THE TYPICAL APPROACH OF MOST NATIONS OF ORIGIN

Most nations of origin attempt to prevent archaeological site looting by vesting ownership of undiscovered cultural objects and restricting the export of antiquities. These are extremely important regulatory steps for securing the return of looted objects, and the punishment of those who violate these laws. However, these measures do not create a workable or effective cultural heritage policy.Footnote ⁶

Peru has declared all undiscovered antiquities state property.Footnote ⁷ All pre-Hispanic, colonial, and republican material is presumed to be cultural property but cannot be exported unless for purposes of scientific, artistic, or cultural purposes. Egypt has a similar declaration, which allowed for the successful prosecution of a British antiquities smuggler and his American buyer in the United Kingdom and United States, respectively.Footnote ⁸ Although these national ownership declarations allow for the prosecution of some buyers and sellers of illicit antiquities, it remains an open question whether these prosecutions are actually protecting archaeological sites in Egypt, Peru, and elsewhere.

Export restrictions are the other prominent regulatory approach. Italy has declared state ownership of undiscovered antiquities and also prohibited their export.Footnote ⁹ Even the most casual observer of cultural heritage policy knows that Italy has maintained a remarkably successful repatriation campaign in recent years, achieving the return of looted antiquities from the Metropolitan Museum of Art in New York, the Getty Villa in Malibu, the Museum of Fine Arts in Boston, Princeton University, and prominent collector Shelby White.Footnote ¹⁰ This public pressure campaign will surely be adopted by other nations of origin. However, even if North American collectors and museums stop purchasing unprovenanced antiquities, it seems likely that demand for these classical antiquities will still exist in other parts of the world or even domestically in these nations of origin.

The key measure of the success of these policies is whether they are actually protecting and preserving archaeological context. Take Guatemala for example: It has a rich wealth of cultural heritage; but the economic difficulties, civil unrest, and remoteness of many archaeological sites all make the task of protecting sites from looting difficult. The most prized Guatemalan objects include polychrome artifacts, jade carvings, and stelae fragments.Footnote ¹¹ Guatemalan archaeologist Juan Antonio Valdés describes the looting of archaeological sites as

Nationalizing these antiquities does not seem to create any appreciation of cultural heritage by itself. This ownership declaration may work well, if the local populations are aware of the penalties and are deterred by the threat of criminal sanctions. This does not appear to be taking place, however. In 1975 Guatemala created the Institute of Anthropology and History in the Department of pre-Hispanic and Colonial Monuments. It was directed to guard and protect important sites and works. Although 5000 archaeological sites are registered, Valdés estimates that only 45 are under permanent surveillance.

Even other developed nations have the same difficulties policing archaeological sites. In the United States the illegal excavation of sites is a major problem. One estimate indicates that more than half of the 6000 important sites on National Forest land in Arizona have been destroyed.Footnote ¹³ In Virginia, 95% of Native American graves in the southwest part of the state have been disturbed. The National Park Service, U.S. Forest Service, and the Bureau of Land Management collectively estimate that of the two million sites on federal land, one-third have been looted or vandalized.Footnote ¹⁴ In 1987 the evaluating and investigating arm of Congress, the Government Accountability Office (GAO) indicated that in the four corners area, which consisted of 100 million acres, there were only a total of 271 individuals employed to enforce the applicable laws.Footnote ¹⁵ In 2005, describing the duties of 13 rangers tasked with policing an area of more than 12 million acres in California, Bureau of Land Management ranger Lynell Schalk remarked, “We didn't exactly have them surrounded.”Footnote ¹⁶

Declaring ownership of antiquities and prohibiting their export are extremely useful components to the legal response to the looting of archaeological sites, which can and should be used to reform acquisition policies and punish those who buy looted objects. However, these two regulatory strategies are not focused at the real core of the problem: the looting of archaeological sites. Both are imperfect responses to damage that has already taken place. Even if national ownership declarations and export restrictions work in perfect harmony with the panoply of public and private international law, which affects them in market states, they would not necessarily prevent illegal excavation.Footnote ¹⁷ Rather, they rely on a kind of trickle-down approach that assumes that if looters cannot sell illegally excavated objects to foreign buyers, they will no longer disturb sites. Unfortunately, practice differs internationally, and the crossborder movement of antiquities often means objects are hidden or stored for many years before they are sold. This weakens both the efficacy and deterrent effect of this complicated body of law.

