Treasure trove

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This article is about the legal concept. For the children's book, see A Treasure's Trove. For the card game, see Treasure Trove.
A hilt fitting from the Staffordshire hoard, which was declared to be treasure in September 2009

Treasure trove is an amount of money or coin, gold, silver, plate, or bullion found hidden underground or in places such as cellars or attics, where the treasure seems old enough for it to be presumed that the true owner is dead and the heirs undiscoverable. The legal definition of what constitutes treasure trove and its treatment under law vary considerably from country to country, and from era to era.

The term is also often used metaphorically. Collections of articles published as a book are often titled Treasure Trove, as in A Treasure Trove of Science. This was especially fashionable for titles of children's books in the early- and mid-20th century.

Terminology[edit]

Treasure trove, sometimes rendered treasure-trove, literally means "treasure that has been found". The English term treasure trove was derived from tresor trové, the Anglo-French[1] equivalent of the Latin legal term thesaurus inventus. In 15th-century English the Anglo-French term was translated as "treasure found", but from the 16th century it began appearing in its modern form with the French word trové anglicized as trovey, trouve or trove.[2] The term wealth deposit has been proposed as a more accurate alternative.[3]

The term treasure trove is often used metaphorically to mean a "valuable find", and hence a source of treasure, or a reserve or repository of valuable things.[4] Trove is often used alone to refer to the concept,[5] the word having been reanalysed as a noun via folk etymology from an original Anglo-French adjective trové (cognate to the French past participle trouvé, literally "found").[6] Treasure trove is therefore akin to similar Anglo-French or Anglo-French-derived legal terms whereby a post-positive adjective in a noun phrase (contrary to standard English syntax) has been reanalysed as a compound noun phrase, as in court martial, force majeure and Princess Royal. Phrases of this form are often used either with the etymologically correct plural form (for example, "Courts-martial deal with serious offences ...")[7] or as fully rederived plural forms (such as "... ordering court-martials ...").[8] In the case of treasure trove, the typical plural form is almost always treasure troves, with treasures trove found mostly in historical[9] or literary[10] works.

History[edit]

Oldenburg Sachsenspiegel of 1336 Fol. 22v detail regarding the treasure trove, starting with red initial A (Middle Low German): "Al schat under der erden berauen deper den en ploch geyt de hort to derer conicliken walt." (Everything lying deeper in the ground than the range of a plowshare, belongs to the king.)

Roman law[edit]

In Roman law treasure trove was called thesaurus ("treasure" in Latin), and defined by the Roman jurist Paulus as "vetus quædam depositio pecuniæ, cujus non extat memoria, ut jam dominum non habeat"[11] (an ancient deposit of money, of which no memory exists, so that it has no present owner).[12] R. W. Lee, in his book The Elements of Roman Law (4th ed., 1956), commented that this definition was "not quite satisfactory" as treasure was not confined to money, nor was there any abandonment of ownership.[12] Under the emperors, if treasure was found on a person's own land or on sacred or religious land, the finder was entitled to keep it. However, if the treasure was found fortuitously, and not by deliberate search, on another person's land, half went to the finder and half to the owner of the land, who might be the emperor, the fiscus (public treasury), the city, or some other proprietor.[13] According to Dutch jurist Hugo Grotius (1583–1645), 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 jus commune et quasi gentium (a common and quasi-international right) in England, Germany, France, Spain and Denmark.[14]

England and Wales common law[edit]

It has been said that the concept of treasure trove in English law dates back to the time of Edward the Confessor (c. 1003/1004–1066).[15] Under the common law, treasure trove was defined as gold or silver in any form, whether coin, plate (gold or silver vessels or utensils)[16] or bullion (a lump of gold or silver),[17][18] which had been hidden and rediscovered, and which no person could prove he or she owned. If the person who had hidden the treasure was known or discovered later, it belonged to him or her[19][20] or persons claiming through him or her such as descendants. To be treasure trove, an object had to be substantially – that is, more than 50% – gold or silver.[21]

A ceremonial helmet from Sutton Hoo recovered in 1939. The Sutton Hoo find was not treasure trove – as it was a ship burial, there had been no intention to recover the objects later.

Treasure trove had to be hidden with animus revocandi, that is, an intention to recover it later. If an object was simply lost or abandoned (for instance, scattered on the surface of the earth or in the sea), it either belonged to the first person who found it[19][22] or the landowner according to the law of finders, that is, legal principles concerning the finding of objects. For this reason, the objects found in 1939 at Sutton Hoo were determined not to be treasure trove – as the objects were part of a ship burial, there had been no intention to recover the buried objects subsequently.[23] The Crown had a prerogative right to treasure trove, and if the circumstances under which an object was found raised a prima facie presumption that it had been hidden, it belonged to the Crown unless someone else could show a better title to it.[24] The Crown could grant its right to treasure trove to any person in the form of a franchise.[19][20][25]

It was the duty of the finder, and indeed of anyone who had acquired knowledge of the matter, to report the finding of a potential treasure trove to the coroner of the district. Concealing a find was a misdemeanour[26][27] punishable with fine and imprisonment.[19][28] The coroner was required to hold an inquest with a jury to determine who were the finders or the persons suspected to be the finders, "and that may be well perceived where one liveth riotously and have done so of long time".[20][29] Where there had been an apparent concealment of treasure trove the coroner's jury could investigate the title of the treasure to discover if it had been concealed from the supposed owner, but any such finding was not conclusive[30] as the coroner generally had no jurisdiction to enquire into questions of title to the treasure between the Crown and any other claimant. If a person wished to assert title to the treasure, he or she had to bring separate court proceedings.[27][31]

In the early 20th century, it became the practice of the Lords Commissioners of the Treasury to pay those finders who fully and promptly reported discoveries of treasure troves and handed them over to the proper authorities the full antiquarian value of objects which had been retained for national or other institutions such as museums. Objects not retained were returned to the finders.[20][32]

Scottish common law[edit]

Under the common law of Scotland, the law of treasure trove was and still is a specialized application of the general rule governing bona vacantia ("vacant goods") – that is, objects that are lost, forgotten or abandoned. The rule is quod nullius est fit domini regis: "that which belongs to nobody becomes our Lord the King's [or Queen's]". The Crown in Scotland has a prerogative right to treasure trove for it is one of the regalia minora ("minor things of the king"), that is, property rights which the Crown may exercise as it pleases and which it may alienate (transfer to another party). As the Scottish law of treasure trove on the matter has not changed, it is discussed in the "Present-day legal definitions" section below, under the subheading "Scotland".

