Summa summae S. Thomae, Tomus III

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]

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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.

[By the name of accession is understood the right by which the owner of the principal thing becomes owner of the accessory thing, that is, of all things produced from some thing, or naturally or artificially united to it.

Accession is either natural, or industrial, or mixed.

I. — Natural accession occurs : 1° By birth, namely when from your animal another is born, conceived indeed of a male belonging to another. For the axiom holds : « The offspring follows the womb. » — 2° By fructification, that is, the production of fruits from land without human industry. — 3° By alluvion, when by the force of waters an increment gradually accedes to your field. But if a notable part of someone's land suddenly accedes to another's field by avulsion, the former owner of it does not lose dominion if he exercises his right within the useful time¹.

II. — Industrial or artificial accession can occur : 1° By building, when one builds on his own land with another's materials, or on another's land with his own materials. Then in general the building is his whose the land is, due compensation being made to him who built in good faith². Yet on this matter the laws of each region are to be consulted³

• 2° By specification, when to pre-existing matter a new form or species accedes, v. g., if from wool belonging to another you have made a garment, or from another's wood or gold a vessel. By common law, the new species accrues to the artisan, the price of the material being paid, if it cannot be reduced to its prior form, and in conscience probable good faith is required : otherwise the thing accrues to the owner of the material, v. g., a golden vase⁴. Under the new laws, in either case the thing accrues to the owner of the material, unless the work of the artisan far exceeds the material in price⁵.

— 3° By adjunction, when someone's thing is so joined to another's thing that together they make one whole ; in which case the whole composite pertains to him whose thing is considered as something principal, who however must make the owner of the accessory part whole. So a usufructuary who has painted the walls of a house cannot erase the painting with damage to the walls. Conversely, a painter who has expressed an outstanding image on another's canvas can keep the painted canvas, its price being paid ; for, as Justinian says, Instit. book II, tit. 1, n. 34, « it is ridiculous that the painting of Apelles should pass as an accession to the cheapest board. » So by the law of almost all peoples⁶

— 4° By commixture, when solid things, and by confusion, when liquid things belonging to different persons are joined. By Roman law, if commixture or confusion has been made of several things of different genus, from them a new species arises, which falls under the principle of specification expounded above. But if no new species has been made, and the commixed or confused things can be separated without becoming worse, each must be separated for its own owner. Otherwise, each will have a right in the whole mass, according to each one's portion or price⁷. According to the new laws, the thing becomes common, and must be sold under the hammer, and the price divided, unless it has been otherwise stipulated among the owners.

But if one part is principal, and much exceeds the others in price or quantity, it is licit for its owner to vindicate the whole to himself, a just price being refunded to the others⁸.

III. — Mixed accession occurs especially by planting and sowing. It is called « mixed, » because nature and industry concur in this. It is subjected to the same rules⁹ as building¹⁰.

Note. Dominions of things that belong to someone are acquired in two ways, with the owner willing and with him unwilling. With the owner willing, as by donation, testament, sale, and other contracts, of which specially and at large in their place. With him unwilling, and this in three ways : 1° by the law of nations, as things captured in a just war become the captor's ; 2° by the sentence of a judge, as when a thief is condemned to fourfold restitution ; 3° by authority of the law, as by prescription, and about this the question is now concerned.

I say 1° : Prescription or usucaption (for they are taken here as the same), is « the acquisition of dominion by continued possession, for a definite time fixed by law. »

I say 2° : For legitimate prescription four conditions are required : first, true possession ; second, presumed title ; third, good faith ; fourth, legitimate time. So commonly. The aforesaid conditions are examined.

True possession.

So Rule of law 3a in 6° : « Without possession prescription does not proceed. » And it is clear, because this whole right arises from possession. And therefore one prescribes or can prescribe insofar as he possesses truly and properly, that is, in his own name, and indeed civilly at least ; for natural possession does not suffice, as appears in the tenant farmer who possesses naturally, and yet cannot prescribe. Natural and civil together is best. Civil alone, however, suffices, by which someone absent insists upon the thing with the mind and the faculty of its being his ; for it is called partly civil because it produces this civil effect. See what I said above on possession.

Presumed title.

Such as, v. g., purchase, donation, or any other mode by which dominion is transferred. I say, « presumed, » because if it were true it would transfer dominion without prescription. It suffices therefore that it be rationally and in good faith believed true, as if you buy, or accept as gift, from him who is reputed the owner of the thing, and is not.

