Summa summae S. Thomae, Tomus III

The name of right is taken in various ways: first, for that which is just. But the just is taken in two ways: generally, for everything that is consonant with law; strictly, for the equality owed to another; for those things that are equalized are vulgarly said to be justified. And right so taken is the object of justice, as we shall say below.

Secondly, right is taken for the legitimate faculty of doing something, acquiring, possessing, alienating, etc.: in which sense one is said to use his right. But right taken in this second way is the foundation of right taken in the first way. For nothing is owed to another by way of equality without a right in the other, because what is owed is owed to a right; right and debt are correlatives.

Thirdly, right is taken for law, which is the rule of the just in general. Hence right taken in the second way depends on this right; for that anyone have a right to something is attributed to him either by the law of nature, or by positive law, or at least by free concession of God or men. Wherefore

I say secondly: Right taken in these three ways can be divided, by the same division, into natural and positive right.

And as to right taken for law, it is evident; because law is one thing natural, another positive. Eternal law is not included, because this division is made into members entirely diverse; but natural law is not a thing entirely diverse from eternal law, rather it is its participation in a rational creature, as is taught in Ia IIae, q. 91, a. 2, ad 1.

Positive right is divided into divine and human. Divine is one thing of the Old Testament, another of the New. Human positive right is divided into the law of nations, canon law, and civil law. Canon law, which especially concerns us, is compounded from the canons of councils, the decrees of Pontiffs, and the judgments of the Fathers.

Right taken for the just is likewise adequately divided into natural right and positive right¹ ; because right so taken is the just, or what is adequate to another. Now something can be adequate to another in two ways. In one way, from the nature of the thing, as when someone gives as much that he receive the same amount, and this is called natural right. In another way something is adequate or commensurate to another from the good pleasure of those who establish it, as when two private persons so covenant between themselves, or the community consents that such a thing be held as just, or the prince ordains by law that it be so; and this is called positive right. The other subdivisions are as in the division of law.

Right taken for "the legitimate faculty, etc.," is also divided, on the part of the principle, into natural, which belongs by law or by the consent of nature, and positive, which belongs by positive law or by the free concession of God or men. The other subdivisions are as in the division of law. Likewise this right, on the part of the term it regards, is divided into right in a thing and right to a thing.

Right in a thing is what one has in a thing already his and obtained. Hence it gives a real action upon the very thing. Three conditions are required for it: the existence of the thing, a legitimate title, such as purchase, donation, etc., and delivery of the thing. So has right disposed, except in certain cases.

Right to a thing is what one has in order that some thing become his. For this no other condition is required than a legitimate title. It does not give an action upon the very thing, but upon the person only. Such right² is acquired by donation, purchase, etc., before delivery. Also by election, presentation to an office, by collation of a benefice before acceptance, etc.

Since right taken in the second way, for the faculty of doing something, acquiring, etc., is the foundation of right or of the just, which is the object of justice, many necessary points concerning it occur to be examined, especially concerning dominion, which is its principal species.

Dominion is twofold: one of jurisdiction, which is the power of governing one's subjects; the other of property, which is the faculty of disposing of some thing as one's own for one's own advantage, and it is chiefly of this that we treat here.

Dominion of property again is twofold: one full and perfect, the other not full and imperfect.

Full dominion is the right to the property of a thing and its emoluments. Not full is the right to the property of a thing without the emoluments, and it is called direct dominion, such, e. g., as belongs to the prince with respect to a fief; or the right to the emoluments without the property, and it is called useful dominion, and such belongs to usufructuaries, feudatories, emphyteutae, etc.

Therefore

I say first: Full and perfect dominion of property, as it embraces direct and useful dominion, is rightly defined: "A right in a thing, or the legitimate faculty of disposing of a thing as one's own, for any use not prohibited by law, for one's own advantage." It is gathered from D. Thomas, here q. 66, a. 1, c.

It is said, "for any use not prohibited by law;" because, although dominion by its nature bestows power for any use whatever, this power can nevertheless be impeded by law so that it does not pass into act: as happens with a minor, who before the legitimate age cannot alienate his goods, although he is their true owner; hence, if he were to alienate them, he would not sin against justice.

But the same conditions are required for perfect dominion that are required for right in a thing, namely: the existence of the thing, a legitimate title, and delivery of the thing.

I say secondly: Usufruct is defined: "The right of using and enjoying the things of another, saving their substance." So in the law.

It is said, "of enjoying," that it may be distinguished from simple use.

For he who has simple use can only use the thing, e. g., a horse, a house, a garden, a field, a wood, etc., for his own daily necessity, so that he can neither let, sell, nor gratuitously cede to another either the superfluous fruits or the right he has; whereas he who has usufruct can do all these things, so L. 12, ff. de Usu.

But fruits are reckoned not only in immovables, as hay, crops, shoots, timber trees, bois taillis in an estate (for fruit-bearing trees are not reckoned fruits), but also in movables, as wool, milk, offspring, etc., in a flock. Where note that timber wood, even if cut out of season, is in fruit, just as an olive picked unripe, likewise hay cut unripe. L. 48, ff. de Usufructu. As to harvest and vintage, however, the usufructuary must wait for ripeness.

Note further that, if the usufructuary die before he has gathered the fruits, even if ripe, these are acquired by the owner of the property, and not by the heirs of the usufructuary. So in Instit. de Rerum divisione, § Is vero. The reason is, because as long as they adhere to the estate they are held to be one with it. Hence they belong to the owner of the estate until the usufructuary by gathering them has made them his own.

It is said, "the things of another;" because usufruct is a servitude, which can be constituted only over the things of another. "For no one's own thing serves him, but profits him by right of dominion," as is said in L. 26, ff. de servitute praedior. rustic.

It is said, "saving their substance;" because the usufructuary must reserve the thing intact for the proprietor. Hence usufruct cannot properly be constituted over things that are consumed by a single use, as wine, oil, etc.

I say thirdly: Use is defined by the jurists: "The right of only using the things of another, saving their substance."

It is said the right of only using, and not of enjoying; because, as I have already said, the simple user can only take the fruits of a thing, as vegetables, apples, hay, for his own daily necessity, but he cannot sell or give them away, nor let the thing itself; which the usufructuary can do.

It is said, "saving their substance," because in use, as in usufruct, the thing must be preserved intact for the owner.

From this you have that this definition of use does not belong to things consumable by a single act, as wine, oil, bread, etc.; because by such use the substance of the thing does not remain safe. Hence, if use be taken more generally, as it befits both things consumable by a single act and non-consumable things, it is "the right of using a thing of another."

Concerning this use of things consumable by a single act there was once great controversy, not only among theologians, but also among Pontiffs: whether it should be distinguished from dominion? For whose resolution let there be

Use is distinguished in two ways: one independent and irrevocable at the nod of the grantor, as in a loan; the other dependent and revocable at the nod of the grantor, such as guests have at a banquet laid out, or individual religious at food or drink granted to them by the superior; for these things, whether the banquet, or the food and drink, can be taken away by the owner or superior without injustice as long as they exist.

Irrevocable use is called by Nicholas III, cap. Exiit, de verborum signific. in 6°, and by some theologians "use of right," because it is an absolute and solid right. Revocable use is called use of fact; because the right it imports or supposes is very weak, being dependent on the will of another.

I say: Revocable use in things consumable by one act is distinguished from dominion.

Proof. First. Separation is a manifest proof of real distinction. But revocable use, as in the conclusion, is separable from dominion. Therefore. — Proof of the minor. He who grants to another the faculty of using his thing, while retaining the power of revoking this faculty at his nod and of disposing of his thing to whatever use he wishes, grants the use and retains dominion. Therefore. — Proof of the antecedent. That he grants the use is evident in itself. That he retains dominion is proved. He is truly lord who can recall his thing to himself at his pleasure, no contract intervening, and dispose of it for any use whatever. Therefore.