United States law[edit]

Many states in the U.S. enacted statutes that received English common law into their legal systems. For example, in 1863 the legislature of Idaho enacted a statute that made "the common law of England ... the rule of decision in all courts" of the state. However, English common law principles of treasure trove were not applied in the U.S. Instead, courts applied rules relating to the finding of lost and ownerless items. The treasure trove rule was first given serious consideration by the Oregon Supreme Court in 1904 in a case involving boys who had discovered thousands of dollars in gold coins hidden in metal cans while cleaning out a henhouse. The Court wrongly believed that the rule operated in the same way as early rules that awarded possession – and, effectively, legal title as well – to innocent finders of items that had been hidden or concealed and the owners of which were unknown. By awarding the coins to the boys, the Court implied that finders were entitled to buried valuables, and that any claims by landowners should be disregarded.[33]

In subsequent years the legal position became unclear as a series of English and American cases decided that landowners were entitled to buried valuables. The Maine Supreme Judicial Court reconsidered the rule in 1908. The case before it involved three workers who had found coins while digging on their employer's land. The Court decided along the lines of the 1904 Oregon case and awarded the coins to the finders. For the next 30 years, the courts of a number of states, including Georgia, Indiana, Iowa, Ohio and Wisconsin, applied this modified "treasure trove" rule, most recently in 1948. Since that time, however, the rule has fallen out of favour. Modern legal texts regard it as "a recognized, if not controlling, rule of decision", but one commentator has called it "a minority rule of dubious heritage that was misunderstood and misapplied in a few states between 1904 and 1948".[33]

Present-day legal definitions[edit]

United Kingdom[edit]

England, Northern Ireland, and Wales[edit]

The Ringlemere Cup, found in 2001 in the Ringlemere barrow in Kent, England, which was declared to be treasure under the Treasure Act 1996 and is now displayed in the British Museum. Made of gold, it dates to the Bronze Age, between 1700 and 1500 B.C.

Throughout the ages, farmers, archaeologists and amateur treasure hunters have unearthed important treasures of immense historical, scientific and financial value. However, the strictness of the common law rules meant that such items were sometimes not treasure trove. The items risked being sold abroad, or were only saved for the nation by being purchased at a high price. Mention has already been made of the objects comprising the Sutton Hoo ship burial, which were not treasure trove as they had been interred without any intention to retrieve them. The objects were later presented to the nation by their owner, Edith May Pretty, in a 1942 bequest. In March 1973, a hoard of about 7,811 Roman coins was found buried in a field at Coleby in Lincolnshire. It was made up of antoniniani believed to have been minted between 253 and 281 A.D. The Court of Appeal of England and Wales held in the 1981 case of Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd. that the hoard was not treasure trove as the coins did not have a substantial silver content. Thus, it belonged to the owner of the field and could not be retained by the British Museum.[34]

To remedy the faults of the old treasure trove regime, the Treasure Act 1996[35] introduced a new scheme which came into effect on 24 September 1997.[36] Any treasure found on and after that date regardless of the circumstances in which it was deposited, even if it was lost or left with no intention of recovery, belongs to the Crown, subject to any prior interests or rights held by any franchisee of the Crown.[37] The Secretary of State for Culture, Media and Sport may direct that any such treasure be transferred or disposed of,[38] or that the Crown's title in it be disclaimed.[39][40]

The Act uses the term treasure instead of treasure trove; the latter term is now confined to objects found before the Act came into force. Objects falling within the following definition are "treasure" under the Act:[40][41]

  1. If the object is not a coin,[42] it must be at least 300 years old[43] and at least 10%[44] precious metal (that is, gold or silver)[45] by weight.
  2. If the object is a coin, it must either be:
    • one of at least two coins in the same find[46] which are at least 300 years old at that time and are at least 10% precious metal by weight; or
    • one of at least ten coins in the same find which are at least 300 years old at that time.
  3. Any object at least 200 years old when found which belongs to a class of objects of outstanding historical, archaeological or cultural importance that has been designated as treasure by the Secretary of State.[47] As of 2006, the following classes of objects had been so designated:[48]
    • Any object, other than a coin, any part of which is base metal (that is, not gold or silver),[49] which when found is one of at least two base metal objects in the same find which are of prehistoric date.[50]
    • Any object, other than a coin, which is of prehistoric date, and any part of which is gold or silver.
  4. Any object which would have been treasure trove if found before 24 September 1997.
  5. Any object which, when found, is part of the same find as:
    • an object within head (1), (2), (3) or (4) above found at the same time or earlier; or
    • an object found earlier which would be within head (1), (2) or (3) above if it had been found at the same time.