Some nations do compensate finders of antiquities. Italy offers a small reward, but not more than 25% of the value of the find, to the owner of the property where an object was found.Footnote ¹⁸ This may be a cash award or a portion of the objects recovered. If there is disagreement over the value of the fee, a three-person commission in which the minister of cultural property, the land owner, and the president of the tribunal may nominate a member of the panel and the landowner must pay the costs of the appeal. There seems to be an unfortunate paucity of heritage scholarship on the function and effectiveness of these kinds of rewards systems, as well as the efficacy of domestic bureaucratic structures responsible for cultural resource management. Although such issues exceed the scope of the present work, it may be worth devoting more attention to the question of how source and market nations can work cooperatively to better-protect heritage in situ.

We can contrast these typical approaches with that of England and Wales. The trend has gradually evolved from less protection to more protection as a result of compromise between landowners, detectorists, and archaeologists. Most nations of origin have enacted blanket national ownership laws to prevent the removal of objects to foreign nations but has been used primarily to secure their return. This regulation is not necessarily a bad thing. After all, a sovereign nation should have the right to determine which objects can and should be removed. However, this has produced a domestic regulatory framework, which because of its breadth is utterly unenforceable (even in wealthy nations, let alone developing ones). The threat of criminal penalties and public shaming of acquiring institutions certainly must at some level decrease looting, and these mechanisms are an important part of cultural heritage policy. However, these strategies seem unable to prevent looting entirely. The goal should be to maximize the preservation and recording of archaeological context.

THE TREASURE ACT

In England and Wales the legal framework protecting undiscovered cultural heritage differs substantially from the rest of the world. It has adopted a policy that seems to take as a given that protecting every archaeological site from looting or accidental discovery remains a practical impossibility. England and Wales have arrived at a cultural property policy that encourages individuals to report discoveries of recently unearthed antiquities and rewards them the full market price for objects encompassed under the Treasure Act. This policy rests on the assumption that devoting resources to preservation of a limited number of important sites produces better results. Rewarding finders is an important regulatory step. Ideally, all nations of origin would reward the chance finds of antiquities to ensure these objects are not destroyed or sold. However, such a policy must be carefully constructed to distinguish chance finds from professional looters, indiscriminate digging, or the intentional wholesale destruction of archaeological context.

At common law, only objects of gold or silver deliberately hidden with the intention of recovery qualified as treasure trove and thus became the property of the sovereign. Originally, the Crown's interest in treasure trove was the prospect of increasing revenue. The thirteenth-century medieval writer Henry of Bracton considered the failure to report treasure trove “a serious contempt against the king and his crown and dignity which partakes of the nature of the crime of theft.”Footnote ¹⁹ However, by the nineteenth century, the historical worth of objects became more important than their worth as valuable metals.Footnote ²⁰ As such, an incentive was needed to ensure uninformed finders did not melt down their discoveries for their precious metal content. In 1886 the government instituted a rewards scheme where finds claimed as treasure trove were offered to museums and finders were paid a reward. Of course, this was a period of extreme prosperity in much of the United Kingdom.

The system worked very well until the 1970s with the advent of metal detectors across the United Kingdom, particularly in England and Wales. These problems are made clear in Attorney-General for the Duchy of Lancaster v. G.E. Overton (Farms) Ltd. Footnote ²¹ The dispute arose when a metal detector unearthed almost 8000 coins dating from the third century a.d. in Lincolnshire. A coroner's inquest held the coins were treasure trove and the property of the Crown. However, tests conducted on the coins revealed that the silver content ranged from 0.2% to 6%. The Court held that treasure trove was limited to gold and silver objects only, base metals and alloys fell outside the scope of treasure trove. This definition excluded many valuable finds and meant that historically important and valuable objects that fell outside the scope of common law treasure trove were not subject to crown ownership. This result was of course open to much criticism, because the existing legal framework was not valuing the historical and archaeological value of finds.Footnote ²²

The pressure for reform ultimately produced the Treasure Act of 1996. The Act requires finders of certain objects to report any find to a designated coroner within 14 days. If the object is deemed treasure, the finder is entitled to a reward based on the market price of the object. The act covers England, Wales, and Northern Ireland. The Treasure Act replaced the old vague definition with a new objective formulation, supplemented by the Treasure (Designation) Order. The following objects are now considered treasure:

