Doubt IX: What is to be restored by reason of finding

The Holy Doctor OBSERVES, in the Speculum Animae, cap. 2, that certain things are found on the seashore, or in common waters; certain by digging, as treasures, concerning which Fagundez treats at length in the seventh Precept of the Decalogue, lib. 7. cap. 22; certain by finding, which were under someone's dominion, and their owner is not found.

AS TO those things which are found on the seashore, it is certain that things cast up in a storm, or submerged by shipwrecks, belong to their owners; and indeed in the Bull of the Coena, those goods which are the Christians' are struck with anathema for usurping them, as Caspens. notes, disp. 7. sect. 1.

The QUESTION concerns things cast up by the sea, which never had an owner, such as Fish, Whales, Pebbles, Gems, Pearls, Amber, etc.

The FIRST opinion is, that such things belong to the first occupant, whoever finds them. So Firmus v. Inventum, Gutierrez l. 2. quaest. can. cap. 9. Rodriquez in summa, cap. 197. Tannet. disp. 4. quaest. 1. dub. 7. and it is established from C. Ius generale and C. Ius gentium, dist. 1. and C. dilectissimi 12. quaest. 1. and l. 1. ff. de acq. rer. dominio from § 1. and §. singulorum, and §. capilli, and §. fere, Instit. de rerum divisione. This is the opinion of D. Bonav. loc. cit., and Caspens. disp. 7. sect. 3. seems to suppose it, as common; and so it is often reported to have been defined in the royal senate of Lusitania, as Cabedo relates, 1. p. decisione 48. num. 9. and Fagundez in septimum praeceptum, l. 7. cap. 22. num. 4. and so it is found in the Ordinationes Lusitanae, lib. 2. tit. 16. And the same is noted by Barthol. ad l. 3. ff. de acquir. rer. dominio. And Ripa l. Rem, quae nobis, ff. de acquir. possess. numero 34.

Cabedo ADDS at decis. 48. that amber indeed, found on the seashore, belongs to the first occupant and finder; but that whales belong to the King; from which it also follows that amber drawn from the whale's belly belongs to the king. Yet Cabedo says it was decided that amber, which is ambra, a kind of fragrance, does not belong to the King, nor is the fifth part of the royal treasury owed from it.

Yet the SECOND opinion was, that these findings belong to the Prince. So Angelus §. Item lapilli, Instit. de rerum divis. And as to amber it is proved, because the offspring follows the womb, as Barthol. says, l. si quis ex Pamphila, ff. de legatis. But whales belong to the King by custom: Therefore also amber: Yet this opinion is improbable; nor are the whales themselves, from which amber is obtained, the Kings' by common law.

AS TO animals wandering in alien lands, when even with diligence applied their owners could not be recognized, according to the Lusitanian Law in the new Ord. l. 2. tit. 26. they are the King's. The same Law is found in the Kingdom of Castile, lib. 6. tit. 13. Yet it is more probable that they are to be restored to the poor, as Peter Nauar. asserts, de restit. lib. 4. cap. 2. num. 82. Fagundez loc. cit. num. 7. Armilla verbo Inventum. Paludanus in 4. dist. 15. and others.

AS TO inanimate goods which had some owner, such as money, clothes, gold, etc., whether they can be retained by the finders and by the rich, if after diligence their Owner is not found.

The FIRST, affirmative opinion is that of Soto, de Iust. lib. 5. quaest. 3. art. 3. Aragonii 2. 2. quaest. 62. art. 3. Petri Nauar. de restit. lib. 4. cap. 2. dub. 9. num. 75. Rodriquez summa p. 2. cap. 41. Sayri lib. 10. tract. 5. cap. 3. from num. 18. where he reports others, and Maldor. tract. 4. cap. 4. disp. 3. judges it probable. The reason is, because no law destines these things to the poor. Tanner. disp. 4. quaest. 6. dub. 14. with others holds this to be probable.

The SECOND opinion is, that these are to be given to the poor. So Molina, Tract. de Iustitia, disp. 645. Rebell. p. 1. lib. quaest. 2. sect. 1. Lessius l. 2. cap. 14. dub. 7. Turtianus, 2. 2. disp. 42. dub. 2. Azorius tom. 3. l. 4. cap. 27. Count. ad reg. peccatum, p. 3. §. 1. Malder. tract. 4. cap. 4. disp. 3. D. Thom. 2. 2. quaest. 62. art. 5. ad 3. Gutrier. l. 2. qq. can. cap. 9. disp. 9. Syluester v. Restit. 3. quaest. 1. Nauar. summa Latina, cap. 17. num. 91. et 171. Armilla, v. inventum, and v. restitutio, num. 20. and commonly all those whom Fagundez subscribes to in septimum praeceptum, lib. 7. cap. 22.

The REASON is, because these must be judged as uncertain goods are. But those are the poor's: Therefore: The minor is proved from C. Cum in de usur. and C. cum sit nimis de Iudaeis, and 14. quaest. 5. canone Non sane. And l. omnes peregrini, Cod. de furtis eff., where it is defined that the goods of foreigners, who die in Hospitals, are to be applied to those Hospitals themselves.

