might be compelled to pay anything out of his own property, but so that he should sustain the ignominy of the auction being held under his name, in compensation for which ignominy he commonly enjoyed his liberty.33 In this class belong legacies, when by testament a definite portion of goods is left to some one not a primary heir; likewise dowries which come to the husband through his wife on the ground of matrimony; as also bridal gifts which are given by the groom to the bride, and the like. In a like manner also are acquired those things which, after being treated as derelict by a former owner, are seized by the first finder.34 Under this head come hidden treasures, wreckage which is thrown up on the coast, things which have been lost on the road and elsewhere, only so far, however, as the former owner has given up the intention of recovering them. For otherwise, although by some unforeseen accident or other the possession of my property has been interrupted for a time, nevertheless my right to it has not perished, unless by neglecting to look for it, or in some other way, I have signified my abdication of it, as it were. Hence they do well for their conscience, who are careful to make public announcement of the finding of that kind of thing which they cannot prove by definite circumstances to have been treated as derelict by its owner. This is particularly appropriate when things are concerned that have been lost by dropping, or by shipwreck, or on a journey. In treasure-trove, however, this is not so necessary. For he who digs up a treasure on his own land will be able rightly to retain it until such time as another has proved himself to be its legitimate owner, and has presented credible grounds for concealing it and keeping it hidden until that time. For he from whose possession a field or a house has passed to its present owner, who is the finder of the thing, is not presumed knowingly to have left therein a treasure which he had himself hidden away, when he was alienating the field or the house; just as also he who has hidden some such thing in another person’s land without the knowledge of its owner, has not lost the chance of asserting claim to his own property, when there was the justifiable fear that it might fall into another person’s hands. But, in truth, he who has discovered a treasure on another’s ground, is altogether bound to declare that fact, at least to the owner of the land. For it is generally presumed that things contained in the ground belong to the owner of the ground. On these matters, however, positive laws in different places make different regulations. <40>
Finally, under the head of lucrative title is acquired the booty which soldiers, with the indulgence of their general, take from the goods of the enemy, in addition to their pay; for otherwise whatever is captured in war belongs to those who are principally carrying on the war; and it is incumbent upon them, moreover, to pay out of the booty for whatever damage was done to their own citizens by the enemy, either before the war or during its course. And soldiers ought to be content with their pay or with what takes the place of pay; if anything is given them out of the booty they will ascribe it to the liberality of the general.
20. In contrast with the preceding, however, that is to say, under a burdensome title, soldiers acquire their military pay, or what is assigned them in place of that pay; also all those things which come to us by burdensome pacts or contracts, for example, things acquired by payment of money, by exchange with a thing of equal value, by labour or effort, even though some element of profit be not altogether lacking here. Thus, it is by truly burdensome title that merchants acquire property, even though they sell their merchandise for more than they paid for it; since the labours and dangers of transporting and handling the merchandise are regarded as being equivalent to the gain. For this reason even usury upon money let out at interest belongs here, for the obvious reason that, while this money is lent for another’s use, besides the risk involved of losing the loan, it cannot be paid out for other profitable uses by its owner. Nay, even money or property which is acquired on wagers, by so-called urns of fortune, or by any kind of game, belongs here; for there was a contract also in the case of all those things, and my money was exposed to equal risk with that of another; although contracts of that kind have in some places been altogether prohibited by civil laws, or else the resources of legal action have been denied against those who are unwilling to abide by them. No less accompanied with burden is the income of princes which the privy purse receives out of the revenues of the state for the expenses of single individuals or their own household; for this is granted as some measure of compensation for the undertaking of cares and labours in behalf of the state. And as for the rest of the revenues, those, namely, which are spent upon public uses, nothing but the administration and distribution of these has been left to princes, and therefore, when these revenues are brought into the treasury, they cannot properly be said to be acquired for the princes.
Into this class falls also that which is seized from the enemy in a just war.35 For although he who gives me a just cause for making war would also, as far as in him lay, be giving me the right of taking all that is his own, however far, perhaps, this would exceed the injury that has been done by him (as will be shown somewhere), and therefore, <41> assuming that I have a just cause for making war, nothing further is required for my laying hold of his possessions than the act of occupation; nevertheless, because, aside from the fact that these are imputed to the payment for damage which has been received, such occupation cannot take place without expenses, perils, and labours, not to mention the uncertain cast of the dice of Mars, property of this kind is regarded as passing from one owner to another under burden. In war, moreover, the property of the enemy becomes ours, his movable property, indeed, when it has been brought behind our outposts; but his immovable property, even though for a time it may be held under our power [potestate], becomes ours only when it has so been occupied by us that for the time being the enemy has left open to him no avenue of approach to it. Nevertheless, a quieted possession of the same is obtained only at the time when the enemy has either been utterly annihilated or scattered, or else has also by a pact given up his claim to such property. Here, furthermore, it must be noted that, if among the things taken from the enemy there be some which have been taken from some third party likewise, in case this third party has given up the effort to recover them, and has left them to the quieted possession of the second, then he cannot demand back that property from the last holder. For to property which has been taken away in a just war I am understood to have lost at the same time every right. The same thing happens when I suffer my right to a thing which has been taken away from me in any way at all, to expire by neglecting to recover it, or at least to protest against the wrong, or by entering into transactions with the one who took it away.36 Also the obligation of restoring a thing which has been taken away unjustly does not pass from the one who took it away to the latest holder, and that because this obligation inheres in the person of the former, and does by no means attend the thing which the first possessor has already regarded as derelict. But if, in truth, the first possessor has preserved his right, then he will be able rightly to recover his property from the last holder, with this proviso, however, that he is bound to make good to the latter the effort expended in recovering it.
21. These are about all the ways in which, either as a whole or as individual items, things are acquired, as they exist at different times in the world. Furthermore, that method of acquisition is in the highest degree natural, by which the natural and artificial increments and fruits of our property or our industry and any or all improvements of the same, come to us. Now this means is extremely widespread, and it is the most frequent as well as the most fruitful of them all, especially inasmuch as most things either take on natural increments and produce fruits of the same kind, or are capable of being made better, larger, and more fruitful by human industry. Now increments and fruits of things are either merely natural, or merely artificial, or mixed. To <42> the first class can be referred trees and other plants which, without man’s cultivation, grow out of the earth, and the fruits of the same which do not need the labour and industry of man for their production. To this class also you can assign alluvium, in so far as it is deposited without human effort, the violence of the stream adding to one man’s farm a bit of soil which has been cut away from somewhere else, and the process being one of silent increments. It is recognized that this alluvial deposit comes to belong to the owner of the farm, principally for the reason that no one can positively prove that it was to this particular spot and nowhere else that parts taken from his farm had been added; and likewise that whatever has been placed there is from his land
