Summa summae S. Thomae, Tomus III

Nota. Animals are usually distinguished as of three kinds. Some are wild by nature, as stags, boars, hares, fish, etc. Some of these grow tame by habit and become domestic, as stags, doves, rabbits, etc. Some finally are by nature and by habit tamed and domestic, as hens, oxen, sheep, etc. This noted, I say 1° : Animals wild by nature and by habit, by the law of nations belong to the first taker : « For what before belongs to no one is conceded by natural reason to the occupier. Whatever you take is understood to be yours so long as it is held under your custody, as fish enclosed in a trap or a pond, or a wild beast caught in a snare from which it cannot extricate itself. But when it has escaped your custody and has returned to its natural liberty, it ceases to be yours and again becomes the occupier's. » Thus far Justinian, L. II Instit., tit. de rerum divis., § Ferc.

I say 2° : Animals wild by nature, but grown tame and gentle by habit, « are understood to be yours so long as they have the mind to return, or can easily be brought back ; for if they cease to have the mind to return, they also cease to be yours and become the occupier's, because they are then held to have recovered their liberty. But they seem to cease having the mind to return when they have abandoned the habit of returning. » The same, ibid., § Pavonum.

I say 3° : Animals domestic and tame by nature, « although they have fled from your sight, wherever they may be, are understood to be yours, and he who detains them with the intention of gaining them, or appropriates to himself their wool, feathers, eggs, etc., is understood to commit theft. » Id., ibid., § Gallinarum. Because, since they are domestic by nature, wherever they run about, they are not held to recover their liberty, but remain the prior lord's : so that, even if they are snatched from the jaws of a wolf, what remains must be restored to the owner.

§ II

Whether and how one sins who hunts or fishes against a just prohibition, and whether he is bound to restitution?

Note that hunting and fishing can be prohibited on three grounds : 1° By reason of the state of the person : thus it is prohibited to clerics. 2° By reason of public utility, as when it is prohibited during the months in which crops swell, or animals are gravid and giving birth, or when it is prohibited lest it be done with certain instruments by which minute and excessive numbers of animals would be caught, and thus the offspring extinguished or greatly diminished. 3° By reason of place, as that it not be done on another's land, or on public land, reserved to another.

I say 1° : A cleric sins — a fortiori a religious — who frequently devotes himself to noisy hunting ; yet he is not bound to restitution.

The first part is laid down in the chapter Episcopum, Decretals, book V, de clerico venat., tit. 24, and in the Council of Trent, session XXIV, de Reform., chap. 12.

[Item in the Fourth Lateran Council, canon 15, we read : « Hunting and fowling we forbid to all clerics ; wherefore let them not presume to keep dogs or birds. »]

The second part is also evident ; because such a prohibition, made by reason of the condition of the person and on account of the decorum and dignity of his state, does not render the acquisition of the beast unjust or invalid.

I say 2° : He who hunts, fowls, or fishes against a prohibition made by reason of public utility sins ; because he acts against a just law, as is supposed. He sins mortally or venially according to the measure of the damage inflicted ; because such a prohibition is made on account of a damage to be avoided, and he is bound to the restitution of it, because whoever causes a damage is bound to repair it. Yet he is not bound to restitution of the prey, because such a prohibition makes neither unjust nor invalid the acquisition of the beast, since, this notwithstanding, the beast still remains in its liberty, and accordingly still becomes the first taker's ; it only makes the taking illicit.

I say 3° : He who hunts, fowls, or fishes on land open to access belonging to another who has the right of hunting, or in a public place, reserved to the prince or to another by grant from him, sins as before against a just law. He sins mortally or venially according to the measure of the damage inflicted, to whose reparation accordingly he is bound ; yet not of the prey captured, on account of the reason adduced in the preceding conclusion, which presses more strongly here still, since beasts are not the fruits of the land, as trees are.

Moreover, grave damage in this and the preceding conclusion is held to be not precisely the prey captured, even if it is of grave moment, but that by which the right of hunting, or the faculty of letting such right to others, is notably diminished in the one prohibiting, as if the waters were poisoned, the beasts driven away, their offspring largely destroyed, animals of great moment frequently captured.

For by these and similar things the right of hunting which the prince or the republic has, and the faculty of letting it to others, is greatly diminished. Likewise grave damage is held to occur if crops are enormously trampled down, hedges torn away, and the like.

I said in the conclusion, « on land open to access belonging to another. » For if anyone should capture beasts in an enclosed place, or fish in a pond, he would commit theft, and would be bound to restitution of those very animals ; because, since they have lost their liberty, they are under the dominion of him who guards and encloses them — unless perchance, without fraud on the hunter's or fisher's part, they have gone out of the enclosed place or pond and recovered their natural liberty ; then indeed they are again the first taker's.

[As to the obligation of civil laws enacted concerning hunting and fishing, it seems it should be said : 1° Of these laws, some refer to external governance and the good order. They decree, v. g., at what time or with what instruments hunting or fishing is permitted. These laws, according to the common and sufficiently probable opinion, are merely penal¹. What was said of penal law was stated in the treatise de Legibus, dissertation IV, art. 4.

