Treasure Trove

[Badger Bart]

From the 1911 Encyclopedia Britannica, here is a concise historical overview of Treasure Trove.

http://19.1911encyclopedia.org/T/TR/TREASURE_TROVE.htm
TREASURE TROVE, the legal expression for coin, bullion, gold or silver articles, found (Fr. trouv) hidden in the earth, for which no owner can be discovered. In Roman law it was called thesaurus, and defined as an ancient deposit of money (vet us depositio pecuniae) found accidentally. Under the emperors half went to the finder and half to the owner of the land, who might be the emperor, the public treasury (Jiscus), or some other proprietor. Property found in the sea or on the earth has at no time been looked on as treasure trove. If the owner cannot be ascertained it becomes the property of the finder (see Lost PROPERTY). As the feudal system spread over Europe and the prince was looked on as the ultimate owner of all lands, his right to the treasure trove became, according to Grotius, jus commune et quasi gcntium, in England, Germany, France, Spain and Denmark. In England for centuries the right to treasure trove has been in the Crown, who may grant it out as a franchise. It is the duty of the finder, and indeed of any one who acquires knowledge, to report the matter to the coroner, who must forthwith hold an inquest to find whether the discovery be treasure trove or no. Although the taking of the find is not larceny until this be done, the concealment is an indictable offence still punishable in practice, and formerly was held akin both to treason and to larceny. In the statute Dc officio coronatoris 1276
(4 Edw. I. c. 2) the coroner is enjoined to inquire as to treasure trove both as to finders and suspected finders, and that may be well perceived where one liveth riotously and have done so of long time. The Coroners Act of 1887 continues this power as heretofore. In Scotland the law is the same, but the concealment is not a criminal offence; it is there the duty of the kings and lord treasurers remembrancer, with the aid of the local procurator fiscal, to secure any find for the Crown, whose rights in this respect have been pushed to some length. Thus in 1888 a prehistoric jet necklace and some other articles found in Forfarshire were claimed by the authorities, though they were neither gold nor silver. The matter was finally compromised by the deposit of the find in the National Museum. By a treasury order of 1886 provision is made for the preservation of suitable articles so found in the various national museums and payment to the finders of sums in respect of the same. Also if the things are not required for this purpose they are to be returned to the finder. In India the Treasure Trove Act (16 of 1878) makes elaborate provision on the subject. It defines treasure as anything of value hidden in the soil. When treasure over Rs. 10 is discovered, the finder must inform the collector and deposit the treasure or give security for its custody. Concealment is a criminal offence. An inquiry is held upon notice; if declared ownerless the finder has three-fourths and the owner of the ground one-fourth. The government, however, has the right of pre-emption.
In the United States the common law, following English precedent, would seem to give treasure trove to the public treasury, but in practice the finder has been allowed to keep it. In Louisiana French codes have been followed, so that one-half goes to finder and one-half to owner of land. Modern French law is the same as this, as it is also in Germany, in Italy and in Spain. In the latter country formerly the state had threequarters, whilst a quarter was given to the finder. In Austria a third goes to the finder, a third to the owner of the land, and a third to the state, and provision is made for the possible purchase of valuable antiquities by the state. In Denmark treasure trove is known as treasure of Denmark, and is the property of the king alone. In Russia the usage varies. In one or two of the governments, in Poland and the Baltic provinces, the treasure is divided between the owner of the land and the finder, but throughout the rest of Russia it belongs exclusively to the owner of the land. This was also the law amongst the ancient Hebrews, or so Grotius infers from the parable of the treasure hid in a field (Matt. Xiii. 44).
See Blackstones Commentaries; Chittys Prerogatives of the Crown; R. Henslowe Wellington, The Kings Coroner (1905-1906); Rankine on Landownership; Murray, Archaeological Survey of the United Kingdom (1896), containing copious references to the litera ture of the subject. (F. WA.)

 

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[dk-diver]

In Denmark treasure trove is known as treasure of Denmark, and is the property of the king alone.

This is true, but the finder will be granted a fee for finding it. Ive heard 10%.

It is impossible to be granted salvage rights for wrecks older than 100 years. They are considered cultural herritageeven if they are just a pile rusty iron on the buttom of the sea

/DKD

 

[mariner]

In the USA, I think it is up to each state to determine its own treasure trove laws. In Oregon, where I live, the State used to have treasure trove statutes under which the State had to pay the finder 50% of the value of any treasure found, but repealed these laws about five years ago. As far as I can tell, they did this specifically to frustrate a person who thought he had found a valuable shipwreck and intended to apply for a permit to excavate it under the treasure trove laws. At the same time, the State tried to classify all shipwrecks as archaeological sites, but in doing so they left a number of loopholes in the legislation.

I do not know what other States, such as Florida, do about treasure trove.

