TREASURY. - Understood here in the juridical sense, according to the definition of classical Roman law, treasure is "vetus quaedam depositio pecuniae, cuius non extat memoria, ut iam dominum non habeat" (Paulus, l. 31, frg. 1 §, D. 41, 1). What was required was the depositio antiqua, made, however, not by chance but intentionally.
In modern legal systems these conditions are no longer necessary, and one speaks simply of a hidden thing, over which no one can prove the right of ownership. Emphasis is placed on certain particularities that vary in the different codes: for example, that it be any object of value or, more specifically in English and United States law, that it be a coin or precious metal; Swiss, Mexican and Italian legislation distinguish between treasure and an object of historical and artistic value.
In the Italian Civil Code, "treasure is any movable thing of value that is hidden or buried, of which no one can prove to be the owner." Three things, therefore, are required as elements for placing a thing in the category of treasure: 1) that it be a thing of value; 2) that it be res nullius, movable; 3) that it have been hidden for no short time. Therefore metal and coal veins cannot be considered treasure, nor can mineral water springs, uranoliths, or the remains of ancient buried buildings.
I. TO WHOM THE TREASURE BELONGS
According to natural law the treasure belongs to the one who finds it. The reason is simple: the treasure is reckoned as a derelict thing that forms no part of a piece of land and is not a product of the land, and therefore it is primi occupantis; in our case, of the finder. A finder, however, is not the one who first materially notices the thing, but the one who makes it visible to the human eye, taking possession of it in some way.
Even according to present-day positive laws, which have followed the line traced by Roman law, in principle the treasure belongs to the finder. Various cases, however, are distinguished, which in part modify, as circumstances vary, what is the guiding line of natural law. Moralists, not always uniformly, have judged and do judge of the binding force in conscience of such laws, chiefly because of the imperfection of civil legislation in the matter. 1) If the treasure is found on one's own land it belongs without doubt to the discoverer. 2) If the treasure is found on another's land, by chance, in many civil codes it is divided in half between the finder and the direct owner or emphyteuta, but not with the usufructuary or the lessee, that is, with one who has only the beneficial ownership of the land. But legislation has not always and everywhere been thus: to give an example, under the Carolingians 3/4 of the treasure went to the treasury, 1/4 to the discoverer. If the land belonged to the Church, then 1/3 went to the bishop, and 2/3 to the treasury. The Swiss code attributes the treasure to the owner, and half of the treasure constitutes the maximum limit for compensation. 3) If the treasure is found on another's land, but sought « ex industria, data opera », yet without the owner's knowledge, then, according to many legislations, everything belongs to the owner. 4) If the treasure is discovered on ecclesiastical land, rather than the civil law of the respective nation, natural law can be applied and, according to some moralists, must be applied, not civil law, since the case falls within the exceptions provided by can. 1529. If the discoverer is the same beneficiary, the treasure belongs to the respective prebend or church, because the beneficiary is not considered as the direct owner of the benefice. 5) If the treasure is found in a public place (square, etc.), in many legislations it is divided between the discoverer and the State, according to the particular laws of the place. 6) There are laws that reserve certain things of historical and artistic value to the State.
II. THE NORMS OF ITALIAN LAW
According to Italian law the treasure belongs to the owner of the land in which it is found. If the treasure is found on another's land, provided it was discovered only by chance, it belongs half to the owner of the land and half to the finder. The same provision applies if the treasure is discovered in a movable thing (Italian Civil Code, art. 932).
If it concerns land held under emphyteusis, the half belongs not to the owner but to the emphyteuta (art. 959); that right, however, does not belong to the usufructuary (art. 988). Given Italy's rich artistic heritage, special laws govern the finding of objects of historical, palethnological, archaeological and artistic interest (cf. arts. 822, 839, Law of 20 June 1909, no. 364 and various others, among them the royal decree-law of 24 Nov. 1927, and 1 Aug. 1939). According to these laws, now also referred to in the Italian Civil Code, such objects form part, if immovable, of the public domain (art. 822, para. 2), if movable, of the State's unavailable patrimony (art. 826, para. 2) and are therefore also imprescriptible (arts. 1145, 2934, para. 2). The State pays compensation both to the finder and to the owner of the land, amounting to about 1/4 or 1/2 of the value of the thing.
III. THE VALUE OF POSITIVE LAWS
1) There is no doubt that when the owner of the place and the finder of the treasure are the same person, the positive law then coincides with the natural law; everything belongs to the finder. 2) When the treasure is discovered by chance on another's land, the principle holds that civil laws determining property for themselves bind in conscience even ante sententiam iudicis, provided they can be considered just. According to the majority of theologians, the limit of justice is observed if no more than half of the treasure is attributed to the owner of the land; otherwise the law is considered as purely penal. 3) The civil law that attributes the entire treasure to the owner, in the case of a finding made without his knowledge, ex industria, data opera, "is held to be merely penal, because the provision that denies any right to the finder seems to be given in poenam." Such a provision becomes binding in conscience only after the decision of the tribunal. 4) It is not unlawful, according to the moralists, to buy the land, where one knows there is a treasure, at the ordinary price, in order then to make the treasure one's own. But it is unlawful, once the treasure has been discovered, to bury it again in order then to buy at the ordinary price the ground in which it is found. 5) The law that attributes the treasure entirely to the treasury is considered by the moralists as merely penal. If, on the other hand, the law reserves to the State monopoly only things of historical and artistic value, such a law can be considered as just, if its purpose is the common good, and it respects at least in part the rights of the finder. This is the case of the Italian law. In Italy, in fact, there exist reasons of common good for a special legislation in matters of artistic and historical things; and the law also establishes an equitable compensation for the owner and the finder. In other words, the Italian law, as it stands, seems to have the qualities required to be binding in conscience.
IV. MINING RIGHTS
Although, as has been said, mines are something other than treasure, nevertheless the laws that govern them have some relation to the laws concerning the ownership of the discovery of artistic objects, because of the common prevailing social interest. The ancient moralists said that mines belong to the owner of the land, because they are part of the land. But these men wrote at a time when no one had any idea of the depth that these mines can reach, which can also be explored and exploited while the surface of the soil remains almost intact. Hence other, more recent moralists call them res nullius, especially if they are at a certain depth. Many jurists attribute ownership of them to the State because of the great social interest they hold. The Italian Civil Code, while recognizing the rights of the owner of the land over the subsoil, makes an exception of mines, quarries, and peat bogs (art. 840), which "form part of the unavailable patrimony of the State... when their availability is withdrawn from the owner of the land" (art. 826). In particular, with regard to mines, the State also issues permits for the search for mineral substances; it recognizes, in the form of concessions, rights of enjoyment to anyone who has a sure technical capacity for the rational exploitation of the subsoil; it shares in the profits, and may always revoke a concession granted. For quarries or peat bogs, the State recognizes their availability in favor of the owner of the soil, but with a certain obligation of exploitation, or rather with a burden, to which the owner must submit if he wishes to avoid expropriation.