Treasure does not include unworked natural objects, or minerals extracted from a natural deposit, or objects that have been designated not to be treasure[51] by the Secretary of State.[52] Objects falling within the definition of wreck[53] are also not treasure.[40][54]

Coroners continue to have jurisdiction to enquire into any treasure found in their districts, and into who are or are suspected to be its finders.[55] Anyone finding an object he or she believes or has reasonable grounds to believe is treasure must notify the coroner for the district in which the object is found within 14 days starting from the day after the find or, if later, the day on which the finder first believes or has reason to believe the object is treasure.[56] Not doing so is an offence.[57] Inquests are held without a jury unless the coroner decides otherwise.[58] The coroner must notify the British Museum if his or her district is in England, the Department of the Environment if it is in Northern Ireland, or the National Museum Wales if it is in Wales.[59] The coroner must also take reasonable steps to notify any person who appears may have found the treasure; any person who, at the time it was found, occupied land which it appears may be where the treasure was found;[60] and any other interested persons, including persons involved in the find or having an interest in the land where the treasure was found at that time or since.[61] However, coroners still have no power to make any legal determination as to whether the finder, landowner or occupier of the land has title to the treasure. The courts have to resolve that issue, and may also review coroners' decisions in relation to treasure.[40][62]

When treasure has vested in the Crown and is to be transferred to a museum, the Secretary of State is required to determine whether a reward should be paid by the museum before the transfer[63] to the finder or any other person involved in the finding of the treasure, the occupier of the land at the time of the find, or any person who had an interest in the land at the time of the find or has had such an interest at any time since then.[64] If the Secretary of State determines that a reward should be paid, he or she must also determine the market value of the treasure (assisted by the Treasure Valuation Committee),[65] the amount of the reward (which cannot exceed the market value), to whom the reward should be paid and, if more than one person should be paid, how much each person should receive.[40][66]

Items from the Staffordshire hoard which were declared to be treasure in September 2009

In England and Wales, finders of objects that are not treasure or treasure trove are encouraged to voluntarily report them under the Portable Antiquities Scheme to finds liaison officers at county councils and local museums. Under the scheme, which started in September 1997, the officers examine finds and provide finders with information on them. They also record the finds, their functions, dates, materials and locations, and place this information into a database which can be analysed. The information on the findspots may be used to organize further research on the areas.[67] Non-treasure finds remain the property of their finders or landowners, who are free to dispose of them as they wish.[68]

On 5 July 2009 the largest single Anglo-Saxon hoard as of that date, consisting of over 1,500 gold and precious metal pieces, helmets and sword decorations tentatively dated to around 600–800 A.D., was discovered by Terry Herbert in Staffordshire, England. Herbert reported the find to his local Portable Antiquities Scheme officer, and on 24 September 2009 it was declared to be treasure by the South Staffordshire coroner.[69]

Scotland[edit]

The Treasure Act 1996 does not apply in Scotland.[70] Treasure trove in Scotland is dealt with under the common law of Scotland. The general rule that governs bona vacantia ("vacant goods") – that is, objects that are lost, forgotten or abandoned – is quod nullius est fit domini regis ("that which belongs to nobody becomes our Lord the King's [or Queen's]"),[71][72] and the law of treasure trove is a specialized application of that rule.[73] As in England, the Crown in Scotland has a prerogative right to treasure trove[74] for it is one of the regalia minora ("minor things of the King"),[75] that is, property rights which the Crown may exercise as it pleases and which it may alienate (transfer to another party).[76]

Cliffs of St. Ninian's Isle, photographed on 24 May 2006. The St. Ninian's Isle treasure, which is believed to date to about 800 A.D., was found on this island.

To qualify as treasure trove, an object must be precious, it must be hidden, and there must be no proof of its property or reasonable presumption of its former ownership. Unlike under English common law, treasure is not restricted to only gold and silver objects.[77] 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. A compromise was eventually reached, and the find was deposited in the National Museum of Scotland.[14] In July 1958, a porpoise bone was found together with 28 other objects of silver alloy (12 brooches, seven bowls, a hanging bowl and other small metal work) underneath a stone slab marked with a cross on the floor of St. Ninian's Church on St. Ninian's Isle in Shetland. The objects were dated to about 800 A.D. A dispute having arisen over ownership of the objects between the Crown on the one hand, and the finder (the University of Aberdeen, which had carried out the archaeological excavation) and the landowner on the other, in Lord Advocate v. University of Aberdeen (1963) the Court of Session held that the bone should be regarded as treasure trove together with the silver objects.[78] Further, the requirement that an object must be "hidden" means no more than that it must be concealed; it refers to the condition in which the object was found and does not refer back to the intention which the owner of the object may have had in hiding it.[79] Finally, the requirement that there must be no reasonable presumption of former ownership means that it must not be possible to trace the ownership of the object to a person or family currently existing.[80] Even if an object does not qualify as treasure trove, it may be claimed by the Crown as bona vacantia.[81]

The Queen's and Lord Treasurer's Remembrancer (QLTR), an office held by the Crown Agent who is the senior officer of the Crown Office in Scotland, is responsible for claiming bona vacantia on behalf of the Crown in Scotland.[71] Finders of items are required to report such finds to the Crown Office or to the Treasure Trove Unit (TTU) at the National Museums of Scotland in Edinburgh. Each find is assessed by the Scottish Archaeological Finds Allocation Panel, which decides if the find is of national importance. If it is, the matter is referred by the TTU to the QLTR department at the Crown Office, which will inform the finder that it has accepted the Panel's recommendation to claim the objects in the find as treasure trove or bona vacantia.[82]

The Panel also recommends to the QLTR a reward for the find based on its current market value where appropriate, and the most appropriate museum in Scotland to allocate it to. The TTU then contacts all museums which have bid for finds to advise them of the Panel's recommendations. The museums have 14 days in which to accept or reject the proposed allocation and reward for the find. If the QLTR accepts the Panel's recommendations, it will notify the finder of the amount of any reward being paid and the museum that the find has been allocated to. The QLTR also asks the museum to pay the finder's reward.[82]

While a Treasury order of 1886 made provision for the preservation of suitable objects in various national museums and payment of rewards to their finders,[14] the Crown is under no legal obligation to offer any rewards for treasure trove objects it has claimed. However, it usually does so, using the objects' market price as a guide. A reward may be withheld or reduced if the finder has inappropriately handled an object, for instance, damaged it by cleaning it or applying waxes and varnishes to it.[83] Finders may elect to waive their rewards. Rewards are not paid for finds occurring during organized fieldwork.[82]

United States[edit]

State laws[edit]

