Caithness Field Club

Caithness Field Club Bulletin
2004

Excavated Finds and Treasure Trove in Scotland
by Alan Saville

Alan Saville is Head of the Treasure Trove Secretariat , which is located at the National Museums of Scotland.

Continuing publicity surrounding the Treasure Act (1996) and the voluntary scheme for recording portable antiquities in England and Wales, most recently as a result of the Buried Treasure exhibition at the British Museum (and touring to other venues), has perhaps caused confusion for some people over the position in Scotland, which has an entirely different and independent system for dealing with archaeological finds. The Treasure Act does not apply north of the border, where by contrast the concept of ‘treasure trove’ is still enshrined in common law. Under the regalia minora common law rights of the Crown in Scotland, it is the prerogative of the Crown to receive anything in the land which is not otherwise owned.

There is a narrow definition of treasure trove per se, involving precious items which have lain concealed, but this is in practice subsumed within the wider concept of bona vacantia (or ownerless goods). The core maxim within Scots common law is quod nullius est, fit domini regis (that which belongs to nobody becomes our Lord the King’s [or Queen’s]), which means that all objects whose original owner or rightful heir cannot be identified are the property of the Crown. This applies to all found items from anywhere on land in Scotland, from inland lochs and other waters, and from the coast above mean low water (other legislation governs the way in which maritime finds are treated).

The system whereby archaeological objects are dealt with under bona vacantia is known for convenience in Scotland as Treasure Trove, though it is important to realize the differences between this system and what happened under the previous common law of treasure trove in England, Wales, and Northern Ireland. Key factors in Scottish Treasure Trove are that all antiquities are eligible, irrespective of raw material. Thus objects of metal, stone, bone, glass, horn, wood, flint, antler, etc., may equally be claimed. There are no restrictions to objects which have been deliberately concealed with intention of recovery, nor do landowners have any locus in the process, since they cannot, by definition, own what are bona vacantia, even if found on their own land.

While the Treasure Trove system was in origin a source of revenue for the Crown, it has been used, since at least the beginning of the 19th century, to enable the preservation of antiquities for the public good. The first definite record of this is in 1808, when a hoard of bronze coins was gifted to the Edinburgh Museum of the Society of Antiquaries of Scotland – the predecessor of the National Museums – by the Barons of Exchequer. The Treasure Trove system has evolved considerably since then and its operation is subject to continual review and improvement. The current purpose can be summarized as being to protect portable antiquities and to ensure their preservation in perpetuity for the public benefit, through their ownership by museums.

Treasure Trove is under the aegis of the Scottish Executive, with operational responsibility resting with the Crown Office. At the Crown Office the Crown Agent, as the Queen’s & Lord Treasurer’s Remembrancer (Q&LTR for short), is responsible for protecting the Crown’s interest in bona vacantia, by claiming and allocating relevant finds. This formal requirement is mediated in terms of the current purpose of Treasure Trove by the Treasure Trove Advisory Panel, a voluntary expert group, which meets three or four times a year to advise the Q&LTR on what should be claimed and how what is claimed should be valued and allocated. The Panel is assisted in its work by a Secretariat, based in the National Museums of Scotland in Edinburgh, which deals with the day-to-day administration of the Treasure Trove casework, prepares the Panel’s business, and implements the Panel’s recommendations. The Secretariat works closely with the Crown Office, to ensure that the paperwork necessary for the legal processes involved is properly prepared.

All archaeological finds in Scotland must be reported to the Crown, to allow a decision to be taken on whether they should be claimed or disclaimed. Legal ownership of found items can not be obtained unless they have first been disclaimed by the Crown. Appropriating such items, including by selling them, is likely to constitute a criminal offence under statutory or common law. (A finder has no legal entitlement to dispose of an item which has not been disclaimed, even by donating it to a museum!) The responsibility to notify the Crown of any discoveries rests with the finders. Notification is most frequently achieved via a local museum or local archaeological officer, or by direct contact with the Secretariat. Following notification the Secretariat makes the initial assessment of the object and its suitability for claiming (sometimes involving considerable research). Formal claiming of an object or collection of finds is made by the Q&LTR, after which each item is drawn to the attention of the Scottish museum community by listing in the monthly bulletin (Tak tent) published by the Scottish Museums Council. Museums are requested to indicate their interest in acquiring these objects, and are informed of any provisional valuation placed upon them. The Panel meets to consider batches of cases; it inspects the objects, considers the valuations and allocations, and then makes its recommendations to the Q&LTR about the value, when relevant, of each item and where the objects should be housed.