• • Objects other than coins that are at least 300 years old and have a minimum precious metal content of 10%

• • All groups of coins from the same find at least 300 years oldFootnote ²³

• • Objects found in association with other treasure objects

• • Groups of prehistoric base-metal objects from the same find

Finders are required to report treasure to the coroner within 14 days of the discovery, or within 14 days after realizing that the find may be treasure. Under section 8(3) of the Treasure Act, if individuals fail to report a find, they may be imprisoned for up to three months, fined, or both. However, metal detecting is prohibited in areas designated as Scheduled Ancient Monuments.

Because a metal detectorist is compensated for a legally acquired find, this has the consequence of incentivizing metal detecting. In essence, public funds are used to pay individuals to use their metal detectors and to secure these objects for local museums. Metal detecting on scheduled monuments is a criminal offense; but for an area not so designated, metal detectors can be freely used so long as the detectorists have the permission of the landowner. Some impressive finds have been made in this manner. A father and son metal detecting in a field near Harrogate discovered what may be the most important Viking hoard discovered in Great Britain in 150 years.Footnote ²⁴ Metal detecting is a controversial practice, which is often criticized by archaeologists and heritage advocates. Most other European nations have banned or restricted the practice. They point to the problem of night hawking, or the illegal removal of antiquities from archaeological sites at night, as an especially harmful practice.Footnote ²⁵ Remote sites, particularly the Iron Age hill forts in England, are often difficult to police; and law enforcement officers typically regard such crimes as low on their list of priorities. Although the Treasure Act rewards finders, there are criminal penalties to deal with night hawking and other harmful activities. The first formal protection given to important historical sites was the Ancient Monuments Protection act of 1882. It protected sites by transferring their ownership to a body acting in the name of the Crown. The first inspector of ancient monuments, General Pitt-Rivers, oversaw the acquisition of 43 sites including Avebury and Stonehenge.Footnote ²⁶ Subsequent legislation expanded and consolidated this scheme. The Ancient Monuments Consolidation and Amendment Act of 1913 allowed for unoccupied property to be “taken into guardianship.”

This effort ultimately culminated in the Ancient Monuments and Archaeological Areas Act of 1979 (AMAAA). It protects

Section 28 creates a criminal offense for destroying or damaging a protected monument “knowing that it is a protected monument” and “intending to destroy or damage the monument or being reckless as to whether the monument would be destroyed or damaged.”Footnote ²⁸ Using a metal detector on a scheduled ancient monument is a criminal offense as well.Footnote ²⁹

It also introduced the designation Areas of Archaeological Importance, which are sites of historic significance that receive heightened protection by forcing developers to permit archaeological access prior to building.Footnote ³⁰ The AMAAA places limits on development, and provides criminal penalties for the removal of antiquities from designated areas. This is similar to the protection erected by many developing source nations. Limits are placed on the exploitation and development of areas of archaeological or historical importance.

No legislation requires sites be excavated by professional archaeologists. The AMAAA only requires works to scheduled monuments to be authorized by the Secretary of State.Footnote ³¹ The relevant U.S. legislation, the Archaeological Resources Protection Act, applies to all archaeological resources and sites on both federal and Native American land, whereas in England and Wales the controls of the AMAAA apply only to monuments scheduled for protection.Footnote ³² There are criminal penalties under the AMAAA, with a maximum fine on a summary conviction of £5000.Footnote ³³ Using a metal detector in a protected place carries only a £200 fine, hardly enough to disincentivize the looting of monuments. The only offense that carries a prison sentence is the act of damaging a scheduled monument.Footnote ³⁴ This stands in stark contrast to the strong civil penalties and forfeiture mechanisms provided for in the United States. At the time of this writing, England is considering introducing civil penalties, and a draft Regulatory Enforcement and Sanctions Bill is the subject of consultation.Footnote ³⁵ Although the proposed legislation does not encompass illegal digging or destruction of monuments, it may be worth considering given the successes of the U.S. approach. However, before placing such strong power in the hands of the Crown Prosecution Service, consider that England and Wales, by using a tailored cooperative approach, may in fact be doing a better job protecting its heritage than the United States. Although the land areas are hardly comparable, the United States relies on a strong criminal enforcement effort that is expensive and would seem to require successful prosecutions to deter other looters. To this point, such an effort has not taken place. The United Kingdom generally takes a much different approach. According to the Department for Culture, Media and Sport there are nearly 20,000 scheduled sites in England, which can cover a range of sites from stone-age standing stones to World War II pillboxes. Under the AMAAA a scheduled monument is a nationally important archaeological site or building and is protected. In England the Department for Culture, Media and Sport keeps a register of protected sites. In the 1970s this power was devolved to Scotland and Wales and is now operated by the Scottish government and the Welsh Assembly government, respectively.

