordingly, since they themselves can have no dominion independently; neither do the givers intend thus to dispense alms.

As to the use of certain things which are not consumed at first, such as Books, and the utensils of the Sacristy: thus the Saintly Doctor expounds in the little work cited. The Rule does not forbid us to have nothing; for those wishing to preach must have books; those wishing to celebrate, Missals, etc. But the ownership of these things is not ours, but the Pope's, and the Most Eminent Protector ought to have the care of them; the sign of which is that the Friars can neither sell, nor in any other way alienate all these things. But if you obstinately maintain that these things are not the Church's, at last S. Bonav. says: whosever the ownership of these things be, it is not mine, as I declare, and my protector's; But who would be so destitute of mind as to say that I can, against my will, retain possession of a thing, while others yearn with full will for the possessions?

Note, then, that Right in a thing, as I showed in disp. 23. quaest. 1. de Iustitia, is twofold: of Jurisdiction, and of Property. The dominion of jurisdiction is a certain power of superiority, or the force of governing subjects. The dominion of property is a certain right of disposing of some thing as one's own and for one's own advantage.

The Dominion of Jurisdiction is one thing Divine, or Uncreated; another human, or created. Created dominion is one thing Ecclesiastical proper, namely of the Prelates of the Church, for the spiritual good; another is Political, or temporal, for the public peace. Such is the power of Kings and of the Emperor.

Temporal dominion is either pure or mixed. Pure is the power, or right of the sword, for punishing malefactors. Mixed imperium is a simple power of jurisdiction joined with a slight right of coercion, joined by law, as is seen in Bullonius, and in Tannerus disp. 4. quaest. 1. dub. 2.

Nor is far from this division that partition of dominion into High and Low. The High is divided, according to the variety of regimes, into Democracy, Aristocracy, and Monarchy.

Dominion of property, on the side of the object, is one thing perfect, or full, which embraces the thing and all its advantages; another imperfect, which is content either with the mere ownership of the thing without its advantages, or with the mere use, or advantages, of the thing. This is called the Useful dominion; that one, indeed, the Direct dominion.

Some have asserted the dominion of things to be so lawful that they would altogether condemn Religious Expropriation; yet these the Seraphic Doctor refutes most elegantly and most forcefully in the Apology for Poverty.

The dominion granted to all men in more universal fashion appears from Gen. 1: Have dominion over the fishes of the sea, and the fowls of the air, and all living creatures. And Deut. 15: You shall be lord over many nations, and no one shall be lord over you, as the Holy Doctor shows in p. 1 of the Ecclesiastical Hierarchy through three chapters.

Thus he subjects women to the dominion of men, Gen. 3: You shall be under the power of the husband, and he shall have dominion over you. Thus also he subjected the nations to Kings, etc. See D. Bonav. loc. cit., where he treats of the dominion and subjection of men, which is nevertheless not proper dominion, according to the definition handed down, because subjects cannot use, sell, kill, etc. everything at their pleasure.

Now, whether it is lawful for men, especially those professing the law of Christ, to hold peculiar dominion over external things, I shall weigh.

There were indeed divisions of goods from the time they were made by the law of nations, approved by all up to Christ; only Plato and Socrates stood against them, wanting all things to be common, even wives, against whom Aristotle argues in 2 Polit. from ch. 2.

But in the time of grace there were certain heretics saying that all things ought to be common, even wives, as S. August. reports of heresy 40, and Epiph. of heresy 32, attributing it to Carpocrates.

Soon, however, some of the Pelagians condemned the abundance of goods among Christians. S. August. reports them in lib. 2 de gratia Christi, cap. 15, and epist. 160. Moreover this error was condemned in the Palestinian Council, at which S. Augustine was present.

Afterwards other heretics called Vadiani, and Anthropomorphitae, by the testimony of August. heresy 50, denied that it was lawful, at least for Ecclesiastics, to have anything of their own. The Wicleffites and Anabaptists followed these; which error was condemned in the Council of Constance, session 8.

I assert, therefore, that dominion and the division of things is lawful for all, even Ecclesiastics and Religious, according to the institute of each order.

This assertion is infallible to all Catholics, and the Holy Doctor rather supposes it than proves it in the Apologies for Poverty, and he strove only to prove that even the religious renunciation of things is licit, which presupposes their dominion.

The assertion is proved, therefore, by the Holy Doctor from Jos. 10, where the Priests and Levites of the old Law had possessions and lands by God's constitution. S. Bonav. pursues this at length in cap. 3 of the third response in the Apology for the Poor. There, however, he strenuously shows that some have drawn badly, together with the heretic Vigilantius, from the old testament even the summity of Evangelical perfection requiring possessions and dominions; and consequently that expropriated religious orders are superstitious, inasmuch as they were not figured in the old testament, for those Levites were most distant shadows; for they had even wives and children, although in the Gospel Castity and Poverty are urged by Christ in Matthew 19. The former while it is said: There are Eunuchs who have made themselves eunuchs for the kingdom of heaven. He who can take it, let him take it. Poverty, however: If you wish to be perfect, go, sell all that you have, and give to the poor. Weighing which passage, D. Bonavent. in cap. 3 of the first response admonishes that there is a threefold state of perfection, which arises in charity.

The FIRST is of necessity, and consists in the observance of the precepts. The second is of counsel, and stands in fulfilling the evangelical counsels. Therefore Christ, when he had first opened that state: If you wish to enter into life, keep the commandments. Soon he urges the higher perfection: If you wish to be perfect, go, sell all that you have; and give to the poor, so that the expropriation of things is not a precept, although it is a proposal. The third state of perfection, the Holy Doctor says, is in the fatherland, of which Prov. 4: The path of the just, as a shining light, goes forward and grows even to the perfect day. Of this D. August. in the first Soliloquy cap. 6: Truly perfect virtue is reason arriving at that end which blessed life attains; and then charity is consummated.

It is PROVED secondly by the Holy Doctor in cap. 1 of the first response; for even the Apostolic college had purses, in order to show condescension toward the imperfect, as Hugh says in Psalm. 91. cap. 64. The same Holy Doctor explains this also at that place Ioan. 12., and on the poverty of Christ, against Guillelmus, art. 1., from the Gloss on that Ps. 103: He bringeth forth hay for the cattle; and from D. Jerome at that place, where he says they had purses for other poor men.

The same S. Bonav. proves in cap. 1 of the second response of the Apol. of the poor, from the immense riches given by God to Solomon, that he might enrich the Temple and the Priests.

The SAME he proves in cap. 3 of the third response, from Genes. 12., where the Lord indeed commanded Abraham to go out of his land, but obeying God: Abraham went out, as the Lord commanded him: He took Sara his wife, and Lot the son of his brother, and all the substance which they possessed in Haran. Behold, the dominion of Abraham's goods is left to him by God, even in the state of the old perfection.

The Holy Doctor proves THE SAME THING by examples of the friends of God, Jacob, Joseph, David, Job, who possessed the most ample riches. Whence he observes that the goods of Job were restored multiplied.

He ADDS, however, with D. Bernard, in the sermon on that: Behold we have left all things, that those rich men of old were not at the summit of perfection while they were most wealthy.

It is PROVED secondly in the same Apologies from the Holy Fathers, asserting that it is perfection, not precept, to relinquish the dominion of things.

S. AUGUST. de bono coniug. cap. 8: They did good who ministered necessaries to Christ and his disciples from their substance; but better those who left all their substance, that they might follow the same Lord more unimpeded.

GREGORY, homil. 26. in Ezech.: When one vows to God something of his own, and does not vow something, it is a sacrifice; but when he has vowed all to God, it is a holocaust.

The same is held by Ioan. Chrysostom in the book Quod nemo laeditur, nisi a seipso. And D. Bernard. epist. 42.

D. PROSPER de vita contemplativa lib. 2. cap. 9. praises Paulinus and Hilarian, because of their own accord they bestowed on the poor, although by reason of the Episcopal office they afterwards dispensed the goods of the Church, as is had in dist. 12. quaest. 1. Expedit: It is fitting that the faculties of the Church be possessed, and one's own goods be contemned for love of perfection. The Holy Doctor reports the same also ad cap. sextum Regulae.

The GLOSS on that 1 Timot. 6: Habentes alimenta, etc. Although we have brought nothing into this world, nevertheless these temporal things are not to be cast away. It adds, however, that it would be better that they be cast away for Christ's sake.

Likewise the Gloss on those words, 2 Cor. 8: Let your abundance supply their want, reports many other authorities of the Saints, in the first response cap. 3, and of the third response cap. 1 and 2.

It is PROVED thirdly by D. Bonav. from arguments taken from 2 Polit. cap. 3., indeed from the Scriptures; for first violent poverty induces to sins; as is said Ecclus. 27: Through poverty many have sinned.

SALOMON indeed said Prouerb. 30: Give me neither riches nor poverty; but grant only the necessaries to my sustenance, lest compelled by need I be mad, and swear by the name of my God. These things, to be sure, were said in the time of the old law, as Chrysost. notes homil. 18. in epist. ad Hebraeos. Therefore it is said in Ecclus. 17: Wisdom is more useful with riches.

INDEED, if we look at the ordinary natural and civil life, we shall surely find that individuals need the particular helps of the family goods, that each one may not be anxious over many things, and may live peacefully.

They OBJECT first from Luke 14: Unless one renounce all that he possesses, he cannot be my disciple. Now the disciple of Christ and the Christian are the same: Therefore a rich man cannot be a Christian.

The Holy Doctor answers in opusc. de paupertate Christi, cap. 1. from the Gloss, that Christ wished his disciples to renounce, that is, in affection, so that they should so use the worldly things they possess, that nevertheless in mind they tend toward God; and this befits all the disciples of Christ, that is, Christians; but to leave all things befits only the perfect, Matth. 19. Therefore to the Apostles, who had chosen the perfect state of the counsels, he urged: Matth. 10. Do not possess gold. And that they carry nothing, Matth. 6. Thus also Valentia puncto secundo.