The law of treasure trove in the United States varies from state to state, but certain general conclusions may be drawn. To be treasure trove, an object must be of gold or silver.[84] Paper money is also deemed to be treasure trove since it previously represented gold or silver.[85] On the same reasoning, it might be imagined that coins and tokens in metals other than gold or silver are also included, but this has yet to be clearly established.[86] The object must be concealed for long enough so it is unlikely that the true owner will reappear to claim it.[87] The consensus appears to be that the object must be at least a few decades old.[88][89]

A majority of state courts, including those of Arkansas, Connecticut, Delaware, Georgia, Indiana, Iowa, Maine, Maryland, New York, Ohio, Oregon and Wisconsin, have ruled that the finder of treasure trove is entitled to it. The theory is that the English monarch's claim to treasure trove was based on a statutory enactment which replaced the finder's original right. When this statute was not re-enacted in the United States after its independence, the right to treasure trove reverted to the finder.[90]

In Idaho[91] and Tennessee[92] courts have decided that treasure trove belongs to the owner of the place where it was found, the rationale being to avoid rewarding trespassers. In one Pennsylvania case,[93] a lower court ruled that the common law did not vest treasure trove in the finder but in the sovereign, and awarded a find of US$92,800 cash to the state. However, this judgment was reversed by the Supreme Court of Pennsylvania on the basis that it had not yet been decided if the law of treasure trove was part of Pennsylvania law.[94] The Supreme Court deliberately refrained from deciding the issue.[95]

Finds of money and lost property are dealt with by other states through legislation. These statutes usually require finders to report their finds to the police and transfer to their custody the objects. The police then advertise the finds to try to locate their true owner. If the objects remain unclaimed for a specified period of time, title in them vests in the finders.[96] New Jersey vests buried or hidden property in the landowner,[97] Indiana in the county,[98] Vermont in the township,[99] and Maine in the township and the finder equally.[100][101] In Louisiana, French codes have been followed, so half of a found object goes to the finder and the other half to the landowner.[14] The position in Puerto Rico, the laws of which are based on civil law, is similar.[102]

Finders who are trespassers generally lose all their rights to finds,[103] unless the trespass is regarded as "technical or trivial".[104][105]

Where the finder is an employee, most cases hold that the find should be awarded to the employer if it has a heightened legal obligation to take care of its customers' property, otherwise it should go to the employee.[106] A find occurring in a bank is generally awarded to the bank as the owner is likely to have been a bank customer and the bank has a fiduciary duty to try to reunite lost property with their owners.[107] For similar reasons, common carriers are preferred to passengers[108] and hotels to guests (but only where finds occur in guest rooms, not common areas).[109][110] The view has been taken that such a rule is suitable for recently misplaced objects as it provides the best chance for them to be reunited with their owners. However, it effectively delivers title of old artefacts to landowners, since the older an object is, the less likely it is that the original depositor will return to claim it. The rule is therefore of little or no relevance to objects of archaeological value.[33]

Due to the potential for a conflict of interest, police officers[111] and other persons working in law enforcement occupations,[112] and armed forces[113] are not entitled to finds in some states.[114]

Federal law[edit]

U.S. Federal laws governing recovery of treasure are governed by the Archaeological Resources Protection Act of 1979,[115] Under ARPA, "archaeological resources" more than one hundred years old on public lands belongs to the government. The term "archaeological resource" means any material remains of past human life or activities which are "of archaeological interest", as determined by federal regulations. Such regulations include, but are not limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. The definition of "archaeological resource" and "archaeological interest" has been broadly interpreted under U.S. agency regulations in recent years to include nearly anything of human origin more than 100 years old, while permits to allow recovery of such items have been largely restricted to digs by credentialed archaeologists. The effect of ARPA as currently defined by federal regulations outlaws virtually all treasure hunting of items more than 100 years old, even treasure troves of gold and silver coin or scrip, under penalty of total forfeiture.[116] Furthermore, the Federal policy against spoliation and removal of "archaeological resources" of any type from federal or Indian lands, even coins and scrip less than 100 years old, means it is unlikely that a finder of gold or silver coinage on Federal lands will prevail with an argument that the find constitutes a treasure trove of coinage, but rather "embedded property" that belongs to the property owner, i.e. the government.[117] The broad use of ARPA to target not only archaeological looting but also to prohibit all treasure hunting on federal or Indian lands has been criticized on the grounds that total prohibition and forfeiture simply encourages concealment or misrepresentation of the age of the found coinage or treasure trove, thus hampering archaeological research, as archaeologists cannot study items that when found will never be reported.[118]

There is analogous state legislation. Special rules also apply to grave goods from Indian burials discovered on Federal and tribal lands under the Native American Graves Protection and Repatriation Act[119] enacted on 16 November 1990.[120]

See also[edit]

Notes[edit]