Proof. Second. Individual religious have the use of those things that are granted to them for sustenance, revocable by the superior. But they do not have dominion over them, since by vow of poverty they have abdicated the dominion and property of all things¹ . Therefore.

It is confirmed by the example Nicholas III uses. A father of a family giving a banquet to guests gives them the use of foods revocable at his nod. Yet he does not transfer dominion to them. Therefore. — Proof of the minor. Guests are not lords of what is set on the table, nor can they use it for any use whatever, but only for eating, and that so dependently on the will of the father of the family that he would commit no injustice if he took away what he had set out. Therefore.

So with us think Nicholas III, Clement V, and before them Alexander III and Gregory IX, Soto, Navarrus, Sylvius, Lessius, and many others together with the entire school of the Scotists.

You will object: John XXII, Extravag. Ad conditorem, asserts the contrary of our opinion, and says that to say that in such things use can be constituted separately from dominion repugns to right and runs counter to reason. Therefore either he, or the Pontiffs praised above, erred.

I answer. First: suppose we admit that John XXII erred in this part, nothing absurd follows, since it is not a matter of faith or morals, but partly natural, partly civil; and besides he said this not defining as Pontiff, but reasoning as a particular doctor.

It can be answered secondly that John XXII did not err even in this; because he does not take dominion strictly and properly, but broadly and improperly for right however tenuous, or rather for the license of using a thing by consuming it, which since in things consumable by the use itself it is equivalent as to effect to dominion (for the Friars Minor consume food as freely as if they were owners), therefore the Pontiff called this right, though most tenuous and revocable, dominion, namely equivalently and analogically. This solution is intimated by the gloss in Clement., Exivi de Paradiso, § Proinde.

You will ask first what possession is.

I answer. Possession is said from the position of the feet, because over immovables it is usually acquired by the position of feet. It is commonly defined: "Detention of a thing with the aid of body, mind, and right."

It is explained. It is said, "detention:" under which name is understood also the first apprehension, which is the beginning and acquisition of possession.

It is said, "of a thing," not only corporeal, as a field, a house, or movables, but also incorporeal, as an annuity, a benefice, a servitude, and similar rights, which are said to be possessed in a manner.

It is said, "with the aid of the body;" because it does not begin, nor is it possession, unless there comes an external or corporeal act by which the thing is apprehended by foot, hand, eyes, or some similar way, in itself or in another in which it is held to be contained, as I shall say presently.

It is said, "with the aid of the mind;" because the intention of possessing and holding the thing for oneself and not for another is required. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a minor.

It is said, "with the aid of right," not that it is necessary that right approve it, otherwise every possession would be just, but because for possession it is required that right not impede the detention of a thing from being held its possession. For this reason, detention of a sacred thing by a layman is not possession, not even of fact, since right prohibits it; but detention of a stolen profane thing, though unjust, is nevertheless true possession of fact, because right does not impede the detention of such a thing from sufficing for possession.

You will ask secondly in how many ways possession is twofold.

I answer. Among the various divisions of possession (for one is just, another unjust, one in one's own name, another in another's name), the principal is into civil, natural, and most civil.

Civil is that which, begun with the aid of the body, is retained and continued by the aid of the mind alone. Thus he possesses civilly who is absent from his things, but holds and occupies them as his own in mind and faculty, so long as he is not cast out of possession by another. It is called civil, because it rests more on civil than on natural law, since the natural mode of possessing is by bodily insistence, and also because it produces a civil effect, namely prescription.

Natural is that by which a thing is occupied by body and mind together. But one is held to occupy corporally when he is so near the thing that he can be present to it immediately. This natural possession can be separated from civil: for a thief, e. g., possesses my thing naturally, I civilly, until by abstraction of it from place to place it is put outside my custody; for then I am cast out of civil possession.

Most civil is that which is acquired by the sole disposition of law, even by one who knows nothing of it, and therefore without the aid of body and mind. Thus the infant heir possesses the inheritance of the deceased, especially in France and the country of Liege, where the dead clothes the living: Le mort saisit le vif. The reason is, because the mode of acquiring possession is subject to human law, which can establish diverse modes according as it seems more expedient for the commonwealth.

You will ask thirdly whether, possession lost, dominion is always lost.

I answer negatively. For of a thing lost or taken by theft I lose possession, yet not dominion.

You will ask fourthly what are the privileges of possession.

I answer. The chief privileges of possession are: first, that it produces prescription; second, that in doubt the condition of the possessor is better; third, that it is not for the possessor to prove that the thing is his, but for the assailant to prove that it is not. Concerning possession see more among the interpreters of the laws.

: To every and only intellectual nature, namely God, angel, and man, dominion belongs ¹ ; because to every and only intellectual nature belongs the foundation of dominion, namely intellect and will, by which it has the power of disposing of its own acts, and by acts over external things. Hence Genesis, I, 26, God said: Let us make man to our image and likeness, that he may rule over the fishes of the sea and the beasts of the earth: where he attributes to man dominion over beasts and fishes because he is the image of God. Now he is the image of God through intellect and will.

I say secondly: All sublunary things can fall under the dominion of man, inasmuch as he can acquire them for himself and dispose of what is acquired at his nod; but of those things of which he has legitimate title he is de facto lord.

He is also absolutely lord of operations freely exercised through intellect and will, through the external senses and through the locomotive power ² ; because such are subject to his free choice. Not so perfectly is he lord of actions naturally exercised through the interior senses and the sensitive appetite; because these sometimes depend on the disposition of a bodily organ, which is not in man's power. But of the actions of the vegetative faculty he is in no way lord, because they are in no wise subject to the command of reason.

I say thirdly: Man is not absolutely and directly lord of his own life and members, but only custodian and user ³ ; God alone is Lord. So doctors everywhere.

It is proved. First from Scripture. Deut., XXXII, 39, God says: See ye that I alone am, and there is no other God besides me. I will kill, and I will make to live. And Wisdom, XVI, 13: Thou, Lord, hast power of life and death; that is, thou alone.

Proof by reason. First. Life and body are presupposed to dominion as its foundations. Therefore they are not subject to dominion. — If you say that liberty also is a foundation of dominion, and yet man is its lord, seeing that he can sell it into servitude; I answer that what is sold into servitude is not liberty itself or the power of free choice, which is the foundation of dominion, but only the use; just as man can also sell the use of his own body. — Secondly. By the precept Thou shalt not kill, killing is prohibited, not only of another, but also of oneself, and likewise mutilation. Therefore man cannot dispose at pleasure of life or members, and consequently has no dominion over them. — Thirdly. Dominion is only over those things which we can acquire by our industry; for just as we can acquire them, so we can relinquish them. But we cannot acquire life or members by our own industry. Therefore. — Fourthly. Dominion is only over distinct things. But life and members are not a thing distinct from us. Therefore.

I say thirdly: Neither princes nor the commonwealth have direct dominion over the life and members of citizens, as if they could kill or mutilate citizens at pleasure, but only indirect, inasmuch as the life of certain men is harmful to the public good.

It is evident both from the praised precept: Thou shalt not kill; and because every private person stands to the commonwealth as a member to the body; no one however is lord of his own members, as was said. Therefore.

I say fourthly: Man is lord of his own reputation and honor ⁴ . It is common against Cajetan, q. 73, a. 2. This dominion however is at times bound up.

Proof of the first part. Man acquires reputation by his own labor, or at least the right to it; having once acquired it, by the faculty of choice he governs it, preserves it, or loses it without wrong to anyone, as Augustine did by making his falls manifest. Therefore he is its lord. — The corollary is evident; because all these acts are the principal acts of dominion.

