Tuesday, 12 August 2008

"The Most Enlightened Antiquities Laws in the World"? The UK "Treasure Trove Law" myth

On collectors’ forums, one constantly finds reference to the British system of dealing with archaeological discoveries by members of the public which is held up as a paragon of government right-thinking on heritage which all other governments should emulate. Indeed one dealer has publicly stated

"the UK has the most enlightened antiquities laws in the world and that if other nations were even half as civilized and as wise, there would be no significant looting problems [...] thus, I do not feel any obligation to help enforce what I perceive as unwise and unenforceable restrictive antiquities export laws of source states, always providing that importation of artifacts into the USA is licit under US law [...]."
So in discussions in collectors’ internet forums, one invariably finds comments referring to these civilized and wise laws. Some random examples are given here to show the sort of thing I mean.

A solution to existing problems is in place and works. That solution is the British Treasure Trove Law, designed to protect the intellectual value of finds while allowing for human nature.” (Richard Pearlman)

if more people in the archaeological community responded […] we might actually reach some sort of shared goal like the PAS/Treasure Trove.” (Jim McGarigle)

we would certainly support […] laws crafted by sovereign governments, modeled on the British Portable Antiquity Scheme / Treasure Trove law.” (Jim McGarigle)

If laws like that existed as they do now with Britain's Portable Antiquity Scheme/Treasure Trove law, there would be little or no black market because the incentives would be removed” (Jim McGarigle).

In the United Kingdom, archeologists are working to undo Britain's very fair and very free market approach known as the "Treasure Trove" law”. (Jim McGarigle) [really Mr McGarigle? It was created with their participation]

Cyprus should investigate successful programs like the British Treasure Trove and Portable Antiquities Scheme to ensure that archaeological artifacts found by members of the general public…” (Dave Welsh)

The kind of treasure trove law which works and benefits all, such as they have in the U.K., could be a model for the U.S. both in the realm of antiquities ...” (Dave Welsh)

I completely support an enlightened, even-handed approach to the issue such as the UK's Treasure Trove laws”. (Phil Davis)

England's treasure trove law is the best answer to balancing the needs of archeologists and collectors. Why? Because it is fair!” (John Vander Weit)

I live in the United States. I could support a legal framework that punished violators of Britain's reasonable 'Treasure Trove' laws. I cannot respect a legal framework that required me to follow the laws of, for example, Afganistan." (Ed Snible)

There is a pattern here, most of the speakers are US coin collectors or dealers. Secondly, they all refer to a law they call “treasure Trove”, though ascribe it variously to Britain, the United Kingdom or England (forgetting Wales), interestingly none of them mention Scotland (see below). Thirdly they all seem agreed that for some reason this “Treasure Trove” law is very “fair” and it should be adopted as a pattern by all other countries in forming new antiquity protection laws, when collectors and dealers would be willing to respect them.

Here however there seems to be some confusion. Treasure Trove is the name of a law which applied to the British Isles as a whole since well before American Independence. In England and Wales it was replaced (1996) by the Treasure Act [which was revised six years later (The Treasure (Designation) Order 2002) to include all prehistoric base metal objects from the same find]. The Treasure Act applies to England and Wales and Northern Ireland. The establishment of the Portable Antiquities Scheme of England and Wales is nothing to do with this legislation, though it currently administers part of the associated process.
Apart from the Treasure Act, there are restrictions in England and Wales concerning where one can legally search for and dig up antiquities, but basically in many places thousands of archaeological sites are open to exploitation in this manner as long as the searcher has the permission of the landowner and there is no legal requirement to obtain any kind of additional permit, or to report what was found.

In Northern Ireland however, the 1996 Treasure Act(as modified in 2002) is in force, but alongside the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995 which makes it a statutory duty for finders within 14 days to report all archaeological objects, whatever their material composition, to the Department of the Environment, the Ulster Museum or the police. The Order prohibits any archaeological excavation (and any intrusive search for archaeological objects) without a licence from the Department of the Environment. The only archaeological finds that in Northern Ireland can be legally sold and acquired are those with documentation demonstrating they have been reported and disclaimed.

Scotland is the only part of the United Kingdom to actually have a law called Treasure Trove which was not altered by the 1996 Treasure Act. I hardly think though that this is the law to which the above authors are referring, since Scottish Treasure Trove law determines that all newly discovered archaeological objects belong to the Crown under the legal principle of bona vacantia. No-one else, finder or landowner, has the rights to ownerless ancient objects found in the ground in Scotland, whether they are from an archaeological site or not. This means that all finds, whether they are precious metal or not and regardless of whether they were hidden or lost, must be reported to the authorities. Some finds will be claimed under Treasure Trove and will therefore be allocated to public collections (museums) in Scotland to be enjoyed by all, and when this happens the finder receives a discretionary reward. If finds are disclaimed they are returned to the finder, only disclaimed finds can be legally sold and acquired It is not possible to legally collect archaeological finds in Scotland without first reporting them to the Crown.

