Professional Documents
Culture Documents
Series Editors
Catharine MacMillan
The Dickson Poon School of Law, King’s College London, London, UK
Rebecca Probert
School of Law, University of Exeter, Exeter, UK
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For Cynthia, Jonathan, Sarah, and Peter,
and in memory of my father and mother
Preface
Few forms of property are as contested as treasure. Chance finders,
metal detectorists, landowners, archaeologists, museum experts, and
the state, all claim an interest in discovered antiquities but have sharply
contrasting points of view. Even the validity and utility of the legal
terms of art, ‘treasure trove’ and ‘treasure’, are disputed by those eager
to rid the subject of the last vestige of romance. For the legal historian,
the attractions of the subject are many. Beginning with the rise of
archaeology in the early Victorian era, we have the chance to examine
the first major chapter in the development of cultural property/cultural
heritage law in Britain and Ireland. The Treasury’s principled
administration of the law and practice of treasure trove from 1859 to
1992, guided by the Treasury Solicitor’s department, is one of the most
extraordinary but unknown chapters in British administrative history,
making the study of Treasury and other state records essential to a
proper understanding of the subject. A legal history of treasure in
Britain and Ireland is necessarily inflected by the varying political,
cultural, and economic circumstances that prevailed in England, Wales,
Ireland, and Scotland in the nineteenth and twentieth centuries. The
partition of Ireland, Irish independence, and the retention—to this day
—of the prerogative of treasure trove in Scotland in contrast with its
abolition in 1996 in England and Wales and Northern Ireland, all
contribute further to the kaleidoscopic nature of this inquiry. Common
misconceptions about the English law of treasure trove before 1996 are
a source of fascination and frustration: even the inquest verdict in
relation to the Sutton Hoo treasure has been widely misunderstood for
decades. When the Treasure Act 1996 abolished the prerogative claim
to treasure trove (for England and Wales, and Northern Ireland) and
replaced it with a statutory claim to ‘treasure’, it created a backstop
category of treasure, namely, coins and other objects that would have
been treasure trove under the old law, giving the legal historian the
unusual prospect of influencing the outcome of future decisions by
correcting some of the misunderstandings of the past. So far as
concerns the detailed application of the 1996 Act, however, this is not a
legal textbook; that need has been amply supplied by Anthony Guest
and Paul Matthews.
The scope of the book—essentially from Victoria’s accession to
almost the present day—was guided by advice from distinguished
academics, Professor Norman Palmer and Professor David Carey Miller,
both well-published in the field of treasure law. Their passing (in 2016)
deprived me of expert critical readers, but I place on record my
profound gratitude for their encouragement and guidance at an earlier
stage and for the inspiration that I have drawn from their published
work. The project was made possible by the award of a Leverhulme
Major Research Fellowship (2015–17), and my best thanks are due to
the Leverhulme Trust Board. I also acknowledge the help and
encouragement of fellow academics, Professor Patty Gerstenblith,
Professor Hector MacQueen, Professor Lionel Bently, Professor John
Cairns, and Professor Robin Hickey. In undertaking the research for the
book, I was helped by many people, and I am glad to acknowledge my
debt to them here: the staff of the McClay Library, Queen’s University,
Belfast; The National Archives; Parliamentary Archives; Duchy of
Lancaster Office (archives); Guildhall Library; London Metropolitan
Archives; National Records of Scotland; National Archives of Ireland;
Public Record Office of Northern Ireland; Suffolk Record Office;
Shetland Archives; Royal Irish Academy library; British Museum
Anthropology Library and Central Archive; University College Dublin
Archives; Advocates’ Library; Society of Antiquaries of London library;
Society of Antiquaries of Scotland; Bodleian (Weston) Library;
Antiquities Reading Room, Ashmolean Museum; Borthwick Institute for
Archives, York; Lincoln’s Inn library, and the British Library. I am
