Occupation and things found

Occupation is the taking possession of some material thing with the intention of making it one’s own. It will be a lawful title to ownership of property if the thing occupied had previously no owner, and actual possession is taken of it with the purpose of making it one’s own. If these conditions be fulfilled, it seems useless to investigate further how occupation is capable of conferring property. Whether the fact of occupation sanctioned by the community is sufficient, or whether we say that by occupation a man’s labour is mingled with the thing, and thus the connection of ownership is set up, is really immaterial. It is a title universally acknowledged and is derived from Nature herself.

As is clear from the definition, there cannot be occupation without actual, or at least constructive, taking possession of the thing, whether it be movable or immovable; it is not sufficient merely to see the thing at a distance, nor is it enough to take hold of it with the intention of seeing what it is, without any idea of retaining it for one’s own.

Most things of value, especially the land, have owners already, and so a title to ownership by occupation can only arise with reference to certain classes of property which are not of very great importance. In moral theology this title is at the root of ownership derived from finding lost property, treasure-trove, and the capture of fish and wild animals. Here English law only partially agrees with what seems safe in conscience.

The finding of things of value without an owner confers ownership in the things found if they be taken possession of with the intention of making them one’s own. Whether they ever had an owner or not is immaterial in conscience, provided that they have none at present. English law, indeed, grants property which belonged to someone who died intestate and without heirs to the Crown, under the name of bona vacantia, and when such property is claimed by the Crown, its title of course prevails. If the Crown does not claim the property, the first who should occupy it would seem to be safe in conscience if he kept it. The same doctrine may be applied to wreck found, which positive law requires to be delivered to the receiver of the district, and this officer, if no owner appear within a year, sells the same and pays the proceeds into the Exchequer.

Any money, coin, gold, silver, plate, or bullion, found hidden in the earth or other private place, the owner thereof being unknown, is called treasure-trove. By English law it belongs to the Crown, but if the Crown does not claim it, the finder would be justified in keeping it.

1. City P., during a war, was pressed by siege and was harassed by the throwing of fire-bearing balls. Hence the palace of a certain rich man, the flames immediately increasing immensely, was set on fire. All the servants, altogether despairing of extinguishing the fire, fled away. Chrysophorus then secretly entered the house, and there carried off a little chest full of gold, and at once escaped, rejoicing over his happy lot. Moreover, he keeps the aforesaid money without any scruple, as the fruit of his extraordinary and audacious industry.

2. Fortunatus, after a city had been captured and sacked by enemies, bought from some soldier certain precious garments at an altogether trifling price. Then, examining these garments, he found in one of them various banknotes sewn in, each of which is of the value of 10,000 lire. Attributing this to divine providence, he keeps this whole sum for himself.

Q. 1. What is occupation? 2. What as to the cases?

R. To the first. Cf. I. M. 882 seqq. - To the second. Chrysophorus in the first case cannot keep the thing for himself. The reason is that that little chest full of gold belonged to the owner of the house, as the house itself belonged to him. Wherefore, just as, if the house itself had been preserved entire by the extraordinary and audacious industry of Chrysophorus extinguishing the fire, it would not have ceased to belong to its own owner, so also the little chest of gold, snatched from the fire, continues to belong to the former owner, and must be restored to him. La-Croix, l. 3, p. 2, n. 112; Elbel 172; I. M. 888.

Fortunatus is not held to return to the soldier the banknotes found in the garments. The reason is that, although that soldier in a just war and justly had occupied those garments and acquired dominion of them, nevertheless those banknotes, lying hidden in the garments beyond all his opinion, he neither occupied, nor consequently acquired dominion of them. But if the owner of the garments and of those banknotes can be known, to him indeed those banknotes are to be restored, since he did not cast aside the intention of possessing his own thing and of retaining its dominion. But if the owner can no longer be known, then he can keep the aforesaid banknotes for himself. Elbel ib.; I. M. 883; G. 510, 511.

3. Ambrosius has a garden open on every side. Hence the hens of Augustinus, the neighboring owner, freely enter his garden and devastate it. To prevent so great a loss to himself, Ambrosius kills the hens of Augustinus at night. Did Ambrosius act rightly?

R. Negatively. For hens are not wild animals, but tame and domestic. Nor is there present in the case a sufficient reason for preventing loss to himself. For he can easily remove this by closing his own garden, or by warning Augustinus that the hens not go out from his field and enter the neighboring garden; and, if he acts otherwise, by seeking reparation of the damage. Hence they also commonly say that it is not licit to kill another's doves, if they do not bring grave damage to one's own field, or can easily be driven away, for example, by setting up scarecrows, or by warning their owner. But it is otherwise if they gravely harm the estate and the damage cannot be avoided in another way. For it is licit for each one to preserve and defend his own thing, although equal damage indirectly follows to another. But doves are not presumed to harm gravely, unless in the time of harvest or of sowings.