England and Wales thus has a legal regime that allows unprofessional digging and metal detecting so long as the finder has the permission of the landowner and the area has not received special protection. Digging is prohibited in these specially designated areas. This certainly leads to the loss of some archaeological context. However, some contextual information is preserved in some cases. This tradeoff is perhaps justified when weighed against the remarkable benefits produced by the voluntary project initiated to record chance finds and objects discovered by detectorists, the PAS.

THE PORTABLE ANTIQUITIES SCHEME

If a newly discovered object falls within the scope of the Treasure Act, reporting this find is mandatory, and it becomes property of the Crown. The reporting is encouraged by rewarding finders, but criminal penalties are in place to promote compliance and prohibit digging in specially designated areas. If an object does not meet the treasure threshold, reporting is merely voluntary. The PAS is the voluntary system created to record and document objects that are not encompassed by the Treasure Act and are unearthed legally. The PAS is a novel approach to undiscovered antiquities, which rests on a legal framework that essentially allows amateur and unprofessional digging.Footnote ³⁶ This policy cuts against the overriding policy choices of most nations of origin and sharply contrasts with the context-focused narrative found in most cultural heritage scholarship. Perhaps surprisingly, by incorporating the public's interest in ancient objects and a potential reward, the PAS has created a massive community archaeology project, which has produced an enormous database of contextual information. It stands as an outstanding achievement demonstrating how cultural heritage policy can work in conjunction with the economic, social, and contextual needs in a given nation of origin. Other nations of origin would do well to consider a similar comprehensive approach.

The PAS is a government-funded voluntary scheme to record archaeological objects found by members of the pubic, which has enabled large-scale research projects and helped educate the public about archaeology and their local heritage. Since 2006 the scheme has been managed by the British Museum under the umbrella of the Museums, Libraries and Archives Council. At the time of publication, this arrangement is under review, and it seems likely that the PAS will be solely managed by the British Museum. There are indications that the scheme is in danger of a funding freeze at best, or even funding cuts. For 2008 to 2009, the annual budget of the scheme will likely be £1.3 million.Footnote ³⁷ Although perhaps difficult to justify in many developing nations, this expenditure does not seem particularly onerous given the tremendous benefits the scheme can produce, especially considering the enormous sums many antiquities can fetch at auction.

In 2006 the PAS employed 37 Finds Liaison Officers (FLOs). These FLOs make contact with finders, record finds, work with metal-detecting groups about sound practices, and even identify finds that should have been reported as treasure. The PAS has four main aims:

1. 1. To advance knowledge of the history and archaeology of England and Wales by systematically recording archaeological objects found by the public

2. 2. To raise public awareness of the educational value of archaeological finds in their context and facilitate research in them

3. 3. To increase opportunities for active public involvement in archaeology and strengthen links between metal detector users and archaeologists

4. 4. To encourage all who find archaeological objects to make them available for recording and promote best practice by finders

The PAS maintains a web site that instructs the public on what to do when they discover a potential piece of treasure or other valuable object.Footnote ³⁸ They have also conducted extensive community education programs.

There exists some confusion about the scheme, because commentators incorrectly refer to the scheme as shorthand for compensating finders of antiquities or make other inaccurate statements.Footnote ³⁹ The PAS is a voluntary network, organized by a national group of FLOs. As discussed earlier, under the Treasure Act finders have an obligation to disclaim potential treasure. This then allows the Crown to acquire the object. If this happens the finder is paid a reward determined by the Secretary of State, as advised by the Treasure Valuation Committee and independent panel of experts. The PAS and its FLOs do not compensate finders or purchase objects. They speak with metal detecting groups about good practice, conduct community outreach programs, and most importantly record finds. They are often based in local museums or archaeology departments. In some cases museums approach finders and purchase these objects but not in every case; and the PAS should never be confused with rewarding finders.