grateful for help with specific points from Ian Richardson, Senior
Treasure Registrar, British Museum; Dr Mary Cahill, former Keeper of
Irish Antiquities, National Museum of Ireland; Dr Maeve Sikora, Keeper
of Irish Antiquities, National Museum of Ireland, and NMI director, Lynn
Scarff; His Honour Judge Brian Sherrard; Alastair Willis, Senior Curator
of Numismatics and the Welsh economy, Amgueddfa Cymru-National
Museum Wales; Dr Richard Edgcumbe, the Dr Genevieve Davies Curator
of Jewellery in the V&A; Nicholas Rheinberg, Archivist, Coroners’
Society of England and Wales; Henry Lythe, Honorary Librarian, British
Numismatic Society and Royal Numismatic Society; Raya McGeorge,
archivist, Fishmongers’ Company, London; Dr Greer Ramsey, Curator of
Archaeology, Ulster Museum; Ken Neill, Department for Communities
(NI); Beth Jones, Collections Information Manager, Royal Collection
Trust; Professor Hugh Magennis, Queen’s University, Belfast; Dr
Thomas Muinzer, University of Aberdeen; the late Gregory O’Connor,
archivist, National Archives of Ireland; the late Professor Nial
Osborough, University College, Dublin; Professor Terence Dooley, NUI,
Maynooth; Rosemary Carson, and Dr Alice Stevenson, University
College London. I am grateful for the helpful comments of the
publisher’s anonymous reader. My thanks also to Dr Barbara Henry and
Cynthia Batten for research assistance at an early stage and to Bernie
Brady of The Tanyard in Ramelton, Co. Donegal, to which I de-camped
on extended writing ‘holidays’ in 2018 and 2019.
I have received much patient assistance from various people
working in Palgrave Macmillan: Rob Gibson, Helen Bugler, Aleta
Bezuidenhout, Megan Laddusaw, Emily Russell, Sugapriya
Jaganathan and Divya Suresh. I owe a great deal to my friends for their
encouragement in recent years, including Carole, Joy, Amanda, Helen,
Xiaoyan, Ivan and Gemma, Heather, David, Kathryn, Judith, Edith, Janice,
Stephen and Janet, John, Claire, Sylvia, Fiona, Mary, and Jean.
Heartfelt thanks to my sister, Cynthia, and her three, Jonathan,
Sarah, and Pete, and their partners, Laura, Peter, and Ina, for unfailing
support and for getting me, and this, over the finishing line.
Norma Dawson
Queen’s University, Belfast
St Swithin’s Day, 2022
Table of Legislation
English Parliament (pre-1707)
Scottish Parliament
Oireachtas—Ireland (post-1922)
Illustration 5.1 Sir John Evans, FRS FSA FGS (1823–1908), numismatist,
archaeologist, industrialist.Oil on canvas, 1900, by A.S.Cope for the
Royal Society.© The Royal Society
R. v. Thomas and Willett (1863) 9 Cox CC 375; Leigh & Carr 313
N. M. Dawson
Email: n.dawson@qub.ac.uk
Roman Law
Throughout Europe from the period of Antiquity onwards, the
allocation of rights to treasure was governed by one of three principles:
first, that ‘finding is keeping’ if the identity of the rightful owner is
unknown; secondly, a principle of ‘natural equity’ which conferred
rights to treasure finds not only on the finder but also on the owner of
the land where it was found, and finally, a principle of ‘regality’ that
allocated finds of valuable ownerless objects to the ruler, the king or
prince.25
Although the law relating to treasure during the Roman Republic is
obscure, possibly favouring the landowner on the faulty basis that
buried treasure becomes part of the land in which it is interred by
accession (accessio), the law of Imperial Rome appeared to favour the
finder.26 One of the classic statements of Roman law on the subject of
treasure trove (in Latin, thesaurus inventus) articulates a simple ‘finders
keepers’ principle: circa 200 AD, the Roman jurist Julius Paulus said
that ‘treasure is an old deposit of money, of which the memory is no
longer extant, so that it now no longer has an owner; for thus it
becomes the property of him who has found it, because it is no-one
else’s’.27 On closer examination, however, the scope of the finder’s right
was calibrated according to the circumstances of the find.28 A rule of
natural equity laid down by Hadrian (Roman emperor, 117–138 AD)
allocated treasure accidentally found in another’s land in equal shares
to the finder and the owner of the land, whereas a chance find of
treasure on the finder’s own land or at a sacred or religious site (a
temple or a tomb) was allocated to the finder alone. The insistence on
the accidental nature of the find was—it was said—because treasure
was properly regarded as the gift of Fortuna, goddess of chance.