2° There are other laws which protect another's right, v. g., a law forbidding you to enter an enclosed field to place a snare, lest you inflict damage. These laws bind by the force of the law of nature, and are not violated without injury to commutative justice.

3° Finally there are other laws which protect the right of hunting or fishing granted exclusively to someone by contract ; and he cannot without injustice be deprived of that right, which is a certain species of occupation. He would, however, be unjustly injured if by others, v. g., so great a multitude of fish were taken in the leased river that the income which the lessor hoped from it was notably diminished.

I said, « granted by contract ; » because, if the right of hunting were a mere privilege, it would not bind others by strict justice, but only by legal justice. Then there would be no place for restitution, especially if a penalty were imposed3.

§ 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]

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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 sea³ ; 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

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 accords⁴ 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.]

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.]

§ IV. — On things derelict, lost, and vacant.

I say 1° : By Roman law, « if anyone takes possession of a thing regarded as derelict, he at once becomes its owner. » Instit. book II, § last ; because, as I have now often said, things that belong to no one become the first occupant's⁵. By French law, goods derelict pertain to the magistrate of the place. So Tournely after Ferrier.

[The new French law accords with the old. From Cod. civ., art. 539, goods derelict are included under the name of vacant goods and attributed to the republic. This, however, is restricted by custom to immovables alone, and it is admitted that movable things derelict pertain to the first occupant, at least before the judge's sentence⁶.]

« But that is regarded as derelict which the owner has cast away with the mind that he does not wish it to be among the number of his things, and therefore he at once ceases to be its owner. » Instit. cited. When indeed such is the mind of the owner must be hunted out from the circumstances of things and times.

Hence you will infer that the goods of the shipwrecked, whether projected into the sea by the violence of a tempest causing shipwreck, or cast out for lightening the ship, likewise those carried off by flood, are not goods derelict, because regularly owners do not regard them as derelict, but rather would most gladly recover them ; and therefore they are a case of theft in those who steal them away for themselves, and if they are the goods of shipwrecked Christians, they incur the excommunication of the Bull of the Coena. If, however, the owner, knowing where and how he could recover them, did not care, because he either made little of them, or there were expenses to be incurred which would equal the value of the thing to be recovered, then it would be presumed that he regarded them as derelict.

Of this kind, I think, in these parts are the small pieces of wood which are swept off as the waves of the Meuse swell, and which the inhabitants of the banks fish out.

I say 2° : Vacant goods are those which someone leaves behind dying ab intestato, having no heirs who succeed him according to law ab intestato. These are assigned to the royal fisc. L. Vacantia, C. de bonis vacantibus.

Except the movable goods of foreigners, which, if they die ab intestato without heirs, ought to be expended through the hands of the bishop of the place for pious causes. Authent. Omnes peregrini, C. Communia, de Success.

In Gaul, the goods of foreigners dying there, who are called aubains, as it were born elsewhere, pertain to the king, excepting the goods of legates, merchants, and natives.

[Vacant goods are reckoned whatever one leaves behind dying intestate, whether movables or immovables. New laws sanctioned the attribution of these goods made by Roman law. Hence the goods of one who has died intestate and left no blood relatives up to the tenth degree devolve upon the fisc⁷. No place is given to occupation, because the dominion of these goods was not really relinquished or cast away, and the public authority, by force of its higher dominion, decreed that they would accrue to the community, for public utility. It can be said besides that, since the owner, bereft of his natural family, did not dispose of them by an act of last will, he is held to have willed them to accrue to his civil family, that is, the republic.]

I say 3° : Goods recently lost are not the finder's, but remain his who lost them, who therefore must necessarily have them restored, if it can be done ; because he who lost them is not despoiled of the dominion of these goods, nor does he who finds acquire it⁸. By what right? Not by authority of the law, for there is none that can be assigned ; not by the will of the owner, who rather wills on the contrary that they be rendered back to him, and therefore he inquires diligently, gives thanks for those restored, even when he has ceased to inquire.

I say 4° : If, after diligent inquiry — which ought to be greater or lesser according to the condition of the thing — the owner cannot be known, the goods found ought to be expended according to his presumed will : this the natural law indicates. His presumed will, moreover, is regularly held to be that they be expended for uses useful to himself, or to his own, or at least to the republic, and consequently for the relief of the poor, for Masses or other pious uses. And that it is so, I appeal to his conscience as witness : would he not wish his lost goods so expended ?

This common opinion is expressly handed down by the Council of Milan under Saint Charles, the Roman Catechism, part III, c. VIII, n. 17, and Saint Thomas here q. 62, a. 5, ad 3.

[In the Roman Catechism we read there : « There are thieves, who buy things taken away by theft, or retain in some way things found, occupied, and carried off. For Saint Augustine says : « If you have found and not returned, you have stolen⁹

» Note that if the owner of the things can by no means be found, they are goods to be conferred upon the uses of the poor. »]

The text of Saint Augustine cited here, and the text of the Angelic Doctor referred to, will be weighed below.