They OBJECT also many holy Fathers who reprehend the ownership of things. Clemens I. epist. 5. and it is reported 12. quaest. 1. C. dilectissimis. Basilius serm. ad diuites avaros, around that passage of Luke 12: I will gather together all things that are born to me. Ambrosius serm. 81. and it is reported cap. sicut II, dist. 47. Hence Aristotle says 2. Polit. cap. 3: All things ought to be common among friends.

The Holy Doctor answers, loc. citat. de paupertate Christi, art. 1. from the Fathers Ambrosius l. 2. offic., Chrysostomo loc. cit. and others, that the sense is that riches afford no aid toward the blessed life, which Christ openly testifies saying, Matth. 5. Blessed are the poor in spirit, for theirs is the kingdom of heaven; for they are occasions of sins; on which account they are called: Mammona of iniquity, because, as is said Ecclus. 11: If you be rich, you will not be free from sin, as S. Bonav. pursues at length at that place Lucae 16.

TO the same point about friends, I say with Valentia that all things ought to be common in necessity, except those things which induce turpitude, as wives, which were never common, as Tertullianus proves in the Apologeticum contra gentes, cap. 39.

But WHEN this division of things was made, it is easily dispatched that it was made from the nations united by the law of nations. But if it had been made by the law of nature, the communion of things would be against nature, which plainly appears false from the usage of the primitive Church, and of the diverse Religious orders now, among whom ownership is renounced. But now the division of all things, or jurisdiction, if it is made anew, is made by the civil, or positive law, as D. Thom. says art. 2. ad 1., and it is plain in ff. de legibus, et Constit. Principum, l. 1. Whence rightly D. August. tract. 6. in Ioan., and it is reported in dist. 8. cap. Quo iure: Take away (he says) the laws of the Emperors, and no one will dare to say: this villa is mine.

Now all jurisdictions are so appropriated and divided that no private person is not the subject of someone, dist. 99. C. Nullus, and 25. quaest. 2. C. de Ecclesiasticis.

Now here, concerning the dominion of jurisdictions, it is to be noted by the certain and common opinion of all that Princes, whether Ecclesiastical or secular, are by no means lords of things, nor even of persons, but only of a certain power over subjects, which is called jurisdiction, as Valentia notes disp. 5. quaest. 10. punct. 2. ad finem, and it is called the High dominion, which however he can use only for the pressing public good.

Nor does that stand in the way which is said in 1 Reg. 8: This will be the right of the king: He will take your sons, and your fields, and your vineyards, and your olive yards, etc. For "right" signifies also the usurped one, by which Samuel wished to terrify the Jews.

As for other things, not all are divided, as is plain in the Institutions on the division of things, where it is had that rivers, hunting, fishing, and things of this kind remained common.

It is disputed here: in how many ways are dominions acquired.

Now they are acquired in two ways. First by Invention and occupation, without the dominion being transferred from another. Second by the legitimate translation of dominion from one into another.

As for the acquisition of dominion by invention, I have discussed sufficiently in disp. 24.

As for the translation of dominion, it can be made either by the Divine will, expounded by the natural law, or by positive divine law. Thus God transferred the dominion of the treasures of the Egyptians to the Jews, Exodi 12., as S. Bonav. notes, 2. dist. 40. dub. 2.

Secondly it can be made by the will of the possessor, provided he does it spontaneously, not deceived, nor hindered by any law.

Thirdly it can be made by human positive laws.

Fourthly by the sentence of the Governor intervening: Now the voluntary renunciation can be made for the common good; for sometimes some transfer dominion perversely, squandering their goods.

In what manner dominion is transferred through play, I have said in the disp. de restit. In what manner also through contracts, I shall say in disputation 1 of the Treatise on Contracts.

From these you have also the division of dominion into the dominion proper to individual persons, and the dominion of some community, of which the Holy Doctor treats in the Apology of the Poor, of the third response cap. 1. Whence it comes about that the renunciation of dominion is also twofold, especially in Religion. See the Seraphic Doctor in the place cited.

Moreover there are as many kinds of Dominions as there are orders of Laws granting it, as the Natural, the Divine, etc.

Theft is wont to be defined by Theologians: Theft is the occult taking of another's thing. Thus D. Thom. quaest. 66. art. 3. Covar. approves this definition, from the Jurists, Relect. in Regulam Peccatum, p. 1. §. 1.; for by the very fact that "occult taking" is said, Fraudulent taking, against the will of the owner, is signified. Therefore it is defined more clearly by D. Bonav. p. 1. Centil. sect. 31., where he says: Theft is the handling of another's thing, occult, and with the owner ignorant and unwilling. And in the speculo animae, chapter 2: Theft is the occult handling of another's thing, against the will of the owner. And serm. 6. decal: Theft is the touching of another's thing, against the will of the owner.

He notes, however, that theft ought to be furtive, and through occult fraud; otherwise, if it is done through open violence, it will be rapine; or if through occult means, it is called robbery; whence also he elicits, with D. Thom., that under theft are contained all fraudulent contracts by which a neighbor is defrauded of his thing against his reasonable will. Whence also the unjust detention of another's thing is theft, as D. Thom. also says ad 2., and Valentia disp. 5. quaestion. 10. p. 4., and D. Bonav. in speculo animae, cap. 2. in fine, who also in 3. dist. 37. dub. 7. litterali uses the same definition.

Therefore the Holy Doctor everywhere holds constantly that theft is defined through contrectation, which does not signify mere material contact, as Sayrus, Valentia, and Fagundez think, who carp at this term; but a formal contrectation, which is the taking, or usurpation, or abstraction. Thus by the term contrectation it is defined by the Jurists, ad Leg. 1. §. furtum, ff. de furtis, and Institut. de obligatione, quae ex debito etc. §. 1., which Iulius Clarus explains l. 5. sent. §. Furtum. And Navar. in summa, cap. 17., and Sylvest. v. Furtum. At least that contrectation is a condition without which theft cannot exist, as he admits lib. 1. §. 1., is granted by Sayrus lib. 9. cap. 13., who however does not rest in it.

From what has been said you have that Theft differs in species from Rapine, as D. Bonav. above, D. Thom. quaest. 66. art. 4., Caietanus there, Lessius lib. 2. cap. 12. dub. 1., and the Jurisconsults ad Leg. 1. §. 1. et seq. ff. de vi bonorum raptorum, Molina Tract. 4. disp. 683. et 684., Fagundez in septimum praeceptum, l. 7. cap. 1. num. 14. teach. For rapine requires two things, knowledge, and violence inflicted on the owner: but theft requires neither of these; Therefore rapine is graver. Moreover theft is an enemy of the light, since it is wont to be done in secret, but not rapine, according to that verse.

Fur non est latro, quia tempore iur rapit atro : Tempore non atro rapit omnes res tibi latro.

Deservedly one may cite here the saying: As many heads, so many opinions, which Diana reports p. 1. Tract. 17. resolut. 57. and Tract. de paupertate religiosa, resol. 36.

The first opinion is that of Navarro in Manuali, cap. 17.: one and a half regales is a notable quantity of money that constitutes mortal theft; or two, or at most two and a half. Thus also Tolet. l. 5. cap. 16. assigns two Iulii; for among the Italians the Iulius is the same as the Regalis among the Spaniards, as Fagundez says l. 7. cap. 1. num. 15.

The second opinion is that of Corduba in summa, quaest. 109. and Salonii 2. 2. tom. 1. quaest. 66. art. 6. controu. 1. who say absolutely that one silver coin is grave matter, that is, four or five regales stolen from the rich; but one or two from the poor.

Third, Bartholomaeus Medina prima secundae, quaest. 88. art. 8. with many others says that it is not mortal theft unless it rises to the sum of two silver coins.

Fourth, Gregorius de Valentia Tom. 3. disp. 6. quaest. 19. punct. 16. Rebellius p. 1. l. 3. quaest. 15. sect. 2. num. 22. assert that it is absolutely lethal to steal three silver coins.

Fifth, Vega in summa tract. 1. cap. 129. casu 12. teaches that four or five regales constitute notable matter of theft.

Sixth, Molina de Iust. t. 3. disp. 685. says that as much value as the money given in one day to a digger of earth is seen to be mortal in regard to those who are not very rich.

Seventh, Bartholomaeus a S. Fausto in speculo disp. 2. quaest. 18. num. 26. and Sayrus l. 9. cap. 15. define the sum of three Iulii as grave even if taken from a most wealthy man; but two Iulii from one of moderate means; and finally, one silver coin or one Iulius taken from a poor man constitutes grave matter. Thus also Sanctes noster in cap. 6. Regulae, lays upon us poor wretches one single Iulius.

Eighth, Bonacina de contract. disp. 2. quaest. 8. p. 1. num. 7. distinguishes, saying that theft is grave according to the variety of persons from whom the thing is taken. For if the person is illustrious, opulent, splendid, a gold coin will be grave matter; but if he is an ordinary rich man, living on his revenues, four regales; if the person supports himself by a craft, two regales; fourth, ¶ if he is poor, one regale.

This opinion, which Nauarrus de restit. l. 3. cap. 1. num. 39. and Reginaldus in praxi, T. 2. l. 22. cap. 1. quaest. 4. num. 19. also hold, Diana says is more probable than the others, saying that a notable quantity, with respect to the rich, is about one gold coin, or sixty asses; but with respect to common persons, about 20 asses; and with respect to a poor man, about 7 asses.