(Glimpses of this can even be found in English law dictionaries of the
Georgian era: legal writers Giles Jacob and James Whishaw, while
expounding the common law, both nodded at Roman law when they
included the following entry in their law dictionaries: ‘FORTUNA: called
in our law “treasure trove”’.29) Finds made as a result of a deliberate
search were allocated to the owner of the land in which they had been
buried. The fiscus (imperial treasury) benefited only in the case of finds
in public places or on imperial land (which included Roman provinces),
in such a case sharing the find equally with the finder.30 The essentials
of Hadrian’s law were found in the Corpus Iuris Civilis, the body of law
prepared by order of Justinian and promulgated between 529 and
534 AD.31
Just why the finder had a right to a find under Roman law was a
matter for debate. The inability to identify the original owner of the
find created a vacuum in title, but it appears that Roman law did not
regard treasure trove as res nullius in the strict sense—i.e. goods
without an owner—because the property had an owner, who could not
be ascertained.32 Nevertheless, the finder’s title to treasure trove was in
some sense analogous to occupation (occupatio) of goods without an
owner, yet the law required the finder to share the find with the owner
of the land in which it was found. The nature of the latter’s title was
also a little mystifying as a half-share vested in the landowner as soon
as the find was made. The doctrine of accessio sometimes used to
explain this was hardly satisfactory because if the find had indeed
become part of the land by accession, the landowner arguably had a
claim to the find in its entirety. The better view is that the landowner’s
share, like the finder’s, simply resulted from an imperial legal rule said
to be based on natural equity.33
Treasure trove as part of the prerogative of a ruler emerged in the
early Middle Ages in large areas of continental Europe but would later
be abandoned in many territories in favour of the principle of natural
equity, under the renascent influence of Roman law following the
rediscovery of the Corpus Iuris Civilis in the eleventh century. Thus, at
the time of writing his classic 1936 work, Treasure Trove in Law and
Practice from the Earliest Time to the Present Day, George Hill stated
that the modern civil codes of Germany, France, Italy, Spain, Portugal,
the Netherlands, Belgium, and Sweden had rejected earlier regalian
(crown) rights in favour of a right shared between finders and
landowners. Hausmaninger and Gamauf have identified provisions in
the modern Austrian, Swiss, and German civil codes that closely reflect
the law of Hadrian.34 Throughout the UK, however, the principle of
regality, once established, persisted until the late twentieth century and
in Scotland persists to this day. Its precise origins in these islands
remain obscure.
Wales
The medieval development of the law of treasure trove in Wales was
more complicated than in England which was governed as one entity
after the Conquest.73 Anglo-Norman influence was felt indirectly in the
Marches, large tracts of land separating England and the Principality,
held by Norman noblemen, the ‘Marcher lords’.74 Although feudal
vassals of the crown, the king’s writ did not run within the Marches
where the Marcher lords exercised their own quasi-prerogatives,
sometimes including treasure trove.75 These did not depend on express
grant but constituted an informal practice the continuation of which
was preserved as a possibility under the Laws in Wales Act 1535, at the
time of the union with England.76 In the sixteenth century, however,
many Marcher lords lost their lands which reverted in the crown.
Beyond the Marches, Welsh princes had exercised rights to treasure
trove in their own territories under customary Welsh law until Edward
I’s conquest of Wales brought about the extension of English law in
some areas of jurisdiction, including the crown claim to treasure
trove.77 The franchise of regalian rights to lords of Welsh manors also
occurred, although no evidence has been found of manorial treasure
trove franchises in Wales.
Parts of the Principality of Wales were divided into shires, with
sheriffs involved in the administration of justice. The Statute of
Rhuddlan 1284 made express reference to the sheriff’s ‘tourn’, a circuit
court having jurisdiction, inter alia, to inquire into treasure trove.78 The
main area of jurisdiction affected by the statute was criminal law. The
inclusion of treasure trove essentially imposed a shrieval duty to
investigate allegations of the offence of concealment of a treasure find.
The union of Wales and England by virtue of two statutes of the English
parliament in 1535 and 1542 provided for an extension of the English
system of shires throughout Wales, an administrative system involving
sheriffs, coroners, escheators, and other crown officers for each shire;
some of these would become significant actors in treasure trove
cases.79 Throughout the period with which this book is primarily
concerned, from 1837 to the present day, treasure law in Wales has
been the same as in England.