It is confirmed. If man were not lord of his own reputation, he could not forgive or remit its restitution; for no one can remit what is not his own. Yet this is often done, and laudably done. Therefore.

Nor does it stand in the way that man can forgive the mutilation of a member, of which nevertheless he is not lord. For, if the member could be restored as reputation can, he could not forgive its restitution. What therefore he forgives is not the restitution of the member, but satisfaction for the injury inflicted and pecuniary restitution for the damage followed.

Proof of the second part. Our reputation is sometimes necessary to our neighbor. Therefore then we cannot dispose of it at will, either neglecting or squandering it.

[But our reputation can be necessary to our neighbor in three ways: first, so that the reputation of our neighbor hangs on our reputation, and from our infamy follows his infamy: as from the infamy of a monk follows the infamy of the community, and from the infamy of a father follows the infamy of his household. Secondly, so that our reputation is necessary to our neighbor for rendering to him an office owed him by strict right: thus the reputation of a prelate or parish priest is necessary that he may well govern his subjects. Thirdly, so that our reputation is necessary to our neighbor in order that an office be rendered him which is owed him only out of charity. Whoever in this last case neglects or squanders his reputation sins only against charity. But whoever in the two prior cases does not care for his reputation probably sins against justice, not precisely because he defames himself, but because he harms his neighbor.

I say fourthly: Man can fall under the dominion of the property of another man.

It is proved. Servitude is prohibited by no law: first, not by natural law; because, as was said, man has useful dominion of his own body. Therefore he can transfer it to another. Secondly, not by divine law, as is evident from the Old Testament, Exod., XXI, 2 seqq.; Levit., XXV, 39 seqq., and from the New, Philem., 10 seqq.; I Petr., II, 18. Thirdly, not by human law, as is evident from various places of both laws, where many things are discussed about slaves. But servitude was introduced by the law of nations; now however, the new law disposing, servitude is no longer admitted among Christians, few places excepted: whence this question has become almost speculative.]

Goods of the wife are distinguished of three kinds, namely paraphernalia [παρά, beside, φερνή, dowry] are those which the wife has or acquires beyond the dowry handed over to the husband. — Dotal goods are those which the wife hands over to her husband for the relief of marriage. — Common goods, which are acquired by the labor of either spouse during marriage.

I say first: The wife has full dominion, namely direct and useful, and the administration of paraphernal goods. So it is disposed in the law L. Hac lege, e. de pactis convent., l. 5, tit. 14. And reason urges this; because the wife, as to such goods that are her own, does not stand as a wife, but as a man distinct from her husband.

I say secondly: Of dotal goods the wife has direct dominion, but the husband useful dominion and administration. So in the law L. dotis 7, de iure dotium, l. 23, tit. 3, where it is said: "Equity suggests that the fruit of the dowry ought to belong to the husband; since he himself undertakes the burdens of marriage, it is fair that he also receive the fruits." By this law the second part of the conclusion is established, and the first is openly intimated. For if only the fruits of the dowry are granted to the husband, it follows that direct dominion remains with the wife. It is also evident from this: on the death of the husband, the dowry comes back to the wife without any contract, although she is not a necessary heir, at least where there are children. Therefore it is a sign that she previously had dominion over that dowry.

I say thirdly: Of the half of common goods the wife has direct dominion; because, as we were saying just now about the dowry, on the death of the husband this half comes to the wife. But useful dominion and administration belong to the husband; because, since he is the head and moderator of the family, to him pertain the fruits and administration of goods, not only dotal but also common.

All these things are of the common law; for there are various customs of places, which dispose otherwise. Thus, according to the first article of the custom of Liege, there are no paraphernal goods left to the free disposal of the wife unless a pact or convention intervenes to the contrary, but all present and future goods are subject to the dominion of the husband.

[From diverse European laws this matter is regulated as follows.

Principle. By natural law, each spouse remains lord of his own goods, with the obligation of bearing for his proportional part the burdens of marriage; but by positive law and by pact the rights of spouses over goods can be very diverse.

These are the principal dispositions which the various codes or laws of various peoples contain on this matter.

Roman law. First it adjudges the usufruct and administration of dotal goods to the man, however the property to the woman; and therefore, on the death of the man, she is preferred to all his personal creditors for reclaiming the dowry. She can also, during marriage, reclaim the dowry if it be feared that the man become unable to restore it. But if the dowry consist in money or in consumable goods, or even in stable goods, which are valued and handed over to the man with the mind of selling them, then the man acquires full dominion, with the obligation of restoring the value upon dissolution of the marriage: whence, if goods of this kind perish, they perish for the man. — Secondly. Of paraphernal goods the wife has full dominion and use. — Thirdly. Of common goods, if they exist by special pact, property and use belong to each spouse, administration truly to the husband alone.

Gallic law ¹ grants to spouses, before marriage, the faculty of making concerning their goods whatever pacts they wish, provided these be made before a public notary, and be not against good morals, or the laws, or paternal or marital authority. But if the making of such a pact be omitted, the spouses are held to enter into legal community. — Now indeed:

First. Legal community is thus constituted: first. Immovable goods acquired before the nuptials, or afterwards 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 so that he cannot alienate them without the consent of the wife. — Secondly. Common goods 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 on account of the community. The husband can alienate, pawn, etc. these goods without the consent of the wife.

But he cannot dispose gratuitously of immovables, or of the universality or totality of movables. — The community being dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and so exempt themselves from the burdens.

Secondly. By conjugal pact can be constituted: first. The regime of conventional community, whereby legal community is extended or restricted with respect to goods. — Secondly. A regime excluding community, but without separation, whereby namely all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without faculty of alienating. — Thirdly. The regime of separation, whereby all the goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, nor does she contribute to the burdens of marriage except a third part of her revenues, according to the norm of law, or another sum, this determined, whose full dominion is transferred to the husband. — Fourthly. The dotal regime, whereby a dowry strictly such is constituted, almost as in Roman law.

Let it be noted: first. There cannot be constituted a regime in which the wife is entirely independent of the husband, namely one in which she could alienate her immovable goods, or appear in civil court without the authority of the husband or judge. Nevertheless, even against the will of her husband, she can make a testament. Secondly. In the antenuptial contract, the spouses can mutually receive from each other or from others certain donations, which after the nuptials are prohibited by law.

Italian law ² has these things proper to itself: first. A dowry is constituted generally according to the rules of Roman law. It can also embrace the future goods of the bride; but after the marriage begun it can no longer be constituted or increased by the spouses. — Secondly. The spouses can before the nuptials enter into a community, not indeed of goods, but of the fruits arising from those goods whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the conjugal union. In other respects Italian law accords quite well with French.

Spanish law. A dowry can be constituted as in Roman law: likewise paraphernal goods. But with the antenuptial pact set aside, legal community prevails, as in Gallic law.

Austrian law ³ . Goods of wives are subjected to nearly the same rules as in Roman law. Only these things are to be noted: first. Community of goods can be stipulated either before or after the marriage begun, yet under conditions and in the form prescribed by law. Regularly community entered is held to be only for the case of death; therefore, during the conjugal union, the property of common goods is of both spouses, the usufruct of him to whom it belonged before the pact, and the administration of the man alone. The conjugal union dissolved, the goods are divided. — Secondly. With the special pact set aside, each spouse retains the right of property over his own goods, and likewise the exclusive right to all those things which he himself acquires during the union, or which come to him. Yet the use and administration of the goods of the wife are held to be handed over to the husband, as long as she herself has not contradicted.