But whether these are the poor's by positive law alone is in dispute with Fagundez cap. 21. and it seems more probable that they are owed by the law of nature.

Concerning these the Holy Doctor says; that they certainly cannot be retained, if it stands probable that they were under someone's dominion, and he brings forward that of D. August. serm. 21. de verb. Apostoli: If you have found anything, and have not returned it, you have stolen it. But if the owner cannot be found, the custom of the land is to be kept: The Holy Doctor indeed very well defines that, considering the variety of laws and customs in various regions, these matters are to be deliberated more maturely.

AS TO Treasures, a Treasure can thus be defined with D. Bonavent. loc. cit.: It is an old deposit of money, or of movable things, of whose dominion, or concealment, or of the depositor, no memory exists. So it is established from l. Unica, Cod. de Thesauris, and § Thesaurus, Instit. de rerum divisione.

But a Treasure can be found in one's own field, or in another's land. Concerning that which is found in another's field, free from feud and emphyteusis, if treasures be dug up by chance, the Holy Doctor asserts that half belongs to the finder, the other half to the Lord of the field; it is plain from § Thesaurus, Instit. de rerum divisione: And l. unica, Cod. de Thesauris; and this half part is owed to the Lord of the ground before any sentence, because this provision of law is not penal, but definitive of the ownership of things, and therefore binds before a sentence. Less. de Iust. lib. 2. cap. 5. dub. 15. num. 58. and 59. follow, Nauar. summa, cap. 17. num. 175. Caietanus 2. 2. quaest. 66. art. 2. Mercado de contract. cap. 15. num. 128. Sà verbo Thesaurus, Rebell. lib. 1. de oblig. iust. quaest. 15. sect. 2. Molina T. 1. de inst. disp. 56. and others agree. See Tannetum disp. 4. quaest. 1. dub. 5. who adds that by natural law precisely, the whole belongs to the finder.

The Holy Doctor proves this from that passage of Matth. 13. where the man who finds the treasure is said: He went, and bought that field, so that the whole treasure might be his. For when it is found in his own field, the treasure is entirely the first occupant's, provided a real apprehension of it intervenes; for the bare, mere finding of it does not suffice; and this indeed by common law, as is plain from l. una, C. de Thesaur. and the said §. Thesaurus, Instit. de rerum divisione; and Valasius teaches it, de Iure Emphytheutico, q. 15. n. 1. Fagund. num. 13. with Bartolo lib. 1. num. 17. and 18. ff. de acquir. possess. Cyno l. licet, num. 6. ff. on the same title, and others, in Valascus.

¶ But if it is found by the Emphyteuta in an emphyteutic field, or by the Feudatary in such a field.

The first opinion is, that by common law it is wholly the emphyteuta's. So commonly the Jurists; Accursius §. Thesauros, Instit. de rerum divis. Platea there num. 2. Faber num. 1. Portius, and Iason there, Andreas Isernia, and Alvarot. Tit. quae sint Regalia, and others in Valascus at the place cited, quaest. 15.

The second opinion will be that it is to be divided between the lord and the emphyteuta. So Valascus speculator de emphyt. num. 158. vers. 132. Nauar. summa, cap. 17. num. 173. Sà v. Thesaurum, and others in Valascus.

The reason with D. Bonav. is, because half the Treasure, according to the laws, is the Lord's; but the Emphyteuta, and the Feudatary, are not lords of the field simply, but only by reason of the useful dominion, as is plain from l. 1. Cod. de Usufruct. l. 2. Cod. de Mancip.

You will say: Therefore useful dominion profits nothing; for, even if he finds it in another's field, half will be his.

Fagundez ANSWERS that it does profit, because, whether he seeks the treasure by chance or by design, he will have the half; not so in another's field, whose use he does not have; for if in another's field he deliberately seeks it without the Lord's will, the whole is the Lord of the ground's; yet he is not bound, before the judge's sentence, to give the whole, but the half; but after the sentence he is bound to give the other half, which is a penal law on account of the injury done to the Lord of the field.

¶ But if a treasure is dug up in a public place, say on a road, it will be wholly the finder's. So Less. lib. 2. cap. 5. dub. 16. num. 63. Couar. ad reg. peccatum, p. 3. §. 2. citing Baldus, and Cynus. The reason is, because there is no one who is the special lord of these places. But if it is found in a public place, that is, one specially possessed by the Prince; the half will be the Prince's, as is found in §. Thesauros, loc. cit. Public roads, however, are the Prince's only by a general disposition.

Therefore the gold mines and veins of silver, after the occupation of the Kings, remained by the law of nations to the inhabitants as finders. Hence it is inferred that the Basilians and the Peruvians could not licitly be deprived of gold mines and veins of silver, since they were the peaceful finders of these, and they had inflicted no injuries on the Christians, for which war might justly be waged against them. Therefore much less could they be deprived of them after their conversion to the faith, as Ioan. XXII. defines. See Rodriquez cap. 47.