Mariner

 

[Badger Bart]

Mariner - I agree it is past time for anpther tea party. It is no longer gov't. of, by, and for the people, it is gov't. vs the people. Indeed, since the country went bankrupt under fDR, they have since pledged your land, labor, and property to pay that debt perpetually, and the courts view you as an alien enemy of the state. Most don't want to see or believe this though, but I digress...

You said "As far as I can tell, they did this specifically to frustrate a person who thought he had found a valuable shipwreck and intended to apply for a permit to excavate it under the treasure trove laws." The article I started this thread with claims that " Property found in the sea or on the earth has at no time been looked on as treasure trove." I believe they mean that is how the law/ courts view it. For the most part that is true, but from reading I have done it seems that both land and water trove are entwined in many regards. Ships and their cargo were owned, kept track of, and though sunk, never tecnically abandoned, as recovery was nearly always a possibility. The states and federal gov't also claim the right of eminent domain, which I'm sure is taken into consideration when these laws are considered.

 

[Badger Bart]

http://www.archaeology.org/online/features/trove/

The Slow Death of Treasure Trove February 7, 2000
by Richard B. Cunningham

Richard B. Cunningham is a professor of law at the University of California, Hastings College of the Law, in San Francisco. ( It appears to me that the article here is the author's opinion, and the courts do not necessarily view the subject the same way - Bart )

The Idaho Supreme Court will soon hear a dispute pitting media mogul Jann Wenner, the owner of Rolling Stone magazine, against Gregory Corliss, a construction worker who discovered a cache of gold coins buried on Wenner's land near the Sun Valley resort area. Corliss made his claim based on the ancient common law rule of treasure trove, which awards title of an artifact to the finder, be he looter or archaeologist. Last January an Idaho trial court rejected Corliss' claim, thus joining the other late-twentieth-century courts that have declined to apply the rule. In some American states, however, the law is still recognized. Why should modern American courts continue to be haunted by an outdated and misunderstood law that Great Britain abolished in 1996? The answer involves some arcane but important aspects of archaeological jurisprudence.

Cases involving finders of hidden property are seldom simple; there are usually numerous parties and interests involved. ( As a lawyer/ law professor, it appears he wants us to believe any and all have a claim, and perhaps need a lawyer and the courts to straighten out every claim ) Corliss and his employer, Larry Anderson, were excavating soil while under contract to construct a driveway on Wenner's land. Corliss was the first to notice the freshly exposed coins, and further digging by both men revealed a broken jar that had contained a stash of 96 American gold coins dating between 1857 and 1914. By agreement between the two men, Anderson retained the coins, but eventually thought better of their actions and turned the gold over to Wenner, who promptly took the coins to his home in New York. Corliss then demanded their return, asserting his title to the coins under treasure trove theory. ( Here he moves the ancient common law into the realm of theory, one wonders why ) The image of simple workmen arrayed against a wealthy landowner is unflattering; Wenner wisely offered the men a reward, which both declined, and Corliss then pressed his claim against both his employer and Wenner. As with most accidentally discovered artifacts, the history and original ownership of the coins is obscure, and necessarily speculative. They clearly were buried sometime after the 1914 date on the latest coin, probably by some occupant of Broadford, a mining town once situated on Wenner's land. Throughout the intervening years, none of the previous owners of the land appeared to have been aware of the deposit, and none came forward to assert a claim.

The uncertainty of the facts in finder's cases is compounded by the complexity of the law. Any discussion of finders' law forces courts to confront not only the rules of treasure trove, but also a variety of other judicial doctrines relating to articles that have been not deliberately buried, but either abandoned, lost, mislaid, or embedded on private land. Classic treasure trove law in Britain applied only to items of gold or silver. The rule thus has no bearing on the organic, lithic, or ceramic artifacts that prevail in American archaeology. But old gold coins, as in the Corliss-Wenner dispute, unquestionably satisfy the rule and for most people represent the very essence of a treasure. The classic rule also required the treasure to have been intentionally concealed; here again, because the coins were discovered in paper wrappers and buried in a glass jar, there was clear evidence of their deliberate deposit with an intent eventually to retrieve them. A cache discovered under these circumstances could not be categorized as casually lost nor purposefully abandoned. Superficially, then, the Idaho facts appear to present a clear opportunity to apply the rule of treasure trove.

Are American states bound to honor the ancient rule of treasure trove? ( a very loaded question ) In 1863 the legislature of Idaho, like many western states, decided to employ "the common law of England...as the rule of decision in all courts of this state." Statutes of that kind, known as reception statutes, reflect that citizens received the common law of England as part of their collective heritage, either at the time of American independence, the moment of statehood, or some other operative event. The English common law from the 1760s until the 1880s was unequivocal: Treasure trove went to the Crown. For most states, the question thus became whether simply to reject the received English royal prerogative as inconsistent with their legal systems, or instead to consider adoption of the adulterated form of the rule that rewarded finders as it developed in a minority of American courts between 1904 and 1948.