Prussian law ⁴ . First. It establishes, as a general norm, separation of the goods of each spouse, and separate dominion of them; in which respect it imitates the dotal law of Roman law. The administration and usufruct of dotal goods belong to the husband; but the husband cannot alienate or pawn those goods without the consent of the wife. That however they may be placed in safety, there belongs to the wife a right of hypothec over the immovable goods of the husband. But the dominion of paraphernal goods and their free administration are in her own hands. — Secondly. In most provinces of Prussia, community of goods is determined by particular laws, by force of which (more or less, according to the custom of the place), the spouses, as long as the marriage endures, exercise dominion of their goods in common. Community can be excluded in whole or in part, but by force of a pact entered before marriage. Likewise, in provinces where community of goods does not prevail, it can be, but only before marriage, constituted by pact, under the conditions and solemnities which the laws prescribe. However, if the spouses change domicile, they can follow the laws prevailing in the province of the new domicile.

English law ⁵ . First. From recent law, it is permitted to the wife to possess her own goods in no way subject to the power of the husband. Such a status in immovable or movable goods, or in revenues, is constituted by antenuptial pact, by the father of the wife, or by the husband himself, or even by a stranger. It is moreover usually committed to trustees, that she may enjoy greater security. In the same manner is usually constituted the jointure, that is, the revenue to be received by the wife during her life, if she survive the husband. — Secondly. If the pact fail, all the goods of the wife acquired before or after the nuptials pass into the dominion and power of the man. Fields indeed cannot be alienated by him, but they can be occupied by his creditors; indeed they pertain to him absolutely, if he survive the wife. — Thirdly. The man by testament can leave not only children destitute, but even the wife entirely; but if he die intestate, the wife by right obtains all the immovable goods which were common, that is, which during marriage had been given to either spouse or bought jointly by them. Finally from the personal goods of the man she receives a third part, if the deceased leave descendants; otherwise, a half ⁶ .

You will ask first whether it is lawful for the wife to make alms from common goods or from the fruits of her dowry.

I answer affirmatively, even if otherwise she have her own goods, provided she follow the custom prevailing among women of the same condition. The reason is, because the wife is not a servant, but a companion and mistress, and as such she ought to share in the dispensation of common goods. Besides, the husband ought to consent, and if he deny consent, he is irrationally unwilling. So commonly, with St. Liguori ⁷ .

You will ask secondly whether the husband be bound to restitution, if he have spent a notable part of the common goods prodigally or imprudently.

I answer. It is disputed. The first opinion, probable, affirms, because the wife has dominion of half the common goods, and her right was violated. The other opinion, likewise probable, denies generally, that is, unless the husband exceed the limits prefixed by law, within which he is constituted as it were lord of these goods, which he can alienate without the consent of the wife, without being bound to render her an account: besides, the wife can guard against such dissipation by demanding juridical separation of goods. Whence it is concluded that the husband acting so sins indeed gravely against charity, but not against justice⁸. But by Gallic law the husband exceeds the prescribed limits if he give away gratuitously any immovables, or the totality or totality-number of movables, or if he appropriate common goods to himself alone ⁹.

You will ask thirdly whether the wife sin, relieving her parents or children born from a prior marriage out of common goods, or out of the fruits of her dowry.

I answer negatively, if she have no paraphernalia, nor the man wish to furnish what is necessary for this; because by natural law this obligation falls upon the wife, and the husband is bound to consent to it, since such a burden ought to be held common. But if the wife survive her husband, she will have to compute these expenses in her part of the community, unless the sum of goods so distributed be of small moment, having regard to the condition of the spouses. So St. Liguori ¹⁰, with others.]

On the dominion of sons under paternal authority.

Note that the goods of sons living under paternal power, which are called peculium, are of four kinds: castrensia, quasi castrensia, adventitia, and profectitia.

Castrensia are those which are acquired in just military service, or on occasion of military service.

Quasi castrensia, so called because, although they are not castrensia, they nevertheless enjoy the privilege of castrensia. They are: first. Those which are acquired in sacred military service, namely the clerical state, whether from ecclesiastical benefice or from elsewhere; so that whatever arrives after the clerical state, which would otherwise be adventitious, is held quasi-castrensian. Authent. Presbyteros, c. de episcopis et clericis. Yet goods possessed before the clerical state remain of the same condition as before. Secondly. Those which are acquired on account of some public non-mechanical office, such as judge, advocate, notary, or by profession of some liberal art, as theology, law, medicine. So l. cum multo, c. de bonis quae liberis.

Adventitia are those which do not come from the father, nor formally from his goods, nor are given to the son or daughter for his sake or principally on his account, but come to this one by succession or by donation made on some other principal account than the father's, or by his own industry, or by chance. These goods are called adventitious with respect to the father, because they do not come from him.

Profectitia finally are those which the son acquires from the goods of the father, e. g., by trading with them, or administering them, or those which were given to him, bequeathed principally on account of the father.

I say: A son under paternal power has full dominion of castrensian and quasi-castrensian goods. Of adventitious goods he has only direct dominion or property, the father useful dominion, or usufruct. Of profectitian goods finally the son has neither direct nor useful dominion, but the whole is the father's.

The first part is established in the law ff and c. De castrensi peculio. The second and third parts in lib. 2 Instit., tit. Per quas personas, 9, where Justinian, correcting the old law, which did not distinguish between adventitious and profectitian, but assigned both to the father, establishes and says: "It is holy with us that, if anything come to him from the patrimony of the father, namely to the son, this according to the ancient observance be acquired wholly by the parent; for what envy is it that what came forth on occasion of the father return to him? But what the son under paternal power has acquired for himself from another cause, let him acquire its usufruct indeed for the father, but the dominion remain with him, nor that which came to him from his own labors or prosperous fortune, passing into another, should turn out grievous to him."

But mark that, just as "children owe piety to parents, not services," as is said in l. penult. II de obseq. parent. praeb., so parents are not bound to provide from their own goods for children who have their own, that is castrensian, or quasi-castrensian, or adventitious goods; whence the expenses which parents make from their own goods for the food and clothing of sons ought to be deducted from these.

[Goods and rights of sons under paternal power, and of other minors, vary much among various peoples. We shall relate here the principal laws existing on this matter.

I. — FROM ROMAN LAW.

Distinction of persons. It is distinguished: first. The infant (non fans), who has not yet completed the first septennium; secondly. The impubescent, who has not yet arrived at puberty, that is at fourteen years, if a boy; twelve if a girl; thirdly. The minor or minor-aged, who is pubescent but has not yet completed twenty-five years; fourthly. The major or major-aged, who has completed these years.

A son under paternal power is a legitimate or legitimated son who, of whatever age he be, is not yet of his own right, but still stands under the authority of the father (that is, of the father or paternal ascendants). Opposed to him are then the emancipated son, whether major or minor; then the illegitimate son, of whom below. — Pupillus is called he who, impubescent, has gone out from paternal power: to him also against his will is given a tutor over person and goods. — Minor, in the strict sense, is called he who has gone out from paternal power, already pubescent: to the minor is given a curator, willingly indeed for the administration of goods, and even against his will for litigation and for certain more solemn acts.

Illegitimate sons are never, in the civil sense, under paternal power, but are of their own right. They are either spurious (incestuous, adulterine, sacrilegious), that is begotten of parents between whom, at the time when they were conceived and born, matrimony could not be contracted, and hence it is why they can never be legitimated; or natural, that is born of parents who at the time of conception were indeed not joined in matrimony, but capable of contracting it. These can be legitimated either by subsequent marriage, or even by rescript of the prince; and the Church itself admits legitimation of this kind.

Distinction of goods. At first all the goods of sons obtained on whatever account pertained to the father, as profectitian; indeed the sons themselves were things of the father. — Afterwards truly by the institutions of the Roman emperors goods were distinguished into castrensian, quasi castrensian, adventitious, and profectitian, as was said above.

