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“Unde tandem concludi videtur jus gentium simpliciter esse humanum et positivum." (Suarez, ib.)
From the statements just made we must conclude that the jus gentium is changeable inasmuch as it depends upon the consent of men, and this corollary must be understood not only of the affirmative precepts of the same, but also of the negative. The reason is simply that that which is commanded or prohibited by the jus gentium is not at all intrinsically necessary, but only expedient, convenient, more agreeable, and therefore its precepts, either negative or positive, draw their binding force, not from any imperative natural necessity, but from human authority and consent, and as such may be changed by the same authority. (Suarez, ib.)
Having premised these few notions on the different kinds of jus, and to which we must necessarily refer in our discussion, we proceed to state the opinion of those theologians and writers whom we have denominated Compactists.
We will exhibit their theory under a number of statements.
First.—They all agree in teaching that the partition of the earth and the appropriation of its several portions by the different nations, families, or individuals are sanctioned by the natural law, at least in a negative sense, inasmuch as they do not conflict in any way, nor are in opposition, with the natural law.
· Communitas rerum tribuitur juri naturali, non quod jus naturale illam præcipiat; sed quia non jubet distinctionem possessionum et permittit communitatem rerum ; adeoque proprietas seu possessionum distinctio non est contra jus naturæ, sed juri naturali ut quid magis conveniens superadditur." (Bill., De Jure, Diss. 4, Art. 1.)
There is only one doctor, to our knowledge, who opposes this common opinion of the Compactists, that is, Duns Scotus, who, as Suarez remarks, holds that the natural law prefers the communion of goods, but allows the division and partition in case of necessity. (Suarez, De Opere Sex Dierum, Lib. 5, Ch. 7, parag. 17.)
Second Statement.-All Compactists are agreed that, on the supposition of man having preserved his innocence, and transmitted it to his posterity, the community of goods and possessions would have prevailed, because in that happy condition and high state of harniony and good fellowship there would have been no need of any division. (Bill., ib.)
. Third Statement.—They are unanimous in holding that in the present state of fallen nature the division of goods and possessions is not only lawful, but most expedient and beneficial. (Bill., ib. See also Laymann, De Jure et Just., Lib. 2, Tract 1, Ch. 5.)
Fourth Statement.—That, limiting ourselves to what is really necessary, such division was not demanded by the natural law,
since the natural jus is absolutely indifferent as to either mode of holding the earth; nor was it prescribed by any positive divine law, as we have no evidence of such law having been proclaimed, either in Holy Writ or in Tradition; that therefore such partition was authorized by the jus gentium, inasmuch as men, taking into account the corruption of nature, and the grave evils occasionally resulting from the community of possessions, by an explicit or tacit consent, introduced the division of goods. (Billuart, ib.)
Fifth Statement.-All Compactists concur in considering the jus gentium, and therefore the consent, formal or tacit, of mankind as the source and the origin, not only of the right to privately own those permanent objects which may be obtained by occupancy, such as the earth and other durable things; but also of those goods or values which may be created by human activity, so that if a man before the division agreed upon by mankind had worked the earth and multiplied its fruits, if he had used the staple material spontaneously yielded by the earth, and worked it into something of much greater value for the use or pleasures of life than it had before, that something would not have been his own, it could not have been his individual property, but the community's, and every one could have taken and used it without scruple. Billuart, with others, freely admits the consequence. “You will say, suppose Abel by his skill and industry had painted a beautiful image, would it not have been a theft in any one who should have deprived him of it? I answer that before the division the taking of that image would no more have been a theft than the taking away part of the harvest in a field.” (Bill., De Jure et Just., Diss. 4, Art. 1.)
Sixth Statement.— Likewise all these Compactists concur in saying that that which gives force and validity to any title in individual proprietorship comes from the consent of men, as understood and modified by the civil laws of each particular commonwealth. (Gerdil, loc. cit.)
Seventh Statement.--Finally, all Compactists agree in holding that the property of private individuals is subject to the authority and laws of the commonwealth, so that the right of such individuals is absolute in regard to other individuals, but not so in relation to the authority of the Commonwealth, which possesses the altumn dominium over all private ownership, so as to be entitled, should the common good require it, to take it away from its owners without any compensation whatever. (Gerdil, loc. cit., also Billuart, Diss. 4, Art. 3, Parag. 11.)
The reason which is alleged in support of this dominium of the commonwealth over all private ownership, a dominium called altum, and which entitles the state, for the common good, to alienate private ownership, or to take it altogether for the common good, without any compensation, is that the very same power which gave the property to private owners can take it away from them. (Billuart, loc. cit., also Contenson.)
Such is the complete theory of those writers whom, for the sake of clearness and brevity, we have styled Compactists. Among them may be mentioned Duns Scotus, Suarez, Molina, the Salmanticences, Lessius, Sanchez, Bannez, Cunniliati, Contenson, Gerdil, Laymann, Schmalzgrueber, Reiffenstuel, and all those 'schoolinen and theologians who maintain that the jus gentium is a purely positive human law introduced by the consent of mankind, either actually expressed or presumed to have been given in some other way.
Before proceeding to state the theory of those writers whom we have called Naturalists, we will set forth the objections which modern Catholic writers have raised against the opinion just explained. And to put them in a clear light, we recapitulate the theory of the Compactists. We find everywhere, and at all times, men holding objects not consumable by use, and especially the earth, as individual property, to the exclusion of all others. Did the natural law authorize them to divide these objects and to appropriate them as their own? The answer of the Compactist is: The law of nature is perfectly and absolutely neutral as to either mode of holding such objects, either in common or in private. Private ownership, found to prevail everywhere and at all times, is the effect of a new jus, purely and merely human and positive, created by the consent of mankind.