Moreover, although for beginning every prescription a title is required, otherwise good faith would fail ; and likewise although for perfecting prescription which is called of short and long term, namely of ten or twenty years, allegation and proof of title are required : nevertheless doctors agree commonly that for perfecting that which is called of longest term, that is, of thirty or forty years, regularly no proof of title is required, since in so long a space of time it could have perished in various ways.

Good faith.

So Rule of law 2, in 6° : « A possessor in bad faith at no time prescribes¹. » Item e. Vigilanti, c. Quoniam, final chapter de Praescriptionibus, Decretal., book II, tit. 26, from the Lateran Council under Innocent III, where the civil laws are corrected which seem to admit prescription of thirty or forty years as legitimate without good faith. Although however the civil laws do not admit prescription of bad faith in the internal forum as conferring dominion, they admit it nevertheless in the external forum, inasmuch as they reject the action against a possessor of thirty or forty years, lest under pretext of bad faith legitimate possessors in good faith be harassed, and thus public tranquility be disturbed by continual lawsuits.

So civil law, L. Si quis emptionis, c. de Praescript. l. 7, tit. 39, and Innocent III, in cap. Adversus consules, Decretal. book III, de Immunitate Ecclesiae.

You will ask 1° whether one who doubts whether the thing is his or another's is a possessor in good faith, and can prescribe.

I answer 1°. He who, before possession has begun, doubts whether the thing is his or another's, is not a possessor in good faith, nor can he prescribe. So commonly ; because there is no reason why he rather than another should possess the thing, and accordingly, vindicating it to himself, he does an injury to the other and exposes himself to the danger of usurping what belongs to another.

I answer 2°. He who, after possession begun in good faith, doubts whether the thing is his or another's, if, diligent inquiry having been made, he does not discover it to be another's, more probably remains a possessor in good faith, and can continue the prescription. So Sylvester, Navarrus, Covarruvias, Sylvius, Pontas, V. Prescription, cas. 8, and more commonly, against Soto and some more recent authors.

Proof. 1°. According to the Rule of law, « in case of doubt the condition of the possessor is better² » Now all tribunals, both civil and ecclesiastical, understand this better condition such that they adjudge the whole to the possessor : and such is the sense of all men, that they believe they retain with a safe conscience what has been adjudged to them by reason of possession. Therefore.

— 2° Since men, on the one hand greedy for things, are not accustomed to leave their own with others, but guard them diligently, and on the other hand an upright man is not accustomed to acquire possession of a thing without a just title : hence, when a doubt concerning goods of fortune arises independently of possession, equal on both sides, possession itself carries a great presumption that the possessor is the owner of the thing he possesses.

Therefore, although the possessor, in our case, doubts speculatively whether the thing is his or another's, and whether he can retain it ; nevertheless from the twofold principle laid down he can reflectively form for himself a practically certain judgment thus : 1° According to the laws, possession begun in good faith is a sufficient reason, on a doubt supervening, for retaining the thing to himself. Now I possess by a possession begun with good faith. Therefore. 2° In equal doubt it is more probable, from possession itself, that the possessor is owner in goods of fortune of the thing he possesses. But it is licit to follow what is more probable. Therefore.

[You will ask 2° whether theological good faith suffices for prescribing.

I answer 1°. Theological good faith does not suffice in prescriptions of ten and twenty years. The reason is, because the whole force of prescription depends on the civil law. Now theological good faith does not suffice before the civil law in prescriptions of this kind. For, both in the ancient law and in the new law of different peoples³, it is required together, in such cases, that faith be not only theological, but also juridical. Therefore.

I answer 2°. Theological good faith suffices in prescriptions of thirty years. The reason is, because where theological good faith is found, whatever law and conscience require for the validity of the prescription is present. 1° What is required by the law is present ; for the law exacts neither juridical good faith nor title⁴ in prescriptions of thirty years. 2° What is exacted by conscience is present also ; for, in this case, conscience requires nothing beyond what is required by the civil law, namely good faith, which evidently must be theological. Therefore.]

Legitimate time.

Note that, respectively as to prescription, time is distinguished as manifold in law : short, long, longest, and immemorial. Short is of three years. Long is of ten or twenty years. Longest is of thirty or forty years. Immemorial, of which memory does not exist among the older men.