Ireland
Parts of Ireland came under Norman influence and laws in the time of
Henry II (1154–1189) who invaded Ireland in 1171. The English crown
assumed the ‘lordship’ of Ireland until, in 1541, Henry VIII took the title
‘king of Ireland’.80 The constitutional position, whether under English
lordship or kingship, was that Ireland was a separate and subordinate
dominion of the English crown, that the common law of Ireland was
one and the same as that of England (‘una et eadem lex’), that English
legislation could apply in Ireland by various means, and that the Irish
king’s bench was subordinate to its English counterpart.81 As early as
the reign of John (1199–1216), royal grants of Leinster and Meath
expressly reserved the right of treasure trove to the (English) crown.82
Dolley suggests that these documents merely point to King John’s
intention to govern Ireland by the same law and custom as England. He
also points out that as Gaelic society had not been monetised, the only
coin hoards likely to be discovered in Ireland at that time were Viking,
so that the king could have had no high expectations of enrichment
from Irish treasure trove. Nevertheless, Dolley advances evidence of
what may have been the first treasure trove inquest in Ireland,
conducted by the justiciar at King John’s request in 1215.83
After the invasion of Ireland, a number of palatinates were granted
by the crown extending over much of the land under Anglo-Norman
control so that, in Delany’s words, ‘the great feudal lords were left to
govern Ireland’.84 The palatinates were later resumed by the English
crown and the last to survive, in Co. Tipperary, was abolished by the
Irish parliament in 1715.85 It is, however, worth noting that almost all
grants of palatinates or liberties in Ireland expressly reserved the right
of treasure trove to the crown in a standard exception clause reserving
‘the four pleas’, namely, arson, rape, forestalling,86 and treasure trove.87
This reservation or exception of ‘the four pleas’ was also common in
English charters.88 The association of the plea of concealment of
treasure trove with heinous crimes, and its dissociation from other
prerogatives of the crown relating to casual finds, such as wreck, waifs
and strays, has much to say about how the prerogative of treasure trove
was seen by medieval kings. Hall noted that ‘in light of the public policy
of those days, the royalty of treasure trove was guarded with infinitely
more care than was bestowed on other casual profits of the
prerogative’.89
It has been suggested that where Brehon law continued to prevail
beyond the sphere of English influence, Irish chieftains in the late
medieval period may have asserted a right to a share of treasure trove
despite the absence of such a right in the ancient law texts. This view
may have been influenced by English law or by some faulty
commentaries on the early texts.90 In any case, Brehon law was finally
excluded by the common law in the early seventeenth century.91
Scotland
The Anglo-Norman system of government first affected southern
Scotland, its influence increasing under David I (1124–1153), while
Celtic customs and the clan system prevailed in the Highlands for some
centuries after the Norman Conquest of England.92 Scoto-Norman law
was modelled on Anglo-Norman law, adapted for different conditions.93
A general assertion of a Scottish crown right to treasure trove first
became apparent no later than 1172, when William I of Scotland (‘the
Lion’, 1165–1214) regranted and confirmed land at Annandale to the
Scottish baron, Robert de Brus II, ‘as freely as his father or he held it in
the time of King David I and Malcolm IV [1153–1165] for the service of
ten knights … saving also to the king the regalia pertaining to his
regality viz. treasure trove, murder, premeditated assault, rape of
women, arson and plunder’.94 Baronies—royal grants of limited
jurisdiction (like franchises in other parts of Britain)—were common in
medieval Scotland, and some full-scale regalities (similar to palatinates)
also existed. In the wake of the second Jacobite rising (1745), all
heritable jurisdictions and regalities were dissolved, their jurisdiction
returning to the crown; baronies were also shorn of jurisdiction.95 In
any case, there is no evidence that the Scottish crown, in creating
regalities and baronies, invested others with the right to treasure
trove.96
Beyond the Scottish mainland, the Northern Isles (Orkney and
Shetland) remained under Norwegian influence until the fifteenth
century, governed by udal law rather than feudal law. Whether this
affected the disposal of treasure trove was one of the issues considered
in litigation triggered by the discovery of the St. Ninian’s Isle treasure in
1958. We consider this in Chap. 8.97