The treasure trove rule received its first serious consideration by Oregon's Supreme Court in 1904 in a case involving boys who discovered thousands of dollars in gold coins hidden in metal cans while cleaning out a henhouse. Unwilling to identify coins in such circumstances as lost and seizing on the image of gold as treasure, the court awarded the coins to the boys. The landowners, who had been less than generous with the boys, received nothing. Of course, the British law on which the U.S. version was based would have handed the coins over to the king. Dating to early twelfth-century England, treasure trove was one of many royal prerogatives. In those feudal times, the king's claim to discovered articles of precious metal was absolute and preempted any claim by the article's finder or the owner of the land on which it was discovered. The Oregon court simply misunderstood the rule, wrongly believing that it operated in the same fashion as the early rules that awarded possession (and thus the effective equivalent of title) to the innocent finders of lost and ownerless items. In awarding ownership of the coins to the boys, the Oregon court unwittingly became the first to imply that buried valuables should be awarded categorically to a finder, thus disregarding entirely any legitimate claims made by the landowner.

Four years later, Maine's Supreme Court completed the process of confusing the application of treasure trove law. The facts are eerily similar to the recent Idaho case: three workers jointly found gold coins while excavating on their employer's land. Although a series of English and American cases had already established a landowner's claim to buried valuables, the court awarded the coins to the finders, and for the next three decades the American rules remained in considerable confusion. During that period only a few courts opted for the treasure trove formulation; at one time or another the courts of Georgia, Indiana, Iowa, Ohio, and Wisconsin employed the rule, most recently in 1948. Since then, all the American courts to consider the problem, the Idaho trial court among them, have declined to adopt treasure trove rationales, finding instead that other rules are better suited to a resolution of modern controversies. Unfortunately, the rule of treasure trove persists, still described in contemporary legal texts as a recognized, if not controlling, rule of decision. At best, however, it is a minority rule of dubious heritage that was misunderstood and misapplied in a few states between 1904 and 1948.

The majority of U.S. courts now follow a mislaid rule for buried objects, which posits that items purposely deposited should be protected until the original depositor can return. The preferable way to protect them is to allow the items to remain in the custody of the landowner on whose property they were discovered. It's a convenient rationale, arguably well designed to assure the best chance to reunite owners with their recently "misplaced" goods. In the context of old artifacts, however, it effectively delivers title to the landowner. The "mislaid" rationale presumes the existence of a living owner, or the vigilance of the depositor's descendants; only occasionally can it be helpful for older artifacts, such as those in Idaho, as the likelihood of the original depositor's return diminishes with each passing year. For artifacts of prehistoric age, the mislaid rule makes no sense, and is thus of little assistance in the vast majority of archaeological applications.

What rule should be employed by modern courts when faced with conflicting finder-landowner claims to ancient artifacts that are discovered buried on private land? The Idaho trial court, in rejecting the treasure trove rule, wisely aligned itself with all the other American courts that have faced the problem in the last two decades. By rejecting treasure trove and similar finder's rationales, those courts{b} have [ fostered legal policies that discourage wanton trespass to real property, and give protection to a landowner's possessory claims to any artifacts that have been so embedded in the land as to become part of it. ( In the Corliss case, a jar separated the coins from the land itself, and the paper wrappers did the same to an even greater degree. Thus, this argument does not apply ) Rejection of the rules that reward finders at the expense of landowners also strengthens anti-looting provisions, and discourages casual, but potentially destructive unplanned searches. Indeed, removal of artifacts from the soil is now recognized in the majority of states either as illegal severance of chattels, trespass, or theft. Modern law has recognized and resolved the problem, leaving no room for royal prerogatives. The old rule of treasure trove may make good theater, but it's poor law, and its death can come none too soon.

One understands now why many THers have adopted the code of not merely shut up and dig, but dig it up and shut up. Certainly a contract with the owner before searching private property has it's merits, mainly a lesser take for the finder in exchange for the privilege to search.

 

[Badger Bart]

Interesting viewpoint

The End of America?May 10, 2005
by Jews for the Preservation of Firearms Ownership
http://www.jpfo.org/

Special to TLE

On Tuesday, May 10, 2005, America became a true police state. Your U.S. senators voted?unanimously, with no discussion, and without even reading the bill?to create a national ID card.

The Real ID Act blackmails state governments into turning their drivers licenses into a draconian tool of the federal homeland security apparatus. If states refuse, their citizens lose such "privileges" as being allowed to board an airplane, enter a federal building, or apply for social security. President Bush is expected to sign the bill eagerly on Thursday.