BENEFITS OF THE PAS

There is nothing like the PAS anywhere else in the world. The scheme has produced some impressive and unexpected benefits. As the following text reveals, it has dramatically increased the reporting of objects always legally required, produced an important research resource, provided an important outreach for the public about the importance of archaeology and heritage, led to a large and ever-increasing database with 320,000 objects, and created a massive and unprecedented community archaeology project. Perhaps the most tangible benefit is a direct link with the public, which increases public appreciation for archaeology and heritage—a laudable goal that will ideally bring cultural heritage policymaking to the fore.

The scheme has not just increased the voluntary reporting of objects that fall below the treasure trove threshold; it has also dramatically increased the reporting of objects whose reporting has always been legally required (Figure 1).

Figure 1.

Data taken from PAS Annual Report, 2006.Footnote ⁴⁰

Between 1988 and 1996, there was an average of a little more than 23 treasure finds reported annually. With the Treasure Act and the PAS, numbers increased dramatically. In 1998, the first full year of the program, there were 201 treasure finds reported; and the numbers have increased steadily. In 2005, 595 treasure finds were reported; and in 2006, 673 were reported.Footnote ⁴¹ This is a dramatic increase from the number of treasure cases reported before the Treasure Act. At least part of this increase may be attributed to the new objective definition of treasure and the gradual widening of the definition, which now includes base metals and certain prehistoric objects.

Importantly, this dramatic increase may be closely related to the relationship FLOs have established with finders as well as the increased public awareness of the Treasure Act itself. When the Treasure Act first took effect, it relied on local museums and archaeological services, which is the standard approach taken by most nations of origin. Through its regional FLOs, PAS can make contact with finders, attend metal-detecting club meetings, and organize events where members of the public are encouraged to bring finds for identification or classification. Consequently, they are able to identify some finds that should have been considered treasure. Roger Bland argues that “although the Treasure Act was not originally backed up by a national network of FLOs, it is now increasingly obvious that such a network is necessary for its effective operation.”Footnote ⁴² As Figure 1 makes clear, the Treasure Case reporting has increased dramatically in conjunction with the establishment of the FLO network.

This indicates that a simple prohibition or state ownership declaration will do little. A comprehensive approach is needed to build on the regulatory framework and educate the public at large about compliance as well as erect a good system that allows quick reporting of discoveries. This adds to the body of knowledge and diminishes the market in unprovenanced objects. The end product is a better, more responsible attitude among the general public. Although comprehensive protection and excavation of every site remains the goal of the cultural heritage community, given the time and expense of such professional digs, such a goal remains far from realization in any nation of origin. Given the limited resources available for archaeological research and study, the PAS works as a pragmatic and valuable compromise.

One of the most positive effects of the scheme is its database, an impressive accumulation of information. In 2007 there were 77,571 objects reported; in total the ever-expanding database contains 320,000 objects and 160,000 images.Footnote ⁴³

One recent find, a unique copper bowl described as a trulla, was recently found in Staffordshire in 2003.Footnote ⁴⁴ It contains the names of four of the forts on Hadrian's Wall. As Mark Fisher argued in a recent parliamentary debate, such Roman finds are reshaping the historical picture of Roman Britain. Within the last three years, 24 new Roman settlements have been discovered in the Wiltshire region alone. This resource is useful for a tremendous range of individuals, from schoolchildren to doctoral dissertations and major research initiatives.Footnote ⁴⁵

The PAS is a heritage policy that incorporates everyone, not just experts or archaeologists. This happens in two ways: Anyone who finds a relevant antiquity can report and record it, but also anyone can access the database and use the data. Figure 2 shows the volume of such data has increased steadily and corresponds directly to the expansion of the FLO network and to the reporting of treasure qualifying objects. Users of the PAS data may include a casual observer who wants to know what kinds of objects are found in their region or could be used as part of complex archaeological and historical research projects. Perhaps the greatest success of the scheme, and the one that all those interested in cultural heritage can fully support, is the education and outreach conducted by FLOs and others. This has captured the interest of the public at large and has incorporated social and economic groups that often do not normally attend museums.Footnote ⁴⁶ The FLOs have been organizing finds days and community talks to metal detecting clubs, archaeological societies, and other groups since 2003. This attracts more visitors to local museums and also instructs finders and detectors about good practice. In 2006 there were 776 outreach events conducted, and regular contact was maintained with 167 metal detecting clubs.