The other opinion affirms that the finder, in the case proposed, namely with every diligence employed, can hold the thing as his own. S. Ligorius¹⁰ cites several authors of good note, among whom the Salmanticenses, to whom it seems probable and highly probable, and Gury holds it as the more probable.

A third opinion, says S. Ligorius¹¹, truer and to be followed, distinguishes and says : « When, after diligence, it is still possible to find the owner, then the thing or the price ought to be kept. But if neither can be kept, the thing or the price must altogether be expended on pious uses, according to the presumed will of the owner, who still always retains the dominion of that thing, and the thing can return into his hands. Conversely, when the thing, considering the circumstances of the length of time or the distance of place, or from the fact that the thing cannot any longer be recognized as his by the owner, as happens with ordinary coins, does not seem able to return to the owner, then it becomes nullius, and therefore is acquired by the first occupant, who is not bound to give it according to the will of the former owner, since he has utterly lost the right of dominion through the impossibility of recovering it³. And this opinion Saint Thomas expressly holds, 2a 2ae, q. 66, art. 5, ad 2, where he says : « And likewise, if [things] are regarded as derelict, and the finder believes this, he may retain them without committing theft. » The reason a priori is, because the law of nations grants to private persons dominion over things for no other end than that they use them. Hence, when it is impossible for the thing to come to their use, it, as derelict, becomes nullius and returns to the primitive law of nature, and therefore becomes the first occupant's without any obligation. » — This third opinion is reduced in practice to the second.

In favor of this opinion is what is customary in our regions, where, when a found thing is deposited with the magistrate, after a year has elapsed it is returned to the finder, that he may use it as his own, although under art. 539 of Cod. civ. things having no owner devolve upon the fisc ; which, as was said, is restricted in practice to immovables.

Against this later opinion the text of Saint Augustine praised above can be objected. But this authority does not seem decisive ; for it may be so interpreted that he who did not return the thing found, because he did not diligently inquire for the owner, truly stole it, in that he ought to have had it as another's and not his own. But from that it does not follow that he is a robber if he retains a thing which can no longer return into the hands of the former owner.

The text of Saint Thomas to which Billuart above sent back the reader is as follows : « If he to whom restitution ought to be made is entirely unknown, man ought to make restitution as he can, namely by giving in alms for his salvation, whether he be dead or living ; provided nevertheless diligent inquiry has been premised about the person of him to whom the restitution ought to be made. » This text does not seem relevant, since here restitution to be made on account of theft is treated of. For the holy Doctor answers the question : « Whether restitution must always be made to him from whom something was taken ? » that is, whether restitution ought to be made to the injured person, or can be made to another, v. g., to the poor ? And he answers in the body that the very injured person must be led back to the equality of commutative justice by restitution. In ad 2m he adds that, if the injured person exists and remains unknown, restitution must be made to him through alms for his salvation ; because otherwise restitution, which must certainly be made by him who received the thing unjustly, cannot be made. Moreover, he who finds a lost thing did not receive it unjustly : whence the solution given by the Angelic Doctor does not regard him. Elsewhere the holy Doctor openly contradicts the conclusion undeservedly attributed to him, in the passage alleged above by S. Ligori.

Whichever opinion the confessor embraces, he ought not disturb the finder who, with every diligence made to find the owner of the thing, retains it in good faith as his own, because he follows an opinion truly and solidly probable, and it is not licit for the confessor to impose his own opinion, which is only probable, as certain and indubitably obliging.

[Veins of this kind are reduced to a triple genus : 1° Mines, which contain originally, whether in the form of a vein or accumulated, gold, silver, lead, iron, coal born in the bosom of the earth, which in French is called houille ; 2° Quasi-mines, in French mineres, in which are found ferriferous earths and combustible earth called in French tourbe ; 3° Quarries, from which marbles and stones of every species destined for buildings are dug out.

I say : Attention being had to the natural law alone, veins or mines of whatever kind belong to him whose the land is, not only as to the right of digging, but also as to dominion and property, because they are a part of the land itself and pertain to its substance. Consequently Sylvius, Lessius, and Soto are not to be approved, who say they are things nullius and by the law of nature become the first occupant's.

Yet it must be confessed that it has been legitimately brought about, whether by common law, or by commonly received custom, that princes or republics vindicate them to themselves, the damage inflicted on the owner of the land being compensated : 1° because this suits princes or republics for sustaining the common burdens ; 2° because these veins are of great estimation, and at the same time most difficult of discovery, for the digging of which the resources of private persons are usually unequal : wherefore it interests the republic to excite men by proposing a reward, lest they leave veins of this kind unproductive. Hence

By French law of 21 April 1810, it is prohibited that mines of the first kind be dug without license of the supreme authority, granted to the owner of the land or to another, the just indemnity being saved. This license is not required in order that mines of the second kind may be dug. It suffices that the owner of the land notify his intention to the prefect of the province. Quarries can be dug without any license, provided the special statutes are observed, which provide chiefly for the safety of the workers.