I say 1° : Movable things, whether of private persons or of churches (excepting the Roman Church), with title are prescribed by a space of three years, whether between the absent, or between the present.

As to the things of private persons, we have Inst. de usucap., § 1 and c. de usucap. transformanda, L. unica.

As to ecclesiastical things, we have Authent. Quas actiones, c. de Sacrosanctis ecclesiis, where also causa 16, q. 3, cap. Nemo, the things of the Roman Church are excepted generally, for whose prescription a hundred years are required.

Things stolen are excepted also, which into whatever hands they come cannot be prescribed except by a space of thirty years. Instit. de usucap., § Furtivae.

I say 2° : Without title, movable things, whether of private persons or of the Church (excepting, as above, the Roman), are not prescribed except by thirty years.

As to the movables of private persons, it is gathered from L. Sicut, c. de Praescrip. thirty or forty years, book 7, tit. 39, where thirty years are decreed for the prescription of immovables without title, and since nothing else is sanctioned by law for movables without title, authors gather that the same must be held of both.

As to the movables of churches, the reason is, because, since churches (except perhaps the Roman, as before) have no privilege for movables, the same must be said of them as of the movables of private persons.

I say 3° : Immovables of private persons with title are prescribed by ten years between the present, by twenty years between the absent. So Instit. de usucap., § 1, and L. Cum longi, c. de

Prescription of long time. Without title, however, whether between the present or between the absent, thirty years are required, L. Sicut in rem and L. Si quis, c. de Praescript. of thirty or forty years.

Those are held present, by Roman law, who dwell in the same territory, v. g., the diocese of Liege, even if the things be situated elsewhere. Absent, on the contrary, those who dwell in different territories. In Gaul those are called present who are under the jurisdiction of one bailiwick or seneschalship. But, because he against whom prescription runs may be, respectively to the one prescribing, partly present, partly absent, authors commonly note that two years of absence are to be computed as one of presence ; so that one who has possessed for five years between the present, if the owner of the thing be absent thereafter, the prescriber ought to possess again for ten years before he perfects the prescription.

I say 4° : For prescribing immovables against the Roman Church, whether with title or without title, whether between the present or between the absent, a hundred years are required, L. cited Quas actiones ; against other churches, monasteries, hospitals, pious causes, forty years. In the same place ; against monasteries of the Order of Saint Benedict and of other Orders sharing privileges of this kind, sixty years, by privilege of Eugene IV.

These are the common rules, from which however several exceptions are made. I put forward the principal ones. Excepted is 1° the ward, against whom, as long as he is of wardly age, no prescription proceeds, whether of movables or of immovables, L. Sicut in rem, c. de Praescript. of thirty years. If he is a minor, however, thirty years are required, L. ultima, c. In quibus causis.

2° He who peacefully, without simoniacal entry, possesses a benefice for three years prescribes against the action of any challenger. Reg. 33a of the Chancery.

3° The action of injuries expires with the lapse of one year, L. Si non convicii, c. de Iniuris. Look for several other exceptions in our larger Work.

You will ask 1° whether, and for how long a time, one prescribes who received a thing in good faith from a possessor in bad faith.

I answer 1°. The immediate heir of a possessor in bad faith cannot prescribe at any time. So Sylvester and commonly. It is plain from § Diutina, Instit. de usucap., where it is said : « If he [the deceased] had not a just beginning, possession profits neither the heir nor the possessor in good faith, though ignorant. » The same L. ultima, c. Communia. The reason is, because the immediate heir is held, by fiction of law, to be one and the same person with the deceased, and their possession is one and the same continued possession ; and thus by that fiction the immediate heir is held to possess in bad faith, like the deceased himself.

I answer 2°. The mediate heir, likewise he who received from a possessor in bad faith immediately indeed, but under another title than inheritance, say by legacy, purchase, donation inter vivos, even if the movable thing is stolen, and the immovable possessed by violence, can prescribe.

The reason is, because laws do not admit two fictions from the same cause, and therefore that fiction of law concerning the bad faith of the immediate heir does not pass to the second heir, nor is he held the same person with the deceased. Which must be said a fortiori of the legatee, buyer, donee, etc., who in no way represent the person of the deceased, and to whom therefore the defect of the author does no harm, as the laws expressly decree, L. An vitium. ff De diversis temporalibus Praescript.

