The Treasure in Law and Early Archaeology

Abstract

The problem of who should be the rightful owner of a discovered treasure, and its distribution between the finder, the owner of the land on which the treasure was found and the fisc, is as ancient as it is difficult. The parable of the treasure hidden in a field (Matthew 13:44) hinted at that problem: the man who had found the treasure in the field buried it again and bought the field. Evidently, the Bible assumed that only the owner of the land where the treasure was buried had any claim to it. Some historians of law suggested a rather simple pattern that focused on two huge legal traditions. The Roman legal tradition had ruled the ancient empire. After the end of the Middle Ages, many parts of the Continent rediscovered and adopted Roman laws. Some legal historians claimed that according to this tradition a treasure belonged to the finder, or to the finder and the owner of the land on which the treasure had been discovered. The Germanic legal tradition dominated the Germanic lands of the Middle Ages, among them the Frankish Empire, as well as medieval and early modern England, where the Roman laws had little impact. Some jurists claimed that in this legal tradition all treasure troves went to the fisc. Hugo Grotius was probably the first jurist to describe this rather clear-cut dichotomy between the Roman and the Germanic legal tradition concerning treasure.

I greatly fear, my money is not safe.

(William Shakespeare: Comedy of Errors, 1589)