Figure 2.

Data taken from PAS Annual Report, 2006 and Parliamentary Debate on the Portable Antiquities Scheme, Westminster Hall per Mark Fisher, March 5, 2008: Column 483WH.

In 2006 an overwhelming majority of objects reported to the PAS were discovered by metal detectorists; and a substantial number of objects, more than 30%, were discovered by chance because of field-walking, gardening, construction, agricultural work and the like.Footnote ⁴⁷ A limited number of objects were reported to the PAS by archaeologists during the course of professional investigation.

Several potential conclusions can be drawn from this information. Most treasure and nontreasure finds reported to the PAS are discovered by metal detectorists. This raises the issue of whether the Treasure Act coupled with the PAS may be causing more individuals to purchase metal detectors and seek treasure. Although determining the precise number of detectors in the United Kingdom is extremely difficult, there were approximately 6500 individuals registered in metal detecting clubs in 2006.Footnote ⁴⁸ A 1995 survey estimated there were as many as 30,000 metal detectorists in the United Kingdom,Footnote ⁴⁹ which was a dramatic decrease from the 1980s when there were perhaps five to ten times as many detectorists. Figure 3 shows the majority of objects are discovered with the aid of metal detectors, though a substantial number are found by chance. Surprisingly, archaeologists have seemingly not taken advantage of the PAS to record their work. In all likelihood there has not been a tremendous upswing in metal detecting; rather, detectorists are now motivated to bring their finds forward. It should be noted as well that this method of discovery primarily unearths objects from the Iron Age and beyond. Stone implements, pottery, textiles, and other objects that are not detected would not be revealed by metal detecting.

Figure 3.

Data taken from PAS Annual Report, 2006.

The finds database is a tremendous resource for historical or archaeological research as well as shaping a legal framework to the demands of the resource itself. This data tells cultural policymakers what is taking place, who is discovering objects, whether they do so intentionally, and what they discover. With this information policymakers in the United Kingdom are better able to tailor their legal framework to the reality of the given archaeological resources in different regions and are able to judge the effectiveness of the policies that are in place. If the status quo is damaging too much context, policymakers can advocate a change based on sound empirical evidence. Such information is invaluable and finally allows cultural heritage scholars to move beyond conjecture.

The question of whether the limited state ownership of undiscovered antiquities, compensation of finders, and legalization of unprofessional digging can be adapted to other nations remains in some doubt. It should be noted that in principle the legal prohibitions on antiquities digging in England and Wales are far more lenient than in nearly every other nation. In point of fact, many governments are either unable or unwilling to enforce them.Footnote ⁵⁰ The policy sacrifices archaeological context without question. If we compare Scotland, which has an ownership interest in all undiscovered antiquities, with England and Wales, the data seems to support the notion that declaring an ownership interest of only limited classes of objects, soliciting the cooperation of the public at large, and only prohibiting digging in limited areas has produced better results. Given the successes of the PAS in England and Wales, it may be worth examining the relative worth of such a policy in other nations of origin. Scotland, which maintains a separate legal system and has certain control over local affairs, has not opted for the PAS, but has instead a default legal framework similar to other nations of origin.

SCOTLAND'S APPROACH

Determining the title to found objects in England and Wales hinges on the composition of the found object, its location, and/or the circumstances under which it was discovered. This approach differs markedly from Scots law, which has a far more encompassing legal framework, but not necessarily a better cultural property policy. Merely establishing a sovereign right to objects does not create a comprehensive cultural property policy. In Scotland the maxim quod nullius est, fit domini Regis (that which belongs to nobody becomes the Sovereign's) dictates that all found items that are not owned or do not have a demonstrable heir become the property of the sovereign.Footnote ⁵¹ Stolen and lost property, known collectively as bona vacantia, belongs to the Crown.Footnote ⁵² This means that the definition of treasure carries no legal significance, and it does not matter where an object was found.