¶ But if a treasure is found in a public sacred place, as a cemetery, it is more probable, and according to the mind of S. Bonav., that it is to be divided, according to what was said above. Thus hold Nauar. summa cap. 17. num. 175. Rebel. lib. 1. quaest. 15. sect. 2. Couar. ad Regulam Peccatum, p. 3. §. 2. Gomez ad §. 45. Taur. num. 52. Molina disp. 56. Sylvest. v. Inventum; and therefore the half is the finder's, and the half the Church's prelate's, because today the Church in this respect is held to be theirs, as Fagundez says num. 26. Tanner. num. 55. who understands it if it is found deliberately; but if it be found there by chance, the whole belongs to the finder, as Lessius and Retella teach, in Tanner.

To me it does not please that the Churches are the Prelate's, because he has here only the right to Tithes and other Parochial rights, not to the ground. Therefore I think the treasure is wholly the Church's, if it is found deliberately: but the half, if by chance. Nor is the Church to be reckoned with public roads; in which Tostatus also errs, quaest. 66. ad 13. Matth. For Churches have rights, etc. Much more Monasteries and Colleges; as Less. says t. 1. lib. 2. cap. 5. dub. 15. num. 50. and Fagund. num. 26.

If a treasure is found in a dowry field, the half will be the wife's, who is the lady of the ground, although, while the marriage stands, the husband has the usufruct; for a treasure is not reckoned among the fruits; as Fagund. warns, num. 28. Whence it comes that, if found in a farm let or rented, the half is the lord of the farm's, the half the finder's, and nothing the usufructuary's, etc., according to the rule of Law brought forward above by D. Bonav.

But if it be found by magical art, or by other means condemned by law, it devolves to the Fisco, leg. una, Cod. de Thensauris, lib. 10. Gloss. there, as Fagund. note, num. 32. Tanner. num. 56. with Molina T. 1. de Iust. disp. 56. Couar. ad reg. Pecc. 3. p. §. Lopez de contr. lib. 1. cap. 50. Aragon. 2. 2. quaest. 66. art. 5. Nauar. Man. Lat. cap. 17. num. 175. Sà, v. Thes. Valasc. de iure Emphyt. p. 1. quaest. 15. and others commonly.

For a fuller knowledge of this matter it may be asked: Whether it is lawful to buy a field in which we know there is a Treasure, the treasure not being indicated to the Lord of the field, nor its price increased.

The first opinion, which asserts it, is that of D. Bonaventura loc. cit. D. Thom. 2. 2. quaest. 66. art. 5. Soto lib. 5. de Iust. quaest. 3. Nauar. cap. 17. num. 175. Molina de Iust. disp. 56. and disp. 333. Sylvestri v. inventum, Rebell. 2. p. l. 9. quaest. 5. num. 2. Sà v. Thesaur. Aragon. 2. 2. quaest. 66. art. 1. Mercado de contract. cap. 15. Rodriquez summa, cap. 47. Lopez p. 2. Instit. cap. 1. Lessii lib. 2. cap. 5. disp. 15. num. 64. Fagundez num. 40.

But it is against Angelus, and Firmus v. Inventum, Tabiena v. Restitutio §. 26. and Valas. quaest. 15. who inclines to this opposite view.

I assert with the first opinion that such a field, a repository of Treasure, can be bought, with consideration had of the field alone.

It is proved by the authors of that opinion, with D. Bonav., from that passage of Matth. 13. The kingdom of heaven is like unto a treasure hidden in a field: which when a man hath found, etc., he goeth, and buyeth that field; where he asserts that a prudent man can buy that field, and says nothing about the increase of the price.

They answer that nothing is gathered from that, since he says nothing of the price; but that it is left in its due estimation, since Christ does not favor frauds.

But on the contrary; for Christ in his most pure doctrine would have expressed what was necessary for a licit contract. Nay, I gather from this that Christ did not wish to require anything else; for his purpose was to speak of the purchase of the kingdom of heaven by merits, which are not of themselves adequate to so great a glory, as the holy Fathers Hilary, Peter Chrysol. Eusebius Emiss. and Haymo expound; or by the treasure Christ himself is understood, as D. Hieronymus, and Christianus Druthmarus, and the ordinary Gloss explain; or the WORD OF GOD, as SS. Chrysost. and Gregory explain in the Bibliotheca, Homil. But it is certain that a force is put in the Treasure in that it is hidden, and consequently the price of the field is unknown, by which Tostatus was deceived, quaest. 65. in cap. 13. Matth. for the word of preaching also has a hidden virtue, as he teaches in the other parable, because it is compared to a grain of mustard seed, as S. Hieron. explains; for it contains heavenly wisdom, unknown to the wise of this world: So likewise Christ is one in whom are all the treasures of the Wisdom of God hidden, and yet he is: To the Jews a stumbling block; to the gentiles foolishness. So also of the blessed kingdom, which is acquired on the way. Wherefore it would not be well applied, if the field were bought at a price adequate on our part. See the Fathers alleged, De restitutione debita ex impeditis alicui bonis.