I answer 3°. Things received in good faith from a possessor in bad faith, insofar as they can be prescribed, are regularly prescribed in ordinary time. So commonly, from the L. cited An vitium. I said, « regularly », because there is exception 1° if the thing is immovable, and he against whom prescription runs is ignorant that it is possessed by another ; 2° if the thing is stolen or possessed by violence ; for in either case thirty years are required. As to the first case, it is plain from the Authentica Malae fidei, c. de longi temporis Praescriptione. As to the second, it is plain from § Furtiva, Instit. de usucap. But what is said in law, that stolen things cannot be prescribed, is understood of prescription of ordinary time, not of prescription of extraordinary time, L. An vitium, c. de diversis temporalibus Praescript. ; likewise expressly L. Super, c. de annali exceptione, § Ad haec book 7, tit. 40.

You will ask 2° what things cannot be prescribed.

I answer 1° Those things cannot be prescribed which cannot be possessed in one's own name and legitimately, as ecclesiastical rights by a layman, a fief by a feudatary, etc. See on possession.

2° Prescription does not proceed against natural or divine law, because in it human power avails nothing, on which prescription depends.

3° Those things cannot be prescribed which are assigned to public uses, as public roads, squares, bridges, L. Usucapionem, ff De usucap.

4° A free man cannot be prescribed so as to become a slave, L. ultima, c. De longi temporis praescript.

5° Certain boundaries of provinces, bishoprics, and parishes cannot be prescribed ; otherwise, if they are uncertain, from cap. Dilectio, causa 16, q. 3.

Tournely, the Perfector, notes here that by French law predial servitudes are not prescribed by any possession of time without title, nor the rights of the public oven and mill, nor fiscal things, or those once incorporated into the fisc ; otherwise, if not yet incorporated.

It must be noted besides that many things are said by Roman law not capable of being prescribed, because they are not prescribed in ordinary time, although they can be prescribed in extraordinary time of thirty years and above. Such are stolen things, as I already noted ; likewise things of the fisc, fideicommissa, legacies, the dotal fund, the majorate, adventitious goods, etc., L. Sicut, c. De annali except., book 7, tit. 4 ; L. Sicut in rem ; L. Omnes, c. de Proescript. of thirty or forty years, book 7, tit. 39, on the proscription of custom against human law. See de Legibus.

[Note : 1° Time required for prescription must be computed not from hour to hour, but from day to day, nor does a prescription become valid before the last day has wholly flowed by⁵. - 2° To complete possession, the actual possessor can join to his own possession the possession of his author or predecessor, under whatever title he has succeeded to him⁶].

By Roman law the time required for any prescription whatever had been determined almost everywhere. Since however particular laws have grown old, it will help here to insert the legal dispositions today in force among the various European peoples.

I. From French law⁷ the following prescriptions are given :

1° Prescription of thirty years, longer than which none is admitted. It is the most universal ; for all actions, whether real or personal, even of moral persons, are extinguished after thirty years, without the defect of title or of good faith being able to be opposed. Possession however must be legitimate in the forum of conscience, in the sense said above. — 2° Prescription of ten or twenty years, by which immovable goods are prescribed, yet with title and good faith. Ten years are required and suffice if he against whom prescription runs is present, that is, if he dwells in the territory of the Court of appeal in which the immovable good is situated. Twenty years are required, however, if he is absent, or pro rata, if he was partly present and partly absent. — 3° Prescription of three years, which with good faith suffices, in every case, for acquiring a movable good.

Some add instantaneous prescription, whereby movable things, neither stolen nor lost, are immediately after delivery possessed and acquired by a possessor in good faith ; because for movables possession stands in the place of title, and because the law does not grant a space of three years except for reclaiming a stolen or lost thing. Whether these hold in conscience is disputed probabilistically on both sides, though it is more commonly affirmed. Wherefore, in this case, a possessor in good faith cannot be bound to restitution.

II. From Italian law⁸. Prescription of ten years avails even between the absent. Two years, in place of three, are granted for reclaiming a stolen or lost thing. — The rest accords with French law.

III. From Austrian law⁹. Ordinary time : 1° As to movable things to be usucapted, it is three years. 2° As to immovable things and predial servitudes, likewise three years, if they are inscribed in the public tables in the name of the usucapient possessor ; otherwise, thirty years. — Extraordinary time : 1° Against the fisc, churches, and other communities enjoying rights of corporation, in place of three years six years are required, and in place of thirty years, a space of forty years ; 2° against one voluntarily absent (but without fault) from the province where the thing is situated, a year of absence is computed as half a year ; 3° for one acquiring immediately to himself a movable thing from a vitious possessor, or one in bad faith, or one unable to point out his author, the space of ordinary time is doubled.