As to the goods of pupils and minors, all these, from the time of their emancipation, are either castrensian and quasi castrensian or adventitious, as is sufficiently evident. — These things premised, the following are to be established:

PRINCIPLES: First. Of castrensian and quasi-castrensian goods the son under paternal power has full dominion. For it conduces to the common good that the son not be withheld from public war service, etc. He can therefore dispose of them, whether by contracts, or by last will; nor is the consent of the father required, provided he be pubescent. But if he be not yet pubescent, he can dispose of them with the authority of the judge. And this very thing a pupil can do without the consent of the tutor, and a minor without the consent of the curator.

Secondly. Of adventitious goods the son under paternal power has the property; but the father the administration and usufruct, unless a special condition or the nature of the thing stand in the way, as if there were donated expressly to the son a usufruct for life, etc.: in which case the adventitious peculium of the son is said to be irregular and full. — But if the father have spontaneously emancipated the son, he himself retains, as long as he lives, as it were in remuneration, half the usufruct previously held; otherwise, if the son have been emancipated on account of dignity, e. g. a bishopric, etc.

Thirdly. Of profectitian goods the son under paternal power has neither property nor usufruct (for they are the father's), but only the administration. — Nevertheless he obtains these goods: first, if the goods of the father have been occupied by the fisc; secondly, if the father have emancipated him without reclaiming the said goods.

II. — FROM THE NEW CODES.

Of the distinction of persons we have said enough. — As to goods is distinguished: direct dominion, administration, and usufruct. — Direct dominion of all goods which come to the sons by just title belongs to them, although they be minors and not emancipated, since they are capable of such dominion. Just title is donation, inheritance, industry separated, etc. — Administration of all goods is in the hands of the father or tutor, who must supply the incapacity or inexperience of the sons, until they themselves be majors or emancipated. Majors obtain full administration of their goods, but the emancipated restricted administration. — Usufruct belongs either to the sons or to the parents, as positive law establishes. Now indeed

In France ¹¹: Usufruct generally pertains to the father, or, he being deceased, to the mother remaining in widowhood, until the emancipation of the sons or the completed eighteenth year. Yet from the proceeds the offspring must, according to its condition, be fed and educated. — We have said "generally," because are excepted: first. Goods which the sons acquire for themselves by their own labor with separated industry; secondly. Goods which are donated to them under the express condition that their usufruct not accrue to the parents.

In Italy ¹²: Usufruct is granted to the father or mother holding paternal authority, until the sons be majors or emancipated. It is lost by either parent who, after the death of the spouse, flies to new nuptials. Parent usufructuaries are bound to provide for the offspring such education as is consonant with its fortune and condition. — Excepted are: first. Goods which the sons acquire by their own labor and separated industry; secondly. Goods which are given to them with an annexed condition that the parents not receive the usufruct; thirdly. Goods which come to them according to the disposition of the law, the father dissenting.

In Austria ¹³: Usufruct belongs even to minor and non-emancipated sons, however with the expenses of education deducted. And although the son not yet emancipated does not have the administration of his own goods, nevertheless he can freely (and therefore validly too, if nothing else stand in the way) dispose: first. Of goods acquired by his own industry, provided he himself do not receive aliment from his parents; secondly. Of goods which are assigned to his use, provided he be pubescent.

In Germany ¹⁴: The new law distinguishes the goods of sons under paternal power into free and non-free. — Free are called: first. Those which the sons have procured for themselves by their own labor and separated industry; secondly. Those which they received by gift, parents excluded from the usufruct; thirdly. Those which, living sparingly, they set aside from the goods which were granted to them, living outside the paternal house, for sustenance into full power. — Non-free are called all the rest. Their usufruct the father has, until the emancipation or majority of the son. — Usufruct of free goods belongs to the son, however with the expenses of education deducted.

In England ¹⁵: Usufruct pertains to the sons. But whether the expenses of education ought to be refunded from the goods of the father or from the goods of the sons, tribunals are accustomed to decree according to the circumstances of cases.

You will ask first whether the son under paternal power can sometimes retain profits which arise from his own industry.

I answer. First. He can retain (unless perhaps the debt of piety forbid it): first, if he live outside the paternal house at his own or others' expense, and labor with separated industry, e. g., serving someone, exercising his own art, trading with the goods of others, etc.; secondly, if he bestow extraordinary labor in the paternal house, or labor otherwise anyhow undue, e. g., if from his condition he is not bound to labor; for he can ask from the father what he would give a stranger for such labor, or even retain it secretly, if reverence or shame do not allow him to ask, as St. Liguori admits ¹⁶ with Lugo, etc., against Molina and others, who do not permit secret compensation to the son.

I answer. Secondly. He cannot retain, apart from the express consent of the father: first, if he bestow ordinary labor, or services not exceeding what the father can exact by paternal right. For the father has the right that, according to the condition of his status, he be aided by his sons; therefore, if the services are already owed from piety, the son can demand or retain nothing from justice. So commonly. Secondly. If he have a right somehow doubtful, e. g., because doctors dispute much about it, or because it is not established that the labor is undue, etc.; for in doubt it is not licit secretly to compensate oneself.

You will ask secondly whether the son under paternal power has perfect dominion over small and movable goods given to him by parents or relatives?

I answer. First. If these goods are not immediately consumable by use, as clothes, books, etc., the son of the family has only useful dominion in them; for, by common sense, the son as to these receives not property but only use. Therefore he cannot, without the consent of parents or relatives, at least reasonably presumed, sell, give away, alienate the same.

I answer. Secondly. If those goods are consumable at first use, as food or money, and were given without any condition, he can dispose of them at his nod; because they are held given into property. But if they were given under some condition, e. g., buying books, paying a pension, etc., he sins against justice by expending them for other uses ¹⁷

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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. —

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.

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.

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

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.

— 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.

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.

— 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.

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.

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. 206¹, of seculars says, they invade others' goods who bestow not superfluous goods on the poor.

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.

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.

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.»

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 charity²

[The contrary opinion St. Liguori calls probable and much more common among recent authors. Yet this seems to him sufficiently probable in practice, especially on account of authority of St. Thomas, whose arguments he admits as valid³. Whence it must be concluded that the cleric who canonically bestows not his superfluous goods is held not to restituting from his proper goods, but only to doing penance.

You will ask 1° what is to be understood under name of superfluous.

I answer. Superfluous is estimated what exceeds honest or congruous sustentation. Moreover congruous sustentation of cleric is judged that which is necessary to sustaining becomingly his own state and providing for family, according to condition, grade, dignity, quality of the beneficed man and region in which he dwells. So understands St. Liguori⁴.

You will ask 2° how much is required in this matter to constitute mortal sin.

I answer. Greater quantity is required than in theft. Of the beneficed man says the Angelic Doctor, 2a 2ae, q. 183, a. 7, c : «Of those things 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. But if the aforesaid goods be not distinct, distribution of them is committed to his good faith. And if he fail or abound but slightly, this can be done without detriment of good faith, because man cannot punctually receive in such matters what ought to be done. But if excess be much, it cannot lie hidden.» Not therefore is matter grave unless excess be much, that is, according to truer opinion, the twentieth part of superfluous goods, provided these reach a notable sum ⁵.

You will ask 3° who come under name of poor.

I answer. Under name of poor come not only those begging door to door, but also those who unless they receive alms cannot preserve their own state, even kinsmen, if they be truly poor. It is licit even to prefer these to others even more gravely needy, «because, says St. Liguori, relief of needy kinsmen pertains also to the proper state of the cleric being preserved, since their poverty redounds to his disgrace ⁶.» This accords with the decree of Trent cited above.

You will ask 4° whether beneficiaries may reserve superfluous goods for the future for pious uses.