If an object is claimed, then a discretionary, ex gratia reward may be payable to the finder, reflecting the theoretical market value where appropriate. Any such reward is a charge on the recipient museum, which thus has to purchase the object for its collection. No reward is payable to archaeologists or societies for finds from organized fieldwork of any kind, since the Crown takes the view that a payment would be inappropriate in such circumstances.

Objects which are not claimed as Treasure Trove are formally disclaimed by the issue of a certificate to the finder, which demonstrates that the Crown has determined not to exercise its right of ownership. Disclaiming applies to the majority of reported coins, which – after their details have been recorded for the Scottish Coin Finds Record – are returned to their finders.

The range of items claimed as treasure trove is extremely wide, from spectacular and unusual items to more prosaic and common items which are no less important for the material culture history of Scotland. The policy of claiming is underpinned by an appreciation of the importance of preserving humble, everyday artefacts surviving from the past as well as the rare and splendid. There is no formal limit to how modern a Treasure Trove item can be, but in practice objects less than 200 years old are rarely claimed.

An important point, and one of which not every professional archaeologist excavating in Scotland seems aware, is that all excavated or field-walked finds must be declared for Treasure Trove purposes. Allocation of excavated finds to a museum takes place only after the claiming process is complete and is never within the gift of the excavator (unless an assemblage is disclaimed by the Crown). The Secretariat supplies excavators and units with a standard form for the declaration of excavated finds. It is not normally necessary for the finds themselves to come to Edinburgh; they can remain with the excavator until post-excavation is finished, then be sent directly from the excavator to the museum to which the finds have been allocated by the Crown. Information about the allocation of excavated finds is published annually, along with listings of all other Treasure Trove cases, in Discovery & Excavation Scotland, produced by the Council for Scottish Archaeology.

There has recently been some concern about excavators from outwith Scotland removing finds from the country before reporting them. It is important that this should not happen in order to be able to keep track of Scottish antiquities and to avoid past occurrences of them ‘disappearing’ or ending up quite illegally in English or other foreign museum collections.

In the case of finds from fieldwork sponsored by Historic Scotland, the Q&LTR delegates responsibility for allocation to the Chief Inspector of Ancient Monuments, who has a separate advisory body known as the Finds Disposal Panel. The latter works closely with the Treasure Trove Advisory Panel Secretariat to ensure that all excavated finds from Scotland are correctly processed and allocated.

Treasure Trove is operated in Scotland in favour of the community at large by seeking to ensure that as many finds as possible of archaeological, historical and/or cultural importance are preserved in perpetuity in public ownership. Recent developments in the expansion of museum provision throughout Scotland and the adoption by those museums of the standards required for registration by the Scottish Museums Council (on behalf of the Museums, Libraries and Archives Commission), has meant that the majority of finds claimed by the Crown are now allocated to museums locally to where they were found. This ensures local access to these finds and fosters a valuable relationship between finders and their local museum.

At the time of writing (January 2004), an important public consultation has been taking place on the future arrangements for Treasure Trove in Scotland, following a wide-ranging review undertaken on behalf of the Scottish Executive in 2003. This will no doubt lead to some changes in the ways in which Treasure Trove is organized and delivered. It remains a key aspiration to ensure that the public at large becomes more aware of Treasure Trove and realizes the advantages of a system which ensures protection of the material culture heritage of Scotland for future generations.

For further information on Scottish Treasure Trove and access to reporting forms please see the website: www.treasuretrove.org.uk