IV. From Prussian law¹⁰. Ordinary time : 1° As to the goods of private persons, whether immovable or movable, possessed with title, it is of ten years between the present. Between the absent, each year of absence is doubled. 2° As to things without title, yet possessed in good faith, it is of thirty years. Nor is the space of time doubled in favor of the absent. — Extraordinary time : 1° against moral persons enjoying rights of corporation, twenty years are required in place of a decade, and forty-four years in place of thirty. 2° Things stolen or snatched away are not prescribed by the first possessor in good faith except after forty years. — Moreover, that a right may be acquired by ordinary prescription, it is necessary that it be exercised at least once a year ; otherwise forty years are required, and the right exercised at least three times in this space.

You will ask how prescription is interrupted or suspended.

I answer 1° It is interrupted, so that it must be begun anew, either naturally, if the one prescribing loses possession, namely natural, or if bad faith supervene upon him ; or civilly, if a lawsuit be moved concerning the thing, unless the mover do this unjustly to interrupt the prescription¹¹. It is not interrupted, however, if the thing possessed is transferred from one to another, v. g., by purchase, donation, etc.

2° Prescription is suspended or sleeps when an impediment is cast before it that it proceed no further, yet so that, the impediment removed, it goes on without other detriment than the sleep of the time. This happens in a twofold way : 1° When judgments cannot be exercised, v. g., in time of war or pestilence, in certain kingdoms¹². 2° When he against whom prescription runs cannot pursue his right. Thus against interdicted persons, against a church lacking a rector, prescription does not run. So by Roman law ; otherwise however by modern laws¹³

Note. Notwithstanding legitimate prescription, the benefit of restitution in integrum, that is, rescission of the prescription to be pronounced by the judge, is sometimes granted, v. g. to minors for four years after majority¹⁴

On liberative prescription.

Among authors, especially modern ones, a distinction is made, respective to liberation : 1° Prescription of longest time, or of thirty years, to which generally all actions are subjected, whether real or personal¹⁵. Thus usufruct is extinguished when he who had the right does not use it for thirty years. Thus also censuses can be extinguished, not only as to the annual returns, but also as to the very right or capital. In Austria however forty years, and in Prussia forty-four years are required against the fisc and corporations¹⁶.

— 2° Prescription of long time, or of ten years, by which actions for nullity or rescission of contract are extinguished, when the law has not constituted a shorter term¹⁷ — 3° Prescriptions of short time, or of five years, which regard sums payable periodically by way of civil fruits¹⁸ — 4° Prescriptions of very shortest time, v. g. of two years for the stipends of procurators, the case finished ; of one year for the stipends of physicians, servants, merchants, etc. ; of six months for the stipends of workers, guests¹⁹, etc. — Now then

1° Prescriptions of longest and of long time avail in conscience, provided good faith has persevered through the whole time. So commonly, from the reasons adduced for prescription in general²⁰

Hence : 1° If your creditor, or your father's creditor, after thirty years demands from you an obligation of which within that time you were unaware, or which you supposed extinguished, you are held to nothing. 2° In Gaul, if you have accepted a donation, and if after a decade the donor wishes to rescind it, v. g., on account of a defect of form in the instrument of donation, it will avail nothing against you.

2° Prescriptions of very shortest time do not avail in conscience, and constitute only a presumption of payment made, as all confess. The reason is because from the laws themselves it is clear that the legislators had no intention of transferring dominion, but only of denying an action in the external forum, lest the administration of justice be rendered too difficult. In these cases therefore « the debtor who is certain that payment has not been made is by no means freed from the obligation of payment²¹ ». Otherwise, if, the time assigned by law having passed, he begins to doubt, v. g., whether his author paid ; because then he can make use of the prescription of law, unless the omission of payment be proved.

As to prescriptions of short time, it is doubted whether these avail in conscience ; for among authors some

²² affirm them to avail and others deny it. In this doubt therefore the saying holds : « In doubtful things blessed is he who possesses », unless the debt not to have been paid be duly proved ; for presumption yields to truth.

Nota. The burdens of Masses, pious legacies, dowries or alms to be distributed, etc., are not prescribed, not even by contrary immemorial custom, as the S. Congregation of the Council declared, 13 Aug. 1843.