I answer. The Angelic Doctor, ubi supra, ad 4 : «The goods of the Church ought to serve uses of the poor. And therefore, if anyone, no necessity of providing for the poor impending, buy possessions from what superabounds from revenues of the Church, or lay them up in treasure for future utility of the Church and needs of the poor, he does laudably. But if necessity of bestowing on the poor impend, it is superfluous and disordered care that anyone conserve for the future; which the Lord forbids, Matth., VI, 34 : Be not solicitous for tomorrow.»

It must be noted however that if anything be reserved for the future, sufficient caution must be employed, lest upon death coming such revenues perchance be pillaged by kinsmen ⁷.

You will ask 5° whether it is licit for a beneficed man to reserve something for himself for the future.

I answer. that he can moderately reserve certain things, so that provision may be made against infirmity and other necessities which can probably occur, provided however actual grave necessity of poor urge not; yet with this condition, that, if afterwards he need these not, they be expended according to prescription of canonical law.

You will ask 6° whether beneficed men validly make testament concerning superfluous revenues.

I answer. affirmatively, according to the opinion defended above and from usage received in many places. But this is not licit except for pious causes. For although, where usage has prevailed, they testate validly even unto profane uses, nevertheless they sin mortally unless they do this from indult of the Pope⁸.

You will ask 7° whether the salary which is paid by government in France to priests takes on the nature of ecclesiastical goods.

I answer. affirmatively, because from the Concordat of the year 1801 the said salary was stipulated in compensation of ecclesiastical goods confiscated and alienated at the time of the Gallican disturbance. Ergo it takes on the same nature as had the goods for which it substitutes.

It is also established from the following responsions of the holy Penitentiary.

1° «Whether salaries paid in Belgium by government to pastors and canons take on character of benefices or ecclesiastical goods, and have annexed obligation inherent in those goods, namely strict and canonical obligation of expending superfluous goods on the poor, or pious causes, and residence, under penalty of making not their fruits?» The holy Penitentiary, having weighed the exposition, answered : «Already elsewhere answer was given by the Holy See, with counsels of secret Congregation, affirmatively. Given Rome, January 19, 1819.»

2° «The holy Penitentiary consulted : whether that responsion ought to be applied to salaries paid by government to pastors and canons of the kingdom of France, judged that answer must be given affirmatively.»

3° «Whether the responsion for Belgium of January 19 ought to be applied only to fixed salaries of 1000 livres for pastors and 750 livres for curates, or extended to offerings of the faithful? The holy Penitentiary judged over the newly exposed things that answer must be given: affirmative as regards first part, negative as regards second. Given Rome, August 9, 1824.»

From this last responsion follows that voluntary offerings made by faithful to pastors, likewise revenues called casual, are reckoned among quasi-patrimonial goods, whose use is free.

Conversely, supplements bestowed by municipalities on pastors are commonly held as part of pension, seeing that they are granted only by general decree of government (Organic Art. 67), and by virtue of Concordat entered between supreme Pontiff and government. — Except, unless this supplement was stipulated on account of non-obligatory and laborious functions; in which case it takes nature of quasi-patrimonial good.

To be noted for practice. The question of use of ecclesiastical goods in France, as also in several other regions, today has become almost speculative. For pensions paid by government in compensation of revenues which flowed from benefice-goods confiscated and alienated are so small that they suffice not even for honest sustentation of ministers of the Church : whence nothing superfluous from these can remain over. If some, living miserably, reserve something of such revenue, which scarcely seems possible, this belongs to genus of parcimonial goods, and falls outside canonical law.]

Things, with respect to dominion, are of two kinds. Some are appropriated, that is, they have a proper and determinate dominion. Some are common or quasi-common, namely such as are held to have no lord of themselves, as are wild beasts in the forests, fish in the rivers, etc. And in accordance with this diversity of things, the ways of acquiring their dominions are diverse. Of things that are appropriated to someone, dominion is acquired by the will of the lord or by the authority of the law. Of things that belong to no one, dominion is acquired by first occupation.

Nota. Animals are usually distinguished as of three kinds. Some are wild by nature, as stags, boars, hares, fish, etc. Some of these grow tame by habit and become domestic, as stags, doves, rabbits, etc. Some finally are by nature and by habit tamed and domestic, as hens, oxen, sheep, etc. This noted, I say 1° : Animals wild by nature and by habit, by the law of nations belong to the first taker : « For what before belongs to no one is conceded by natural reason to the occupier. Whatever you take is understood to be yours so long as it is held under your custody, as fish enclosed in a trap or a pond, or a wild beast caught in a snare from which it cannot extricate itself. But when it has escaped your custody and has returned to its natural liberty, it ceases to be yours and again becomes the occupier's. » Thus far Justinian, L. II Instit., tit. de rerum divis., § Ferc.

I say 2° : Animals wild by nature, but grown tame and gentle by habit, « are understood to be yours so long as they have the mind to return, or can easily be brought back ; for if they cease to have the mind to return, they also cease to be yours and become the occupier's, because they are then held to have recovered their liberty. But they seem to cease having the mind to return when they have abandoned the habit of returning. » The same, ibid., § Pavonum.

I say 3° : Animals domestic and tame by nature, « although they have fled from your sight, wherever they may be, are understood to be yours, and he who detains them with the intention of gaining them, or appropriates to himself their wool, feathers, eggs, etc., is understood to commit theft. » Id., ibid., § Gallinarum. Because, since they are domestic by nature, wherever they run about, they are not held to recover their liberty, but remain the prior lord's : so that, even if they are snatched from the jaws of a wolf, what remains must be restored to the owner.

§ II

Whether and how one sins who hunts or fishes against a just prohibition, and whether he is bound to restitution?

Note that hunting and fishing can be prohibited on three grounds : 1° By reason of the state of the person : thus it is prohibited to clerics. 2° By reason of public utility, as when it is prohibited during the months in which crops swell, or animals are gravid and giving birth, or when it is prohibited lest it be done with certain instruments by which minute and excessive numbers of animals would be caught, and thus the offspring extinguished or greatly diminished. 3° By reason of place, as that it not be done on another's land, or on public land, reserved to another.

I say 1° : A cleric sins — a fortiori a religious — who frequently devotes himself to noisy hunting ; yet he is not bound to restitution.

The first part is laid down in the chapter Episcopum, Decretals, book V, de clerico venat., tit. 24, and in the Council of Trent, session XXIV, de Reform., chap. 12.

[Item in the Fourth Lateran Council, canon 15, we read : « Hunting and fowling we forbid to all clerics ; wherefore let them not presume to keep dogs or birds. »]

The second part is also evident ; because such a prohibition, made by reason of the condition of the person and on account of the decorum and dignity of his state, does not render the acquisition of the beast unjust or invalid.

I say 2° : He who hunts, fowls, or fishes against a prohibition made by reason of public utility sins ; because he acts against a just law, as is supposed. He sins mortally or venially according to the measure of the damage inflicted ; because such a prohibition is made on account of a damage to be avoided, and he is bound to the restitution of it, because whoever causes a damage is bound to repair it. Yet he is not bound to restitution of the prey, because such a prohibition makes neither unjust nor invalid the acquisition of the beast, since, this notwithstanding, the beast still remains in its liberty, and accordingly still becomes the first taker's ; it only makes the taking illicit.

I say 3° : He who hunts, fowls, or fishes on land open to access belonging to another who has the right of hunting, or in a public place, reserved to the prince or to another by grant from him, sins as before against a just law. He sins mortally or venially according to the measure of the damage inflicted, to whose reparation accordingly he is bound ; yet not of the prey captured, on account of the reason adduced in the preceding conclusion, which presses more strongly here still, since beasts are not the fruits of the land, as trees are.