4. Iacobus, a building craftsman, while working in a certain old house which had several times been sold by its owners and inhabited by several persons, found a huge sum of gold money of the seventeenth century, hidden between two neighboring walls, which appeared to be one wall. He hid half of this money and kept it for himself; the other half he yielded to the owner of the house.

5. Philippus, a servant, found a great quantity of money in a certain old and large chest, already placed for a long time in some room of the castle of his lord. In this room the old furnishings of the house were accustomed to be placed, and were preserved with great care in memory of the antiquity of the family. Rejoicing, Philippus took all that money to himself.

6. Blondina, a maidservant, bought fish. In gutting one of them she found an old gold coin; in another, however, she found a precious gem. Blondina keeps the gold coin and the gem for herself.

7. Praxedes, maidservant of a certain deceased priest, asked from his heirs for a certain chest which was found in his room. The heirs gladly gave it to the most faithful maidservant. Observing the chest, the maidservant notices that it contains a certain secret part, which she herself opens not without difficulty, and in it she finds 30,000 lire. It is unknown whether the priest knew of the thing; it is known only that he received a certain inheritance from a certain deceased blood relative of his.

Q. 1. What is treasure? 2. What as to the various cases?

R. To the first. Cf. I. M. 889. - To the second. 1. The money found by Iacobus has the true character of treasure. For, considering the circumstances of the case, there are no traces that that money belongs to such a person or family; nor is it morally possible to know this. Wherefore he acts rightly by keeping half for himself and yielding the other half to the owner. G. 523.

2. But the money found by Philippus does not seem to have the character of treasure. For from all the circumstances of the case it appears that that money had been deposited there by some person of that family, which always inhabited the castle; and therefore, although given over to oblivion, it is established that it belongs to the heir and his family. Otherwise, rich castellans of this sort, who often are ignorant of those things which they possess and which they receive by inheritance, would have to be despoiled of their own goods by their ministers and administrators.

3. As regards Blondina, some wish the whole to be adjudicated to the master of the maidservant, for the fish and whatever was in it was bought at his expense and for him; others, however, wish it to be divided between the master and the maidservant, just as treasure is divided, since that gold coin and that gem are not part of the fish, so that account of them could have been had in the purchase of the fish. Del Vecchio 36. But the whole seems to have to be adjudicated to Blondina herself. For first, nothing is owed to the fisherman, who, since he was ignorant that the gold coin and gem were hidden in those fish, did not occupy them nor make them his own. But nothing is owed to the owner of the fish, because the gold coin and gem enclosed in the fish do not have the character of treasure; for its definition is not verified in the case. Therefore Blondina can keep the whole for herself by title of simple finding and occupation of a thing which belongs to no one. I. M. 889, 931, 932, 933.

4. Praxedes must restore that whole sum to the heirs of the aforesaid priest, and she has no right to it. For first, that found sum is not a treasure. For it is essential to treasure that no one can prove the thing to be his own. But now the money contained in that chest, in order that it remain there so hidden, could not have been other than paper money, and therefore of altogether very recent time. Therefore that money was either placed there by the priest himself, who afterward wished the chest itself to be preserved in the room of the most faithful maidservant, or certainly it was placed there by that deceased blood relative of his, from whom perhaps he received this chest with other things. In either case the chest and the money contained in it belonged to the priest, and now it belongs to his heirs. Besides, that money is not a lost thing; for it never was in danger, but always was and is in a safe place, nor is the owner unknown. Hence it is that neither can the maidservant keep that money for herself, nor does she have a right to the reward constituted by law, which from C. I. 718 is the twentieth part of the sum, when this exceeds 2,000 lire. Nor, finally, is it management of affairs. For to find a sum of money by chance and to restore it to its owner constitutes no management of affairs. Wherefore the maidservant from a certain equity deserves only some reward for her outstanding fidelity in the case, by restoring that whole sum to the heirs. But this reward can well be practically defined, having before one's eyes the reward constituted by the law itself for things lost and found.

575. • Goods which can be found are distinguished as of four kinds, namely treasures, things recently lost, abandoned goods, and vacant goods.

A treasure, under Roman Law, is a sum of hidden money, of which no memory exists. - Yet by common interpretation, under the name treasure there also come other things estimable by price which are found buried. - But under French Law a treasure is any hidden or buried thing whatever, which no one can prove to be his, and which is found by chance.

Those things are said to be lost which are involuntarily left behind by the owner. They differ from treasure because they are not hidden or buried, but ordinarily have been lost recently.

Abandoned goods are those which the owner has cast away with the intention of no longer possessing them. But vacant goods are said to be those which are left by one dying without testament and heirs.

576. • Principles. I. A treasure found by the very owner of the estate yields wholly to the finder. But a treasure found in the estate of another, by positive right, whatever may be true by natural right, must be divided equally between the proprietor of the estate and the finder, if it has been found by chance; but if by industry, and without the knowledge of the owner of the estate, and therefore without his consent, it yields wholly to him, yet after the sentence of a judge ¹. - Thus Roman and French Law. - But a treasure found in a public place must be divided between the finder and the treasury, if the place is profane; and between the finder and the fabric or Prelate, if the place is held as sacred. Thus by Roman Law. Thus also French Law seems to suppose, because a public place in reality belongs to some owner ², namely either to the Republic, or to the municipality, or to the Church. - Gousset. Code commenté, art. 710.

