A. Whence it is that there is Distinct Ownership of Things

1. First Conclusion

79. On the first point [n.78] let this be the first conclusion, that by the law of nature or the divine law there are, for the state of innocence, no distinct ownerships of things; on the contrary, all things were then common.

80. The proof is from Gratian, Decretum p.1 d.8 ch.1, “By the law of nature are all things common to all men.” And for this is adduced Augustine On John’s Gospel ch.2 tr.6 n.25, who says “By what right do you defend the villas of the Church, by divine or human right? The first right we have in the divine Scriptures, the human right we have in the laws of kings. Whence does each possess what he does possess? Is it not by human right? For by divine right ‘The Lord’s is the earth and its fullness’ [Psalm 23.1]. Surely the one earth by human will bears both poor and rich? Therefore, also by human right is it said, ‘This house is mine’, ‘This villa is mine’, ‘This servant is mine’.” Again in the same place, “Take away the laws of the Emperor. Who will dare say, ‘This villa is mine’?” And later in the same place, “By the laws of kings are possessions possessed.” And Gratian, Decretum p.2 cause 12 q.1 ch.2, “Common to everyone should have been the use of all things that are in this world.”

81. The reason for this is double:

First, because the use of things according to right reason ought so to belong to men as befits peaceful conversation and necessary sustenance; but in the state of innocence common use without distinction of dominions was of more value to each of them than the distinction of dominions, because no one would then have seized what would have been necessary for another, nor should that need to be wrenched away from him by violence, but each would have taken for necessary use what first confronted him.

82. But also, there would have been there a greater sufficiency for sustenance than if the use of something were precluded from someone by an appropriation of it made to another.

2. Second Conclusion

83. The second conclusion is that ‘this precept of the law of nature about having all things common was revoked after the Fall’.

84. And reasonably, for the same two reasons:

First because the community of all things would be against peaceful conversation, since a greedy bad man would seize more than would be necessary for himself, and this too by inflicting violence on others who might want to use for necessity among themselves the same common things, as is read of Nimrod [Genesis 10.9], that “he was a mighty hunter in the presence of the Lord,” that is, an oppressor of men.

85. Again, it would be against necessary sustenance for the same reason, because the stronger fighters would deprive others of necessities.

86. And therefore the polity of Aristotle, Politics 2.1-2.1260b27-61b15, because not all things are common, is much better than the polity of Socrates (which Aristotle blames) about all things common - according to this condition that Aristotle finds among men.

3. Third Conclusion

87. The third conclusion is that ‘when the precept of the law of nature about having all things common was revoked, and when, as a result, the license to appropriate and make distinction between common things was conceded, no actual distinction was made by the law of nature or by the divine law’.

88. Not by the divine law, as is proved by the remark of Augustine adduced above [n.80], “By what rights”

89. Not by the law of nature, as seems to be probable, because it does not appear that the law of nature may make opposite determinations, and that law has made determination in the case of human nature to the fact that all things are common.

90. Nor may it be said that the proposition in the Institutes of Justinian (II ch.1 n.12, ‘About the division of things’, ‘Wild beasts’), that “What among goods is no one’s, is conceded to him who occupies it,” belongs to the law of nature. But although, immediately after natural apprehension of the fact that things are to be divided, that proposition arises as probable and manifest, yet it is more reasonable to say that it is not of the law of nature but of the positive law. And from this follows that distinction of ownerships was first made by some positive law.

4. Fourth Conclusion

91. Therefore, so that this law may be just, one must see how such positive law may be just.

92. Let the fourth conclusion be then that ‘a just positive law requires in the legislator prudence and authority’.

Prudence, so that the legislator command according to practical right reason what must be established for the community.

Authority, because ‘lex’ (law) comes from ‘ligando’ (‘binding’), but no sentence at all of a prudent man binds the community, or anyone, if there is no one presiding.

5. Fifth Conclusion

93. Now as to how prudence for thinking out just laws will be obtainable is sufficiently plain; but as to how just authority (which is required along with this for a just law) will be obtainable follows as the fifth conclusion, because there is a double principality or authority, namely paternal and political - political authority being double, namely in one person or in the community.

94. The first, namely paternal authority, is just by the law, surely, of nature, whereby all sons are bound to obey parents. Nor is this law revoked by any positive law, Mosaic or Evangelical, but rather confirmed by it.

95. Now political authority, which is over those outside [sc. the family], whether it reside in one person or in the community, can be just by the common consent and choice of the community itself.

96. And the first authority [sc. parental] regards natural descent, though not those living together in a civic community.

97. The second authority [sc. political] regards those living together, however much they are not conjoined to each other by any consanguinity or closeness - for example, if certain unrelated people came together for building or inhabiting a city, they could, on seeing themselves unable to be well ruled without some authority, agreeably consent to commit the community to one person or to the community, and to one person either as to himself alone (and a successor would be chosen as he was), or as to himself and all his posterity. And each of these political authorities is just, because anyone can justly submit himself to one person or a community in things that are not against the law of God, wherein he can be better directed by him to whom he submits himself than by himself.

98. Therefore we get completely how a just positive law can be founded, because founded by one who has prudence in himself or in his counsellors, and who has, along with this, an authority that is just in one of the ways stated in this [fifth] conclusion.

6. Sixth Conclusion

99. From these follows a sixth conclusion, that distinction of ownerships can be just by just positive law, whether passed on by a father or a prince justly sovereign, or by a community justly directing or ruling.

100. And that it was done in this way is probable, for either Noah after the Flood distinguished lands for his sons, which they were singly to take for themselves or for their sons and posterity; or the sons themselves, by common agreement, divided lands among themselves, as is read in Genesis 13.8-9 about Abraham and Lot, because Abraham gave to Lot himself the choice as to which part he wanted to choose, and he would take the rest.

101. So some law was promulgated by the father, or by someone chosen by them as prince, or by a community to which the community itself committed this authority -which law, I say, was or could be that things then not occupied would belong to the first occupier; and then afterwards they dispersed themselves over the face of the world, and one of them occupied one place and another another.