II. On the Occupation of Treasure

I. Notion. A treasure is any thing hidden or buried by man or by a natural event, which now has no owner, or whose owner now cannot be known. It is said:

1. Any thing, whether money or another thing; according to Roman Law this ought to be precious. But, considered according to natural law, which we attend to, it suffices that it be curious, for example a marker-stone which has no saleable value.

2. Hidden or buried; if it lies publicly in the road, it is a thing recently lost, concerning which there will presently be discussion. Per se it does not matter whether it is hidden in an immovable or in a movable thing. Practically, it should be seen whether experts in law interpret the respective civil law so that they exclude from the notion of treasure a thing hidden in a movable thing.

3. By man or by a natural event, for example an inundation. Therefore veins of coal or metal are excluded, since they are not said to be hidden by a natural event.

The finder of a treasure is the one who makes it visible; it is not required that he have apprehended it, nor, more probably, that he have seen it. But the finder of a lost thing is said to be the one who first sees and apprehends the thing.

II. Occupation of treasure. 1. Considered according to natural law, the whole treasure belongs to the finder; for he is the first occupier of a thing which belongs to no one, or at least can be treated as if it belonged to no one.

2. Considered according to civil law, see in the civil Code whose the treasure is; concerning this, however, I note:

a) Civil laws everywhere distinguish between treasure found on one's own land and on another's land. Now, under the name of another's land also comes a place which pertains to the private ownership of the State, province, or municipality; but one who finds treasure in a place which pertains to public ownership can rather probably proceed as if he had found it on his own land.

b) It is disputed whether civil law also has force with respect to treasure found on land of the Church. Some affirm, relying on can. 1529, by force of which civil contracts also have force in ecclesiastical matter; and this, considered in view of can. 20, seems to be extended also to laws about treasure, as being similar to laws about contracts. Others deny this, because the disparity seems too great; hence they judge that natural law is to be applied. But since in each case it is a matter of disposition concerning material goods, and since the reason of canon 1529 also has force for laws about treasure, the disparity seems material rather than formal.

c) Civil law, as justly determining rights, obliges from commutative justice (n. 764). Nevertheless, insofar as it attributes the whole treasure to the owner of the land when the treasure has been sought deliberately and without the consent of the owner, it is held to be merely penal, and therefore does not oblige before the sentence of a judge.

Corollary. One who buys at the common price a field in which he knows that a treasure lies hidden does not sin, because the just price is not determined according to private knowledge, but according to common estimation. If afterward he comes upon the treasure, he can retain the whole of it for himself; but this does not hold for one who buys a field after he has discovered the treasure and perhaps has buried it again.