¹ These words of the Author, "after the sentence of a judge," you should not take in such a way as though, apart from a sentence of this sort, nothing is owed to the owner of the estate. For before every sentence of a judge, by force of the laws, the finder is bound in conscience to give half the part to the owner of the estate. Therefore the sentence of the judge can be awaited as to the other part, which yields to the finder when he finds the treasure by chance; for since the finder is deprived of this part as a penalty for a crime, and therefore that law seems penal, for that reason this does not seem to oblige before the condemnatory sentence of a judge, as the Doctors commonly hold.

² It does not seem that one should insist on this reason, but rather on the decrees of the laws which are found in the Institutes, De rer. divis., § Thesaurus. The reason is that if the republic, for example, performed the role of owner, the common laws concerning the part which belongs to the owner of the estate for the diverse cases would have to be observed, and thus, for example, the whole treasure would have to yield to the treasury if it had been sought by industry and without the knowledge of the magistrates. But the law, with no distinction of these cases having been made, attributes half the part without exception to the finder. Thus Cardinal De Lugo (De Iust., disp. 6, n. 115), where, after he cited from the Institutes of Justinian (De rer. divis., § Thesaur., 39) these words: "If someone has found a treasure in a fiscal, or public, or civic place, half is his and half belongs to the treasury or the city," he deservedly adds: "Which is understood whether it is found by chance or by industry; for in this case no difference is made." But the other laws which Molina opposes against this opinion (De Iust. et Iur., tract. 2, disp. 56, n. 2) rather confirm it. For law unic. C. De Thesauris, and law Si is qui 63, ff. De adquirendo rerum dominio, have nothing more than the text cited from the Institutes. Therefore, just as Lugo reasons concerning this, it will be licit for anyone to reason concerning those. Something is added to this disposition of law in l. Non intelligitur 3, § Deferre 12, ff. De Iure fisci, in these words: "But he who, when he has found a treasure in a place of the treasury, and has suppressed the part pertaining to the treasury, is compelled to pay the whole together with as much again." But these things openly act against Molina's opinion. For from the rule of attributing only half the part to the treasury there is excepted the single crime of a suppressed part pertaining to the treasury. Therefore from the very well-known saying, "The exception confirms the rule," etc., Lugo's opinion is confirmed, that as to treasures found in a public place it makes no difference whether they are found by chance or were sought by industry without the knowledge of the magistrates.

II. Recently lost things must be returned to the owner, if he is found, because the fact of loss is not a title for despoiling the owner of his own thing. Besides, according to the axiom received by all, for retaining, intention alone suffices; but for occupying there is required real apprehension with a legitimate intention of having; but no one can have a legitimate intention of taking or retaining for himself a thing which he knows pertains to another known owner; therefore he must restore it to him. Hence the saying: "The thing cries to its owner" ³.

³ Concerning a thing lost by someone, whether known or unknown, which perhaps you find, there can be a multiple obligation.

For 1. charity can oblige you to take up care of the thing, if you foresee that otherwise the thing will in some way perish for the owner.

2. Likewise charity will require that if at any time it is established to you concerning a thing either found by another or lost, you disclose this to others, when you prudently judge that this will be useful so that the thing may return into the hands of the owner.

3. If you yourself take a thing perhaps found, by justice you are bound first to exercise diligent care of the thing and to guard it. The measure of this obligation indeed is easy to draw from those things which the Doctors commonly hand down concerning that species of quasi-contract which is customarily called management of affairs. On this matter see Molina, De Iust., tom. 2, disp. 553, 554.

4. Likewise, if the owner of the thing is unknown to you, by justice you are bound not to conceal the thing; you will violate this obligation not only if you carefully hide the thing so that the owner cannot learn that the thing lies with you, but also if you do not use suitable means so that notice of the thing existing with you may come to the owner.

III. Abandoned and vacant goods by natural right become the property of the first occupant. The reason is that they no longer have any owner; therefore they yield to the first occupant, not otherwise than those things which have never had an owner. - Thus very commonly the theologians. - But by positive right they are commonly attributed to the Republic (C.C. 539). Yet by custom this seems to have to be restricted to immovable goods alone, at least before the sentence of a judge. - Carrière, n. 285 and 343, after several jurists.

577. • Questions. Q. 1. Whether one who suspects that there is treasure in a field, and buys it at the common price, can retain wholly for himself the treasure found there?

Resp. Affirmatively. Because that treasure, since it is not part of the estate and lies hidden, does not increase its value. - St. Thom., 2. 2, q. 66, art. 5. - Lugo, d. 16, n. 126. - Billuart, etc., against others.

Q. 2. Whether a workman who, by laboring in some house, finds in some corner of a wall or in an old chest a sum of money, can retain part of it for himself?