The ninth opinion is that of Rodriquez in summa t. 5. cap. 118. num. 27. and 29.: that is a notable quantity which exceeds two gold coins; and Angel. v. Furtum, num. 34. and Syluester on the same word, quaest. 2. hold this opinion with regard to the wealthy. But whether Sotus l. 5. de iust. quaest. 3. art. 3. ad 3. teaches this opinion, Vasquez opusc. de restit. cap. 5. §. 1. dub. 5. num. 30. denies; but Turrianus, Bartholomaeus a S. Fausto supra, and Aragon. 2. 2. quaest. 66. art. 6. causa 10. Lessius, ubi infra, assert it, and the Doctors generally; and concerning this whole question see Megalam 2. 2. l. 2. cap. 1. quaest. 3. Rebellium de oblig. iust. p. 1. l. 3. quaest. 15. sect 1. Graffium p. 1. l. 2. decif. cap. 97. n. 27. Bannem 2. 2. quaest. 66. art. 6. who posits a quite lax opinion. Malderum 2. 2. tract. 4. cap. 1. disp. 3. Lessium l. 2. cap. 12. dub. 6. num. 29. Azorium p. 3. l. 5. cap. 15. quaest. 2. Medinam C. de restit. quaest. 10. Tolet. summa, l. 5. cap. 16. Tutrianum l. 2. T. 2. disp. 33. dub. 2. Sanchez Tom. 2. l. 7. cap. 20. Cenedum de pauperie et relig. dub. 13. Conradum in resp. p. 1. cap. 166. Sayrum l. 9. cap. 15. qui num. 11. reports the opinion of Bannis 2. 2. quaest. 66. art. 6. who says: if some steward of the King were to steal 200 gold coins, it would not be grave matter.

Stephanus Fagundez num. cit. says that this matter is better left to the judgment of the prudent, considering persons less or more wealthy, and places, etc. Thus also Couar. l. 1. variar. cap. 3. num. 11. Syluest. verb. Furtum, quaest. 2. Ioan. Medina de contract. quaest. 10. Caspensis tract. 18. disp. 5. sect. 4. Indeed Sanchez 1. 2. decal. l. 7. cap. 20. num. 5. asserts that generally in Spain, because the region is richer, four silver coins are the mortal quantity. The same is the judgment of Suarez Tom. 3. de Relig. l. 8. cap. 6. num. 10. To such a judgment Bassaeus v. Furtum 1. num. 4. subscribes.

Fagundez therefore asserts, first, with respect to Kings, Princes, and most wealthy Prelates, and most rich men, that the sum of two or three ducats is mortal from its object. He alleges, Rodriquez in summa, cap. 149. Sotum, Rebellium, Lessium, Couarruviam, Syluestrum supra, Petrum Nauarrum l. 3. de restit. cap. 1. num. 35. Suarium vero loc. cit. et Maiorem 4. dist. 15. quaest. 25. who, he says, probably assign with respect to these persons the quantity of one gold coin.

He asserts, second, that with respect to men of moderate wealth four silver coins constitute the mortal quantity, or at most, with a half added. Thus also Sanchez 1. 2. Decal. l. 7. cap. 20. num. 5. Suarez loco citato.

He asserts, third, that with respect to the poor the quantity of one hundred dipondii, or at most with 20 added, is deadly. He adduces Rodriquez, and Aragonium, ac Nauarrum.

Finally he says: If we attend to places and cities more or less wealthy in money, and where things are sold more cheaply or more dearly, it is probable that in Lisbon, Seville, Paris, Venice, London, Lyons, Rome, and other places very rich in money and opulent, the quantity of four or five regales, or denarii, is mortal in theft, even with respect to men of moderate wealth. But in Brazil, or in the West Indies, where money abounds and things are sold at a high price, the quantity of 15 Iulii will be mortal, against Lopes p. 1. cap. 92. who says that the sum of two regales in India is deadly.

But if four or five quadrantes are deducted from the prescribed quantity, he concludes that it is still mortal, because things that differ but little seem not to differ at all. Moreover these quantities are not to be taken Mathematically, but morally, as Lessius l. 2. cap. 11. disp. 6. num. 32. well teaches.

In D. Bonav. I do not find any quantity prefixed; only in speculo animae, cap. 2. he says: Yet it must be noted that a thing might be so small, or of so little value, that it would not have the character of mortal, unless perhaps there were a will to take more, if the opportunity were present, or in that small thing there were notable damage to another; for a poor man is at any time damaged more in a small thing than a rich man in a great one. Thus also other ancient Theologians remit the whole business to the judgment of the prudent, as Sayrus l. 9. cap. 15. num. 9. notes, establishing nothing special.

They think, therefore, that grave matter must be judged according to the gravity of the damage. Hence it agrees with the last opinion, that according to the variety of persons, places, etc. the gravity of the thing taken must be computed. He warns, however, that a thing light in its genus can become grave from the damage. They bring the example: if you take from someone an instrument of his craft by which he earns notably, even if it be a needle, and he has no other like it. They agree with Suarez loc. cit. num. 16. Tolet. l. 5. cap. 6. Petrus Nauar. l. 3. de restit. cap. 1. num. 33. Lessius l. 2. cap. 12. dub. 12. num. 33. Nauar. Summa, cap. 17. num. 3. Sanchez T. 2. l. 7. cap. 20. Fagundez l. 7. cap. 2. num. 2. The reason is, because grave damage is against justice gravely, and obliges to restitution, C. si culpa tua, de iniuriis, et damno datis. Thus also Tannet. disp. 4. quaest 8. dub. 6. reporting Aragonium, Bannem quaest. 66. art. 2. Bartholomeum Medinam quaest. 86. art. 2. Valentiam quaest. 10. p. 5. Rebellium l. 3. de iust. quaest. 15. sect. 2. and 3. Azor. t. 3. l. 5. cap. 13. quaestio 1. Lessium lib. 2. cap. 12. dub. 6.

MANY say that the same follows if someone steals a small thing on account of which you know the Lord in his anger will break out in grave blows against another. Fagundez reports them, num. 5.

HERE arises the doubt, whether to steal in a Church a thing that is not sacred is sacrilege, by reason of the circumstance of the Sacred place and the injury inflicted upon it.

The SENTENCE formerly common was that, absolutely, theft by reason of the circumstance of the Sacred place becomes sacrilege, and most of the Recentiores also hold it, as Fagundez reports l. 7. cap. 2. and Diana p. 1. tract. de circumstantiis aggravantibus, resol. 27. Paulus Layman defends it l. 4. tract. 10. cap. 7. num. 18, Suarez de Relig. Tom. 1. l. 3. cap. 4. num. 7. where he says it is the common sentence.

It is PROVED from the words of Pope John in cap. Quisquis, dist. 17. quaest. 4.: Sacrilege is committed by taking a sacred thing from a sacred place; or a non-sacred thing from a sacred place; or a sacred thing from a non-sacred place. Therefore, since the Law does not distinguish whether that non-sacred thing is in custody, or deposit, or the possession of the Church, it does not seem it should be distinguished, as many distinguish; for thus the rule of the Law is had, de pretio, ff. de publican. unless another law or reason compels. There follow Raphaël de la Torre t. 2. t. 2. quaest. 99. art. 1. disp. 7. Rebellius p. 1. l. 3. quaest. 15. num. 25. with Reginaldus T. 2. l. 23. cap. 1. num. 12. Menoch. de arbitrar. l. 2. cent. 4. casu 389. num. 14. and Petrus Ledesma Summ. Tract. de poenit. cap. 10. This is the sentence of D. Bonau. in 3. dist. 37. dub. 7. litterali.

COMMONLY, however, they distinguish, as was intimated above, and say: if that thing is in deposit, or in the church, or the like, it is sacrilege; but not otherwise, if it is the purse of the one who is in the Church. Thus Sotus in 4. dist. 18. quaest. 2. art. 4. Ioan. de Cruz p. 2. direct. de Sacramento Poenit. quaest. 3. disp. 6. Fagundez lib. 7. in septimum praeceptum decal. cap. 2. num. 10. Henriquez l. 2. cap. 6. num. 5. and Diana judges it probable, and Raphaël de la Torre, and Lessius lib. 2. cap. 45. dub. 3. num. 14. Zerola praxi de poenit. cap. 12. quaest. 17. The same is defended by Cano 5. p. relectionis, §. Multa hic, Caietanus tomo 1. opusc. 31. resp. 12. dub. 2. Lopez Instruct. p. 1. cap. 31. §. At vero.

I indeed follow the sentence of D. Bonaventura, who posits three species of sacrilege. The first is to steal a sacred thing, e.g. a consecrated Chalice from a sacred place. The second, a sacred thing from a non-sacred place, as a consecrated chalice from the house of a craftsman. The third, a non-sacred thing from a sacred place, e.g. a purse in the Church; thus, besides those alleged, Sà distinguishes, v. Sacrilegium, Sylvest. there, §. 2. Rosella in the same place, Nauar. Manual. Lat. cap. 6. num. 4. and cap. 17. num. 95.

FOR we have from Canon Law the declaration of Pope John, nor ought we to stand on the civil law, which, that an action of sacrilege be given against the thief, requires that the thing be made and taken away from the sacred place, as Iulius Clarus reports l. 5. sent. §. Sacrilegium.

Nor does Fagundez, who cites that Canon, answer anything, except that the Canon intimates our sentence: but he plainly asserts it, as we saw, and Diana confesses it, who does not answer him a word in his own defense.

They OBJECT that it is per accidens that the thing exists in the Church.

D. Bonaventure ANSWERS that that place, even if physically it adds only an accident, morally nevertheless adds a species. For it is great irreverence of the place, and that thing is entrusted in faith to the Church; while those who are intent on religion ought therefore to have in safety what they have in it; and to steal is to wound the consecrated place; just as to commit other shameful things in the temple is to profane it itself.

What is the grave quantity of theft for Sons, Wives, and Religious.

It must NOT be judged so severely of what a son takes away or steals from his father, or a wife from her husband, as of what he takes from a stranger, as Fagundez admonishes in 7. praeceptum, l. 7. cap. 3. from D. Bonau. in 4. dist. 15. p. 2. art. 2. quaest. 1. But the S. Doctor treats of all these things in speculo animae, capite 2.