A discovery in 1958 of 28 silver objects and a porpoise bone by a team of Aberdeen University archaeologists reaffirmed the foundations of the quod nullius rule in Scots Law. The resulting dispute, Lord Advocate v. University of Aberdeen and Another saw the university unsuccessfully challenge the notion that the found objects should fall to the Crown.Footnote ⁵³ As Professor Carey Miller states, “In the [rarefied] world of cultural property it can be taken to represent ascendancy for the generally acknowledged greater good of public entitlement as against the English Common Law's popularist ‘finders keepers.’”Footnote ⁵⁴ St. Ninian's Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the eighth-century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, but the university and the landowner contested the claim. The cases presented interesting legal questions for Scots property law, but do not merit a detailed discussion for the purposes of this article. From a cultural property policy perspective, the excavation, study, and display were a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland. Of more interest is the overarching policy framework created by this quod nullius.

In Scotland, the Queens & Lord Treasurer Remembrancer (Q&LTR) has traditionally been responsible for administering objects classified as bona vacantia and by extension treasure trove. In 1994 the responsibility for administering the treasure trove system in Scotland was transferred to the secretary of state for Scotland and the Scottish office from HM Treasure, which had been given the responsibility since the Treaty of Union in 1707. Responsibility was then later devolved to the Scottish Executive (now government) upon devolution in 1999.Footnote ⁵⁵ The Q&LTR decides on the allocation of objects to museums and provides for the payment of rewards to finders. Scotland's wide definition of treasure trove allows the Crown to obtain all important antiquities, not just limited classes of objects as is the case in England and Wales.

Since the nineteenth century, Scotland has compensated finders of antiquities. Henry Rhind of the Society of Antiquaries of Scotland successfully petitioned the Q&LTR to reward finders with the full intrinsic values of their reported finds as early as 1859.Footnote ⁵⁶ It prevented the loss of objects to private collections or from being melted down. This payment system continues today, except in the case of archaeological excavations or when a finder has not declared a find.

The Scottish government does not commit itself to offering rewards for all finds, but it does in most cases by using market value as a guide. The system is not supported by statutory criminal offences for the most part, but the common law of Scotland might apply.Footnote ⁵⁷ The Scottish treasure trove system rewards finds and puts objects in the care of Scottish museums and institutions. Metal detecting is far less common in Scotland than in England and Wales. By putting found objects in the hands of museums and cultural institutions in Scotland, the objects are preserved and available for study. The system is not without its problems, however. In 2003 Andrew Normand, formerly the Q&LTR reviewed the treasure trove system in Scotland for the Scottish Executive.

Normand recommended that the Code of Practice should be produced, analogous to similar guidance given in England and Wales and Northern Ireland.Footnote ⁵⁸ He also recommended there be a clear statutory reporting requirement to all finds, whether it is archaeologists in the course of their work, metal detectorists, or others. The review indicated that the reporting obligations and the applicability of the Civic Government (Scotland) Act are both unclear. As a result there is uncertainty among finders of objects.

The review also stressed a need for greater clarity regarding how and when to report a find.Footnote ⁵⁹ The point cannot be underestimated. Several source nations have extremely rigorous legal restrictions, but they are not enforced and the public may not know how to comply. The experience of the voluntary PAS in the rest of the United Kingdom strongly shows that a legal prohibition is not sufficient to protect undiscovered objects and sites. In fact, a more collaborative approach that uses the public as amateur archaeologists has been much more effective than criminal penalties. The dramatic surge in the number of finds, which was always mandatory, shows how effective such a community education program can be.

Normand recommended streamlining the claiming and disclaiming procedure when finds are reported. He recommended that the criteria should relate to the significance of a find and the procedure should be clearly stated. Another major portion of the review was devoted to the allocation of finds to localities. Scotland maintains its strong regional character, and these areas are protective of their local heritage and the antiquities found in surrounding areas. A great deal of resentment can occur if, for example, a find from the northeast of Scotland is sent to the National Museum in Edinburgh. Normand recommended the best possible solution to these kinds of dilemmas: joint ownership and loan arrangements whenever possible.Footnote ⁶⁰ Following the review several changes were made to the treasure trove allocation process, but a thorough analysis of the allocation procedures falls outside the scope of this work. At present the Crown office relies on recommendations by the Scottish Archaeological Finds Allocation Panel (SAFAP) and is assisted by the Treasure Trove Unit, which acts as its secretariat.

