Between 1980 and 1989 successive reforms transformed the kingdom of Belgium into a federal state. Each region or community has full and independent legislative power on most aspects of civil life and archaeological heritage is one of these. So besides national (federal) laws applying to the whole of Belgium, laws affecting only parts of Belgian territory do exist side by side.

The national law regarding (coin) hoards

Article 716 of the Belgian Code of Civil Law (ca. 1831: Burgerlijk Wetboek in Dutch; Code Civil in French and Bürgerliches Gesetzbuch in German) says: "La propriété d'un trésor appartient à celui qui le trouve dans son propre fonds; si le trésor est trouvé dans le fonds d'autrui, il appartient pour moitié à celui qui l'a découvert, et pour l'autre moitié au propriétaire du fonds. Le trésor est toute chose cachée ou enfouie sur laquelle personne ne peut justifier sa propriété, et qui est découverte par le pur effet du hasard [see also article 552 of the code of civil law concerning the ownership of the sub-soil].

So just as in Roman law, a hoard found by the landowner is his full property. If someone finds a hoard on someone else's ground, it belongs equally to the finder and the landowner. A hoard, says the law, is anything hidden or buried whereupon no one can claim ownership and which is found by chance.

This definition of a hoard is very vague. Nothing is said about the quantity nor the value of the find. The law was not meant to protect archaeological heritage, but simply to settle questions on the ownership of precious objects found in the ground. A hoard, says the law, has to be found by pure chance. So a hoard discovered during archaeological excavations or by a metal detector cannot be considered as found by accident; if no special agreement on the ownership of the finds between the landowner and the excavator/finder exists, ownership passes automatically to the landowner. Of course trespassing is forbidden and any find resulting from an unauthorised access to a land will have to be restored to the landowner. The right to claim ownership of a buried or hidden hoard expires after 30 years (art. 2262 of the Code of Civil Law).

Some local authorities of villages, towns or provinces and even 'the state' have regulations concerning the ownership of objects found during works on public property. So a departmental order of 14 october 1964 (published in the Moniteur belge of 17 October 1964) states that all objects (coins and medals are mentioned) found during public works become property of the authorities. It is not clear if this order was taken over by the regions or communities after the reform of the Belgian state.

Although the Belgian law on hoards looks simple and just, it provokes some problems. Several categories of coin finds are not covered by this law. Purses, votive deposits and single finds were not always hidden or buried and could never be classified as hoards. Strictly speaking they could be considered as abandoned or lost objects. If found in public areas they should be reported to the municipal authorities; if the object is not claimed by its owner in six months, ownership passes to the authorities (law of 30 December 1975, Moniteur belge, 17 January 1976, p. 510-512). It is clear that this law was not made to regulate archaeological discoveries. Another problem created by the "treasure trove law" is the fact that frequently finders are not eager to reveal the exact findspot and that "surprisingly" most hoards tend to be found on one's own property!

In 1982 the French Community voted a decree forbidding the use of the metal detector for 'archaeological purposes' in the French speaking part of Belgium. Publicity for metal detecting devices referring to the archaeological heritage or hoards was also forbidden. Only the responsible minister could allow a limited use of the metal detector when necessary in the interest of archaeology (decree of 1 July 1982, Moniteur belge, 14 August 1982, p. 9326). This decree was abolished and replaced by a new one by the Walloon Region on 18 July 1991 (published in the Moniteur belge of 1 January 1992, p. 5-11 and Code Wallon, Namur, 1992, p. 194-197, art. 377-384). Use of the metal detector for archaeological purposes and publicity for it remains forbidden. The detector can only be used on officially authorized excavations (art. 384).

Article 390 of the Code Wallon declares that any fortuitous archaeological find has to be reported within 8 days to the communal authorities of the placeof discovery and to the landowner. Within 8 days the mayor of the village has to transmit this declaration to the Walloon government.

Although metal detecting is forbidden, the Walloon Region has not yet voted a decree providing for the enforcement of the law so that actual steps to prosecute offenders are difficult (but not impossible as a sentence could be pronounced based on article 60 quinto of the Code Wallon). As the law is not respected, an archaeologist of the Walloon region, who became desperate at the continous plundering of an important Roman hillfort by detectorists, decided to sow thousands of copper nails on the site.

Cultural and archaeological heritage in the Brussels-Capital Region is settled inthe ordinance of March 4th 1993. The only paragraph which concerns coins andcoin finds also, is found in chapter X article 44 where it is said that for the nextthree years (sic) any fortuitous archaeological find has to be declared within 8days to the Brussels government and to the landowner. No ordinance relatingto metal detectors exists.