One must, however, distinguish many kinds of goods in a household, of which a Son may take something.

FIRST, there are the castrensian goods, which the son-of-a-family, or one not yet emancipated, acquires in military service, and those which he acquires from such a peculium, L. g. castrense, ff. de peculio castrensi.

Not far removed are the goods, quasi castrensian, which a son acquires from some public office, or from one of the seven liberal arts, as if he be a Physician, Advocate, Master, etc.; and therefore those goods will not be quasi castrensian which he acquires from an art ordered to private gain; such as the art of a Shoemaker, or the like.

Of these they can freely dispose, as the Doctors commonly teach, provided they are not below the age of puberty; for then they cannot make a will concerning them, Leg. ult. Cod. de testamento militis. And so they can neither give, sell, or alienate them in any way, even with the consent of the Father, Instit. de inutil. stipulat. § pupillus; but he can alienate them with the consent of his tutor, if he has one, as Molina notes disp. 130. §. licet. The reason for the difference is, because the tutor is liable to the pupil if he ill gives his authority, not so the father; as Fagundez notes with Molina in 7. praecept. l. 7. cap. 4.

THIRD are the profectitian goods, which come to the son by the cause and occasion of the Father, and which he obtained from the Father himself, or acquired with his money, or which were left to him in view of the Father. All these are the father's, both as to usufruct and as to dominion or ownership; and therefore it will be theft of a kind to take them against the parent's will, and he is held to restitution.

HENCE the S. Doctor warns in 4. dist. 15. p. 2. art. 2. quaest. 1. and with him Fagundez num. 11. that those who trade or play with the sons of merchants should beware; for those sons are held to restore all these things in integrum, if they exist, or if they gained them in bad faith; but if in good faith, they are held to restore those things by which they have been made richer.

There are other goods which are called Adventitian, which come from the mother's side, or by industry, and in these the sons have dominion and ownership; the fathers, however, only the usufruct. Thus Molina T. I. disp. 9. and 232. Sylvester, and others, whom Fagundez follows, num. 21. Of these he cannot take against the father's will, otherwise it will be theft.

But the quantity in sons, to reach grave matter, is constituted larger than in a stranger. Bannes 2. 2. quaest. 66. art. 6. says that even fifty gold coins stolen from a rich father is not grave matter. Fagundez cap. 3. num. 3. says it does not seem mortal if a son steals two regales and a half, if the father is a craftsman; but if he is of moderate wealth, it is not mortal to take seven silver coins. But if he is very rich, he will not sin even by stealing three gold coins. See also Lessius T. I. l. 2. cap. 12. de iniuriis fortunae, dub. 13. num. 36. and Petrum Navarr. de restit. l. 3. cap. 1. num. 66. Caspens. Tract. 18. disp. 5. sectione 7. Bass. 2.

Therefore if he steals a grave quantity, he will be held to restitution, either to the Father, or to the brothers in the division. That these are sins is proved from Prov. 28: He that takes away anything from his father, and from his mother, and says this is no sin, is partaker of a murderer.

As to wives, it is certain that they sin mortally if they take a grave quantity from their unwilling husbands, to give to others. Thus the Doctors commonly, in Molina T. II. de Iust. disp. 274. Fagundez cap. 8. num. 1. with D. Bonan. in 4. dist. 15. loc. cit. The reason is, because the husband has the usufruct of all the goods.

Yet they warn, with D. Bonan., that in many cases the wife does not sin if she secretly takes something from her husband by stealth.

First, if the quantity is not notable, considering the means. They concede to the wife double what they concede to the son, as Rebellius noted, prima parte, lib. 3. quaestion. 15 sectione 13. num. 16. Fagundez num. 2. with others.

Second, if she gives according to the custom of other wives. For in these matters husbands are irrationally unwilling.

Third, if she gives in the extreme necessity of someone.

They ask, however, whether if she has an ample dowry she can give, without her husband's leave, fifty or sixty gold coins to some honest use, for instance to her nurse, or to her daughter for a dowry.

Navar. in Man. cap. 17. num. 155. Cabedo p. 1. decis. 107. deny it.

Molina T. II. disp. 34. §. ex dictis, Fagundez l. 7. cap. 8. num. 11. with D. Bonan. in 4. dist. 15. loc. cit. assert it, where, although he does not fix a prefixed quantity, he nevertheless indicates that she can distribute from her dowry, and from her paraphernalia, that is, from the goods which she reserved to her own uses when she married. Say the same of the goods which come to her during the marriage by inheritance or donation. For of these the woman has dominion and administration by the common law, and therefore she can dispose of them however much the husband resists. Thus also D. Thom. quaest. 32. art. 8. and others in Diana p. 5. tract. 8. resol. 34. as I said in the disputation de Eleemosyna. There are other cases in which the Theologians say the wife can take from the family goods, even the husband's, as if the administration of those goods has been left to her, because the husband is prodigal or insane. See Diana loc. cit. and Fagundez lib. 7. cap. 8.

Similarly the husband, if he squanders the goods held in common with his wife, the marriage dissolved, he or his heirs is held to restitution to the wife. See Fagundez, cap. 9. Tannerum, to be cited below, who rightly warns that in all things the conditions of persons, the abundance of riches, the vehemence of love, etc. must prudently be considered.

As to Religious, the Doctors judge that the quantity is to be computed by the rule of the theft of sons. Thus Sanctius lib. 7. de Relig. cap. 21. num. 31. Rebell. lib. 3. de iustitia, p. 1. quaest. 15. sect. 3. n. 22. Caspensis tract. 18. disp. 5. sect. 7. Graff. p. 1. decis. l. 3. cap. 5. num. 51. Tanner. disp. 4. quaest. 6. dub. 6. Fagundez cap. 5. who adds, however, that they are to be compared with the sons of the moderately rich; and therefore about five silver coins is grave theft, apart from those things which the convent owes him, which is held to supply him with the necessaries of food and clothing; as the S. Doct. says in Apol. pauperum, cap. 1. responsionis 3. But of these I shall treat in quaest. 7.

Because this can happen in many ways, it also raises many questions.

For it can be that all the petty thefts are done with the intention of aggregating a grave quantity; it can also be that they are done without this intention. Again, it can be that those petty thefts are done against the same person, or against several different ones; taking from one a single dipondium; from another another thing.

As to the first. I assert first that he who from the beginning intends to take from one a grave quantity sins mortally by that intention; and afterwards, while he commits the individual petty thefts, he also sins mortally. Thus they teach commonly. Sanchez Tom. II. decal. l. 7. cap. 21. Less. tom. I. l. 2. cap. 12. Fort. dub. 7. num. 36. Rebellius p. 1. l. 3. quaest. 15. sect. 4. num. 30. Petrus Navar. l. 3. de restit. cap. 1. num. 50. Sotus l. 5. de Iust. quaest. 5. ad 3. Medina de Restit. quaest. 10. Lopez p. 1. cap. 93. Fagundez in septimum praeceptum decal. l. 7. cap. 15. num. 3. Bassaeus v. Furtum 1. numer. 8. and the following:

It is proved, because, as the S. Doctor argues in 7. praeceptum decal., to damage another gravely is mortal; but he intends thus to damage: Therefore.

I assert second that the same must be said of him who intends to take a grave quantity from several. Thus the Doctors alleged.

It is proved, because that wicked intention is mortal: Therefore, since the individual petty thefts proceed from that will, they will be deadly. Otherwise they would not be gravely reproached by God with those who use false measures; Oseae 12. Chanaan in manu statera dolosa. Proverb. 11. Statera dolosa abominatio est ante Deum. For although each one is damaged but moderately, yet the Republic is gravely offended, because innumerable evils are poured in. And from this crime merchants very rarely escape, as the S. Doctor warned cap. 6. in Decalogum.

Yet Lessius notes, num. 49. com., that in the individual petty thefts a new mortal sin is not committed, but the one already begun is continued; for even if the same will continues, it can be that in each one it is not renewed, but he steals by the power of the first wicked will.

Hence they also deduce that he is held to restitution, which, if it be too arduous to be made to each individual, must be made to the poor.

The greater question is: If in the individual petty thefts he has no further mind of stealing, nor from the beginning conceived the mind of arriving at a notable quantity, but commits the smallest petty thefts from the occasion offered; whether in the last one, by which grave matter is made, he sins mortally, if he remembers the others, although he does not intend to steal gravely.

And indeed, if he does not advert to it, he is only materially so situated, as Nauar. teaches Sum. Lat. cap. 17. num. 130. Sanchez Tomo 2. decal. l. 7. cap. 21. num. 20. Less. l. 2. cap. 12. dub. 9. Fagundez num. 11.

The first opinion is that he does not sin in that last taking of the worthless thing; yet he sins in the retention, because, positing that last petty theft, the grave matter is completed, which he unjustly retains. Thus Nauar. Summa Latina, cap. 17. num. 139. Vega l. 14. in Concil. Tridentinum cap. 11. Graff. p. 1. decis. lib. 3. cap. 5. num. 51. et lib 2. cap. 95. num. 18. Carbo de restit. quaest. 2. Lessius l. 2. de Iust. cap. 12. dub. 8. num. 43. Iason leg. si idem cum eodem, ff. de iudic. omnium iud. and there, Decius num. 1. and 16. Claudius num. 1. and 2. Farinac. consil. 78. num. 3. Filliuc. tomo 2. tract. 31. cap. 10. num. 243. Rodriquez Summa tomo 4. cap. 118. num. 29. Salas in p. 1. quaest. 58. tract. 13. disp. 16. sect. 17. num. 88. Tolcius l. 5. cap. 16. num. 4. and others. Diana judges it probable p. 1. Tract. de Paupertate Relig. resol. 34. who says that, in the sentence of Nauarrus and the others, when they existed, it is precisely then a sin not to restore, and the thief would have become richer from it. Thus teach Granado in primam 2. contr. 6. tract. 2. disp. 2. sect. 5. num. 49. Lorca p. 1. tom. 2.

