The mere word 'treasure' evokes romantic ideas about ancient artefacts, gold, silver and jewellery, pirate-islands and shipwrecks. Jules Verne, Enid Blyton, Karl May, J.R.R. Tolkien and many other popular authors have been fascinated by the idea of an unexpected discovery of hidden treasure and the complications that often follow this somehow undeserved fortune of the lucky finder. Reality does not seem to be less fascinating. Every year even comparatively modest treasure finds are discussed widely in the media: an Iron-Age chariot found in a field in Wales, (1) ancient Arabian coins far away from their sunny origin on windy islands in the Baltic Sea, (2) precious antique porcelain in gloomy long-forgotten cellars in Antwerp (3) or a cache of gold coins hidden in the workings of a piano ...(4) Commercial organisations have been known to seek to cash in on this fascination by encouraging consumers to go hunting for treasure--without understanding the law that applies to both the treasure hunt and to the finds. (5)
Sometimes, the stories behind the finds are as interesting as the finds themselves: old distrustful gentlemen burying her ladyship's family jewellery in the woods, where the treasure is found only some years later by playing children. (6) The human fascination with treasure which we see reflected in literature and the media is connected to its obscure and presumably untraceable origins as well as to the question (slightly tinged by jealousy) of who should be the rightful owner. The reader will ask himself: who was the original owner of the treasure? Why did he hide his property? Is it right for the finder to keep the treasure? Or should the owner of the land in which the treasure was found be the lucky new owner? Shouldn't the State be the new owner, in order to protect, preserve, research and exhibit the often ancient and scientifically significant objects? Both the finder and the landowner would acquire ownership out of mere luck after all--unacceptable for many in a society accustomed to meritocratic ways of thinking.
But what exactly is a 'treasure'? Can a forgotten or abandoned object in the attic be a treasure or does it need to be buried to fall within the definition? What is the difference between (organised or unorganised) archaeological excavations and treasure finds? All these questions gain importance from a legal point of view as well, because they provoke conflict (which is, in the end, the material for any good novel, newspaper article or lawsuit) and they need to be answered in a way acceptable for everyone involved in the find (original owner, finder and landowner) and society as a whole (State).
As always, there are different ways of answering these questions. This becomes evident in Belgium, where an age-old system of solving problems related to treasure finds, rooted in Roman law, may soon be replaced by a new, wholly different approach. Whether this new approach, part of the reforms of Mr Koen Geens, Minister of Justice in the Michel Government, (7) is capable of resolving some of the problems of the old system or whether it is simply likely to create new ones will be discussed in the following sections.
Firstly, we will discuss the old legal system concerning treasure and its historical context. Secondly, we will present the new Civil Code project in relation to treasure. Finally, we will compare the old and the newly proposed concepts in order to indicate improvements as well as the problems which may be anticipated.
OLD CONCEPT OF 'TREASURE'
The longstanding fascination of the general public with finds of hidden treasure is matched by legal attempts to treat it in a fair and just manner which can be traced back to Roman times.
The legal regime applicable to finds of treasure in most European countries and its respective international offshoots is based on a legal concept known as 'Hadrian's Division'. This concept says that if a treasure has been found accidentally, it belongs half to the finder and half to the owner of the land. This solution is based on a decision made by Emperor Hadrian which was later confirmed in constitutions by the Emperors Leo and Zeno (8) and was furthermore reported in the Historia Augusta and, in more detail, in the Institutions: (9)
Thesauros, quos quis in suo loco invenerit, divus Hadrianus naturalem aequitatem secutus ei concessit qui invenerit. Idemque statuit, si quis in sacro aut in religioso loco fortuito casu invenerit. At si quis in alieno loco non data ad hoc opera, sed fortuitu invenerit, dimidium domino soli concessit. Et convenienter, si quis in Caesaris loco invenerit, dimidium inventoris, dimidium Caesaris esse stauit. Cui conveniens est, ut, si quis in public loco vel fiscali invenerit, dimidium ipsius esse, dimidium fisci vel civitatis. (10) While there are variations in some of the details, for example, the precise definition of treasure, the solution found by Hadrian's Division remains nearly unchanged in many Civil Codes around the world. It is still present in the French family of law (e.g. France, Article 716 Code Civil; Belgium, Article 716 Code Civil/Burgerlijk Wetboek; Italy, Article 932 II Codice Civile; Spain Article 351 Codigo Civil) and the Germanic family of law (eg. Germany, [section] 984 Burgerliches Gesetzbuch; Austria [section] 399 Allgemeines Burgerliches Gesetzbuch; Greece, Article 1093 [phrase omitted]; Japan, Article 241 [phrase omitted]; South Korea Article 254 [phrase omitted]).
However, this general rule has always been subject to modification. At various points during the Middle Ages, Roman law ceased to be applied and local laws gained importance, themselves often based on faded memories of Roman law. The so-called Sachsenspiegel, (11) a code of laws written by Eike von Repgow between 1220 and 1235 in what is now Northern Germany stated that everything lying in the earth deeper than the plough reaches belongs to the king. (12) A treasure find above this level would have been subject to Hadrian's Division. The codification gained huge importance in Central and Northern Europe and influenced legal practice in the Netherlands (including the biggest part of the Southern Netherlands, which is nowadays Belgium), (13) at that time still part of the Holy Roman Empire. The Sachsenspiegel s provision reflects the feudal system of the Middle Ages and led to the so called Bergregal or Ius Regale Montanorum, the right of ownership of untapped mineral resources, which belonged to one of the several feudal lords and not to the owner of the land. (14) It is impossible to completely reconstruct in detail the legal situation concerning Hadrian's Division and the Ius Regale in the territory of what is today's Belgium because even under uniform Spanish and Austrian Rule in the sixteenth to eighteenth centuries the legal system remained highly fragmented and based on local traditions. (15) However, according to the Dutch jurist Hugo Grotius (1583-1645), as the feudal system spread across Europe and the prince was looked on as the ultimate owner of all lands, his right to claim title to treasure trove became ius commune et quasi gentium (16) (a common and quasi-international right) in England, Germany (including the Netherlands and parts of what is now Belgium (Brabant, Limbourg, Luttich, Luxembourg)), France (including Flanders, Henneau and Namur in what is now Belgium), Spain and Denmark. (17)
This tradition, deeply rooted in the feudal system, seems to be gaining popularity once more. This can be seen, for example, in recent legal approaches in Germany and France. In Germany, concerning treasure finds, [section] 984 of the more than 100-year-old German Civil Code (Burgerliches Gesetzbuch) (18) is theoretically still strictly based on the principle of Hadrian's Division. However, Article 73 of the German EGBGB (Introductory Law to the Civil Code) contains an enabling clause for the federal states to establish laws organising the treatment of treasure-finds differently. This clause is called Schatzregal or ius regale and all German federal states except Bavaria took the opportunity to create laws granting themselves ownership of more or less all treasure finds. (19) Therefore, the...