Between 1993 and 1995 one decree, several governmental orders and onedepartmental order concerning the archaeological heritage of Flanders havebeen published (decree of 30 June 1993, published in the Moniteur belge 15 September 1993; governmental orders of: 12 January 1994, published 7 April 1994; 20 April 1994, published 15 July 1994; 26 April 1995, published 30 August 1995; departmental order of 29 May 1995, published 23 August 1995). Although all these documents are necessary for the enforcement of the law, only the decree of 30 June 1993 and the governmental order of 20 April 1994 contain details on archaeological discoveries and metal detecting.

Article 8 of the decree of 30 June 1993 specifies that each archaeological "monument" found by chance has to be declared within three days at the Institute for the Archaeological Heritage of the Flemish Community in Zellik (near Brussels). Each find has to be kept at the disposition of the Institute for some time. Article 9 says that the use of a metal detector with the intention to searchfor "archaeological monuments" is strictly forbidden. The same article specifies that permission to use a metal detecting device can be obtained by the government or its representative in special cases, e.g. for an authorised excavation or research project.

The meaning of the term "archaeological monument" is explained in the decree as "alle overblijfselen en voorwerpen of enig ander spoor van menselijk bestaan die getuigenis afleggen van tijdperken en beschavingen waarvoor opgravingen of vondsten de belangrijkste of één van de belangrijkste bronnen van informatiezijn..." ("all remains or objects or any other trace of human activities which give evidence for periods and civilizations for which excavations or finds are the main or one of the main sources of information..." [author's translation]). This of course is pretty vague; and although we are sure when Celtic and Roman coins as well of those of the Dark Ages are concerned, this becomes less obvious for Late Medieval and more recent hoards, coins, medals, lead seals, etc. Article 34 suggests that the government or its representative could always arrange a transfer of a casual find from the finder to an institution. There is no obligation at all.

Article 19 of the governmental order of 20 April 1994 stipulates that anyone wishing to use a metal detector for archaeological purposes (amateurs as well as professional archaeologists) can obtain permission to use these devices from the government or its representative. The applicant has to show that he is aqualified archaeologist (university degree or by self-study and publications) and has to submit the following documents: a copy confirming the existence of an official agreement that excavations are allowed on the site, technical details concerning the equipment used, a copy of the property plans of the area that will be searched, the name of the landowners of the site and a copy of the written agreement between the landowners and the applicant settling the ownership of the finds and, finally, the exact period of the intended use of the metal detector.

So strictly speaking the use of a metal detector can never be permitted outside official excavations (or prospections) and most detectorists do not meet the necessary professional qualifications stipulated in the decree.

So while finds of hoards and of lost or abandoned objects are regulated by national laws; the reporting of the finds and the prohibition of the use of metal detecting devices are settled by regional decrees or ordinances.

The legal owner of, e.g., an important Roman coin hoard is free to sell his treasure; he can even export it to whatever country he wishes. The Belgian state has no more rights to acquire these objects than any other citizen.

One of the consequences of these new laws is that metal detectorists, as they could be accused of illegal activities, distrust more than ever museum numismatists or official archaeologists. Although searching goes on, hardly any object found outside official excavations is shown. Detectorists are far from being "persecuted" in Belgium. Only one (!) detectorist in Flanders and four in Wallonia were charged with illegal prospecting, but it is very probable that these cases will be closed without prosecution. Most police officers simply chase them off the sites. It will always be hard to prove that the metal detector was actually used to look for "archaeological monuments" or archaeological objects and other offences are considered as greater priority. Some Belgian museums avoid "difficult questions" when coin hoards are offered for sale; and even archaeologists sometimes issue passes for detectorists without following the exact legal procedure. All this shows that these laws arenot very effective and that perhaps--prior to any regulatio--it would havebeen wiser if all interested parties would have been consulted.

It is sad to see that only through a very free interpretation of these new laws does some co-operation between responsible detectorists and archaeologists remain possible. But acting in this way saves hundreds of coins per year for our knowledge of the past; these at least will not disappear into the anonymous antique trade, where still more and more illegally discovered objects show upyear after year.

Bibliography

For the laws, decrees, orders and ordinances published in the Moniteur belge-Belgisch Staatsblad (the official journal publishing all laws and official announcements), see text.

BECUWE, F., Wie het verleden niet eert...is de toekomst niet weerd. Vragenomtrent archeologische monumentenzorg, Zellik, 1995, 19 p.

FRÈRE, H., La propriété et l'exploitation des trésors monétaires, La Viewallonne, 41, no 320, 1967, p. 231-253.

VANHOUDT, H., Muntvondsten, juridische en numismatische benadering,Europees Genootschap voor Munt-en Penningkunde. Jaarboek, 1984, p. 237-243.

Johan van Heesch