Indeed Emanuel Sà asserted that he neither sins mortally nor is held to restitution, v. Furtum, num. 8. Nauar. lib. 3. consil. 3. de statu Monachorum, num. 17. Berarducius in Summa Corona, p. 1. cap. 1. num. 18. and Fernandez in Exam. p. 1. cap. 6. §. 2. num. 12. These speak of things stolen from one and the same, much less from several.

But the COMMON sentence is that a mortal sin is probably committed in that last petty theft of a most trifling thing, with advertence to the past thefts, if in it the grave quantity is completed. Thus Sanchez Tom. 2. decal. l. 7. cap. 21. num. 6. Rodriquez Tomo 1. Summa in 2. edit. cap. 150. num. 8. concl. 8. Valentia 2. 2. disp. 5. p. 5. in finem. Sayrus l. 9. cap. 15. num. 22. Petrus Ledesma 2. Tom. tract. 8. cap. 21. num. 2. Lopez p. 1. cap. 93. col. 2. quaest. 2. Nauar. l. 3. de restitut. cap. 1. p. 1. dub. 5. a num. 52. Rebell. p. 1. l. 3. quaest. 15. sect. 1. num. 30. Maior in 4. dist. 1. 15. quaest. 25. Ioan. Medina Cod. de restitut. quaest. 10. Sotus lib. 5. de Iust. quaest. 3. art. 5. ad 3. Mercado l. 3. de contract. cap. 4. fol. 129. Couar. l. 1. var. cap. 3. num. 11. Corduba Summa, quaest. 70. p. 2. Bartholomeus Medina l. 2. quaest. 88. art. 4. ad 3. Vasquez ibi disp. 146. cap. 2. num. 5. ibi Zumel art. 4. Aragon 2. 2. quaest. 66. art. 6. Salon. ibi, controu. 3. quaest. 20. Azor. tomo 1. lib. 4. cap. 9. quaestio 11. Reginaldus T. 1. l. 23. cap. 1. quaest. 4. Ledesma T. 2. tract. 8. cap. 10. Tannerus disp. 4. quaest. 8. dub. 6. Megala 2. 2. l. 2. cap. 1. quaest. 3. num. 23. Caspens. tract. 18. disp. 5. sect. 5. Faust. in thesi. l. 8. quaest. 189. Baffaeus, v. Furtum, t. 1. n. 8. They speak, moreover, even if the petty thefts are taken from many. Diana says this must be embraced, adding some appendices with Baffaeus. A moral continuation is indeed required. They add that with respect to someone at least of the community there ought to be such a loss.

The reason is, because from that last petty theft, joined to the others, a notable injury is composed; for even if no damage is inflicted on one only, nevertheless it is inflicted on the Republic; otherwise someone could enrich himself by taking an obol from each individual workman.

Nor does the distinction of the first opinion please; for to retain and to usurp is the same sin: Therefore he who sins mortally by retaining sins also by usurping. See Sanchez Tomo 1. decal. lib. 2. cap. 4. num. 10.

This seems to be the sentence of D. Bonauentura in Confessionali, cap. 5. part. 20. where he notes the penalties given for false measures and weights ex C. Mogunt. namely thirty days on bread and water, and he adds various penalties of exile; and as if concerning falsifying. And Lex Cornelia, and tit. de ordin. circa Amenam, circa finem. Hence a grave argument is drawn: If those petty thefts from various persons were allowed, without restitution or grave guilt, grave evils of false measures and weights could be poured into the Republic. But S. Bonaventure places these there in order with respect to the matter necessary for confession.

Moreover, that a very small quantity added to the others, and with them constituting grave matter, makes a mortal sin, not indeed a solitary one but with the others, the Doctors commonly judge, a long list of those reported by Fagundez in septimum Praeceptum decal. l. 7. cap. 5. num. 4. and they are almost in the manner alleged.

Truly, indeed, in the external forum there is no heaping up of several moderate thefts to one penalty of death, as Iason says in Leg. si idem cum eodem, num. 3. and 4. ff. de iudic. omnium iudicum, where Decius num. 1. and 16. and Claudius num. 1. and Farinacius consilio 78. num. 3.

But Diana limits the second sentence: those trifling things are gathered into one, if the mass is made from the same kind of business, or from the mind of enriching oneself. Thus also Rebell. p. 1. l. 3. quaest. 15. sect. 3. num. 44. Tanner. t. 3. disp. 4. quaest. 6. dub. 9. num. 247. Bonac. de contract. disput. 2. quaest. 8. puncto 2. But this reason does not please Sanchez Sum. t. 2. l. 7. cap. 21. num. 16. and deservedly; for what reason is there for the taking to be mortal, if the grave matter coalesces from different businesses?

Next he says, those petty thefts coalesce into one when between them there is not a great interpolation of time; and it will be notable, according to Sanchez and others, if it is of one year, or according to Filliucius Tomo 2. tract. 31. cap. 10. num. 244. and Diana, of one month, or half.

He adds, third, that a much greater quantity is required to constitute mortal matter, and the fault is the smaller the more numerous are the owners into whom the damage is divided. Thus also Sanchez num. 17. Rebell. num. 43. Megala 2. 2. l. 2. cap. 1. quaest. 5. num. 36. Less. l. 2. cap. 12. disp. 8. num. 46. and Diana concludes that a double quantity is required than in other thefts.

He says, fourth, that the said sentence has no place with respect to the trifling thefts of eatables, which are committed by servants and maidservants, that they may eat. Thus also Megala num. 43. Lessius num. 48. Nauar. cap. 17. n. 138. Reginald. Tom. 2. lib. 23. cap. 1. num. 22. Petrus Nauar. de restit. l. 3. cap. 1. num. 5. dub. 6. num. 202. Sayrus l. 9. cap. 15. num. 17. Bannes 2. 2. quaest. 66. art. 6. Caietanus, v. Furtum, and others in Fagundez lib. 7. cap. 11.

Finally he notes, that those stealing thus are not held under mortal fault to restitution of the whole stolen quantity; but only to that part, upon the restitution of which the notable quantity ceases, sought for mortal theft. Thus Aragon. 2. 2. quaest. 66. art. 6. Rebell. p. 1. l. 3. quaest. 15. sect. 4. num. 29. Megala 2. 2. l. 2. cap. 1. quaest. 5. num. 25. Nauar. de restit. lib. 3. cap. 1. p. 10. dub. 8. num. 62. Filliuc. tom. 2. tract. 31. cap. 10. num. 247. and others, to whom Caspensis subscribes Tract. 18. sect. 9. Baff. v. Furtum 1. num. 8.

This, however, does not please me; for restitution is compelled by justice gravely injured; but the injury is grave by reason of the whole, not of the particle alone, and although this raises it up to matter grave, it is not alone, nor the greater part.

He adds also another question: Whether a Religious, gradually filching eatables for his own use together with another companion, sins mortally when they reach a grave quantity: He answers negatively, and alleges many Doctors.

From what has been said it also follows that, if many together, each stealing a little, steal from one, so that they make grave matter, all are held in solidum to restitution. Thus Sanchez Tomo 2. Decal. l. 7. cap. 21. num. 19. Petrus Navar. l. 3. de restit. cap. 1. num. 41. Less. l. 2. cap. 12. dub. 9. Fagundez l. 7. cap. 14. Bassaeus num. 9. Understand this, if they agree on the petty thefts by communicated counsel.

But if not by communicated counsel, yet accomplices of one another's theft, advertent of the notable damage; whether they sin mortally is asked.

They commonly answer affirmatively. See the Doctors in Bassaeum, Fagundez num. 14. Yet others deny, in the same ibi, num. 6. and Sanchez T. 2. decal. l. 7. cap. 21. num. 21. Caspensem tract. 18. disp. 5. sect. 9. and Diana p. 1. Tract. 17. resol. 42. Vasquez p. 25. disp. 146. num. 6.

You will object. If by proceeding from an obol to a ducat there is a certain quantity which makes a mortal sin; and what is less is not a mortal sin: Therefore every theft will be by its nature either mortal or venial, because it is incredible that by the addition of one obol the matter of sin can be so changed, that what was venial becomes mortal.

Tanner. ANSWERS num. 122. by denying the consequence, because prudent estimation and the providence of God require that one finally arrive at a notable quantity, which will easily be persuaded if we consider also in natural things that the last degrees of quality dispose to the induction of a substantial form; thus the last particle of water hollows out the stone, sinks the ship; the last blow kills.

Whether it is lawful to take what belongs to another in extreme or urgent necessity.

All concede that in extreme necessity this is lawful. So teach the Doctors cited by Fagundez in 7. praeceptum, l. 7. cap. 26. Therefore in extreme necessity, dominion is thereby transferred — so many assert: Scotus in 4. dist. 15. quaest. 2. §. ad argumenta, Salon. 2. 2. quaest. 66. art. 7. concl. 1. controv. 1., Aragon. 2. 2. quaest. 32. art. 5., Azorius Tomo 2. l. 12. cap. 8. quaestio 7. and cap. 9. quaestio 1., Sotus l. 4. de Iust. quaest. 7. art. 1. ad 4., Sayrus l. 10. tract. 5. cap. 6. num. 12., Suarez de charitate disp. 7. sect. 5., Sylvest: v. Restit. 5. num. 4., Tanner. disp. 4. quaest. 8. n. 126., citing others.

Others, however, deny that dominion is transferred to the person in extreme need. So Medina Cod. de restit. quaest. 3., Nauar. Sum. cap. 17. num. 61., Tolet. l. 5. cap. 24. num. 10., Lessius l. 2. cap. 16. disp. 1. num. 8., Bellarminus T. 3. l. 3. de bonis operibus, cap. 8., Vasquez opusc. de eleem. cap. 1. dub. 6., Malderus Tract. 4. cap. 7. dub. 7. §. respondeo, Fagundez l. 7. cap. 26. num. 7., Couar. 2. p. var. §. 1.