  1. ^ That is, the dialect of French that developed in England following the decline of the Anglo-Norman language.
  2. ^ "treasure-trove", OED Online (2nd ed.), Oxford: Oxford University Press, 1989, retrieved 10 April 2008 .
  3. ^ Ester Oras (2012), "Importance of terms: What is a wealth deposit?", Papers from the Institute of Archaeology 22: 61–82, doi:10.5334/pia.403 .
  4. ^ See, for example, the following news articles: Rebecca Morelle (16 May 2007), Antarctic 'treasure trove' found, BBC News  ("An extraordinarily diverse array of marine life has been discovered in the deep, dark waters around Antarctica."); Helen Briggs (11 March 2008), Cosmic 'treasure trove' revealed, BBC News  ("A Nasa space probe measuring the oldest light in the Universe has found that cosmic neutrinos made up 10% of matter shortly after the Big Bang. ... Scientists say it is collecting a 'treasure trove' of information about the Universe's age, make-up and fate."); "The Titanic historical treasure trove discovered in a shoe box after death of last living survivor", Daily Mail, 28 March 2008  ("The moving story of one of the last survivors of the Titanic can be revealed for the first time after touching letters and documents were discovered after her death.")
  5. ^ "trove", OED Online (2nd ed.), Oxford: Oxford University Press, 1989, retrieved 11 April 2008 
  6. ^ "trove", Online Etymology Dictionary, archived from the original on 5 October 2007, retrieved 8 July 2010 .
  7. ^ Courts-Martial, British Army, archived from the original on 8 July 2010, retrieved 8 July 2010 .
  8. ^ Clancy Sigal (19 June 2010), "Obama's liberal critics find their voice", The Guardian (London) .
  9. ^ For example, the case of Talbot v. Lewis (1834) 5 Tyr. 1 at 4, 149 ER 1175 at 1176, Court of Exchequer Chamber (England). The version of the case in the English Reports uses treasure-trove rather than treasures-trove.
  10. ^ For example, James Joyce (1993), Ulysses (The World's Classics ed.), Oxford: Oxford University Press, p. 347, ISBN 978-0-19-282866-8 . This example has been considered by some later editors to be one of many errata present in divergent copies of the text; they prefer the singular treasure trove: see Philip Gaskell; Clive Hart (1989), Ulysses: A Review of Three Texts: Proposals for Alterations to the Texts of 1922, 1961, and 1984 [The Princess Grace Irish Library series; 4], Totowa, N.J.: Barnes & Noble Books, p. 35, ISBN 978-0-389-20874-7 .
  11. ^ Digest, 41. I. 31, 1: see Justinian I; Thomas Collett Sandars, transl. & annot. (1859), The Institutes of Justinian (2nd ed.), London: John W. Parker and Son, p. 190 .
  12. ^ a b R. W. Lee (1956 (2007 printing)), The Elements of Roman Law: With a Translation of the Institutes of Justinian (4th ed.), London: Sweet & Maxwell, p. 139 (§211: "Thesaurus (treasure)"), ISBN 978-0-421-01780-1  .
  13. ^ Institutes of Justinian, bk. II, tit. i, para. 39: see Sandars, Institutes of Justinian, p. 190; Lee, Elements of Roman Law, pp. 139, 145.
  14. ^ a b c d Hugh Chisholm, ed. (1910–1911), The Encyclopædia Britannica (11th ed.), Cambridge: Cambridge University Press , 29 vols.
  15. ^ Lord Denning M.R. in Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd. [1982] Ch. 277 at p. 285, C.A.
  16. ^ "plate, n.", OED Online, Oxford: Oxford University Press, March 2008, retrieved 9 April 2008 .
  17. ^ "bullion2", OED Online (2nd ed.), Oxford: Oxford University Press, 1989, retrieved 9 April 2008 .
  18. ^ In Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd., p. 288, Lord Denning said: "'Coin' is a coin of gold or silver, 'plate' is something manufactured of it; 'bullion' is a lump of it. Anything which is not a gold or silver object is not treasure trove."
  19. ^ a b c d Edward Coke (1648), The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminall Causes, London: M. Flesher, for W. Lee, & D. Pakeman, pp. 132–133 .
  20. ^ a b c d Lord Simonds, gen. ed. (1954), Halsbury's Laws of England 7 (3rd ed.), London: Butterworths & Co., p. 540 , paras. 1161–1163.
  21. ^ Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd. at pp. 291–292.
  22. ^ Henry de Bracton; Samuel E. Thorne (transl.) (1968–1977), Bracton on the Laws and Customs of England, Cambridge, Mass.; London: Belknap Press of Harvard University Press in association with the Selden Society , book 3, ch. 3, folio 118; Armory v. Delamirie (1722) 1 Stra. 505.
  23. ^ Rupert [Leo Scott] Bruce-Mitford (1975), The Sutton Hoo Ship-burial: Vol. 1, Excavations, Background, the Ship, Dating and Inventory, London: British Museum Publications, pp. 718–731, ISBN 978-0-7141-1334-0 .
  24. ^ Attorney-General v. Moore [1893] 1 Ch. 676 at 683; Attorney-General v. Trustees of the British Museum [1903] 2 Ch. 598.
  25. ^ John Rastell (1624), Les Termes de la Ley: Or, Certaine Difficult and Obscure Words and Termes of the Common Lawes of this Realme Expounded. [By John Rastell.] Now newly imprinted, and much inlarged and augmented, London: Company of Stationers, p. 565, OCLC 222436919 ; Joseph Chitty the Younger (1820), A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject, London: J. Butterworth & Son, p. 152, OCLC 66375255 , cited with approval in Attorney-General v. Moore, p. 683, and Attorney-General v. Trustees of British Museum, p. 608.
  26. ^ R. v. Toole (1867) 11 Cox CC 75; R. v. Thomas & Willett (1863) Le. & Ca. 313, 12 W.R. 108.
  27. ^ a b Lord Simonds, gen. ed. (1954), Halsbury's Laws of England 8 (3rd ed.), London: Butterworths & Co., pp. 543–544 , paras. 1039–1040.
  28. ^ R. v. Thomas & Willett.
  29. ^ De Officio Coronatoris (Office of Coroner Act) 1276 (4 Edw. I, c. 2), which was declaratory of the common law. This statute was repealed by the Coroners Act 1887 (50 & 51 Vict., c. 71), s. 45, Sch. 3, but the coroner's jurisdiction as regards treasure trove was preserved by ss. 36 and 45(5) of the same Act. See also Bracton, book 3, ch. 6, fol. 122; John Britton; Francis Morgan Nichols, ed. (1865), Britton: The French Text Carefully Revised, with an English Translation, Introduction and Notes, Oxford: Clarendon Press, pp. 8, 18, 66, OCLC 25061529 ; Michael Dalton (1670), Officium Vicecomitum: The Office and Authority of Sherifs: Gathered out of the Statutes ... to which is Added an Appendix ... containing a Collection of the Statutes Touching Sheriffs made since Mr. Dalton's Writing ... With a New and Copious Table, wherein the Defects ... of the Old Table are Supplyed, [etc.], London: Printed by John Streater, James Flesher, and Henry Twyford, assigns of Richard Atkins and Edward Atkins, and are to be sold by George Sawbridge, [etc.], p. 376, OCLC 12414543 .