Resp. Distinguish. If there are traces from which it is judged that this money belongs to some person or family, the whole must be returned to this one; because this money is to be reckoned as a good recently lost. Otherwise he can retain half the part for himself, because then it seems to have the character of treasure.

578. • Q. 3. Whether the finder of a lost thing can retain it for himself if, sufficient diligence having been used, the owner does not appear, nor is there any hope of finding him?

Resp. The first opinion denies, and judges that the thing found must then be spent on the poor, or on other pious uses. The reason is that the owner, by the fact of loss alone, has not lost his right in his own thing; but if he remains owner, that thing must be spent in the way in which he is presumed to wish; moreover this will of his is to be presumed, that the thing be spent for his utility in the better way, and consequently be expended on pious works. - Billuart, diss. 4, art. 2, § 6. - Collet. - Habert, etc. ⁴.

⁴ To this opinion it is wholly owing that in the past century in certain dioceses it was provided by law that if anyone found a thing, at least one which exceeded the value of 12 francs, he should denounce this to the Bishop, so that he might decide concerning the use of that thing itself; as though, namely, it were certain and fixed that a thing thus found belonged by open and notorious right to goods destined for pious works, whose administration belongs to the solicitude and authority of the Bishop. But besides the fact that St. Alphonsus (lib. 3, n. 603) does not even hold that opinion as sufficiently probable, for he calls the opposite truer, Vasquez (De Restit., c. 5, § 4, dub. 1, n. 12) does not hesitate to affirm that the custom by which the Bishop reserves to himself the determining of the mode by which restitution must be made through pious uses is irrational, even when it is a matter of true uncertain debts; but a fortiori this would have to be said of our case, when it is more probable that no debt of restoring exists.

The second opinion, more probable, affirms. The reason is that that thing must then be held as abandoned. For in the hypothesis, although the owner does not dismiss or abdicate dominion properly so called in his own thing, nevertheless he has wholly lost the faculty of using his thing and of disposing of it; and therefore the thing ceases to be in his dominion. Therefore the will of the prior owner is not to be sought, since, having morally lost dominion, he can dispose nothing concerning it. Therefore that thing is morally to be held as abandoned; therefore it can become the property of the first occupant. - Thus St. Lig., n. 605, where he says that this is the truer opinion ⁵. - Lugo, disp. 6, n. 140. - Lacroix, n. 80. - Elbel, n. 171, etc.

⁵ St. Alphonsus in reality does not hold this opinion altogether, but a certain third

one, which, while it partly accedes to the first and partly to the second, does not seem sufficiently consistent with itself.

579. • Q. 4. What must be done if at last the owner appears, when the thing has been spent or consumed for pious uses?

Resp. 1. If it was spent or consumed for pious uses when the owner was judged now no longer able to be found, no restitution is to be made, because the thing could rightly be held as abandoned, and therefore it was legitimately acquired by the first occupant.

Resp. 2. If it was spent or consumed for pious uses while hope still shone forth of finding the owner, then the damage must be repaired. The reason is that in the case either the thing was to be preserved, or at least its price ⁶, since dominion still remained with the owner. - St. Lig., n. 590, 603; Hom. apost., n. 69. - See Casus, n. 516 and following.

⁶ The difficulty is how long the thing or its price ought to be preserved, as still pertaining to its former owner; and indeed not even those things which St. Alphonsus discusses after Cardinal De Lugo solve that difficulty. On this matter this much is sufficiently manifest: a prudent judgment concerning whether the hope of finding the owner of the found thing is to be cast aside or not cast aside depends very much on circumstances; and therefore the measure of time varies according to their variety.

But two things seem not to be omitted. One is that the norm seems a little too severe which certain words of Cardinal De Lugo seem to insinuate (De Iust., disp. 6, n. 139), as though it must be waited until there is present some possibility, not indeed probability, of finding the owner, however fortuitous, so that the hope is cast aside only when the owner could be found only by a miracle. The reason is that a prudent norm of human actions is accustomed and ought to be taken from things which commonly happen, not from fortuitous and extraordinary things.

The other is that some norm is supplied by certain civil codes, which decree generally that whenever the diligence prescribed has been used for seeking the owner of the thing, and he does not appear after two years, the thing yields to the finder. For even if that law is not in force somewhere, nevertheless, since it can be held as a dictate of prudence, one will rightly infer that, after two years have elapsed after suitable diligences have been used, the finder can dispose of the thing as his own in such a way that, whether he has consumed it or has prescribed by possessing it as his own, he is held to nothing, even if perhaps the owner afterward appears.

221. 1. Notion of treasure. Treasure can be defined as a noble, precious, and hidden thing, whose owner cannot be found. Two things therefore are required: (a) that the precious thing truly be hidden, not found in an open place; otherwise it will be a lost thing, not however a treasure; (b) that it can rightly be presumed a thing belonging to no one; hence, if someone can prove that he is the owner of this thing, it is not a treasure.