This is the substance of the theory. But, in the first place, modern authors beg to know where is the historical foundation for such supposed consent of mankind to establish a new jus as an accessory to the natural law? When and where, and under what circumstances, was it given or taken for granted? Was it given contemporaneously by all the peoples of the earth, or did it take its rise from among one particular nation, and from it gradually spread among all the rest of the human family? And if the latter, what lucky nation can lay a claim to such a momentous discovery and invention ?
Then again, if we suppose a real bona fide consent expressly given by mankind, we know that such an event never happened, according to all historical documents within our reach. “If,” says Rosmini, "an explicit consent, given by all men in the first formation of civil society, is made to intervene to account for individual proprietorship, such a thing is not only a vain hypothesis, but a downright chimera. To be sure, we do not deny that men, not on one, but on many occasions, have divided lands among themselves, either by means of private contract or by laws almost agrarian in their nature; but such enactments only regulated, and did not create, individual property.”—(Filosofia del Diritto, Vol. 1, Lib. 2, Ch. 2, Art. 2.)
But suppose we turn to a tacit and presumed consent of mankind, what proof is there to warrant such supposition? The only plausible argument that could be urged in favor of such supposition is the fact that, as a rule, individual property is found generally and invariably at all times and among all nations. Now such a fact must be accounted for, and what reason more simple and natural could be alleged than that men almost spontaneously and instinctively consented to have it so ? The argument would be good if there were no other hypothesis possible, the only case where a hypothesis can have any real logical value. But in our case there is the hypothesis of the Naturalists, who hold that individual proprietorship is the necessary outcome of the natural relations of things; there is the supposition of the Socialists and Communists, who say that it was a usurpation. The fact, therefore, of individual proprietorship cannot be accounted for by the hypothesis of a tacit consent of mankind.
In the second place, modern authors would beg to know whether, at the time when the division of the earth was made and private ownership introduced, mankind was divided into nations organized under some kind of civil government, or was as yet in a rudimental primitive state and condition without any kind of organization?
If we suppose that mankind at this epoch of its history was already divided into several nations, each one distinct from the others, organized under a certain form of government, then, we would ask, how is it possible to conceive a nation and a civil government without presupposing the right of individual proprietorship? The very fact of a nation, strictly so called, distinct from all other nations, implies a certain territory occupied and exclusively claimed by a certain race of men. For what other idea do we form of a nation ?
The fact of individual proprietorship must necessarily precede the formation of distinct nationalities, and could not, therefore, be supposed to originate in the consent, expressed or presumed, of civilized nations. On the other hand, if we assume mankind to have given their consent before the division and distinction of races and of communities, the supposition is flatly contradicted by history; since the oldest historical record in our possession, the Genesis of Moses, represents the first two sons of Adam as being the possessors of individual property, and the early patriarchs owners of extensive tracts of land and of all other kinds of property. The only refuge left to the Compactists, who insist on this tacit or formal consent of mankind to account for the very first individual calling a thing really his own, is the hypothesis of Rousseau as to the primitive state of man, that is, to have recourse to a remote early period of man's existence located beyond all historical record, when, like a perfect savage, he roamed about free and uncontrolled, without language, without shelter, without any social instincts, and perfectly happy in such a state, as most agreeable to his nature, until some one established individual proprietorship, and found others simple enough to agree to it, at which time civil society was really created. “ He who denies the origin of private ownership" from the civil laws, says the Civilta Cattolica, “supposes that the primitive or natural life of men, as its upholders are pleased to call it, was unsociable and savage, pecudum more, and that from such a state they must have passed to civil society. But such opinion naturally supposes the other opinion of the positive community of goods in the savage life. Moreover, against such opinion is found history, which exhibits the Patriarchs as private owners possessed of extensive domains, and as such recognized, though they did not live in any civil commonwealth, but only in a domestic state. Tradition, also handed down to us in the different codes of laws, teaches that private property was among all nations invariably held as a sacred right, and as an institution already existing, protected indeed, as it is to-day, by the laws, but not created by them.”—(Civ. Catt., Series 8, vol. 9, pag. 436.)
Moreover, modern Catholic authors inquire of the Compactists if it be reasonable to suppose a consent of all mankind in establishing and sanctioning private ownership on such terms as are alleged by them. Is it within the limits of reasonable belief to maintain that mankind agreed to the division of the earth and other permanent goods, and to their exclusive appropriation by individuals on terms of such remarkable disparity, that some few should have large domains, others very small tracts, and the vast majority none at all ? If individual ownership of such goods were not derived from a natural law, from an intrinsic justice of its own, but its lawfulness and morality depended on the arbitrary consent of men, is it not more agreeable to common sense to suppose that these would not have given their consent except upon better terms for themselves; that is, on condition that such goods should be evenly and equally divided among all? Is it not an absurd thing to imagine that the poor should be willing and pleased that the rich man should have and retain his vast domains, filled with all kinds of other permanent goods, whilst they would not have enough ground under their feet on which to build a modest hut to shelter them? It is evident, then, that men would not willingly and deliberately give such consent to establish a new jus on the terms proposed by the Compactists.