Treasury

TREASURE. – Understood here in the juridical sense, according to the definition of classical Roman law, t. is « vetus quaedam depositio pecuniae, cuius non extat memoria, ut iam dominum non habeat » (Paulus, l. 31, frg. 1 §, D. 41, 1). An ancient deposit was required, one made not accidentally but intentionally.

In modern legal systems these conditions are no longer necessary, and one speaks simply of a hidden object, with regard to which no one can prove a right of ownership. Emphasis is placed on certain particulars 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 distinguishes between t. and an object of historical and artistic value.

In the Italian Civil Code, « t. is any movable object of value that is hidden or buried, and of which no one can prove himself to be the owner ». Three things are therefore required as elements for placing an object in the category of t.: 1) that it be an object of value; 2) that it be res nullius and movable; 3) that it have been hidden for a considerable length of time. Thus, metallic and coal-bearing veins cannot be considered t., nor can mineral-water springs, uranolites, or the remains of ancient buildings buried underground.
I. TO WHOM THE T. BELONGS.—According to natural law, the t. belongs to whoever finds II. The reason is simple: the t. is regarded as an abandoned thing that forms no part of a property and is not the fruit of the property, and is therefore primi occupantis; in the present case, of the finder. The finder, however, is not the person who first becomes materially aware of the thing, but the person who makes it visible to the human eye, thereby taking possession of it in some manner.

According to present-day positive laws as well, which have followed the line traced by Roman law, in principle the t. belongs to the finder. Various cases are distinguished, however, which partly modify, owing to differing circumstances, the guiding principle of natural law. Moralists, not always uniformly, have judged and continue to judge the binding force in conscience of such laws, chiefly because of the imperfection of civil legislation in this matter. 1) If the t. is found on one’s own property, it unquestionably belongs to the discoverer. 2) If the t. is found by chance on another’s property, many civil codes divide it equally between the finder and the direct owner or emphyteuta, but not with the usufructuary or tenant, that is, with one who has only useful ownership of the property. This, however, has not always and everywhere been the law: to give one example, under the Carolingians, 3/4 of the t. went to the fisc, and 1/4 to the discoverer. If the property belonged to the Church, 1/3 then went to the bishop and 2/3 to the fisc. The Swiss code assigns the t. to the owner, and half the t. constitutes the maximum limit of compensation. 3) If the t. is found on another’s property, but is sought « ex industria, data opera », without the owner’s knowledge, then, according to many legal systems, it belongs entirely to the owner. 4) If the t. is discovered on ecclesiastical property, rather than the civil law of the respective nation, natural law may be applied and, according to some moralists, must be applied, since the case falls within the exceptions provided for by can. 1529. If the discoverer is the beneficiary himself, the t. belongs to the respective prebend or church, because the beneficiary is not regarded as the direct owner of the benefice. 5) If the t. is found in a public place (a square, etc.), in many legal systems it is divided between the discoverer and the State, according to the particular laws of the place. 6) There are laws that reserve certain objects of historical and artistic value to the State.

II. THE RULES OF ITALIAN LAW

Under 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 that it was discovered purely by chance, one half belongs to the owner of the land and one half to the finder. The same provision applies if the treasure is discovered in a movable object (Italian Civil Code, art. 932).

If the land is subject to emphyteusis, the half belongs not to the owner but to the emphyteuta (art. 959); this right, however, does not belong to the usufructuary (art. 988). Given Italy’s rich artistic heritage, special laws regulate the discovery of objects of historical, palethnological, archaeological, and artistic interest (cf. arts. 822, 839, Law of 20 June 1909, no. 364, and various others, including the royal decree-law of 24 Nov. 1927 and 1 Aug. 1939). Under 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), and, if movable, of the State’s unavailable property (art. 826, para. 2), and are consequently also imprescriptible (arts. 1145, 2934, para. 2). The State pays compensation both to the finder and to the owner of the land, amounting to approximately one quarter or one half of the value of the object.

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, positive law then coincides with natural law; everything belongs to the finder. 2) When the treasure is discovered accidentally on another’s land, the principle applies that civil laws determining ownership are in themselves binding in conscience even ante sententiam iudicis, provided that they may be considered just. According to the majority of theologians, the requirements of justice are observed if the owner of the land is not awarded more than half of the treasure; otherwise the law is regarded as purely penal. 3) The civil law that assigns the entire treasure to the owner, when it is found without his knowledge, ex industria, deliberately, « is considered merely penal, because the provision denying every right to the finder seems to have been enacted in poenam ». Such a provision becomes binding in conscience only after the court’s decision. 4) According to moral theologians, it is not illicit to buy, at the ordinary price, land where one knows there to be a treasure, and then make the treasure one’s own. But it is illicit, once the treasure has been discovered, to bury it again and then buy at the ordinary price the land in which it lies. 5) The law assigning the treasure entirely to the treasury is regarded by moral theologians as merely penal. If, on the other hand, the law reserves to the State monopoly only objects of historical and artistic value, such a law may be considered just if its purpose is the common good and it respects, at least in part, the rights of the finder. This is the case with Italian law. In Italy, in fact, there are reasons of the common good for special legislation concerning artistic and historical objects; and the law also establishes fair compensation for the owner and the finder. In other words, Italian law, as it stands, seems to possess the qualities required for being binding in conscience.

IV. RIGHTS OVER MINES

Although, as has been said, mines are something different from treasure, the laws governing them nevertheless bear some relation to the laws concerning ownership of the discovery of artistic objects, owing to the common overriding social interest. The ancient moralists held that mines belonged to the owner of the land, because they were part of the land. But they wrote at a time when there was no conception of the depths that these mines can reach, and of the fact that they can be explored and exploited while the surface of the soil remains almost intact. Accordingly, more recent moralists describe them as res nullius, especially when they lie at a certain depth. Many jurists attribute ownership of them to the State because of their great social importance. The Italian Civil Code, while recognizing the rights of the owner of the land over the subsoil, excepts mines, quarries, and peat bogs (art. 840), which “form part of the inalienable assets of the State... when their availability is taken away from the owner of the land” (art. 826). In particular, with regard to mines, the State also issues permits for the prospecting of mineral substances; it recognizes, in the form of concessions, rights of exploitation to anyone possessing reliable technical capacity for the rational exploitation of the subsoil; it participates in the profits and may always revoke the concession granted. In the case of quarries or peat bogs, the State recognizes their availability in favor of the owner of the land, but subject to a certain obligation of exploitation, or rather a charge, to which the owner must submit if he wishes to avoid expropriation.

Pietro Palazzini