222. 2. To whom does treasure belong? (A) By natural right, it belongs wholly to the finder: for since it is a thing belonging to no one, it becomes the property of the first occupier. But he is deservedly called the finder who, whether through himself, or through another hired for this end, first discovers it, or renders it visible, although he has not yet apprehended the same by hand.

The reason is that treasure cannot be regarded as a thing of the owner of the land, since it is not established that it was hidden there by his ancestors; nor as a thing of him who hid the treasure, since by hypothesis he cannot be found; therefore treasure truly belongs to no one, and consequently to the first occupier.

223. (B) But civil law can determine something concerning this matter which obliges in conscience, since there is question of a temporal matter belonging to the State. (a) Now in France, and in many other regions, treasure found in another's land is divided equally between the finder and the owner of the land.¹ This law is equitable; for there is some presumption that the treasure was hidden by the ancestors of the owner, especially when possession of the land was continued in the same family for a long time; moreover the State can define to whom goods belong whose dominion is uncertain; therefore the civil law in this case obliges in conscience, even before the sentence of the judge.

¹ Civil Code, art. 716; Planiol, I, 1268-1271.

224. (b) By French civil law it is prohibited that the lands of others be dug up for finding treasures; if, therefore, someone by design and without the owner's consent has sought and found a treasure in another's land, he must hand over half part to the owner of the land, from what has been said; and moreover he is deprived of the other half part of the treasure: nevertheless this latter disposition is commonly held as penal, and therefore does not have force in conscience before the sentence of a judge.

He who buys a field at the common price, in which he suspects a treasure lies hidden, uses his own right, nor is he bound to divide the treasure found with the former owner of the land; but it must be said otherwise of him who hides a treasure already found, and, after buying the field, vindicates the whole for himself; for by the very fact that he finds it, he is now bound to hand over half part to the owner.

648. • Things which are found are of different kinds: some neither have an owner nor have ever had one, for example little stones and gems which are sometimes found on the shore of the sea; others indeed already have had an owner, but now have ceased to have one, as are treasure, vacant goods, and abandoned goods; others have an owner, but it is not known who he is, as are things recently lost.

649. Principles. - I. Things found which neither have an owner nor have had one pertain to the finder himself. Hence little stones, gems, amber, pearls, corals, etc., which are found on the shore of the sea or in the bed of rivers or adhere to rocks, are the finder's.

But those things are generally judged, according to our laws and customs, neither to have an owner nor to have had one, which are not held as parts of some land. Hence metallic veins, quarries, coal-mines, chalk-pits, sand-pits, and those in which petroleum is contained, belong not to the finder, but to the owner of the land.

650. • II. Goods which indeed have had an owner, but now have ceased to have one, are either treasure, abandoned goods, or vacant goods.

Treasure (treasure-trove) is a movable thing buried or hidden, of whose owner memory does not exist, so that no one can demonstrate (n. 651) that it is his. It is said: 1) Movable thing, understand: one which can be valued by price; therefore money, a coin, a little vessel, a little bell, can be matter of treasure. - It is said: 2) Buried, for example in a field, or hidden, for example in an old chest. If it were not buried or hidden, the thing would not be held as true treasure, but as lost.

Treasure by natural right belongs to the finder, because it is held as a thing belonging to no one, but not as a part of the place; hence it ought to belong to the first occupant. And since our laws decide nothing concerning it, we are governed only by this natural right. Except States where treasure found on the finder's own land, or found fortuitously on land pertaining to no one, becomes wholly the finder's; but treasure likewise fortuitously found on another's land is to be equally divided between the proprietor of the land and the finder,¹ even in conscience. L. IV. 602.

651. • Quaer. Can a workman, laboring in some house, if he finds in some corner of the wall or in an old chest a sum of money, retain it, or, as above, the half part of it?

Resp. Distinguish. In the negative, if signs are present from which it is judged with moral certainty that this money belongs to such a person or family; because then that money is to be reputed as recently lost. Otherwise, in the affirmative.

652. • Abandoned goods are goods which the owner himself rejects with the intention of abdicating from himself dominion over them. Hence they become the property of the first occupant. Of this kind are acorns, nuts, chestnuts, which remain after gathering; ears of grain, which remain after harvest; grapes, which remain after vintage has been made. For the most part also dry and dead wood lying on the ground, but not those things which are like fences, or otherwise destined to some use.

But those who cut wood in another's forests are bound concerning damage, which nevertheless here in places not yet cultivated is usually none; for it is of interest to the owners that trees be taken away for preparing the soil for wheat. But in cultivated places it is greater or less according to the circumstances. Near cities and towns wood is worth very much, as in all places in which trees are rare, for example in the immense prairies of certain western States, especially of Illinois.²

653. • Quaer. What is to be said of goods which are called derelict at sea and wrecks?

Resp. 1° "The right of acquisition, by finding, ... does not extend to goods found derelict at sea, though abandoned without hope of recovery."¹

Resp. 2° "A wreck is understood to be goods cast or left upon land by the sea,"² and these are not to be judged among abandoned things.