(There are of course other laws affecting finds and where one can legally dig them up and what one can legally do with them in different parts of the UK, but it is not my purpose here to outline all of them).

Basically therefore when the chorus of US collectors refer to “British Treasure Trove law”, it would seem that they are in fact referring to the situation in just part of the British Isles, to that covered by the post-1996 English and Welsh Treasure Act, which basically means that there is no statutory requirement to report any archaeological finds dug up, whether from an archaeological site or not, unless it falls into a narrowly-defined range of objects defined primarily on the grounds of whether they are of gold or silver. The vast majority of collectables on the market today do not fall under this legal definition, which is why it may be suspected that US collectors anxious to get their hands on a multitude of undocumented antiquities are so keen to have such a system installed in all source countries.

Collectors who say all foreign governments "should" introduce a system of financial compensation for people handing finds in to be added to national collections seem to be missing three things. First of course these items do not come on the market (though those not covered by the law do). Secondly many states who regard antirquities as state property actually already reward finders, and certainly to a degree greater than one would believe looking at pro-collecting propaganda. Thirdly fully awarding the finder the market value for digging up something that in fact in some cases would be better not sought out and dug out is counterproductive. It retrieves shiny objects, but does it lead to better retrieval of information about their context of deposition? In any case, how do these collectors suggest cash-strapped Third World states finance meeting the prices that would be offered for these items on the open market in the west instead of spending the money on education and hospitals? Three guesses..... Personally I wonder by what right these US collectors assume to set themselves up above the rights of sovereign states to determine what is their cultural heritage and how they wish it to be treated?

US portable antiquity collectors label the antiquities protection laws of many of the source countries as "restrictive laws". They do so however in terms which make it clear that both Scottish and Northern Irish law falls within the scope of such a definition. Such a definition is obviously not precise enough to differentiate good laws ("the most enlightened antiquities laws in the world") from what these collectors self-determine as "unwise and unenforceable restrictive antiquities export laws of source states" which they do not feel obliged to respect. Do they imagine the UK has no export laws concerning the archaeological heritage?

Picture: Medieval brooch from Środa Śląska hoard (Silesia, Poland)


Paul Barford said...

Phil Davis (volodya2_99) wrote on a coin forum:

“You included me on your blog in a long list of Americans confused about the proper terminology for the UK system. My sin was to refer to "Treasure Trove" laws, a term not in use since 1996. Sorry if I'm not up on the twists and turns of the British legal system! You know perfectly well what is meant. And sorry, also, for not posting this response directly to your blog. I tried; the registration system required to comment there is so cumbersome I threw up my hands and gave up.?

Hi Phil, the list was a random selection and by no means exhaustive, it could have been much longer, this problem crops up all the time as collectors simply repeat to each other the same old things without looking into them more deeply.

Well, the first comment is that certain among your number incessantly accuse people like me of “knowing nothing about US law” (though these dealers have never pointed out precisely where this knowledge is allegedly lacking) though when the same individuals talk about the laws of this almost-mythical land of “if-only” it is clear that they actually have only a very foggy idea of the legislation they are talking about (as we see in ‘discussions’ on Unidroit-L). I find this rather telling.

I think if we are talking about a concept it is important to be able to define what we are discussing. Words used in debate in particular should mean what they say. Its not helpful to use woolly language and assume the listener “knows perfectly well what is meant”.

The term Treasure Trove has a number of meanings, but for over a decade the term “UK Treasure Trove law” really should be understood as that part of the former Treasure Trove law which is still in force in the UK, and that is in Scotland. Now I would, in principle, be in favour of the imposition of the Scottish type law all over the UK if people abided by it (perhaps a PAS-like system could be instituted to encourage this as has been suggested in Scotland). I would be very gratified if I thought collectors were advocating that such a system was more generally applied. I have a feeling though that, despite the meaning of the words used, this is not at all what is being proposed and loose use of terminology has the potential of leading to serious misunderstandings.

Paul Barford said...

Some time after this was posted, Jim McGarigle wrote a 'reply' on his blog harnessing Witgenstein and Frege to explain why North American coin collectors are not wrong using the term “British Treasure Trove law” in the way they do.

>http://awcoingeek.blogspot.com/2008/08/open-reply-to-paul-barford-on.html <

The argument is weakened by a lack of indication how a reader who is capable of using these terms correctly can determine whether in a given case a “mental shortcut” is being employed (and for what?) or whether the interlocutor is merely ignorant of the facts.

Its not actually “splitting hairs” to use the correct terminology for concepts being discussed in order to avoid serious misunderstanding. As pointed out, in discussing legislation concerning cultural property (as we are here), the term British Treasure Trove law has one of two specific meanings, neither of which it would seem is what is actually meant by these overseas collectors when using the term to describe the various systems in place in different regions of the UK.

In his blog, McGarigle then goes on to refer to the “regulations contained in the PAS” and no doubt we will learn what this is a “mental shortcut” for in due course.

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