August 11, 2010
The notion of the treasure trove, which may strike the 21st-century reader as that of an item or items to be found, originally (as the Anglo French shows) actually referred to the found state of the treasure – the conditions which led to its discovery and inevitable appropriation. Derived from Roman law, the principle of treasure trove was written into English common law until it was replaced by the Treasure Act of 1996. Under this new act the British Museum processes treasure from England and Wales. Scotland still has an older form of treasure trove law, and the Queen’s and Lord Treasurer’s Remembrancer deals with all finds which instantly become the property of the crown, which is more like the system in the seventeenth century, and a perusal of any law book from that time will show you that treasure trove, along with certain royal animals and so forth belong to the monarch.
These laws are now mainly concerned with the transfer of valuable finds to museums and the arrangement of payment to finders, but it is also interesting because it highlights a concept alive in the seventeenth century, at a time when property law was undergoing development and the human race considerably expanded its dominion over the land. The treasure trove law indicates a moment when property wears out, when property ceases to inhere in an object – when an object becomes free to be taken by a new owner, or, if it remains hidden, rest ownerless. Objects in this state are governed by the legal concept of bona vacantia, and this really kicks in when no owner can be traced. It strikes one as rather obvious, but there is a whole section of the Treasury devoted to this.
There must be a certain moment when goods become officially ownerless. Perhaps when the last person with knowledge of the original ownership dies, or a last deed is destroyed.