Moreover, grave damage in this and the preceding conclusion is held to be not precisely the prey captured, even if it is of grave moment, but that by which the right of hunting, or the faculty of letting such right to others, is notably diminished in the one prohibiting, as if the waters were poisoned, the beasts driven away, their offspring largely destroyed, animals of great moment frequently captured.

For by these and similar things the right of hunting which the prince or the republic has, and the faculty of letting it to others, is greatly diminished. Likewise grave damage is held to occur if crops are enormously trampled down, hedges torn away, and the like.

I said in the conclusion, « on land open to access belonging to another. » For if anyone should capture beasts in an enclosed place, or fish in a pond, he would commit theft, and would be bound to restitution of those very animals ; because, since they have lost their liberty, they are under the dominion of him who guards and encloses them — unless perchance, without fraud on the hunter's or fisher's part, they have gone out of the enclosed place or pond and recovered their natural liberty ; then indeed they are again the first taker's.

[As to the obligation of civil laws enacted concerning hunting and fishing, it seems it should be said : 1° Of these laws, some refer to external governance and the good order. They decree, v. g., at what time or with what instruments hunting or fishing is permitted. These laws, according to the common and sufficiently probable opinion, are merely penal¹. What was said of penal law was stated in the treatise de Legibus, dissertation IV, art. 4.

2° There are other laws which protect another's right, v. g., a law forbidding you to enter an enclosed field to place a snare, lest you inflict damage. These laws bind by the force of the law of nature, and are not violated without injury to commutative justice.

3° Finally there are other laws which protect the right of hunting or fishing granted exclusively to someone by contract ; and he cannot without injustice be deprived of that right, which is a certain species of occupation. He would, however, be unjustly injured if by others, v. g., so great a multitude of fish were taken in the leased river that the income which the lessor hoped from it was notably diminished.

I said, « granted by contract ; » because, if the right of hunting were a mere privilege, it would not bind others by strict justice, but only by legal justice. Then there would be no place for restitution, especially if a penalty were imposed3.

§ III. — On treasures.

A treasure, as taken here, is not any heap of money deposited for fear or safekeeping for the future, but is « a certain old deposit of money of which memory does not exist, so that it now has no owner. » So L. 31, ff., book 41, tit. 1.

[In the newer codes, by treasure is understood anything estimable by price, hidden or buried, which is found by chance, and which no one can prove to be his⁴]

^{1 2}

I say 1° : By the law of nations, a treasure is wholly the finder's, whoever he may be. He says the same of pebbles, gems, and shells found on the shore of the sea³ ; because things that belong to no one become, by the law of nations, the first occupant's, as has been often said. By Caesarean law, however, or the municipal law of the provinces, the dispositions are diverse. Hence

I say 2° : By Caesarean law, a treasure found on one's own land is wholly the finder's. So Justinian, Instit. L. II, tit. 1, § Thesauros 39, and C. L. Nemo, de thesauris.

Found by chance on another's land, it is half the finder's and half the owner of the land's, ibid. That half must be handed over to the owner of the land even before the judge's sentence, because, as authors observe, this disposition of law is not penal, but definitive of the ownership of things.

Found deliberately on another's land without the owner's consent, it is wholly the owner's, C. loc. cit. Yet since this disposition, as to the half which would otherwise fall to the finder, is penal, on account of the wrong done to the owner of the land, the finder is not bound to give this half to the owner before the judge's sentence. And the law itself indicates this, saying : « Let him be compelled to render the whole to the lord of the place. »

[A treasure found in a public place is to be divided between the finder and the fisc, if indeed the place is profane ; but if it is sacred, the treasure is divided between the finder and the church fabric or the prelate.

So Roman law, with which French, Italian, Austrian, etc. law accords⁴ Prussian law, however, adjudicates to the fisc the middle part of a treasure sought on another's land, and the other middle part to the proprietor³. English law attributes all treasures to the king or the republic. But, as Crolly testifies⁴, that law does not bind before the judge's sentence.]

Found deliberately on another's land with the owner's consent, a pact being excluded, it is wholly the finder's, according to Navarrus, Lessius, and others ; because by this very fact that the owner of the land consents to the digging out of the treasure without contracting about it, or exacting anything from the digger, he is held to remit to him his share.

Found finally by magical art on one's own land, it is wholly the fisc's. So commonly, and it is gathered from L. Unica, C. de Thesauris. If by the same art it is found on another's land, the half that ought to have been the finder's becomes the fisc's ; the half of the owner remains to him, because he is not held for another's fault unless he cooperated in it. Moreover, the half which would otherwise have accrued to the finder ought not to be handed over before the judge's sentence, because it is a penal disposition, and indeed awaiting sentence. Thus far Roman law. If particular laws dispose otherwise, they are to be stood by.

It is asked here whether he who knows a treasure lies hidden on another's land may licitly buy that land at the common estimation, before he digs out the treasure, and become owner of the whole treasure after he has dug it out.

I answer. Affirmatively, with Soto, Navarrus, Bannez, and Sylvius. The reason is, because he buys the field at a just price. A treasure found in one's own field, moreover, is wholly the finder's, as I said.

That he buys the field at a just price, Proof. 1° Because a treasure does not augment the price of the field, since it is not its fruit, nor of its substance ; nor does it belong to the owner before its discovery or apprehension, but is nullius. 2° Because the price of a thing is not taken from its greater or lesser intrinsic utility or excellence, but from the common estimation of men, at least of experts in such an art or matter ; for this is the just rule and the immediate measure of a just and human price. Now he of whom we speak buys, I suppose, the field according to the common estimation. Therefore.

This second reason proves that it is licit even if the question concerned minerals hidden in the ground, which someone knew, whether by chance or by singular perspicacity, to lie hidden there.

[Note : 1° He is the finder of the treasure who uncovers it, not he who takes hold of it. If therefore a servant in the garden of his master, the latter present, dug a treasure from the earth, the master would injure justice by retaining the whole thing for himself. 2° If the owner of the land, suspecting a treasure lies hidden there, hires a hired hand to seek it, the owner is the true finder, and the whole treasure pertains to him. 3° According to the more recent codes, it matters nothing whether the thing was found on immovable property, or in a movable thing, v. g. in an old chest, provided it be established that it has the character of a treasure, that is, that it does not pertain to such a person or family.]

§ IV. — On things derelict, lost, and vacant.

I say 1° : By Roman law, « if anyone takes possession of a thing regarded as derelict, he at once becomes its owner. » Instit. book II, § last ; because, as I have now often said, things that belong to no one become the first occupant's⁵. By French law, goods derelict pertain to the magistrate of the place. So Tournely after Ferrier.

[The new French law accords with the old. From Cod. civ., art. 539, goods derelict are included under the name of vacant goods and attributed to the republic. This, however, is restricted by custom to immovables alone, and it is admitted that movable things derelict pertain to the first occupant, at least before the judge's sentence⁶.]

« But that is regarded as derelict which the owner has cast away with the mind that he does not wish it to be among the number of his things, and therefore he at once ceases to be its owner. » Instit. cited. When indeed such is the mind of the owner must be hunted out from the circumstances of things and times.

Hence you will infer that the goods of the shipwrecked, whether projected into the sea by the violence of a tempest causing shipwreck, or cast out for lightening the ship, likewise those carried off by flood, are not goods derelict, because regularly owners do not regard them as derelict, but rather would most gladly recover them ; and therefore they are a case of theft in those who steal them away for themselves, and if they are the goods of shipwrecked Christians, they incur the excommunication of the Bull of the Coena. If, however, the owner, knowing where and how he could recover them, did not care, because he either made little of them, or there were expenses to be incurred which would equal the value of the thing to be recovered, then it would be presumed that he regarded them as derelict.