As regards D. Bonaventure, he certainly sides with the first opinion, in speculo animae, cap. 2., where he says: A man may take the property of another out of extreme or urgent bodily necessity, because in necessity all things are common, and then it ought not to be called theft, for what he takes in necessity is his own, or even out of the necessity of another. Hence Ambrosius, in Dom. 8. post Pentec. serm. 64: The bread of the hungry is what you keep back. Along with him, besides those already cited, are Sarmiento 1. p. ment. 4. n. 5. and Caspens. Tract. 18. disp. 5. sect. 6.

From this it is deduced, with the first opinion, that one who has taken something in extreme necessity is not bound to restore its value if he should come to better fortune.

The foundation of D. Bonaventure is most solid, because property was introduced by the law of nations, after the usurpation of things which before were common; yet on this condition, that others should not perish from poverty. Wherefore in extreme necessity all things are common, not only as regards use, and they belong to the first who takes them, unless the same necessity presses upon the possessor; nor is it absurd that the same thing should be common to the use of several, even if we concede that dominion in consumables is not separated from use, once that independence is added to use which surely in our case must be added; then dominion is transferred to the person in extreme need for the time being, and it is no longer the possessor's. I said in consumables; for as regards other things only the use is transferred, as if someone were compelled to take a horse to avoid death, so as to make a swift flight; then that horse must be restored after use. By this doctrine whatever Fagundez opposes in num. 6. is washed away — that is, that this foundation is weak; for thus it is explicit, unshaken, strengthened by the common opinion of the Doctors, and is founded also on §. cum in eadem, ff. ad Legem Rhodiam, de iactu, where he declares that in extreme necessity things are held in common.

Nor let Fagundez say that things become common as to use only, not as to dominion; for once independence is added to use, dominion is joined to it, as I showed in the first question.

The greater difficulty is: whether in necessity that is not extreme, yet nevertheless grave and urgent, it is lawful to seize the property of another by one's own authority.

The first opinion is that in grave necessity of sickness, hunger, or nakedness, such taking is licit. So Petrus Nauar. l. 3. de restit. cap. 1. dub. 5. num. 367., Angelus v. Furtum, §. 37., Sà v. Furtum., Nauar. Summae l. 1. c. f. 17. num. 118., Medina Cod. de eleem. quaest. 3. et de restit. quaest. 3. causa 1.; and Lessius indicates it is probable, T. 1. l. 2. cap. 22. dub. 12. num. 71. et cap. 16. dub. 1. num. 17. et 18., as do Vasquez de eleem. cap. 1. disp. 7. num. 60., Malderus tract. 4. cap. 7. dub. 1., Caspensis Tract. 18. disp. 5. sect. 6., Bonacina de contract. disp. 11. quaest. ult. p. 1. num. 32., Diana p. 1. tract. 17. resol. 29.

The second opinion teaches that it is not licit in urgent necessity to take the goods of another: so Sotus l. 5. de Iust. quaest. 3. art. 4., Salon. 2. 2. quaest. 66. art. 7. controv. 1., Valentia tom. 3. disp. 5. quaest. 10. punct. 5. dub. 1., Sayrus l. 9. cap. 14. num. 17., Sylvest. v. restit. 5. num. 2., Lessius r. t. de Iust. l. 2. cap. 12., Fagundez in 7. praeceptum decal. l. 7. cap. 27. num. 5., Azor. p. 2. l. 12. cap. 8. quaest. 8., Turtianus 2. 2. disp. 88. dub. 8., Reginaldus T. 1. l. 4. cap. 20. num. 267., Caiet. 2. 2. quaest. 66. art. 7., Tanner. disp. 4. quaest. 8. num. 126.; but Bassaeus, v. Furtum 1. num. 12., remains wavering, as is his custom.

The Seraphic Doctor plainly stands with the first opinion, as is clear from his words cited above.

I assert therefore that in urgent necessity it is lawful to take what is necessary.

It is proved first from D. Bonaventure, because the division of goods was ratified, yet so that others, from whom they had been wrested — naked, hungry, sick — should not lie cast off like aborted children; for this reason Christ, describing himself as King of Kings, Matth. 25., gravely threatens with his saying against those who in grave necessity had refused to clothe the naked, feed the hungry, visit and help the sick, and he protests that an injury was done to him as supreme Lord of goods, who had transferred dominion to those in grave need.

So Ezech. 16. This was the iniquity of thy sister Sodom: pride, fullness of bread, and abundance: and they did not stretch forth their hand to the needy and the poor. Therefore since the rich man is bound to give that thing (if only out of charity, if not out of justice), he is treated unjustly if it is taken from him against his will.

RESPONDET Fagundez num. 5.: he is indeed bound to give, but not to this man or to THAT man. Therefore he is unjustly deprived of this liberty, when he is compelled to leave it to this man.

This foundation, however, collapses before Vasquez. And indeed he is bound to give to the needy who present themselves, as is said in Matth. 25., nor is he free so as to be able to pass over this one and seek another in Galicia, even if he has nothing wherewith to relieve all.

OBIICIUNT. Cap. si quis de furtis, where a penalty is imposed upon one who steals in grave necessity; but a penalty presupposes guilt: therefore.

RESPONDET S. Thom. quaest. 66. art. 7. ad 1.: the Decretal speaks of a necessity that is not urgent. Caspensis subscribes. This canon D. Bonaventure cites in the Confessionale, cap. 3. particula 55.

DEINDE cap. 4. particula 2. he says that no penance is to be imposed upon thieves, because they are incapable, unless they restore. He supposes, therefore, that the Decretal does not condemn as theft the taking by one in grave, urgent necessity; but him who does not take in grave necessity so urgent that he could avoid taking the property of another; for in urgent necessity he asserts it is not theft, as I said above, citing the words of the S. Doctor.

BASSEUS, v. Furtum, 2. num. 6., says that a religious who takes things of the monastery that are not necessary, or without leave, is a thief to the same extent as laymen stealing their own goods.

Religious indeed do not undergo the lot of servants, but of sons, as D. Bonaventure teaches in Apolog. pauperum, respon. 3. cap. 1., and it is clear ex C. litteris, de sepultur. in 6. et Leg. qui in potestate, ff. de testamen. et Authent. Ingressi. Cod. de Sacrosanctis Ecclesiis, Nauar. cap. Non dicatis 12. quaest. 1. num. 61., Sanchez l. 7. de Relig. cap. 21. num. 31., Rebell. p. 1. lib. 3. quaest. 15. s. 8. 3. num. 22. Hence the jurists do wrong when they count them among their own, wishing that whatever they acquire should accrue to the monastery, in the manner of servants.

From these texts the Doctors deduce, as is indicated quaest. 4. in fine, that thefts of religious are to be considered in the manner of thefts of sons of the family, not of the very rich, but of the middling, and consequently that five silver pieces, or thereabouts, are grave matter; although Caspensis, cited there, requires something more, and Fagundez l. 7. cap. 5. num. 15. two hundred denarii, that is, ten crowns.

ONE of the conditions excusing religious from theft and from proprietary guilt is that it be of edible things for one's own use; if this is licit for servants, as I showed quaest. 5., much more is it licit for sons to consume some edibles.

But for giving away, they held that one ought not exceed the value of three giulii: so thought Bartholom. a S. Fausto Thesauro, l. 8. quaest. 218. and Paulinus Berti on the Bull of Clement VIII on the giving of gifts. See also Fabrum in 4. disput. 45. cap. 5. num. 122. and Diana p. 1. Tract. de paupertate Religiosa, resol. 14.

IN MY judgment the opinion of Suarez seems discerning, T. 3. de relig. l. 8. cap. 11. num. 41., where he thus asserts:

Of the goods of the monastery, consumable in use, namely those pertaining to food and drink, if something is taken by religious for their own actual, so to speak, and transitory use, it does not regularly seem to be mortal sin, unless the damage to the Religion would be excessive, and in something extraordinary and more precious; outside a case of this kind, the things are considered of lighter condition. And although the prelates dislike this, they are not yet so unwilling that they regard it as grave matter in respect of poverty, but only in respect of decorum and religious perfection.

IT IS ADDED that religious are treated as sons as regards the use of such things; but between parent and son a similar act is not considered grave; it would be otherwise, however, if such things were taken in great quantity, and retained secretly, and little by little consumed, for that could be grave sin, although great prudence is necessary to discern it in the particular case. So Suarez, with whom Diana is pleased, p. 1. Tract. 6. de paupertate, resol. 30. See also Sanchez T. 2. l. 7. cap. 19. num. 53., Tanner 2. 2. disp. 7. quaest. 1. dub. 4. num. 106., where he says: Not even all the severity of Prelates can render such takings, as regards the substance of the thing taken, unjust. See again Diana ibi, resol. 35.

LEDESMA in addit. ad Summam, Tom. 2. cap. 4. and Cenedo tract. de paupertate Religiosa, dub. 20. num. 10. place eight or nine reales as matter deadly for religious; but they require a greater quantity in edibles.

RODRIQUEZ, however, Summa Tom. 4. cap. 118. num. 27. et 29., prescribes the sum of two gold coins for religious; the same Sotus taught, de Iust. l. 4. quaest. 3. ad 3., as did Aragon. 2. 2. quaest. 66. art. 6. conclus. 3.; but Diana is not pleased with it, resol. 36.

