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.

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.

2. 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).

3. 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.

4. 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.

2. 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."

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.

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.

I say 1st. Treasure by natural right certainly belongs to the finder, if the finder is also the owner of the land. But if treasure is found on another's land, indeed much is disputed, but a probable opinion holds that then also the treasure belongs to the finder. The reason is that treasure cannot be held as a part of the land, and therefore the same must be established concerning it as concerning wild animals captured on unenclosed land.

I say 2nd. From Roman Law treasure also belongs to the finder if the finder is at the same time the possessor of the land where the treasure lay; otherwise it must be seen whether he found the treasure by chance or by industry. If by chance, he has a right to the half part; if by industry, the whole treasure yields to the owner of the land. Yet observe 1st. that there is required a sentence of a judge which declares industry to have been present, in order that the finder be held to hand over to the owner of the land that half part of the treasure which, if industry had been lacking, he could have retained for himself; 2nd. that owner of the land here means the one who has direct dominion; 3rd. that the finder is considered not the one who first touched the treasure, but the one who saw it or rendered it visible.

I say 3rd. From English law all treasures belong to the king, not only when they are found in some part of the national dominion, but also when they are found in some private field. Indeed, formerly those who hid found treasure were punished with capital punishment. Yet that law seems to be only penal; for, as Crolly notes, scarcely today is there a man of timorous conscience who would not retain found treasure. - Cf. Crolly, n. 642.

I say 4th. As regards this region, excepting Louisiana, where the dispositions of Roman and French law are in force, in the other States the laws establish nothing concerning treasure, and therefore the question is to be solved according to the norm of natural right, which always favors the finder. - The State of New York had imitated English law in this matter; wherefore every treasure found there belonged to the treasury, but this disposition was omitted in the revision of the laws of that State. - Cf. Kenrick, loc. cit. n. 61. - Kent, Comment., loc. cit. n. 358.

From the things said you will gather 1st. that little stones, gems, amber, coral, found on the shore of the sea or elsewhere, belong to the finder, because these are not part of the land; 2nd. that mines of iron, lead, coal, silver, gold, etc., belong to the owner of the land, both because these are considered part of the land and because our laws and customs so establish. - Cf. Kenrick, n. 59.

§ III. — On treasures.

A treasure, as taken here, is not any heap of money deposited for fear or safekeeping for the future, but is « a certain old deposit of money of which memory does not exist, so that it now has no owner. » So L. 31, ff., book 41, tit. 1.

[In the newer codes, by treasure is understood anything estimable by price, hidden or buried, which is found by chance, and which no one can prove to be his⁴]

^{271 272 271} S. Lig., lib. I, n. 145. ²⁷² Id., ibid., lib. IV, n. 605.

I say 1° : By the law of nations, a treasure is wholly the finder's, whoever he may be. He says the same of pebbles, gems, and shells found on the shore of the sea²⁷³ ; because things that belong to no one become, by the law of nations, the first occupant's, as has been often said. By Caesarean law, however, or the municipal law of the provinces, the dispositions are diverse. Hence ²⁷³ S. Thom., 2ae 2ae, q. 66, a. 5, ad 2.

I say 2° : By Caesarean law, a treasure found on one's own land is wholly the finder's. So Justinian, Instit. L. II, tit. 1, § Thesauros 39, and C. L. Nemo, de thesauris.

Found by chance on another's land, it is half the finder's and half the owner of the land's, ibid. That half must be handed over to the owner of the land even before the judge's sentence, because, as authors observe, this disposition of law is not penal, but definitive of the ownership of things.

Found deliberately on another's land without the owner's consent, it is wholly the owner's, C. loc. cit. Yet since this disposition, as to the half which would otherwise fall to the finder, is penal, on account of the wrong done to the owner of the land, the finder is not bound to give this half to the owner before the judge's sentence. And the law itself indicates this, saying : « Let him be compelled to render the whole to the lord of the place. »

[A treasure found in a public place is to be divided between the finder and the fisc, if indeed the place is profane ; but if it is sacred, the treasure is divided between the finder and the church fabric or the prelate.

So Roman law, with which French, Italian, Austrian, etc. law accords²⁷⁴ Prussian law, however, adjudicates to the fisc the middle part of a treasure sought on another's land, and the other middle part to the proprietor³. English law attributes all treasures to the king or the republic. But, as Crolly testifies⁴, that law does not bind before the judge's sentence.] ²⁷⁴ Cfr. Cod., loc. cit.

Found deliberately on another's land with the owner's consent, a pact being excluded, it is wholly the finder's, according to Navarrus, Lessius, and others ; because by this very fact that the owner of the land consents to the digging out of the treasure without contracting about it, or exacting anything from the digger, he is held to remit to him his share.

Found finally by magical art on one's own land, it is wholly the fisc's. So commonly, and it is gathered from L. Unica, C. de Thesauris. If by the same art it is found on another's land, the half that ought to have been the finder's becomes the fisc's ; the half of the owner remains to him, because he is not held for another's fault unless he cooperated in it. Moreover, the half which would otherwise have accrued to the finder ought not to be handed over before the judge's sentence, because it is a penal disposition, and indeed awaiting sentence. Thus far Roman law. If particular laws dispose otherwise, they are to be stood by.

It is asked here whether he who knows a treasure lies hidden on another's land may licitly buy that land at the common estimation, before he digs out the treasure, and become owner of the whole treasure after he has dug it out.

I answer. Affirmatively, with Soto, Navarrus, Bannez, and Sylvius. The reason is, because he buys the field at a just price. A treasure found in one's own field, moreover, is wholly the finder's, as I said.

That he buys the field at a just price, Proof. 1° Because a treasure does not augment the price of the field, since it is not its fruit, nor of its substance ; nor does it belong to the owner before its discovery or apprehension, but is nullius. 2° Because the price of a thing is not taken from its greater or lesser intrinsic utility or excellence, but from the common estimation of men, at least of experts in such an art or matter ; for this is the just rule and the immediate measure of a just and human price. Now he of whom we speak buys, I suppose, the field according to the common estimation. Therefore.

This second reason proves that it is licit even if the question concerned minerals hidden in the ground, which someone knew, whether by chance or by singular perspicacity, to lie hidden there.

[Note : 1° He is the finder of the treasure who uncovers it, not he who takes hold of it. If therefore a servant in the garden of his master, the latter present, dug a treasure from the earth, the master would injure justice by retaining the whole thing for himself. 2° If the owner of the land, suspecting a treasure lies hidden there, hires a hired hand to seek it, the owner is the true finder, and the whole treasure pertains to him. 3° According to the more recent codes, it matters nothing whether the thing was found on immovable property, or in a movable thing, v. g. in an old chest, provided it be established that it has the character of a treasure, that is, that it does not pertain to such a person or family.]

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.