The reason of each response is that the owner is judged to have cast away the hope indeed, but not the intention of recovering them, except in the case where expenses for recovering them would at least equal their value. Therefore for the internal forum, and outside the case where expenses for recovering them would at least equal their value, the same is to be held of them as of things recently lost; but in the external forum those who appropriate these things to themselves are sometimes punished with very great penalties.³

654. • Vacant goods are called those which someone who died intestate left, to whom no heir succeeds according to law or ab intestato. These also, by natural right, belong to the first occupant, since they no longer have any owner. But by our law two kinds of vacant goods must be distinguished. For the disposition of our laws is this: "Whenever the owner dies intestate, without leaving any inheritable blood, or if the relations, whom he leaves, are aliens, there is a failure of competent heirs."⁴ In the former case, namely "whenever the owner dies intestate, without leaving any inheritable blood," our laws, at least as to movables, do not seem to obligate in the internal forum before the sentence of a judge, and we think that conscience is governed only by natural right, by which they become the property of the first occupant. In the latter case, namely "if the relations, whom he leaves, are aliens," it must be noted:

1. Goods, even immovables, in certain States, and movables in all, are distributed to heirs.

2. Where this liberality of laws does not flourish, a) a son does not violate justice by usurping the goods of his father for himself, since the right of nature favors him, or at least the custom of all nations very consonant with nature, from which a special law can scarcely derogate except in the external forum. b) Relatives usurping the goods of the deceased, if children are lacking, do not seem guilty of injustice if they distribute them among themselves in that way in which it would be done from the sanction of the law if he had been a citizen; for that the law denies that right to an alien and vindicates the goods for the State is to be referred to external governance rather than to the definition of property, and therefore it does not bind conscience, although c) if it is demanded for execution, it is necessary not to resist. d) Others who have no right, if they do not hand over the goods of a deceased man who has no surviving children to the State, but spend them for pious uses, "are not to be blamed, since they violate no one's" strict "right"; nevertheless they can in no way usurp these things for themselves, "unless it is certain to them concerning the will of the deceased to donate these things to them. e) If children survive, the goods must altogether be handed over to them, unless they are given to the treasury, or unless they are plainly unworthy and prodigal. f) If relatives are pressed by want, they are to be aided before others. g) But we would not dare to condemn him who, with relatives not in need neglected, would give the goods of the deceased to the poor," or would apply them to other pious causes: "for relatives do not have a strict right." So Kenrick.¹

213. Invention differs from occupation strictly so called: 1) for occupation supposes and includes the intention of acquiring for oneself the thing occupied, but invention denotes only the discovery of a thing, or at most its apprehension; 2) occupation is also and chiefly concerning things which have never belonged to anyone, but invention only concerning those which have had an owner but have ceased to be in his detention.

Therefore it is badly defined by some as a certain occupation of some thing separated in fact from its owner; but it must be defined as the discovery or bringing to light of some thing separated in fact from its owner. It is said:

1. discovery, and not real apprehension and occupation, because it can happen through merely intentional apprehension by sight alone, that is, by seeing the thing; indeed through the mere manifestation and bringing to light of the thing, that is, by rendering it visible (by oneself or by others hired for this);

2. of a thing separated in fact from its owner, either so that he retains dominion over it (a lost thing), or so that he is no longer owner (an abandoned thing), whether because the owner has died without an heir, or because he has renounced his dominion, or because he can no longer prove his dominion, and then the thing is called a treasure.

214. I. Concerning the finding of treasure. - Treasure among abandoned goods deserves special mention; it is defined as: any hidden or buried thing which no one can prove to be his and which is found by fortuitous chance¹ (C.C., a. 716). It is said:

¹ Concerning treasure, the Italian code, a. 714; the Spanish, a. 352 and 514; the Austrian, a. 392; the German, a. 984.

1. any thing, whether it was hidden long ago or recently, whether it is money, or any other movable thing whatever, whether precious or cheap, provided it is estimable by price, for example, the jewel of a ring, documents, precious vessels,² etc.

² By Austrian law, only money, jewels, and a precious thing are held as treasure; by English and American law, only coin, or also a golden or silver thing.

2. hidden or buried: for if it is in the open, it is not a treasure but a lost thing or simply an abandoned thing. Furthermore it is required that it have been hidden by the hand of man; or, if by a fortuitous natural event, for example, an earthquake or volcanic eruption, it was covered over, that at least by an act of man it had been deposited there, whether in an immovable thing, as in a field, or in a movable thing, as in a cupboard, an old garment, an ancient chest;³ hence treasures are not riches which by nature itself lie in some estate, as metallic or coal veins or precious stones, nor are tombs or sculptured stones buried in the earth treasures in the proper sense;

³ In the Netherlands they dispute whether a thing hidden in a movable thing is treasure; which seems strange, since the Dutch code (a. 642) borrowed the definition of treasure from the French code.

