§ 3. On The Occupation Of Treasure

45. Notion. Treasure, as it is taken here, "is a certain old deposit of money, of which no memory exists, so that it now has no owner."

Thus from Roman law,¹⁶ with which modern laws commonly agree. It is said: old, because if it were a recent deposit, an owner or at least his heir would still exist, and therefore it would not be treasure. It is said: deposit, whether in an immovable thing, as in a field, or in a movable thing, as in an old garment, in an ancient chest, etc. But it by no means seems necessary that the deposit have been made by men; rather, it suffices that the things have been hidden for a long time in whatever way; whence ancient coins, statues of pagans, which perhaps were covered by an earthquake or eruption of a volcano, can be held as treasures.¹⁷ It is said: of money, through which are understood any movable things whatsoever, as gems, precious vessels, etc. But it is required that those things have been made by art and not be natural. Whence precious stones, coals, metals found in the bosom of the earth do not seem to be treasure, but fruits of the earth.¹⁸ It is said: of which no memory exists, because if it were known who hid the thing, it would no longer be held as treasure in the strict sense, but would be a found thing.

¹⁶ L. 31, Dig. 41, tit. 1; cf. Cod. Hisp. a. 352; Helv. a. 723; Gallic. a. 716.

¹⁷ D'Annibale (Summa theol. mor. II, n. 130) and others teach the contrary.

¹⁸ Lessius, Soto, and others teach the contrary. In practice the civil laws of the place are to be attended to.

46. Dominion Of Treasure. If only natural law is attended to, found treasure pertains totally to the finder. For treasure is a thing belonging to no one. Now by natural law a thing belonging to no one belongs to the first occupant. Nevertheless the civil codes of diverse nations have limited this natural right in some way; moralists very commonly assert that these determinations ordinarily oblige even in conscience, because they do not seem to be purely penal laws, and otherwise they are conformable to right reason. Almost all civil codes determine the following:

1. Treasure found on one's own land pertains totally to the finder.¹⁹

2. Treasure found on another's land must be divided equally between the finder and the proprietor (but not the usufructuary) of the land. Thus civil codes commonly establish.²⁰

There are theologians, for example Lehmkuhl²¹ and Göpfert,²² judging that those laws which in certain cases ascribe part of the treasure to the treasury (when the land does not pertain to it), or which deprive the finder of his part, are probably to be held as merely penal laws, so that before the sentence of the judge the finder does not injure justice if he retains the portion which is taken away from him by those laws. According to this opinion, therefore, he who in Switzerland finds treasure on another's land can retain half the part for himself until the judge has compelled him to hand over the whole treasure. Whether this opinion is truly probable does not so appear.

Theologians here ask whether he who knows that treasure lies hidden on another's land can licitly buy that land according to the common price and then afterward acquire not only half but the whole treasure. The answer is affirmative with Soto, Navarro, Bañez, Sylvius, Wigandt, Billuart, Göpfert, Bucceroni, and others. Some prove this from the words of Christ: "The kingdom of heaven is like a treasure hidden in a field, which a man who finds it hides, and for joy thereof goes and sells all that he has and buys that field."²³ But whatever may be said about the value of this proof, since Christ proposes this only as a parable, but does not expressly approve this manner of acting, the affirmative opinion can be proved otherwise. For treasure is not a fruit of the field nor does it pertain to the substance of the field, as all concede. Therefore the field does not increase in price because by chance treasure has been hidden in it. To this is added that treasure belongs to no one (as again all concede) and that by natural law it pertains to the finder. Therefore he who finds treasure in another's field and then buys that field at the common price does not injure anyone's right. Nor should it be said that he who knows treasure lies hidden in the field has already found it, and therefore a right to half the treasure immediately arises for the proprietor of the field. To this it is answered: treasure of itself belongs to no one and falls under dominion not through simple finding, but through occupation. But in our case the treasure has not yet been occupied. Therefore it has remained a thing belonging to no one and consequently has not increased the price of the sold field.²⁴ St. Thomas also favors this opinion,²⁵ which seems to be safe in practice, unless, however, in some region the civil code (following the opinion of certain jurists) establishes that treasure pertains to the dominion of the land by way of accession. Thus, for example, the Swiss Civil Code seems to establish.²⁶

¹⁹ Cf. Cod. civ. Germ. § 984; Cod. civ. Austr. § 399; Cod. civ. Gall. a. 716.

²⁰ The Swiss Civil Code establishes that treasure pertains totally to the proprietor of the immovable or movable thing in which it has been found; if, however, the treasure has great scientific value, it must be handed over to the government of the district, but the proprietor of the land and the finder receive suitable compensation: "If ownerless natural objects or antiquities of considerable scientific value are found, they pass into the ownership of the canton in whose territory they have been found.... The finder, and in the case of treasure also the owner, have a claim to an appropriate compensation, which however should not exceed the value of the objects" (art. 723 sq.).

²¹ Theol. mor. I, n. 1087.

²² Moraltheol. II, § 102, n. 71.

²³ Matt. 13:44.

²⁴ Cf. Billuart, De iure et iust. diss. 4, a. 2, § 5.

²⁵ S. theol. 2, 2, q. 66, a. 5 ad 2.

²⁶ Art. 723.