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Art & Cultural Heritage Law Newsletter american bar association section of international law winter 2012, vol. iv, issue no. 1 Art & Cultural Heritage Law Newsletter A Publication of the Art & Cultural Heritage Law Committee the treasure act and Portable antiquities scheme in england and wales ROger BlaNd, HEad Of PortaBlE AntiquiTies aNd TreaSure, BRiTish MuseuM his article describes the solution Background: Treasure Trove adopted in England and Wales to Until 1996 England and Wales very the universal problem of how to unusually had no legislation governing Tdeal with objects of archaeological, portable antiquities. The old feudal right historical or cultural importance found by to Treasure Trove (under which the king CONTENTS members of the public. All countries have claimed all finds of gold or silver that had legal frameworks and other systems in- been deliberately buried in the ground) the treasure act and Portable tended to protect such objects found by had been adapted as an antiquities law in antiquities scheme in england members of the public in their territory ei- 1886 when the Government started paying and wales ther by chance or as a result of deliberate finders rewards for finds of Treasure Trove PaGe 1 searching. While these approaches vary that museums wished to acquire, but widely, in most countries there is a legal re- this was just an administrative act and common law, statutory law and quirement to report all objects of archaeo- no law setting out a sensible definition of the Disposition of archaeological logical importance and normally the state Treasure Trove was ever passed. Instead resources in the united states claims ownership of them. Further, there the definition was based on case law going are mechanisms for paying rewards to the back to the 17th century and beyond, and PaGe 7 finders (although these usually fall short of only finds made of gold and silver that the full market value) and there is usually had been deliberately buried qualified as legislation & Persuasion – treasure protection for archaeological sites and Treasure Trove. In practice, most Treasure trove in scotland controls over the use of metal detectors. Trove cases were coin hoards, but not all PaGe 16 England and Wales have adopted a differ- hoards were covered because small groups ent approach to this problem in the that could have been lost did not qualify. Treasure Act and Portable Antiquities Likewise, hoards of bronze or base metal Scheme. Unfortunately, these initiatives coins also did not qualify. have become something of a ‘football’ in Archaeologists pressed for reform the debate in the United States concerning throughout the 20th century but, fatally, cultural property. Contrary to the por- could never agree on what form that reform trayal of some archaeologists, these initia- should take. The availability of cheap tives are not a complete surrender to un- metal detectors in the 1970s suddenly controlled treasure hunting. At the same lent a new urgency to the need to reform time, however, the initiatives do not pro- the law, as the number of objects being vide an all-inclusive solution to the prob- found suddenly rocketed, but, with a few lems of cultural heritage protection that exceptions, museums and archaeologists would merit adoption of the initiatives failed to respond adequately. A part of the worldwide, as some proponents of the col- lecting lobby suggest. Continued on page 3 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW 1 american bar association section of international law winter 2012, vol. iv, issue no. 1 the art & cultural Heritage law committee is a committee of the american bar association section of international law. CO-CHAIRS David J. bright Patty Gerstenblith ViCE CHAIRS Kimberly alderman Jacqueline d. farinella Peter Karl tompa NEWSlETTER EDITORS David J. bright sharon m. erwin Jacqueline d. farinella NEWSlETTER CONTRiBuTORS roger bland, Head of Portable antiquities On behalf of the Art & Cultural Heritage Law Committee, and treasure, british museum stuart campbell, treasure trove unit, welcome to the Committee’s Winter 2012 Newsletter. In this issue, we are pleased national museums scotland to present three perspectives from the panel discussion “The Future of Recording Patty Gerstenblith, Distinguished research the Past in England, Wales, Scotland, Ireland and the United States”, as given at Professor, DePaul university college of law; the American Bar Association Section on International Law’s Fall 2011 Meeting co-chair, art and cultural Heritage law held this October in Dublin, Ireland. This panel discussion, chaired by the committee, section on international law, Committee’s own Patty Gerstenblith and Peter K. Tompa, provided a view of the american bar association legal framework in each of England, Wales, Scotland, Ireland and the United States dESIGNER governing the treatment of archaeological resources found within those www.jameefarinella.com jurisdictions. The distinguished panelists whose work is presented in this issue – aRTiSTS Patty