In three years?by May 2008?this Stalin-style internal passport will be an American reality. But your government will have more control over you than Stalin ever dreamed in his most violent, vicious, anti-freedom dreams. (See links to the text of the law and articles about it at the bottom of this article.)

But that's only the beginning.

The creator of the Real ID Act, Rep. James Sensenbrenner, smiles and tells us that his Real ID Act is all about "solving illegal immigration" or "preventing terrorists from entering the country." This is one of the biggest of the thousands of "Big Lies" we've heard from the tyrants in Washington. The Real ID Act is about tracking and controlling Americans. You. Me. Our children. Everybody.

In May 2008, barring a miracle, America as we once knew it will be in ruins. It will be gone. And the rights of gun owners will be among the first scheduled for destruction.

GUN OWNERS: PREPARE TO RESIST

Here's your future:


You walk into a gun store, fill out your 4473, and show your government ID just as you now do. But instead of looking at your license and taking down some information, the clerk runs the license (which is likely to contain a radio-frequency ID chip) through a scanner. Your purchase is instantly recorded in your state drivers license registry. The federal government isn't currently allowed to keep a gun registry. But no problem; the Real ID act gives them an open door into your state records.

Complete information on every firearm you buy will be instantly available to every police officer (and possibly every government employee, store clerk, or computer hacker) you ever encounter. You'll be an instant criminal suspect every time you deal with someone who has access to the database.

Just as travelers are encouraged to get background checks and give fingerprints to avoid some of the worst excesses of TSA screening, gun owners will be encouraged to get background checks and give whatever biometric ID the Department of Homeland Security requires. This will be sold as a "benefit," ensuring you'll never again experience an "instant-check" delay. In fact, Congress, the ATF, or the FBI might even "mandate" 5-day or 15-day delays for anyone not enrolled in the "Trusted Firearms Buyer" program.

The private purchase "loophole" will be closed, so that all gun buyers must make trackable purchases. (The ultimate goal is for every purchase of every kind to be trackable.)

Buying ammo? The store scans your national ID card and?bingo!?your purchase is registered in the state database.

The federal government or state governments can now also effectively legislate limits on the amount or kind of ammunition you're "allowed" to purchase. Try to buy more and the database instantly rejects you.

The federal government or state governments can now also effectively legislate limits on the number of guns you may own. Try to buy more, and the database rejects you.

Eventually?after the federal government "discovers" the obvious, that national ID won't stop either illegal immigration or terrorism?the old attack on "evil guns" will resume. When they want your .50 BMG they'll know just where to find it (because the Real ID act says your home address must be revealed). When they want your evil "scoped sniper rifle" (you know, the one you hunt deer with), they'll know just how to get it. Ditto with you "Saturday Night Special" or your "assault weapon."

If you don't surrender your guns, well, then the Department of Homeland Security will cut off your driving "privilege," as well as your right to escape the growing police state via plane. You'll be a prisoner in your own home, in your own country. Or you'll be forced to function as an outlaw, operating and living a precarious existence beneath the government radar.
PARANOID? OR PAYING ATTENTION?

You say these projections are ridiculous? That we're paranoid?

Well, frankly, if the Real ID Act doesn't make you paranoid, you're not paying enough attention. We ask you to consider the long-term impact of a few other acts of government.

In the 1930s, Congress promised us that our social security numbers would never, absolutely never, be used for identification. Now, they're the key to everything about us?and without a social security number you won't get a drivers license and you won't even be "allowed" to drive after May 2008.

In 1913, Congress and the media swore to us that the brand-new income tax would only affect the rich. Well, how rich do you feel after paying 40 percent of your income (or more!) in taxes?

This is the way government works. They've even got a term for it: mission creep. And there is no creepier mission than the mission the federal government has currently set itself: to track everyone, everywhere, and to control what we do.

We warned you in The State vs. the People that this was coming. That book is still relevant, still a good read, and still filled with information about what our future will be like in this new American police state.

Be forewarned. Be aware.

REAL ID: IT'S THE LAW AND IT'S CRIMINAL

 

[pir81]

Badger you got a lot of great points there is constant laws being introduced to loose our freedoms in the name of homeland security i think our countrys forefathers had no idea that things would come to this The right to bare arms was meant to the public to protect itself from an opressing goverment originally the idea was 4 the gov to work for the people but now its viceversa where will it end? people in washington-elacted offices seem 2 care about their pockets only gotta go to work now so someone else can have my money federal state etc thanx 4 the post

 

[Badger Bart]

I agree to the point that it could easily digress into a mess, so to speak, and no one really wants that. However, anything that impacts treasure hunting is fair game here, whoever or whatever it be. I am hoping that comments will remain civil, and as close to the matter at hand as possible. This is not the place to discuss fixing that aspect of THing, despite the profound influence it has on the present and future of the hobby. Slippery slope indeed, thank you for the caution flag, I hope you will do so again if you feel things are getting out of hand.