  30. ^ Edward Umfreville (1761), Lex Coronatoria: Or the Office and Duty of Coroners, [etc.], London: [s.n.], p. 536, OCLC 79529094 , 2 vols.; Attorney-General v. Moore, p. 683; Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd., p. 287.
  31. ^ Attorney-General v. Moore; Attorney-General v. Trustees of British Museum.
  32. ^ Home Office Instruction 159308/14 dated 30 June 1925; Home Office Instruction 159308/47 dated 12 June 1931.
  33. ^ a b c Richard B. Cunningham (7 February 2000), "The slow death of treasure trove", Archaeology (New York, N.Y.: Archaeological Institute of America), ISSN 0003-8113, retrieved 18 January 2008 .
  34. ^ For comments on difficulties caused by the law relating to treasure trove, see Roger Bland (1996), "Treasure Trove and the Case for Reform", Art, Antiquity and Law (Leicester: Institute of Art and Law): 11, ISSN 1362-2331 .
  35. ^ Treasure Act 1996 (c. 24). See also the Treasure Act 1996 Code of Practice (2nd Revision) England and Wales (PDF), London: Department for Culture, Media and Sport, 19 March 2007, archived from the original on 3 August 2007 .
  36. ^ Treasure Act 1996 (Commencement No. 2) Order 1997 S.I. 1997/1977), art. 2.
  37. ^ Treasure Act 1996, ss. 4(1), 4(4).
  38. ^ Treasure Act 1996, s. 6(2).
  39. ^ Treasure Act 1996, s. 6(3).
  40. ^ a b c d e Lord Mackay of Clashfern, ed. (2006), Halsbury's Laws of England 9(2) (Reissue ed.), London: LexisNexis Butterworths, pp. 623–629 , paras. 1077–1100.
  41. ^ Treasure Act 1996, s. 1(1).
  42. ^ "Coin" includes any metal token which was, or can reasonably be assumed to have been, used or intended for use as or instead of money: Treasure Act 1996, ss. 3(1), 3(3).
  43. ^ An object which can reasonably be taken to be at least a particular age is to be presumed to have been at least that age, unless shown not to be: Treasure Act 1996, ss. 3(1), 3(6).
  44. ^ The figure of 10% was chosen because if an alloy has more than 10% gold or silver, it shows that one of those precious metals was deliberately added to the alloy. It also excludes objects which are merely plated with gold or silver: House of Commons Official Report SC F (Treasure Bill), 17 April 1996, cols. 10 and 11.
  45. ^ Treasure Act 1996, ss. 3(1), 3(3).
  46. ^ An object is part of the same find as another object if (1) they are found together; (2) the other object was found earlier in the same place where they had been left together; or (3) the other object was found earlier in a different place, but they had been left together and had become separated before being found: Treasure Act 1996, ss. 3(1), 3(4).
  47. ^ Treasure Act 1996, s. 2(1).
  48. ^ Treasure (Designation) Order 2002 (S.I. 2002/2666), art. 3.
  49. ^ Treasure (Designation) Order 2002, art. 2.
  50. ^ An object is of prehistoric date if it dates from the Iron Age or any earlier period: Treasure (Designation) Order 2002, art. 2.
  51. ^ Under the Treasure Act 1996, s. 2(2).
  52. ^ Treasure Act 1996, s. 1(2). As at 2006, no designation had been made.
  53. ^ The term "wreck" includes flotsam (floating debris from a shipwreck), jetsam (goods thrown overboard from a ship in distress to lighten its load), lagan (goods found or left on the sea floor) and derelict (abandoned goods) found in or on the shores of the sea or any tidal water: Merchant Shipping Act 1995, s. 255(1), made applicable by the Treasure Act 1996, ss. 3(1), 3(7).
  54. ^ Treasure Act 1996, ss. 3(1), 3(7).
  55. ^ Coroners Act 1988 (c. 13), s. 30.
  56. ^ Treasure Act 1996, ss. 8(1), 8(2).
  57. ^ Treasure Act 1996, s. 8(3).
  58. ^ Treasure Act 1996, s. 7(4).
  59. ^ Treasure Act 1996, ss. 9(2), 13(b).
  60. ^ Treasure Act 1996, s. 9(3).
  61. ^ Treasure Act 1996, ss. 9(5), 9(7).
  62. ^ Under the Coroners Act, s. 13, or by way of judicial review.
  63. ^ Treasure Act 1996, ss. 10(1), 10(2).
  64. ^ Treasure Act 1996, s. 10(5).
  65. ^ Treasure finds, Department for Culture, Media and Sport, archived from the original on 7 June 2007, retrieved 12 April 2008 .
  66. ^ Treasure Act 1996, s. 10(3).
  67. ^ "The Scheme's history", Portable Antiquities Scheme, Department for Culture, Media and Sport, 2006, archived from the original on 11 May 2008, retrieved 14 April 2008 .
  68. ^ "Frequently asked questions about the Scheme", Portable Antiquities Scheme, Department for Culture, Media and Sport, 2006, archived from the original on 1 May 2008, retrieved 14 April 2008 .
  69. ^ Maev Kennedy (24 September 2009), "Largest ever hoard of Anglo-Saxon gold found in Staffordshire: First pieces of gold were found in a farm field by an amateur metal detector who lives alone on disability benefit", The Guardian ; "Anglo-Saxon gold: largest ever hoard officially declared treasure", The Daily Telegraph, 24 September 2009 .
  70. ^ Treasure Act 1996, s. 15(3).
  71. ^ Lord Patrick in Lord Advocate v. University of Aberdeen 1963 S.C. 533 at p. 554, Inner House, Court of Session, citing Sands v. Bell & Balfour (22 May 1810), F.C.; Lord Hunter in Lord Advocate v. University of Aberdeen, p. 549, Outer House, Court of Session, citing an earlier edition of George Joseph Bell; William Guthrie (1989), Principles of the Law of Scotland (10th, rev. and enl. ed.), Edinburgh; London: Law Society of Scotland; Butterworths, ISBN 978-0-406-17903-6 , s. 1291(3).
  72. ^ Lord Mackintosh in Lord Advocate v. University of Aberdeen, p. 561, Outer House, citing an earlier edition of John Erskine of Carnock; James Badenach Nicolson (1989), An Institute of the Law of Scotland (8th ed.), Edinburgh: Law Society of Scotland, ISBN 978-0-406-17897-8 , vol. 2, ch. 1, pp. 11–12.