3. which no one can prove to be his, for otherwise it would have to be restored to the owner;

4. there is added: which is found by chance. It is disputed among interpreters of civil law whether this element pertains to the essence of the definition; but it seems rather not to pertain, and only to indicate the ordinary mode by which treasure is found.

Now concerning the finding of treasure these principles are valid:

1. Treasure is a thing of no one: for it is not the thing of him who is the owner of the land, since it is not certain that it was hidden there by his ancestors; nor is it any longer the thing of him who hid the treasure, since by hypothesis he cannot be found.

2. Therefore treasure, if natural law alone is considered, belongs wholly to the finder; but the finder is deservedly judged to be he who, whether by himself or by another hired for this end, first discovers it or renders it visible, although he has not yet apprehended it by hand.⁴

⁴ German law, however, requires both, for it says: "which is discovered and, when discovered, is occupied" (a. 984); likewise by Spanish law, he is held to be the finder who apprehends, not he who sees (a. 351, 610, and 614).

3. From present-day civil law, treasure found in another's land is generally to be divided equally between the finder and the owner⁵ (not the usufructuary⁶) of the land, because the law presumes that the treasure has a certain special connection with the land, or even was hidden by the ancestors of the owner, which in the more frequent case, in which possession of the land has remained in the same family for a sufficiently long time, is probable. This law is equitable and therefore obliges in conscience.

⁵ C.C., a. 716. The owner of the land is understood whether a private person, or the public treasury (the fisc), or a civil or ecclesiastical society. This last, however, is called into doubt by some, because it is not certain whether civil law is applicable in the case; on the contrary Vermeersch, applying can. 1529, with can. 20 considered. - Swiss law makes an exception, establishing that treasure belongs wholly to the owner of the land (a. 723); likewise English law, which attributes it to the public treasury (the fisc) if it claims it; otherwise it belongs to the first occupier.

⁶ C.C., a. 598. - In an emphyteutic good, by Italian law (a. 1361) and Spanish law (a. 1632), it cedes to the useful owner; by Austrian law, to each owner (a. 399).

4. Civil laws often prohibit another's land from being dug up, without the owner's knowledge, in order to seek treasures, so that he who by design and without the consent of the owner has sought and found treasure in another's land is deprived of his part and is held to cede the whole to the owner.⁷ Yet this disposition is a penalty inflicted for a delict, and therefore it does not oblige in conscience except after the sentence of a judge. But if the owner has been warned and has consented, the contract entered into with him must be observed.

⁷ Thus French and Belgian, Italian, Spanish, and Dutch law.

215. Corollaries. - 1. He who buys a field at the current price, in which he suspects a treasure lies hidden, uses his right, and is not held to divide the found treasure with the former owner. For treasure is not a part or fruit of the land, nor is it occupied together with the field, and therefore it was not the owner's thing, but before invention was a thing of no one, which has an owner by invention alone.

2. On the contrary, he who hides a treasure already found, and after buying the field retains the whole for himself: by the very fact that he had found it, he is already held to hand over half the part to the owner.

3. If a precious thing has been made visible by a tempest, it already loses the character of treasure and will belong to the first occupier.

216. II. Concerning lost things. - A lost thing is called that which, against the will of the owner, has fallen out of his possession, although it is not hidden. Therefore it differs from treasure both because it is not hidden, and because it is not a thing of no one, but is presumed to have an owner. Hence:

1. A lost thing remains under the dominion of him who involuntarily lost it, as long as there is for him the possibility of recovering it.

2. If, all things considered, there is lacking the possibility of finding the owner, a lost thing probably becomes a thing of no one, and therefore can legitimately be retained by the finder, whatever many of the old authors may have said; because now it is impossible for the owner to exercise his dominion over the lost thing. For dominion of a thing is attributed insofar as utility can be perceived from the use of the thing; and this is impossible for one definitively losing it. Hence, the reason of dominion failing in him, his dominion ceases.

3. The finder is not held to pick up a lost thing, unless sometimes from charity, if it is notable and otherwise about to perish. But one taking the thing is now obliged from justice and quasi-contract: a) to guard the thing diligently, as a good father of a family, lest it perish for the owner, and if it cannot be preserved, to sell it and preserve the price; b) to inquire about the owner with moral diligence by apt means proportioned to the value of the thing found, not at his own expenses, however, but at the owner's; c) when the owner is known, to restore it to him, after deducting the expenses made in guarding and investigation, without being able strictly to demand a reward, unless the owner has promised it or civil law so establishes.⁸

⁸ Civil law establishes this, for example, in Germany, Austria, Switzerland, Italy, and Spain. Remuneration is not owed if the finder neglected to inquire; Austrian Code a. 389; Spanish 615-617; German a. 965-968.

4. The finder who culpably is the cause that the owner cannot be found, because he neglected to inquire or sufficiently to inquire about the owner, or hid the thing so that the owner cannot recover it, is a possessor in bad faith, and therefore can have nothing of the thing for himself, as will be said later, n. 303. Hence he is held to restore the whole either to the probable owner, if there is one, or to pious works, even if he has consumed the thing.