Gerstenblith discussing the United States, Stuart Campbell discussing all images by sandra louise Dyas Scotland and Roger Bland discussing England and Wales – provide an overview www.sandydyas.com of the laws governing archeological finds in these countries. These three articles trace the historical development of the relevant legal framework, and, through this to get involved with the committee, please email: [email protected], comparison, highlight the advantages and shortcomings of each countries’ [email protected] unique approach. or [email protected] We hope you enjoy this exciting discussion. Subscription & Submissions email: Jacqueline farinella: [email protected] or David bright: [email protected] submissions are welcome and will be published at the discretion of the editors. artists are also encouraged to submit their work, which will be duly credited. views contained in the newsletter are those of the authors only and do not represent the All graphics, images, photographs, and text appearing in this newsletter may be protected official position of thec ommittee or by copyright. Commercial use of copyrighted material is prohibited without express written the american bar association. permission of the copyright owner. Art & Cultural Heritage Law Committee 2 american bar association section of international law winter 2012, vol. iv, issue no. 1 archaeological establishment responded Under the Treasure Act, the following by trying to introduce controls on metal finds are “Treasure”, provided they were …the uK Parliament detecting – the STOP (‘Stop Taking our found after 24 September 1997: finally passed the Treasure Past’) campaign – but this failed to gain (1) objects, other than coins, at least political support and simply led to a 300 years old with a minimum precious act in 1996 and this climate of distrust between archaeologists metal content of 10%; and detector users. In 1979 legislation (2) all groups of coins from the same provided a significant, was introduced banning metal detecting find at least 300 years old (if the coins have but incremental change. on Scheduled Monuments (of which a precious metal content of less than 10% there are some 24,000) but, this apart, it then the hoard must consist of at least 10 is completely legal to use a metal detector coins); and with the permission of the owner of the (3) objects found in association with land in England and Wales. This is in Treasure. contrast to most European countries Objects belonging to their original where a licence is needed to search for owner or his heirs are excluded, as are archaeological objects. In a few parts of unworked natural objects (such as fossils) England far-seeing archaeologists, notably and wreck. in the East Anglian counties of Norfolk The Act also contains a provision that and Suffolk, pioneered a system of liaison allows for regular reviews. After such with detector users. reviews, the definition may be extended. The first review in 2003 led to adding Treasure act hoards of prehistoric base-metal objects to Thanks to the efforts of Lord Perth the categories of Treasure. A second review and others, the UK Parliament finally should have taken place in 2008, but is passed the Treasure Act in 1996 and this now overdue. provided a significant, but incremental change. The Act came into effect in Rewards and valuations 1997 and applies only to objects found Any object that a museum wishes to since September 1997. It has effect in acquire is valued by a committee of England, Wales and Northern Ireland independent experts, the Treasure but not Scotland which has a completely Valuation Committee, and their remit is separate legal framework governing to determine the full market value of the finds: in Scotland there is, in effect, a legal requirement to report all finds. Continued on page 4 AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW 3 american bar association section of international law winter 2012, vol. iv, issue no. 1 Trove before 1997 were coin hoards, one might have thought that the Act would only have a limited impact on the number of hoards being reported, but in fact the average number of coin hoards since 1997 is 67 a year (half of these are Roman hoards), more than twice the 26 a year logged in the ten years before the change in the law. Since that figure included hoards of bronze coins and small groups of coins that were not Treasure Trove, this increase strongly suggests a greater willingness by metal detector users to report their finds. Portable antiquities Scheme Of course, Treasure finds are only part of the picture: the great majority of archaeological objects found do not qualify as Treasure, but the information they provide can be just as important for our understanding of the past. The Portable Antiquities Scheme Fig. 1. Finds reported as Treasure Trove (1988-97) and Treasure (since 1997) (PAS) was established in parallel with the Treasure Act to encourage amateur finders to report – voluntarily – all the coins and other archaeological objects that they find.
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