Of this kind, I think, in these parts are the small pieces of wood which are swept off as the waves of the Meuse swell, and which the inhabitants of the banks fish out.

I say 2° : Vacant goods are those which someone leaves behind dying ab intestato, having no heirs who succeed him according to law ab intestato. These are assigned to the royal fisc. L. Vacantia, C. de bonis vacantibus.

Except the movable goods of foreigners, which, if they die ab intestato without heirs, ought to be expended through the hands of the bishop of the place for pious causes. Authent. Omnes peregrini, C. Communia, de Success.

In Gaul, the goods of foreigners dying there, who are called aubains, as it were born elsewhere, pertain to the king, excepting the goods of legates, merchants, and natives.

[Vacant goods are reckoned whatever one leaves behind dying intestate, whether movables or immovables. New laws sanctioned the attribution of these goods made by Roman law. Hence the goods of one who has died intestate and left no blood relatives up to the tenth degree devolve upon the fisc⁷. No place is given to occupation, because the dominion of these goods was not really relinquished or cast away, and the public authority, by force of its higher dominion, decreed that they would accrue to the community, for public utility. It can be said besides that, since the owner, bereft of his natural family, did not dispose of them by an act of last will, he is held to have willed them to accrue to his civil family, that is, the republic.]

I say 3° : Goods recently lost are not the finder's, but remain his who lost them, who therefore must necessarily have them restored, if it can be done ; because he who lost them is not despoiled of the dominion of these goods, nor does he who finds acquire it⁸. By what right? Not by authority of the law, for there is none that can be assigned ; not by the will of the owner, who rather wills on the contrary that they be rendered back to him, and therefore he inquires diligently, gives thanks for those restored, even when he has ceased to inquire.

I say 4° : If, after diligent inquiry — which ought to be greater or lesser according to the condition of the thing — the owner cannot be known, the goods found ought to be expended according to his presumed will : this the natural law indicates. His presumed will, moreover, is regularly held to be that they be expended for uses useful to himself, or to his own, or at least to the republic, and consequently for the relief of the poor, for Masses or other pious uses. And that it is so, I appeal to his conscience as witness : would he not wish his lost goods so expended ?

This common opinion is expressly handed down by the Council of Milan under Saint Charles, the Roman Catechism, part III, c. VIII, n. 17, and Saint Thomas here q. 62, a. 5, ad 3.

[In the Roman Catechism we read there : « There are thieves, who buy things taken away by theft, or retain in some way things found, occupied, and carried off. For Saint Augustine says : « If you have found and not returned, you have stolen⁹

» Note that if the owner of the things can by no means be found, they are goods to be conferred upon the uses of the poor. »]

The text of Saint Augustine cited here, and the text of the Angelic Doctor referred to, will be weighed below.

The other opinion affirms that the finder, in the case proposed, namely with every diligence employed, can hold the thing as his own. S. Ligorius¹⁰ cites several authors of good note, among whom the Salmanticenses, to whom it seems probable and highly probable, and Gury holds it as the more probable.

A third opinion, says S. Ligorius¹¹, truer and to be followed, distinguishes and says : « When, after diligence, it is still possible to find the owner, then the thing or the price ought to be kept. But if neither can be kept, the thing or the price must altogether be expended on pious uses, according to the presumed will of the owner, who still always retains the dominion of that thing, and the thing can return into his hands. Conversely, when the thing, considering the circumstances of the length of time or the distance of place, or from the fact that the thing cannot any longer be recognized as his by the owner, as happens with ordinary coins, does not seem able to return to the owner, then it becomes nullius, and therefore is acquired by the first occupant, who is not bound to give it according to the will of the former owner, since he has utterly lost the right of dominion through the impossibility of recovering it³. And this opinion Saint Thomas expressly holds, 2a 2ae, q. 66, art. 5, ad 2, where he says : « And likewise, if [things] are regarded as derelict, and the finder believes this, he may retain them without committing theft. » The reason a priori is, because the law of nations grants to private persons dominion over things for no other end than that they use them. Hence, when it is impossible for the thing to come to their use, it, as derelict, becomes nullius and returns to the primitive law of nature, and therefore becomes the first occupant's without any obligation. » — This third opinion is reduced in practice to the second.

In favor of this opinion is what is customary in our regions, where, when a found thing is deposited with the magistrate, after a year has elapsed it is returned to the finder, that he may use it as his own, although under art. 539 of Cod. civ. things having no owner devolve upon the fisc ; which, as was said, is restricted in practice to immovables.

Against this later opinion the text of Saint Augustine praised above can be objected. But this authority does not seem decisive ; for it may be so interpreted that he who did not return the thing found, because he did not diligently inquire for the owner, truly stole it, in that he ought to have had it as another's and not his own. But from that it does not follow that he is a robber if he retains a thing which can no longer return into the hands of the former owner.

The text of Saint Thomas to which Billuart above sent back the reader is as follows : « If he to whom restitution ought to be made is entirely unknown, man ought to make restitution as he can, namely by giving in alms for his salvation, whether he be dead or living ; provided nevertheless diligent inquiry has been premised about the person of him to whom the restitution ought to be made. » This text does not seem relevant, since here restitution to be made on account of theft is treated of. For the holy Doctor answers the question : « Whether restitution must always be made to him from whom something was taken ? » that is, whether restitution ought to be made to the injured person, or can be made to another, v. g., to the poor ? And he answers in the body that the very injured person must be led back to the equality of commutative justice by restitution. In ad 2m he adds that, if the injured person exists and remains unknown, restitution must be made to him through alms for his salvation ; because otherwise restitution, which must certainly be made by him who received the thing unjustly, cannot be made. Moreover, he who finds a lost thing did not receive it unjustly : whence the solution given by the Angelic Doctor does not regard him. Elsewhere the holy Doctor openly contradicts the conclusion undeservedly attributed to him, in the passage alleged above by S. Ligori.

Whichever opinion the confessor embraces, he ought not disturb the finder who, with every diligence made to find the owner of the thing, retains it in good faith as his own, because he follows an opinion truly and solidly probable, and it is not licit for the confessor to impose his own opinion, which is only probable, as certain and indubitably obliging.

[Veins of this kind are reduced to a triple genus : 1° Mines, which contain originally, whether in the form of a vein or accumulated, gold, silver, lead, iron, coal born in the bosom of the earth, which in French is called houille ; 2° Quasi-mines, in French mineres, in which are found ferriferous earths and combustible earth called in French tourbe ; 3° Quarries, from which marbles and stones of every species destined for buildings are dug out.

I say : Attention being had to the natural law alone, veins or mines of whatever kind belong to him whose the land is, not only as to the right of digging, but also as to dominion and property, because they are a part of the land itself and pertain to its substance. Consequently Sylvius, Lessius, and Soto are not to be approved, who say they are things nullius and by the law of nature become the first occupant's.

Yet it must be confessed that it has been legitimately brought about, whether by common law, or by commonly received custom, that princes or republics vindicate them to themselves, the damage inflicted on the owner of the land being compensated : 1° because this suits princes or republics for sustaining the common burdens ; 2° because these veins are of great estimation, and at the same time most difficult of discovery, for the digging of which the resources of private persons are usually unequal : wherefore it interests the republic to excite men by proposing a reward, lest they leave veins of this kind unproductive. Hence

By French law of 21 April 1810, it is prohibited that mines of the first kind be dug without license of the supreme authority, granted to the owner of the land or to another, the just indemnity being saved. This license is not required in order that mines of the second kind may be dug. It suffices that the owner of the land notify his intention to the prefect of the province. Quarries can be dug without any license, provided the special statutes are observed, which provide chiefly for the safety of the workers.