Section — Vermeersch, Theologia Moralis
§ 2. On Treasure
I. Notion. Treasure, to describe it by notes common to various laws, is a movable thing, hidden or buried, which no one can prove to be his own. Therefore coal veins or gold mines by no means have the character of treasure. But this definition must be completed differently according to different laws.
Thus, in Roman law, by which treasure was described as "a certain old deposit of money, of which no memory exists, so that it now has no owner" (L. Numquam, § 1, Dig. De acquirendo rerum dominio. 31, XLI, 1), it was required that the thing had been hidden from antiquity and on purpose. But today regard is had neither to antiquity nor to the reason why it lies hidden (Cf. e.g. Pacifici-Mazzoni, III, 1, n. 121; Colin & Capitant, I, 851; Prummer, II, 45).
Furthermore, several laws require that the thing be precious, while others do not consider the price of the thing; but the law of England and of the U.S.A. has only coins as the object of treasure. Whether it be hidden in a field, a house, or in a chest, coffer, or movable thing, this for the most part does not matter. Yet in Holland, because of art. 642 of the Civil Code, they doubt whether the things established concerning treasure fall upon things discovered in a movable thing; and the opinion denying this is gaining more strength (Cf. Cornelisse, II, 70; Duynstee, 146). Finally, more recent laws, for example the Swiss and Mexican laws, distinguish from other treasures things which have artistic or scientific value, and are accustomed to assign these to the State.
By natural law, such a thing would belong to the first occupant, that is, to him who has apprehended it with the intention of an owner. For it is in no way a fruit of the field; nor is it acquired at the same time by the buyer of the house or field, unless perhaps by Swiss law, by which treasure is assigned to the owner of the land as something accessory. Therefore there seems to be no need for a special law by which its acquisition is governed. Yet by a secular tradition, proceeding from Roman law, a special legal regime is introduced, and one sufficiently arbitrary, if you except North America and England, where the older law assigns treasure to the occupant, the more recent law to the State, and practice to the occupant.
II. Positive Laws. 1. Latin law. By Italian law, treasure is assigned to the owner of the land where it is discovered. Yet if someone by chance has discovered treasure on another's land, one half is assigned to the owner of the land 1, and one half to the finder (art. 714).
Moreover this should be carefully noted. The finder is not the one who has apprehended the treasure, but is understood to be the one who has made it visible, even if he has not first noticed or occupied it. This disposition, according to the most common opinion, binds conscience.
Yet they permit the finder who has deliberately sought the thing to retain, before the sentence of the judge, the half part, of which, as they think, he is not deprived except as a penalty. But that solution seems rather little in agreement, at least with the way in which the law of Italy has been written. And thus theologians introduce a certain positive law of which they themselves are the authors. Therefore Prummer, II, 46, 2, doubts the very probability of this exception.
In Italy one must also attend to the special law of 12 July 1902 concerning things which possess artistic or archeological value (Cf. Brugi, Intituzioni, p. 317). With Italian law, in sum, there agree the laws of Belgium, France, Latin America, and the Canadian dominion Q. Portuguese law assigns two thirds to the owner of the land; the law of Bolivia assigns a sixth part to the treasury.
German law, all other distinction being suppressed, art. 985 divides ownership between the finder and the owner of the thing in which the hidden thing is, but requires that possession of the thing be taken (984).
By English law, according to the Common Law, treasure, treasure trove, belonged to the occupant; but by the statute of 1 Edward I, confirmed by the Coroner's Act 1887, it must be consigned to the treasury; but if the treasury does not claim the treasure, the occupant can acquire the treasure for himself. Thus the theologians. Practically, it is treated as a thing recently lost.
In the U.S.A. the same law as in England is in force.
1 But not of itself to him who has the right of usufruct. Rather, something else seems to have to be said of the emphyteuta, since he possesses the fuller utility of the field. But positive laws must be attended to. Thus the Mexican Code (759-770), by special rules, arranges the right of the owner of the land with the usufructuary and the emphyteuta.
III. On the Obligation of Conscience. What moral theologians who explain Latin or German law think, we have already said above. They also admit that treasure found in public land, or in land destined for public uses, yields entirely to the finder, that is, to him "who by himself or through workers makes it visible" (Arregui, n. 295). But how theologians can efficaciously establish this last point, since they are destitute of foundation in both natural and positive law, entirely escapes us. Therefore the laws themselves seem to be arbitrary 1; arbitrary is their application to cases of conscience, made by theologians. And since an equitable solution is supplied by natural law, we would not think that he is to be disturbed who, apart from the sentence of a judge, has occupied the treasure by true apprehension: which all concede in the U.S.A. and in England.
Corollaries. 1. As most admit, he who knows that treasure is hidden in a field can buy the field at the common price, since, by its nature, the treasure is by no means a fruit of the field, nor is it of itself occupied at the same time with the field.
- If a precious thing has been made visible by a storm, it already loses the character of treasure and will belong to the first occupant.
1 Although the Penal Code of Italy art. 420, 2, when it punishes one who takes for himself what by law was assigned to the owner of the thing, nevertheless does not accuse him of theft, but of "undue appropriation."