LITMIR.BIZ

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Insanity does not destroy proprietorship of property.

28. No man’s property; different kinds of property.

29. Corporeal property.

30. Incorporeal.

1. The respect of pertinence, considered indeterminately and absolutely, as it is the formal reason for moral things, is either affirmative or negative. Affirmative respect extends to proprietorship and common ownership, whence moral things are called proper or common; negative respect is uniform, as it were, and takes on the aspect of neutrality, whence moral things are called no man’s. Now considered determinately respect of pertinence has established the significance of mine and thine. Considered materially, moreover, and in themselves, things are divided into corporeal and incorporeal.

2. Men divide ownership commonly into three species, which you may call modes of possession; that is, eminent domain, and direct ownership both common and for purposes of utilization. By the first is meant that authority which belongs to a state or its head over the property of citizens for the commonweal. Its effect is, that it can effectively <22> restrain, as far as it may seem advisable to do so for the common good, the force of ordinary ownership. By ordinary ownership private persons possess their goods, in regard to which they have full faculty of making disposal, except in so far as that faculty is restrained by the eminent authority. There, if the usufruct be with another, it is called direct ownership, such as that which the owner has of a piece of land given in implantation. Finally we are said to have ownership for the purposes of utilization over those goods whose usufruct alone belongs to us, but the direct ownership to another; such as what we possess as lessees in the tenure of implantation.^*

3. Ownership is also either plenary or limited. It is plenary when the same person actually possesses both the proprietorship of the thing and of its usufructs. In this way are possessed not merely those things over which we have eminent domain united with ordinary ownership (just as sometimes a certain region is acquired by a prince or a people together with every kind of ownership rights, over parts of which afterwards a limited ownership is granted to individuals), but also those things over which we have merely ordinary ownership, from which the usufruct has not been separated except temporarily by way of a revocable benefaction. Ownership is limited when either the usufruct of my property belongs to another, or, on the other hand, the usufruct of another’s property falls to me by right of inheritance. In this latter fashion should be regarded those thrones which are not the ruler’s patrimony (having been granted originally by the consent of the people), and which must be transmitted to his heirs. For that this is a limited mode of possession is proved by the fact that the whole or a part thereof cannot be left by testament to any one whatsoever, or alienated by donation, or in any other fashion, by the king’s individual authority [autoritate], without the consent of the people. By that fact, however, the force of sovereignty is not at all diminished, because, of course, it is merely the authority of alienating it that has been taken away, which does not in itself affect the faculty of exercising sovereignty. Property is held also in a limited manner, when ownership of it, of whatever kind that ownership may be, is circumscribed by a definite length of time, after the lapse of which it expires. From these propositions it is obvious just what sort of limitation must be added to that well-known rule of the jurisconsults, namely, that “A man’s own property can never become any more his own”; from which they conclude that neither pledge, nor deposit, nor purchase, nor lease of his own property can stand; likewise, that a legacy is of no avail, if any one has bequeathed the property of a legatee to the legatee himself, likewise that it is of no <23> avail to stipulate that his own property shall come to that condition in which his property already is.¹ The limitation, of course, is: “Unless it so happens that a limited measure of possession be extended to one that is fuller.” This happens, for example, if what was formerly held in feudal tenure begins to be possessed for the future as an absolute and independent principality.

4. Those things, therefore, which belong to us as our own, whether in the ordinary fashion, or even in eminent domain (the way in which states or their heads possess their goods), we can enjoy according to our free will, and we can keep all other persons whatsoever away from them, unless by covenanted pacts they have sought for themselves a special right which supervenes upon our right, and, in the same manner, while these things are ours they cannot be wholly another’s.² In the same manner, I say, for there is nothing to hinder the same thing from pertaining to different persons according to different modes of possession, and this is a very common occurrence. Thus, with reference to the same piece of land the state has eminent domain, the owner of the land direct ownership, and the lessee in tenure of implantation has ownership for purposes of utilization. The expression wholly was also used, for it is also true that several persons can hold a thing in the same manner of possession, yet not wholly, but each in proportion to a fixed share. This happens in the case of those goods which are possessed indivisibly by several, who appear possessed of the same kind of ownership with reference to the same thing. These things are called common, seeing that they belong indivisibly to a number of persons in the same manner of possession. For common ownership differs from proprietorship not in regard to the manner and force of ownership (for a number have, of course, the same right to a common thing that one man has to a thing which is his own, and just as proprietorship of a certain thing which pertains to one man excludes the right of all other persons whatsoever from that thing, so also from a thing in common possession all others are excluded who are outside the number of those for whom the thing is called common), but only as far as the limit of pertinence, because his own property pertains to one person, whereas common property pertains to several. Since none of these obtains to the thing a right which extends, as it were, to cover the whole, but a right which is valid only to a part thereof, it is perfectly patent that a single individual cannot dispose of that whole thing in his own right, but only of his fixed share in the same; and if some decision has to be made regarding the whole thing, the agreement and authority [autoritatem] of each of those to whom it pertains is required.

5. Now not only those things which belong to single individuals are our own possessions, but also those which belong to moral persons in conjunction, or societies as such. For these are a certain kind of unit. <24> Thus they have also their own goods and their own rights, which, wholly or in part, not only no one outside the society, but not even the members which are included in the same society, in so far as they are not conceived of as the whole society, can claim as their own in that manner of proprietorship which the society enjoys.

      Now things which belong to a public society or state come under what is essentially a threefold classification. For over some the state exercises merely eminent domain, but has left or assigned ordinary ownership to individuals. Such are territories, provinces, cities, countrysides, fields, &c.; likewise any kind of property of private persons, which is possessed, indeed, by individuals on share, in the ordinary manner of ownership, but still in such a way that the state retains eminent domain over it. The force of that eminent domain expresses itself in this, namely, that individuals are bound to pay assessments or taxes imposed on these things, nay more, to yield the whole of them to public uses, if, indeed, the Commonweal demand that. From certain things, moreover, the state has removed absolutely all ownership on the part of individuals as such, and has reserved the disposal and utilization of the same wholly to itself. Such are the public revenues, tolls, the treasury, the privy purse, and the like.

      The use of certain other things, finally, the state has left to citizens indivisibly, and has assigned ordinary ownership to no

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