  73. ^ Lord Hunter in Lord Advocate v. University of Aberdeen, p. 543, citing an earlier edition of Andrew MacDowall, Lord Bankton (1993), An Institute of the Laws of Scotland in Civil Rights: Vol. 1. with Observations upon the Agreement or Diversity between them and the Laws of England, Edinburgh: Stair Society, ISBN 978-1-872517-05-6 , ch. 3, pp. 14–16 and 18.
  74. ^ Lord Hunter, Lord Advocate v. University of Aberdeen, p. 542, citing Thomas Craig; James Avon Clyde, transl. (1934), The Jus Feudale ... With an Appendix Containing the Books of the Feus, Edinburgh; London: William Hodge & Co., OCLC 15085710 , vol. 1, ch. 16, pp. 40 and 45; James Dalrymple, Viscount Stair; John S. More, ed. (1832), The Institutions of the Law of Scotland, Deduced from its Originals, and Collated with the Civil, Canon, and Feudal Laws, and with the Customs of Neighbouring Nations (2nd, rev., corr. & much enl. ed.), Edinburgh: Bell & Bradfute, OCLC 60714357 , vol. 2, ch. 3, p. 60, and vol. 3, ch. 3, p. 27; Bankton, An Institute of the Laws of Scotland in Civil Rights, vol. 1, ch. 3, p. 16; and Bell, Principles of the Law of Scotland, s. 1293.
  75. ^ Angus MacKay (29 March 2000), Justice and Home Affairs Committee Official Report [Meeting No 13, 2000], Scottish Parliament, archived from the original on 15 November 2005 , col. 1010.
  76. ^ Lord Hunter in Lord Advocate v. University of Aberdeen, p. 548, Outer House, citing Bankton, An Institute of the Laws of Scotland in Civil Rights, vol. 1, ch. 8, p. 9.
  77. ^ Lord Mackintosh in Lord Advocate v. University of Aberdeen, p. 559, Inner House; see also Lord Patrick in the same case, p. 555.
  78. ^ Lord Mackintosh in Lord Advocate v. University of Aberdeen, pp. 559–560, Inner House.
  79. ^ Lord Hunter in Lord Advocate v. University of Aberdeen, p. 548, Outer House, citing More's notes to Stair, The Institutions of the Law of Scotland, vol. 1, p. cxlvi.
  80. ^ Lord Mackintosh in Lord Advocate v. University of Aberdeen, p. 559, Inner House.
  81. ^ a b c "What happens when a find is claimed as treasure trove?", Treasure Trove [Scotland], Crown Office and Procurator Fiscal Service, retrieved 13 April 2008 .
  82. ^ "Rewards to finders of treasure trove", Treasure Trove [Scotland], Crown Office and Procurator Fiscal Service, archived from the original on 24 May 2007, retrieved 13 April 2008 .
  83. ^ In Favorite v. Miller 407 A. 2d 974 (Connecticut, 1978), the court stated that the "strict definition" that limited treasure trove to gold and silver objects was "well-established" in US law.
  84. ^ Terry v. Lock 37 S.W. 3d 202 at p. 206 (Arkansas, 2001).
  85. ^ Favorite v. Miller, at p. 978 n. 2 (the court held it was unnecessary to decide the issue definitively).
  86. ^ Hill v. Schrunk 292 P. 2d 141 at p. 143 (Oregon, 1956).
  87. ^ In Terry v. Lock, 11 years was held to be too little time, whereas in Benjamin v. Lindner Aviation, Inc. 534 N.W. 2d 400 at p. 407 (Iowa, 1995) and Ritz v. Selma United Methodist Church 467 N.W. 2d 266 at p. 269 (Iowa, 1991) the view was taken that periods of 35 and 59 years respectively might be sufficient.
  88. ^ John M. Kleeberg, Treasure Trove Law in the United States (PDF), Numismatik.org – Texte und Materialien zur Numismatik [Texts and Materials about Numismatics], pp. 15–16, retrieved 13 April 2008 .
  89. ^ William Blackstone; Wayne Morrison (ed.) (2001), Blackstone's Commentaries on the Laws of England 2, London: Cavendish, p. 296, ISBN 978-1-85941-482-8  and James Kent (1873), Oliver Wendell Holmes, Jr., ed., Commentaries on American Law 2 (12th ed.), Boston, Mass.: Cambridge [printed], pp. 357–358, OCLC 794522 , cited in Kleeberg, p. 17.
  90. ^ Corliss v. Wenner 34 P. 3d 1100 (Idaho C.A., 2001).
  91. ^ Morgan v. Wiser 711 S.W. 2d 220 (Tennessee Court of Appeals, 1985).
  92. ^ In re Escheat of $92,800 (Philadelphia County Court of Common Pleas, 1948): see "Note, Treasure Trove – History and Development", Temple Law Quarterly 22, 1948–1949: 326 at pp. 339–341 .
  93. ^ In re Rogers 62 A. 2d 900 at p. 903 (Philadelphia, 1949).
  94. ^ Kleeberg, p. 18.
  95. ^ See, for example, Alaska Statutes §12.36.045; California Civil Code §2050; New York Personal Property Law §254 (Consolidated, 1988); Wisconsin Statutes and Annotations §§170.07–11.
  96. ^ New Jersey Statutes Annotated §46:30C-4.
  97. ^ Indiana Code §32-34-8-9.
  98. ^ Vermont Statutes Annotated, title 27, §1105.
  99. ^ Maine Revised Statutes Annotated, title 33, §1056.
  100. ^ Kleeberg, pp. 18–19.
  101. ^ Kleeberg, p. 14.
  102. ^ Barker v. Bates 23 Am. Dec. 678 (Massachusetts, 1832); Mitchell v. Oklahoma Cotton Growers' Ass'n 235 P. 597 at p. 599 (Oklahoma, 1925); Niederlehner v. Weatherley 54 N.E. 2d 312 at p. 315 (Ohio C.A., 1943); Bishop v. Ellsworth 234 N.E. 2d 49 (Illinois C.A., 1968); Favorite v. Miller; Morgan v. Wiser, pp. 222–223.
  103. ^ Favorite, p. 977.
  104. ^ Kleeberg. p. 19.
  105. ^ See, for example, Ray v. Flower Hospital 439 N.E. 2d 942 (Ohio C.A., 1981).
  106. ^ Foster v. Fiduciary Safe Deposit Co. 145 S.W. 139 (Missouri Court of Appeals, 1912); Dennis v. Nw. National Bank 81 N.W. 2d 254 (Minnesota, 1957).
  107. ^ McDonald v. Railway Express Agency, Inc. 81 S.E. 2d 525 (Georgia Court of Appeals, 1954).
  108. ^ Jackson v. Steinburg 200 P. 2d 376 (Oregon, 1948); Flax v. Monticello Realty Co. 39 S.E. 2d 308 (Virginia, 1946).
  109. ^ Kleeberg, pp. 20–22.
  110. ^ Arizona Revised Statutes §12-941; Florida Statutes §705.104; New York Personal Property Law §256 (Consolidated, 1988); Washington Revised Code §63.21.070; Wisconsin Statutes and Annotations §170.105; In re Funds in the Possession of Conemaugh Township Supervisors 724 A. 2d 990 (Philadelphia Commw. Ct., 1999); Pennsylvania v. $7,000.00 in U.S. Currency 742 A. 2d 711 (Philadelphia Commw. Ct., 1999).
  111. ^ Farrare v. City of Pasco 843 P. 2d 1082 (Washington Court of Appeals, 1992) (baggage examiner in airport).
  112. ^ Morrison v. US 492 F. 2d 1219 (Ct. Cl., 1974).
  113. ^ Kleeberg, pp. 21–22.
  114. ^ 16 United States Code §§470aa–mm (2000).
  115. ^ Kleeberg, John M., The Law and Practice Regarding Coin Finds: Part One: Treasure Trove Law in the United States (2006), p. 22
  116. ^ Kleeberg, John M., p. 22
  117. ^ Kleeberg, John M., pp. 24–25
  118. ^ 25 United States Code §§3001–3013 at §3002.
  119. ^ Kleeberg, pp. 22–23.