BASSEUS, with Miranda, in Manuali prael. t. 1. quaest. 28. art. 17., thinks that a notable quantity in the thefts of religious is to be determined in the particular case, according to the difference of times, places, persons, Religions, and other circumstances, at the judgment of a good man. But Mendoza quaest. 8. posit. de paupertate, concl. 9. num. 12. teaches that two silver pieces are not a notable quantity. Ioan. de la Cruz de statu relig. l. 1. c. 3. dub. 5. and Sanchez Summa Tom. 1. l. 7. cap. 20. num. 3. et 6. think it to be four silver pieces. Diana subscribes. Bartholomaeus a S. Fausto l. 8. quaest. 193. num. 2. says that in the richest monasteries three silver pieces, in monasteries moderately endowed two silver pieces, but in poor ones one suffices for mortal proprietary guilt.

But our SANCTES, most poor, set one giulio, in cap. 6. Regulae; he did not remember that these thefts are committed against the most wealthy Pontiff. I confess, however, that they are committed from the pantry of the poor.

This is indeed a most poor opinion; for no one so religious is oppressed by it, nor does he himself rightly cite Navarrus. But this Doctor, in this as in many other decisions of the Rule, is severer than is altogether just.

Diana ADDS, resol. 41., ex Ioan. Cruz de statu relig. lib. 1. comp. 3. dub. 3. concl. 3., that a religious may take a meal or other edibles, from Lopez in Instruct. p. 1. cap. 6., who says: A religious may receive from laypersons some gifts of electuaries, or of heartening confections, two little vessels, or a pair of partridges, or hens, or something similar; but because in edibles of great value leave is not so easily presumed to be granted by the Superior, therefore one must proceed cautiously in such a case.

These things seem to me to be in the mind of D. Bonaventure, in 4. dist. 15. p. 2. art. 2. quaest. 1., and in this way is to be understood canon. 12. quaest. 1., where it is said: It is certain that a monk ought to have, or give, or receive nothing without the leave of his superior, unless perhaps he who is in need is in extreme necessity; then he ought not obey the Abbot, for he would plainly act against God. There he also teaches that there is no proprietary guilt unless it is expressly against the will of the Prelate. And he adds, cap. 2. speculi animae, these words: Fourthly, concerning the theft of religious in the retention of their own property, it must be noted what Augustine says, serm. 1. ad Fratres in Eremo, about religious: If anyone conceal a thing entrusted to him, he shall be condemned by judgment of theft; but I understand this concealing, and having as one's own, when it is so concealed that, even if the Prelate should command in virtue of holy obedience that it be revealed, it would still be concealed. Nor do I otherwise understand it as mortal, unless when it is retained against the preceptive will of the Prelate. This must also be noted of religious, and stewards, and sons of the family, and wives, that they can commit theft if they notably damage the owners of goods in dispensing, against the will and intention of the owners; but when, out of an eye to piety, and even in procuring the common good, without evil intention, they give or dispense some things, it is not to be judged mortal. The same, from D. Augustine, he reports in speculo disciplinae ad Novitios, p. 1. cap. 4.

Where you have, first, that religious are numbered together with sons and wives in this matter. Secondly, that not only is presumed leave not necessary to avoid theft and religious proprietary guilt, but that retention against the will of the Prelate is required, even if it were preceptive, for him to be a proprietor.

This is indeed a tacit leave, while the prelates do not forbid, and it suffices, because tacit and express leave have the same force, Leg. cum quod, ff. de rebus creditis, et cap. 2. de rescriptis, and so teach Sanchez l. 7. de Relig. cap. 9. num. 7. and Fagundez lib. 7. cap. 5. num. 12., who add that the use and received custom introduced in religion, of giving and receiving without leave for licit uses, excuses religious. The same must be said with respect to retention.

WHEREFORE the principal sign of proprietary guilt, which is to retain something without legitimate leave, as Navar. teaches, C. non dicatis, 12. quaest. 1., Suarez de Relig. T. 3. l. 8. cap. 12. num. 2., as is had in C. Monachi, de statu Monachorum, is removed, if he receives and retains with this intention, that if the Prelate should command, he would not wish to retain it.

For the S. Doctor considered that the grave penalties there enjoined are not to be imposed for any omission whatever of leave. For there it is ordered that they be removed from the altar unless they repent, and that in death they be deprived of suffrages and of Ecclesiastical burial if they die in that state, and in life be deprived for two years of active and passive voice, and formerly they were expelled from the monastery, as is had in cap. cum ad Monasterium. It is true that this penalty was corrected by cap. Finale de regularibus, as Sanchez notes, l. 7. de Relig. cap. 20. num. 77., and Abbas on the aforesaid C. Cum ad Monasterium, num. 13., and Fagundez cap. 5. num. 13.

Sanchez notes very well, however, that the penalties of proprietary guilt are not incurred by those who give or receive without leave, but only by those who possess their own property; of these the C. Monachi speaks.

It must also be noted, in order to incur these penalties of proprietary guilt, that any private property whatever, or proprietary guilt, does not suffice, but it is required that a monk be found to have a great private store. But how great that store ought to be is not found treated among the Doctors, as Fagundez says, num. 4.; it is only found in Ioannes Andreas, C. cum ad Monasterium, de statu Monach. numer. 4., Hostiensis numero 7., Anchar. num. 10., and others, that a proprietary monk is to be buried outside the Church with some part of money and of his own store found, in these words: Let thy money be with thee unto perdition. And they add that this part ought to be thirty silver pieces, because Christ the Lord was sold at that price, that is, three ducats. From this you have that the quantity ought to be much greater for one to be a proprietor; and thus Fagundez thinks it could be thirty ducats.

Secondly, a religious is EXCUSED from proprietary guilt by the presumed will of the superior for that occasion, and a certain epieikeia is said to apply. For this, however, it is necessary that the matter be pressing, and that the Superior be absent, so that he cannot be approached. So teaches D. Bonavent. p. 1. Speculi disciplinae ad Novitios, cap. 4. in fine, D. Thom. 2. 2. quaestione 32. articul. 8. ad 1., Lessius Tom. 1. lib. 2. cap. 41. de statu religion. dub. 9., Lopes p. 1. cap. 156., Rodriquez Tomo 2. summae, cap. 31., whom Fagundez cites and follows, in septimum Praeceptum, l. 7. cap. 5. num. 20. Hence Suarez says, Tomo 3. de Relig. lib. 9. cap. 9. num. 28.: If a necessity of relieving a parent, gravely suffering and in need, should befall a Friar Minor of St. Francis, by accepting money offered by someone, and then he has no opportunity of going to his superior, and there is no hope of having another similar occasion, he may accept that money by epieikeia; he affirms the same moreover if the superior should unjustly deny him leave.

But they ASK: whether one who has applied epieikeia in this manner is bound afterwards to report to the superior. It is answered with D. Bonav.: if the thing still exists, and the superior can revoke or amend it, he is bound to report to the superior, that he may not be a proprietor. The same thought Sanchez de Relig. lib. 7. cap. 19. num. 8. and Fagundez num 22.

But if he would probably not believe that the superior would revoke or amend it, he is not bound to approach him, even if the thing still exists. So Sanchez and Fagundez loc. cit., Nauar. in commentario, 2. num. 20. de regular. mendic. quaest. 8. quodlib. concl. 8., Graffius p. 1. l. 3. cap. 5. num. 54.

Further, to receive or to give with this intention, that afterwards we may wish to ask leave, the S. Doctor judges not altogether safe, loco adducto.

I SUPPOSE first, that men can sell their slaves, as the Doctors commonly teach with D. Bonaventure, in 4. dist. 36. dub. 2. litt., where he says that they can sell them even in foreign lands, yet not to the prejudice of the faith, for instance to infidels, as the S. Doctor notes, 4. dist. 36. dub. 2. litterali.

I SUPPOSE secondly, that parents can sell their children in grave necessity; indeed, even themselves.

That fathers can sell their children is proved by D. Bonav. loc. cit. dub. 3. ex 2. Esdrae 5., where such a thing is narrated to have been licit in a time of famine. He notes, however, that the consent of the mother also is required.

That anyone can sell himself is proved from law; on which see Molina Tomo 1. disp. 33., Fagundez in septimum praeceptum, l. 7. cap. 12. num. 18.

Yet a married man ought not to sell himself to the prejudice of the debt he owes his wife, for he would commit an injustice, as the S. Doctor says, dub. 4.

I suppose also, from the same D. Bonaventure, in 2. dist. 44. art. 3. quaest. 1., that infidels captured in a just war can be sold. Thus the King of the Negroes was accustomed to do, and also other Christian Kings.

It is asked therefore: whether certain peoples, such as the Portuguese, may licitly travel through Angola and Guinea, and seize slaves by hunting, and carry them off into their kingdoms to be sold.

Many learned men indeed gravely condemn that hunting. So especially Mercado tract. 5. cap. 15., Caspensis Tract. 18. disp. 5. sect. 1. num. 11., who at once does not dare to condemn this trade, because many men, and most learned and most pious Prelates in the kingdom, do not condemn it; nor does Fagundez decline it, l. 7. cap. 12. num. 15., if they are received in good faith.

To me, however, this hunting and trading must altogether be condemned, even if (as they relate) the Sobae have houses of slaves, in the manner of cattle, for trading; for since they are free, and no title is had over their lives, I do not see by what reason they can be sold. For the excuse of leading them to the faith is rotten, as I showed, Tract. de fide, disp. 2. quaest. 3. et seq. Moreover, similar subjections, which the S. Doctor calls captivity in speculo animae, cap. 1., he cries out, after the middle of the way, are mortal.

Whether slaves can free themselves from their masters.

I speak of captives taken in a just war; for of those bought it is clear that they cannot flee.

The first opinion is that slaves captured in a just war, such as Moors or Turks, can flee, provided they go to their own homeland, not that they wander through places where they are slaves. So teach Petrus Nauar. l. 3. de restit. cap. 1. num. 200., Sà v. bellum, num. 7., Lessius l. 1. l. 2. cap. 15. dub. 15. num. 24., Azor. Tomo 2. l. 2. cap. 24. quaestio 3., Couar. l. 1. var. cap. 2. num. 10. et in Regulam Peccatum, §. 11. p. 2., Bannes 2. 2. quaest. 40. art. 1., Angles in flor. in 4. quaest. de dominio, art. 2. concl. 5., Sotus l. 4. de Iust. quaest. 2. art. 2. concl. 3., Gregorius Lopes l. 23. tit. 29. p. 3., Alens. 3. p. quaest. 48. membr. 2. art. 3., Fagundez l. 7. cap. 1. num. 21., after D. Bonaventure in the places to be cited.

