When it comes to buried treasure, finders are not keepers

In this country, ownerless property (bona vacantia in Scots common law) can be claimed by the Crown, and it is the KLTR Department that deals with the property of dissolved companies, heirless estates and with treasure trove. The last of these is the subject we are concerned with here, the Crown’s rights to ownerless objects found in the ground. This is where ownerless property law meets archaeology. In Scotland, as in other parts of the UK, and in countries further afield, finders are not keepers.

Again, the terminology of “treasure trove” masks the full implications of the role, since in Scotland “treasure” defines more than might be assumed at first reading. In medieval Scotland, the laws of treasure trove were concerned with ensuring that chance discoveries of gold and silver coin were paid into the Royal exchequer and nowhere else. But in modern times a more enlightened view has prevailed, originally encouraged by gentleman antiquarians, the enthusiastic and conscientious amateur predecessors of today’s professional archaeologists and museum curators.

For over 200 years, the KLTR (or QLTR) has chosen, not always, but often, to exercise Crown rights over ownerless property to preserve Scotland’s heritage for public benefit, with a view of “treasure” that extends to objects of cultural value, whatever their monetary value and whatever they are made of. Hugo Anderson-Whymark at National Museums Scotland advises me that the first Crown claim of this kind was made as long ago as 1808, to preserve a hoard of 16th century coins found in Peeblesshire.

It is today’s KLTR who oversees the Scottish treasure trove system as it presently functions. The system is an admixture of law, procedure, organisations and interests which operates at a scale and with a degree of complexity that might have confounded the antiquarians of 1808, but which works together to that same end, the recording and preservation of the material evidence that builds our appreciation of Scotland’s past.

Historically, its operation has not always been smooth. There have been tensions and contentions, and occasional public controversies, such as a high-profile court ruling in 1963 which determined Crown rights over the St Ninian’s Isle Treasure, a hoard of early medieval Pictish silver excavated in Shetland, now in the National Museum of Scotland. But the net result has been that thousands of unique and fascinating objects have been saved from obscurity, dispersal, sale to the highest bidder, or even from the goldsmith’s melting pot, so that they can be studied for the information they reveal and placed in the care of our local, regional and national museums.

The basic tenets of the system today are even, almost, simple. Anyone who finds archaeological objects, whether by chance, by searching with a metal-detector or other techniques, or by organising a formal archaeological excavation, has a duty to report all finds to the Treasure Trove Unit, based at the National Museum of Scotland.

The finds are recorded and assessed and those which meet criteria for cultural significance are claimed for the Crown. If an object is not claimed, it is returned to the finder. If an object is claimed, it is advertised to museums across Scotland who can then apply to acquire it for their collections. An independent panel, the Scottish Archaeological Finds Allocation Panel, decides on museum allocations for each find, and (other than for organised excavations) on the payment of an ex gratia “by favour” award to the finder.

Although these payments are linked to the market value of the find, they are not a price, but rather a recognition that finders have done the right thing by reporting and handing over finds. In order to secure a find for its collections, a museum must raise and pay in to the KLTR the equivalent of the sum paid out to the finder as an award.

The treasure trove system that we have today has evolved and adapted to long-term change. Unlike in 1808, Scotland has a wealth of museums of different kinds which collect, research and display archaeology. Since that first Crown claim in 1808 the professional practice of archaeology has become established in our universities, museums and public heritage bodies, all of which contribute to fieldwork, recording, research and protection of heritage across the country.

Legislation has ensured that development of housing, roads and other infrastructure is preceded by archaeological investigation conducted by a small industry of commercial archaeological units. Community archaeology has kept pace, combining the enthusiasm and local knowledge of volunteers with professional standards. And, since the 1970s, rapidly so in the present century, the hobby of metal-detecting has gained ever greater popularity, delivering up some of the most spectacular and high-profile finds, such as the early-medieval Galloway Hoard discovered in Kirkcudbrightshire in 2014, as well as a steady supply of less starry, but nevertheless remarkable and revealing acquisitions for museums throughout the land.

With all this activity, it is no secret that the system has been under pressure in recent years. Resources have been limited, and although investments in staff and technology are making a difference, it has been perennially challenging to keep pace with the growing number of finds being made. Thousands of objects are reported each year. In consequence, finders lament long-turnaround times as finds go through the system.

At the other end of the process, the museums who must supply the expertise, funds and space to build and refine their archaeology collections are themselves experiencing the opposite of a golden age of resourcing. Meanwhile, the legal and historical niceties of the Scottish system are wont occasionally to present questions to which there may be no easy or immediate answers that can satisfy the craving for clarity.

Throughout its history, one of the tools whereby the treasure trove system has sought to keep pace with change, has been through periodic review. The first wide-ranging study was commissioned by the Society of Antiquaries of Scotland in 1858, during the reign of Queen Victoria, with the agreement of the QLTR of the day, and was undertaken by leading archaeologist Alexander Henry Rhind.

The most recent full-scale review was conducted in 2003 by the outgoing QLTR, Andrew Normand CB. Most notable among its wide-ranging recommendations, it established the formal Code of Practice which now governs the actions of all the parties involved in the process and instituted the Scottish Archaeological Finds Allocation Panel in its present form, its members appointed by Scottish Ministers.

Twenty years on, today’s KLTR, John Logue, has commissioned a further review, tasked with ensuring that the Scottish system can be reformed to protect heritage and maximise public benefit through uncertain times ahead. We are now engaging with organisations and individuals involved with and interested in the treasure trove system, including finders, looking at comparative systems from which Scotland might continue to learn, and in February we launched a public consultation to gather views from as many informed perspectives as possible.

The aim of the review is to build on all the public good that has already been achieved. Despite the strains, there remains a strong supply of goodwill around the objectives of treasure trove. Our purpose is to think ahead and identify cost-effective strategies to further develop a system that, for all its historical quirks, seeks to be fair, collaborative and transparent. The preservation and sharing of Scotland’s archaeological heritage requires it.

​Treasure Trove in Scotland: past, present and future is an online event on Thursday at 6pm exploring the history of treasure trove law and its impact on Scottish heritage. The treasure trove public consultation is open until 13 May. Visit www.kltr.gov.uk for details of both