TREASURE. — Understood here in the legal sense, according to the definition of classical Roman law, treasure is «an ancient deposit of money, of which no memory remains, so that it no longer has an owner» (Paulus, I. 31, frg. I §, D. 41, 1). An ancient deposit was required, made however not casually, but intentionally.
In modern legal systems, these conditions are no longer necessary, and one simply speaks of a hidden object about which no one can prove ownership. Emphasis is placed on certain variant particularities in different codes: for example, that it be any valuable object, or more specifically in English and American law, that it be a coin or precious metal; Swiss, Mexican, and Italian legislation distinguish between treasure and objects of historical and artistic value.
In the Italian Civil Code, «treasure is any hidden or buried valuable movable object, of which no one can prove ownership.» Three things are therefore required as elements to classify an object as treasure: 1) that it be a valuable object; 2) that it be a res nullius, movable; 3) that it be hidden for a considerable time. Therefore, metallic veins, coal seams, mineral springs, uranoliths, and buried remains of ancient buildings cannot be considered treasure.
I. TO WHOM DOES TREASURE BELONG? — According to natural law, treasure belongs to the finder. The reason is simple: treasure is reckoned as abandoned property that is not part of a property nor the fruit of the property, and thus falls under the principle of first occupancy, in this case, the finder. However, the finder is not merely the person who first physically notices the object, but the one who makes it visible to the human eye, taking possession of it in some way.
Even according to modern positive laws, which have followed the line traced by Roman law, in principle treasure belongs to the finder. However, various cases are distinguished, which in part modify, depending on circumstances, the guiding principle of natural law. Moralists, not always uniformly, have judged and continue to judge the obligatory nature in conscience of such laws, mainly due to the imperfection of civil legislation in this matter. 1) If the treasure is found on one's own property, it undoubtedly belongs to the discoverer. 2) If the treasure is found on another's property by chance, in many civil codes it is divided equally between the finder and the direct owner or emphyteuta, but not the usufructuary or tenant, that is, those with only beneficial ownership of the property. However, not all legislation has been uniform: for example, under the Carolingians, 3/4 of the treasure went to the fisc, and 1/4 to the finder. If the property belonged to the Church, then 1/3 went to the bishop, and 2/3 to the fisc. The Swiss code attributes the treasure to the owner, with half of its value constituting the maximum compensation. 3) If the treasure is found on another's property but sought deliberately, without the owner's knowledge, then, according to many legislations, everything belongs to the owner. 4) If the treasure is discovered on ecclesiastical property, more than the civil law of the respective nation, and according to some moralists, natural law must be applied, not civil law, as the case falls under the exceptions provided by canon 1529. If the discovery is made by the beneficiary himself, the treasure belongs to the respective prebend or church, because the beneficiary is not considered 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 finder and the State, according to local special laws. 6) There are laws that reserve certain objects of historical and artistic value to the State.
II. THE VALIDITY 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, positive law coincides with natural law; everything belongs to the finder. 2) When the treasure is discovered by chance on another's property, the principle holds that civil laws determining ownership bind in conscience even before a judicial sentence, provided they can be considered just. According to the majority of theologians, the limit of justice is observed if the owner of the property is not awarded more than half of the treasure; otherwise, the law is considered purely penal. 3) The civil law that attributes all the treasure to the owner in the case of a discovery made without his knowledge, deliberately, is considered merely penal, because the provision denying any right to the finder seems given as a penalty. Such a provision becomes obligatory in conscience only after a judicial decision. 4) It is not illicit, according to moralists, to buy a property where one knows there is treasure, at a fair price, and then take possession of the treasure. However, it is illicit, once the treasure is discovered, to rebury it and then buy the land at a fair price where it is located. 5) The law that attributes the treasure entirely to the fisc is considered by moralists as merely penal. If, instead, the law reserves to the State's monopoly only objects of historical and artistic value, such a law can be considered just if it aims at the common good and respects at least partially the rights of the finder. This is the case with Italian law. In Italy, in fact, there are reasons of common good for special legislation regarding artistic and historical objects; the law also establishes fair compensation for the owner and the finders. In other words, Italian law, as it stands, seems to have the qualities to be obligatory in conscience.III. RIGHTS TO MINES
Although, as mentioned, mines are something other than treasure, the laws governing them have some relation to the laws concerning the ownership of discovered objects, due to the prevailing social interest. Ancient moralists said that mines belong to the owner of the property, because they are part of the property. But they wrote this when there was no idea of the depth to which these mines could extend, which can be explored and exploited while leaving the surface of the soil almost intact. Therefore, more recent moralists say they are res nullius, especially if they are at a certain depth. Many jurists attribute ownership to the State due to the great social interest involved. The Italian Civil Code, while recognizing the rights of the property owner over the subsoil, excepts mines, quarries, and peat bogs (art. 840), which «form part of the inalienable patrimony of the State... when the power of disposal over them is withdrawn from the owner of the property» (art. 826). Specifically regarding mines, the State grants permits for the exploration of mineral substances; it recognizes, in the form of concessions, rights of enjoyment to those with secure technical capacity for the rational exploitation of the subsoil; it shares in the profits and can always revoke the concession granted. For quarries or peat bogs, the State recognizes the power of disposal in favor of the owner of the land, but with a certain obligation of exploitation or rather a burden, to which the owner must submit if they wish to avoid expropriation.Pietro Palazzini
«TE SPLENDOR ET VIRTUS PATRIS». — Hymn of Vespers and Matins on the feast of St Michael the Archangel, of unknown authorship but certainly inspired by Rabanus Maurus’s *Tibi Christe splendor Patris*.
It is an ode to Christ, splendour and glory of the Father, around whom myriad angels gather under the leadership of St Michael, who has vanquished the enemy and consigned him, together with the other rebel angels, to hell. May he now spur and sustain us to win the prize of victory.
SILVERIO MATTEI