References[edit]

General[edit]

Cases[edit]

  • Attorney-General v. Moore [1893] 1 Ch. 676
  • Attorney-General v. Trustees of the British Museum [1903] 2 Ch. 598
  • Attorney-General of the Duchy of Lancaster v. G.E. Overton (Farms) Ltd. [1982] Ch. 277, C.A.
  • Lord Advocate v. University of Aberdeen 1963. S.C. 533
  • R. v. Thomas & Willett (1863) Le. & Ca. 313, 12 W.R. 108
Attribution

Further reading[edit]

Articles[edit]

United Kingdom[edit]

  • Bland, Roger (1996), "Treasure Trove and the Case for Reform", Art, Antiquity and Law (Leicester: Institute of Art and Law): 11, ISSN 1362-2331 .
  • Fincham, Derek (2008), "A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin", International Journal of Cultural Property 15 (3): 347–370, doi:10.1017/S094073910808020X .
  • Hanworth, Rosamund (1995), "Treasure Trove: New Approaches to Antiquities Legislation", in Tubb, Kathryn Walker, ed., Antiquities: Trade or Betrayed – Legal, Ethical and Conservation Issues, London: Archetype in conjunction with United Kingdom Institute for Conservation of Historic and Artistic Works (UKIC) Archaeology Section, pp. 173–175, ISBN 978-1-873132-70-8 .
  • Miller, David L. Carey; Sheridan, Alison (1996), "Treasure Trove in Scotland", Art, Antiquity and Law: 393 .
  • Palmer, Norman (1981), "Treasure Trove and the Protection of Antiquities", Modern Law Review 44: 178 .
  • Palmer, Norman E. (1993), "Treasure Trove and Title to Discovered Antiquities", International Journal of Cultural Property 2 (2): 275–318, doi:10.1017/S0940739193000335 .
  • Ward, Allan (1992), "Treasure Trove and the Law of Theft", International Journal of Cultural Property 1 (1): 195–198, doi:10.1017/S094073919200016X .

United States[edit]

  • Bradley, Lawrence D., Jr. (September 2000), "U.S. Treasure Trove Law", GPSolo 17 (6) .
  • Finders Keepers, Losers Weepers, New York State Museum, retrieved 15 April 2008 .
  • Gerstenblith, Patty (1995), "Identity and Cultural Property: The Protection of Cultural Property in the United States", B.U. L. Rev. 75: 559 at 596–597 .
  • Izuel, Leeanna (1991), "Note, Property Owners' Constructive Possession of Treasure Trove: Rethinking the Finders Keepers Rule", UCLA Law Review 78: 1659 at 1692 .
  • "Keep or Weep?", Time, 13 March 1964 .
  • Krys, Roman (1982), "Treasure Trove under Anglo-American Law", Anglo-American Law Review 11: 214 .
  • "Annotation, Modern Status of Rules as to Ownership of Treasure Trove as between Finder and Owner of Property on which Found", A.L.R. 61, 1988: 1180 .

Books[edit]

United Kingdom[edit]

External links[edit]