Contents PROOF

PROOF Contents List of Illustrations vi Abbreviations and Acronyms vii Introduction: Treasures and Magic 1 1 The Treasure in Law and Early Archaeology 9 2 Medieval Treasure Lore 28 3 The Magical Treasure and Its Guardians 53 4 Treasure Hunters’ Magic 85 5 The Authorities’ Attitude Towards Treasure Hunting 114 6 The Social Background of Treasure Hunters 147 7 Treasure Hunts in the Nineteenth and Twentieth Centuries 175 8 The Significance of Treasure Hunting: Past and Present 190 Conclusion 204 Notes 209 Sources 234 Index 246 v September 10, 2011 21:26 MAC/DILLI Page-v 9780230_000049_01_previii PROOF 1 The Treasure in Law and Early Archaeology I greatly fear, my money is not safe. (William Shakespeare: Comedy of Errors, 1589) Law 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 dif- ficult. 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. He explained that in his own time, England, the German states, France, Spain and Denmark still followed the Germanic tradition.1 A number of authors accepted Grotius’ view almost until the present day.2 However, if we 9 September 12, 2011 10:56 MAC/DILLI Page-9 9780230_000049_03_cha01 PROOF 10 Magical Treasure Hunting take a closer look at Roman and Germanic law, the matter becomes a lot more complicated. The earliest Roman law mentioning treasure troves dates back to Hadrian. According to this, the finder and the landowner should each get half of the find. Only if a treasure had been deliberately searched for on land belonging to the empire was it to be confiscated, no doubt because such a search implied that the treasure seekers had planned to cheat the state. However, the Roman legal tradition was not homogeneous. In 315, Constantine the Great enacted a law that gave half of every treasure to the fisc no matter where the find had been made. If the finder failed to alert the authorities about the treasure trove, all of it was confiscated without further ado. In Emperor Valentinian’s laws, we find a completely new point of view: the landowner was entitled to one quarter of the find, while the rest went to the finder – the authorities got nothing at all. In 474, Zeno renewed the old rule that divided the treasure equally between the finder and the landowner. His law was incorporated into the great codification of Roman law, the Corpus Iuris Civilis, which was to shape the legal debate for centuries to come. Quoting Hadrian’s law, the Corpus Iuris Civilis stressed that nobody was allowed to search for treasure on someone else’s land without explicit permission. If somebody violated that rule, he lost the treasure. However, if a person found a treasure trove on someone else’s land by chance, they could keep half of the find while the other half went to the landowner. The Codex Iustinianus gave an example for such accidental finds by people other than the landowner: treasure might be found by a farmhand ploughing the land or doing some other kind of agricultural work.3 It would be wrong to assume that the German legal tradition always gave treasure troves to the fiscal authorities. To be sure, Theodoric the Great declared that all treasure belonged to the state. However, it is very questionable whether this regulation of the fifth-century Ostrogothic monarch mirrored the Germanic tradition. Not even the Gothic tradition was homogeneous: Theodoric’s law contradicted other regulations that demanded the division of the treasure. There is no reliable record of a law demanding the confiscation of treasure in Frankish sources. The Constitution of Roncalli, enacted in 1158 by Emperor Frederick Redbeard, was already clearly influenced by Roman law: half of any treasure found on land owned by the empire or by the Church belonged to the Crown. If the treasure had been deliberately searched for, all of it went to the fisc. The Sachsenspiegel, a Saxon law book of the September 12, 2011 10:56 MAC/DILLI Page-10 9780230_000049_03_cha01 PROOF Law and Archaeology 11 thirteenth century, differentiated between mineral veins and treasure troves. Whereas the owner of a piece of land where metals had been found enjoyed certain rights, treasure belonged to the king without any exceptions. There is no clear connection between this law and that of Theodoric. Both cannot be attributed to a common – supposedly ancient Germanic – source. We should not see these laws as expres- sions of age-old legal traditions but rather as political measures designed to strengthen the monarch. The Constitutions of Melfi, enacted by Emperor Frederick II in 1231, included the same regulation. Here, however, the sources are clear: Frederick merely adopted a law of the Norman Empire in Sicily.4 The laws that had strengthened the rights of the Crown concerning treasure troves made hardly any impact. The Schwabenspiegel,aGerman law book of the late thirteenth century that was otherwise heavily influenced by the Sachsenspiegel, turned Valentinian’s law on its head: three quarters of the find should go to the owner of the land, one quarter to the finder. The king was not entitled to any part of the treasure unless it had been found on a public highway, which was supposed to belong to the Crown. In that case, the king enjoyed the same rights as any private landowner. In the fifteenth century, most German cities and principalities accepted this rule. In the German lands, the laws about treasure troves mingled with more general regulations concerning lost property. In the early Middle Ages, found objects were simply presented to the public. If nobody claimed ownership, the finder could keep the find.5 From the thirteenth century onwards, the German princes tried to establish their right to all lost property. The variety of regional and local laws and bylaws that came into existence as part of this process did not help to simplify the legal situation. In the seventeenth and eighteenth centuries, the question of whom a treasure belonged to became the object of a heated and lengthy debate among jurists. As treasure was thought of as lost property or abandoned goods, it seemed perfectly justified that only the sovereign should have a right to them. The encyclopedia of law founded by the Württemberg jurist Christoph Besold postulated an unconditional and exclusive regal right of ownership to treasure troves. This attitude attracted severe crit- icism by – to name only two of the most prominent authors – Carpzov and Stryk, who defended the rights of the finder and the landowner. They advocated the idea that the finder and the landowner were entitled to half of the treasure each, and thus contradicted a variety of local and regional legal traditions that stressed the claims of either the September 12, 2011 10:56 MAC/DILLI Page-11 9780230_000049_03_cha01 PROOF 12 Magical Treasure Hunting landowner or the finder. Carpzov’s point of view helped to shape the Prussian Allgemeines Landrecht (General Law of the Country). Because the question of buried treasure was ‘the object of the greatest legal debate’, the eighteenth-century Bavarian jurist von Kreittmayr carefully avoided a decision of general principle and called upon the authorities of all German territories to find their own legislative solutions for the problem that he too considered urgent.6 Von Kreittmayr’s advice simply justified the legal status quo. The early modern period witnessed the rise of the German territorial states. The Holy Roman Empire of the German Nation consisted of approximately 350 principalities, among them relatively big countries like Austria and Brandenburg-Prussia, and dwarf territories of a couple of square miles. All of these states were entitled to their own legislation. The emperor was not the supreme law maker of the Empire but rather the guarantor of the semi-autonomy of the princely states and their respective legisla- tors. Some of the smaller German states clung to the regulation in favour of the fisc, probably because they were often short of cash and did not want to miss any chance to make money. However, the most influential territories did not establish a sole right of ownership on behalf of the state.7 In the eighteenth century, the Austrian Codex Theresianus and the Bavarian Codex Maximilianeus assigned certain percentages of each treasure to the finder, the landowner and the state.8 The Prussian Allgemeines Landrecht of 1794 simply declared that the treasure should be divided equally between the person who had discovered it and the landowner.9 The earliest English law of treasure troves can be found in the legislation of Henry I, compiled around 1115.

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