Moreover, for conscience, prescription of the goods of the Church is not subject to civil laws, but to the rules of canon law, as all know.²³]

ARTICLE III Whether prescription avails in the forum of conscience?

I say: Every prescription legitimately made avails in the forum of conscience, so that he who has legitimately prescribed, if after completed prescription he discovers the thing to have been another's, can retain it as his own, nor is he bound in conscience to return it to the former owner appearing, whether his negligence intervened or not ; whether the thing was acquired by gratuitous or by onerous title.

This is now the common opinion of almost all theologians and jurists, confirmed by the constant practice of both civil and canonical law.

Proof. 1°. Every legitimate prescription transfers in conscience the dominion of the thing prescribed to the one prescribing, whether the negligence of the former owner intervened or not ; whether the thing was acquired by onerous or by gratuitous title. Therefore it avails in the forum of conscience, so, etc. — Proof. of the antecedent. Prescription is defined indistinctly and indefinitely in law : « Acquisition of dominion by continuation of possession for a time defined by law. » Authent. Quas actiones, c. de sacrosanctis ecclesiis, book I, tit. 2. Instit. book 2, tit. 6, De usucapionibus, init. L. 1, ff De usucapionibus, and elsewhere. Which disposition of civil law canonical law not only does not disapprove, but positively approves, both by its practice and by its sanctions, cap. Sanctorum, Decretal., De Praescriptionibus, book II, tit. 26 ; cap. De quarta, ibid. ; cap. Ad aures, ibid. ; cap. Quoniam finali, ibid. and elsewhere. Therefore every legitimate prescription transfers dominion, etc.

Proof. 2°. It cannot be denied that the prince or the republic can, if it will, on account of the common good, transfer dominions of private persons from one to another independently of the negligence of the owner. Now it willed this in prescription, the common good so requiring. Therefore. — Proof. of the minor. And indeed that it willed it is clear from the laws cited and several others. That it willed it for just causes for the common good is shown by the exposition of those causes. The first is : « Lest the dominions of certain things be long and nearly always uncertain », L. 1, ff de usurpatione et usucapione, book 41, tit. 3. « And that there might be some end of lawsuits », L. ultima, ff pro suo, book eod., tit. 10. And finally, « lest possessors be held by an almost immortal fear », L. Cum notissimi, c. de praescriptione triginta vel quadraginta annorum, book 7, tit. 39. The second cause is, that the negligence of owners neglecting to look after their things may be whetted, L. Ut perfectius, c. De annali exceptione, and cap. Vigilanti, Decretal., de Praescriptionibus.

Where you see the first and principal cause to be independent of the negligence of owners, and that it proceeds in the forum of conscience. For if prescription did not avail in it, dominions would remain always uncertain, and the more so the longer things were possessed, since with length of time true titles are more easily lost and false ones fabricated. There will be no end of lawsuits and quarrels, at least private ones, in families, while one strives to seize his thing secretly or by force, another to defend it, and possessors will be held by immortal fear and perpetual scruples of conscience. Therefore.

It is confirmed. 1° By authority. In the cap. Sanctorum cited, Decretal., de Praescriptionibus, it is said : « The sanctions of the holy Fathers established » that goods once prescribed « be held quietly and sincerely forever. » Now, if prescription did not avail in the forum of conscience, but the obligation of restoring remained, possessors would not remain « quiet and forever », but anxious always. Therefore.

[Confirmed 2° by this other reason. Prescription acquired according to the laws avails in the forum of conscience, if it does not repugn to equity. Now such a prescription does not repugn to equity. Therefore. — Proof of the minor. That a judgment may be formed of the equity of the law, the law must be considered not as regards private persons, but in itself, before any event whatever. Now the law establishing prescription, thus considered, in no way injures equity ; because then the hope of gain and of loss is equal for any private person : whence private persons could certainly have justly decreed among themselves that dominion be acquired or obligations extinguished by long possession. But what private persons could have done in this matter, public authority could do justly a fortiori on account of the common good. Therefore.]

You will say 2° the Rule of law, in 6°, has thus: « Without his own fault no one is to be deprived of his thing. »

I answer. The law is not quoted integrally ; for it has thus : « Without his own fault, unless a cause subsist, one is not to be deprived of his thing. » Beneath lies the manifold cause of prescription, as has been proved.