The negative opinion is upheld by Molina T. 1. disp. 37., Nauar. Man. cap. 7. num. 63., Glossa C. Ius gentium, dist. 1., Fortun. Leg. manumiss. col. 2., D. Anton. 5. p. tit. 3. cap. 6. §. 4., Turrecrem. in C. Ius gentium, disp. 1., Sylvest. v. servus, quaest. 3. dict. 2.

But it seems to be proved first from the S. Doctor, 2. dist. 44. art. 3. quaest. 1., because captivity in war was introduced by the law of nations, and is just, sanctioned by laws. Therefore those fleeing steal themselves from their masters, Leg. 1. Cod. de servis fugitivis, et Leg. 2. C. eodem titulo; it is established there that a slave caught in flight is to be punished by mutilation of the foot; but so grave a penalty would not be imposed except for mortal sin. The laws of the Code, moreover, are more recent, and of Christian Emperors. Wherefore one must stand by those, not by others of the Digest.

It is confirmed from cap. 1. et 2. si quis servum, dist. 17. quaest. 9., where it is said that they sin mortally, and are bound to restitution, who aid and encourage slaves to flee.

But the response of Fagundez is frivolous: that the Codes speak of slaves wandering through the kingdoms where they are slaves, not of those returning to their own; in which they have a right; for they are slaves, yet in such a way that, if they can, they are able to flee.

These things are indeed said gratuitously, because in the Codes this distinction is not found, nor does it accomplish anything; for the question asks whether they are absolutely subject to masters; and if it is so, whether they are seized so as to return to their own, or so as to wander, contributes nothing to diminishing the damage; just as the same damage would be done by one who stole my purse, whether he carried it off to Spain or squandered the coins here.

I add that in our case there is less damage or inconvenience if slaves wander through Christian regions, where they can easily be converted to the faith, than if they return to their own Mohammedans or Idolaters.

Indeed, the affirmative opinion is evidently proved by D. Bonav. in 4. dist. 36. quaest. 1. fundamento 3. et quaest. 2. ad 2. When two unequal rights concur, the right of the higher order precedes; but liberty is of the Law of Nature; the servitude of War is of the law of nations, which is inferior: therefore. This reason caused the statute in the Institutes de rerum divisione, §. item ea, to be made in these words: Free men are brought into our servitude, who, however, if they escape our power and have returned to their own, receive their pristine state. And the same is had in the Institutes: Quibus modis ius patriae potest. solvatur, §. si ab hostibus. And in Leg. Nihil interest, ff. de captivis, et postliminio reversis, there: It makes no difference when a captive has returned, whether he was let go, or escaped the power of the enemy by force or by stratagem.

This also was enacted in Leg. 25. tit. 14. part. 7. in the kingdom of Castile, there: If a Moorish slave flee into Mauritania, and there set foot in safety, we will that he remain free, even if he afterwards return to the Christians.

It is confirmed, for one condemned to perpetual imprisonment, or to the galleys, even if justly, can nevertheless flee. Each opinion is probable, but this one is more strongly proved because of the reasons adduced.

To the objections it is answered that the law of nations has detracted something from the law of nature, and it is restored if the occasion offers itself in necessity, as I said even of the properties of things, but more truly of liberty, which is positively of the law of nature, as I said in the Tractatu de Legibus, disp. 4. quaestione 2.

To the penalty of mutilation I would say first that it is comminatory, and never commanded to be executed. But many laws threaten, lest greater liberty be usurped by all than is fitting, for instance lest those take flight who have sold themselves, and renounced their natural right; and of these also the chapter si quis servum speaks, but not of those made slaves in war.

As regards Christian slaves captured in war on the side that is just, they can flee. So Petrus Nauar. l. 3. de restit. cap. 1. num. 11. Indeed they are bound to flee from the gentiles when there is danger to the faith, as I deduce from D. Bonav. in 4. dist. 36. dub. 2. litt. The reason of the Seraphic Doctor is evident, as Fagundez brings it forward, cap. 12. num. 27.: because we are bound to provide more for the salvation of the soul than for any other thing whatever.

Yet I ADD that war is always just for Christians against the Saracens and Turks, since they have tyrannically occupied the provinces of the Christians, as Couar. observed in Reg. Peccatum, 2. part. §. 11. num. 6. Fagundez, in the place cited, after D. Bonavent. expositione in Threnos, et serm. 16. Haexaëmeronis: a Christian captured by another Christian waging war justly can licitly flee, as D. Bonavent. teaches, in 4. dist. 36. quaest. 2. ad 2., Petrus Navar. Lib. 3. de restit. cap. 1. num. 211., Fagundez num. 28.; nor is he even a slave; for although by law he could be made a slave, yet by legitimate custom among Christians, that they not be legitimately subjected to servitude, it is not licit, as Molina also teaches, Tract. de iust. disput. 33. §. primus est.

The S. Doctor proves this, 4. dist. 36. quaest. 1. fundamento 1.: In Christ Jesus there is no slave, Galat. 3. And by Canon Law, Christians cannot be reduced to the servitude of slaves.

That the seizure of spoils in a just war is not unlawful is proved by the Holy Doctor on chapter 10 of Wisdom, in these words: The just took the spoils of the wicked, because it is done by public authority.

But to seize another's goods at God's express command is no sin. Thus the Hebrews took away the riches of the Egyptians, Exodus 12, as is commonly noted with St. Bonaventure, in sermon 6 on the ten commandments, and in 2 dist. 40 dub. 2, where, however, many note that the Hebrews had a right to those goods on account of the wages withheld for their labors spent in building the cities, as Clement of Alexandria teaches, book 1 of the Stromata, Epiphanius in the Anchoratus, St. Thomas 2. 2. quaest. 66. art. 5. ad 1., where Salon, Aragon, Valentia, tract. 3. disp. 5. quaest. 10. puncto 5., Gabriel in 4. dist. 15. quaest. 3. art. 1., Sotus l. 2. de Iust. quaest. 3. art. 8. and lib. 5. quaest. 3. art. 3. ad 1., Melchior Cano lib. 2. de locis, cap. 4., Sayrus Lib. 9. cap. 14.

From this a doubt can arise: Whether by private authority men can seize their own wages; And whether anyone else can take away a thing unjustly detained by another.

This question is treated by Altisiodorensis summa, tract. de restitut. quaest. 6., Alensis 4. part. quaest. 24. memb. 5. art. 3., the Gloss on the chapter Ius Gentium, Richardus 4. dist. 15. quaest. 7. art. 1. ad 2., Paludanus there, quaest. 3. dist. 3. art. 3. and quaest. 4. art. 2., St. Antoninus part. 2. tit. primo, cap. 15., Sylvester V. bellum 1. quaest. 9. and V. furtum, quaest. 12., Angelus there, Adrianus quodl. 6. art. 1., Castro lib. 2. de potestate leg. poen. cap. 10. argument. 4., Cajetan 2. 2. quaest. 66. art. 3. and 5., Sotus lib. 5. de Iust. quaest. 3. art. 1. and art. 3. ad 1., John Medina Cod. de restit. quaest. 3. causa 12., Navarrus Man. cap. 17. n. 111. and cap. inter verba 11. quaest. 3. conclusione concl. 66. num. 792., Covarruvias lib. 1. var. resol. cit. and num. 14., Sebastianus Medices in summa, titulo 6. quaest. 129., Salon 2. 2. quaest. 66. art. 5. controv. 2., Aragon there, Petrus Navarrus Lib. 3. de restit. cap. 1. part. 4. disput. 8. num. 384., Valentia disp. 5. quaest. 10. puncto 5., Lopez part. 2. Instruct. cap. 8., Joseph Angles quaestio quid sit liberare fustisito, art. 2. diffic. 27. disp. 15., Toledo lib. 5. summae, cap. 15., Garbo de restit. quaest. 85. dub. 2., Corduba summa, quaest. 111. et Lib. 1. qq. quaest. 35., and others in Sayrus l. 9. cap. 14., Fagundez lib. 7. cap. 30.

I say, therefore, first, that it is not lawful to take away one's own property in this way, if it can be obtained by another, more honorable means; for although no injustice is committed with respect to the thing received, still it is committed with respect to the manner, for they make justice for themselves to the prejudice of the public judgment of right. Injury is also done to the one holding the thing, if he is a just possessor, as a depositary; for thus you expose him to the danger of having to pay twice for the thing, and to other inconveniences, as St. Thomas says, 2. 2. quaest. 66. art. 5. ad 3.

I say secondly that, certain conditions being in place, this is lawful.

The FIRST is that the thing be owed in justice. So Corduba with Navarrus and Sayrus.

The SECOND, that this debt be liquid.

The THIRD, that he receive no more than is owed to him.

The FOURTH, that he cannot recover that good by order of law, or out of court, without grave loss.

The FIFTH, that it be likely to him that asking the debt from the debtor will profit him nothing.

The SIXTH, that no grave scandal follow.

The SEVENTH, that he take care to admonish the debtor, or the heirs, that the debt is now to be paid.

These conditions therefore being in place, since no injury is inflicted on anyone, and the thing is reduced to equality, it will be lawful to make such compensation for oneself, as Sayrus says, num. 8.

The same thing, I said, many understand to be able to be done even by violent seizure, unless an immense disturbance in the Republic follow. Others, however, deny this, because a private person may not punish another, as is gathered from St. Thomas, 2. 2. quaest. 66. art. 8. Therefore those who seize in this way are punished by Princes.