5. A finder for whom, after sufficient diligence has been employed, the owner remains doubtful and uncertain, must divide the thing among a few uncertain owners according to the proportion of doubt or probability.

6. A finder for whom, after sufficient diligence has been employed, the owner remains wholly unknown, with no hope of discovering him, probably can make the thing his own, as a thing of no one, and indeed at once (unless civil law establishes otherwise⁹), nor is he held to expend it on pious uses, although it is more praiseworthy that this be done.

⁹ Thus, for example, in Switzerland and Austria.

7. If, before the time for prescription established by law has elapsed, the owner appears, the finder who after an altogether diligent inquiry appropriated the thing to himself in good faith is held to restore it and its fruits, insofar as he still possesses them or has become richer from them; but if he has consumed it, or has completed the time required for prescription, he is held to restore nothing, as a possessor in good faith.

But the time established for prescription is various. By French and Belgian law (C.C., a. 2279), likewise Dutch (a. 2014) and Austrian law, it is 3 years, unless there are special dispositions for a particular case, for example, for things deposited in the montes pietatis, or transported or abandoned in public offices; by Italian law (a. 715-718) and Spanish law (a. 615 and 616), 2 years after publication; by Swiss law, 5 years; by German law, 1 year after denunciation. By English law prescription is not admitted in this case.

217. Observation. - It suffices to apply the general prescriptions of civil law as to a certain deposit of lost things or the mode of seeking the owner; nevertheless this does not seem obligatory, unless they regard special things or cases. In Belgium, for the rest, prescriptions do not exist except for things which are transported by public services (for example, by railroad or postal service), and are abandoned there or in tribunals.

218. III. Concerning abandoned things. - That thing is called abandoned which the owner has voluntarily abdicated without transferring it into the dominion of another. Such are fruits which are left after the harvest has been completed, dry wood which lies on the ground and is not collected, old rags which are thrown away; and also goods which, when the owner is dead, become no one's, either because the deceased neither has nor constituted heirs, or because they renounce the succession (vacant inheritances). Therefore these goods now are no one's. Now:

1. By natural law, abandoned goods, as things of no one, can legitimately be occupied.

2. By civil law it is sometimes established that goods which lack an owner or abandoned inheritances devolve to the State; which law obliges even in conscience, at least after the intervention of authority claiming the rights of the State or the sentence of a judge.

Thus by French and Belgian law (C.C., a. 539, 713, 768¹⁰). But these words regard only immovable goods and inheritances (as is supposed, a. 564, 715, 716, 717). Hence for the remaining movable goods the right of the first occupier remains.

¹⁰ Likewise Dutch code, a. 576; Italian, a. 742 and 758; Spanish, a. 913, 914, 956, 958.

219. Observation. - Things lost by shipwreck are not abandoned, nor things thrown into the sea to save a ship, or carried off by inundation (epaves; strandgoed): for owners did not freely and spontaneously cast these away, but intend to retain dominion over them as far as they can. Hence concerning these things the statements about lost things are valid; and therefore sometimes special civil laws are issued concerning these things,¹¹ or they even punish those who steal such goods.

¹¹ C.C., a. 717, and ordinance of the year 1681 concerning maritime things with decrees of 27 Thermidor, year VII, and 17 Floreal, year XX.

Goods which can be found are distinguished into four kinds, namely: treasures, things recently lost, abandoned goods, and vacant goods. It will be said in particular concerning each what they are and to whom they belong.

I. Treasure from Roman Law is a hidden sum of money, of which no memory exists. But according to the laws of many nations, just as among us, by the name of treasure today is understood not only money, but also any other hidden movable thing estimable in price. - Wherefore Kent says: "Goods found hidden in the earth go under the denomination of treasure-trove." - Cf. Kent, Comment., vol. 2, part 5, lect. 35, n. 358. - Kenrick, loc. cit. n. 61. - Crolly, vol. 1, n. 641.

IV. A treasure is properly called an ancient deposit of money, of which no memory survives. This treasure belongs to the finder by the law of nature and by the common civil law. For the rest, many peculiar positive laws have decreed to whom treasures found are to be applied. Money, or other precious things, hidden for fear's sake — say of war, plague, or marauders — do not come under the name of treasure. He who finds them and does not restore them is guilty of theft. If by chance a true treasure be found in another's house or land, half the part belongs to the finder, and half to the lord. If it has been sought by industry on another's land, the whole is owed to the lord, as all commonly teach; who nevertheless add that the finder of a treasure is not bound to restitution before the judge's sentence, because the law forbidding to dig on another's land is penal. That laws of this kind oblige in conscience is to me the more probable, and consequently that the finder is bound in conscience to restitution. The lord of the ownership only is likewise lord of the land in which the treasure is found. Wherefore if a treasure be found in a road, in a square, or in any other public place whatsoever … … whether by chance or by industry, the whole belongs to the finder, unless some peculiar law stand in the way. A treasure found in a field bought belongs to the finder.

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.