Scotland has the benefit of a far stronger position than the rest of the United Kingdom, because all objects are subject to regulation. However, merely establishing a sovereign right to objects does not create a comprehensive cultural property policy. It is one reason the cultural heritage laws in many nations of origin appear far more comprehensive than they really are. The mechanisms for policing sites, reporting finds, and educating the public are perhaps even more important. As it currently stands, Scotland still has a centralized reporting system and lacks the comprehensive framework that has produced such great results in England and Wales. Alan Saville notes that “regionally-based Treasure Trove staff … would undoubtedly lead to a major increase in the number of reported finds.”Footnote ⁶¹ Finds are discovered, however, there is no system in place to allow finders of objects to disclaim objects. Finders are rewarded, which dramatically decreases the incentive to sell objects illicitly. It also may encourage members of the public to actively seek out objects.

In Scotland finders of objects are rewarded the full estimated market value of their finds. However, there is no similar program to the PAS, which allows voluntarily reporting finds that might be of only slight monetary value but could provide other data. Between 1998 and 2004, Scotland reported an average of a little more than 300 finds. During the same period, an average of slightly more than 300 objects that qualify as treasure were recorded, but there was an average of nearly 40,000 finds reported by the PAS in England and Wales during the same period.Footnote ⁶²

CAN OR SHOULD OTHER NATIONS ADOPT A SIMILAR SCHEME?

The PAS coupled with the Treasure Act has created some impressive results. The success of this policy may induce other nations of origin to adopt similar measures. The achievements of the PAS flow from an underlying assumption that merely relying on law enforcement strategies and protection of sites will not produce the desired results. The question at this point is how and to what extent a similar approach could be implemented in other nations in Europe, Asia, Central and South America, or the Middle East.

At least two aspects of the cultural policy in England and Wales can and should be widely adopted: rewarding the finders of true chance finds and a community outreach program that educates the public about good practice and the importance of heritage and context.

A cultural policy must be shaped to the needs of the archaeological resource, the needs of the nation of origin, and other social and economic needs. Any rewarding or information-gathering framework would fail if it rewarded those who destroy monumental Mayan structures in Central America or reward the looting of tombs in Italy, for example. On one level is it better to reward finders of objects, which may in fact motivate individuals to seek out objects by metal detecting or other means, or to instead implement a legal ban on such practices, which will be difficult if not impossible to enforce? This question could easily devolve into a stagnant polarized debate, which has too often plagued cultural heritage policy. In fact, policies like the PAS are easy to change and adapt to a given archaeological resource. For example, rewards may be offered if detectorists use responsible methods of unearthing finds, or they may only be compensated for major finds if they alert local authorities to determine if a professional excavation might be required.

Most finds reported to the PAS and the objects encompassed by the Treasure Act are discovered by the use of metal detectors. But such a cooperative policy need not necessarily permit metal detecting or allow citizen excavation. It can work in other circumstances. In Italy it might be used to record ceramic finds or sculpture fragments discovered by farmers. Items that are seldom found by chance, such as large frescoes from tombs, could be excluded from the program. Instead of rewarding tomb robbers (or tombaroli, as they are often called in Italy), finders could be compensated for alerting authorities to the location of a tomb, so long as they have not disturbed its contents or archaeological context. If this reward scheme pays locals more than they earn in selling the looted objects on to middlemen, it could even preclude the illicit trade in these objects. In fact, a more cooperative approach that is widely accessible and understood by the public may build interest in archaeological and historical research and even build political momentum for heritage policies in general.

If individuals are compensated for finding antiquities, they will look for and find them. In many cases this damages the archaeological context. However, the PAS has amassed a body of evidence that may even challenge what kind of historical research is possible. Imagine a PAS on a massive scale that transcends modern national boundaries: It allows large-scale research of ancient cultures, which seldom correspond to modern-day national borders, instead of basing it on the policies of individual nations. Rather than in-depth excavation of limited sites, national trends in ancient Britain can be examined.

Viewed in this light, the PAS may be a successful policy as well as an impressive new resource that compels action on the part of other nations of origin. Heritage advocates correctly point out the importance of our past and argue that it is a limited resource that must be protected and preserved. This is often used as a justification for preventing archaeological site looting.Footnote ⁶³ But it also mandates creating new policies that gather contextual information on a grand scale. In fact, the PAS and policies like it are a badly needed mechanism to gather this contextual information on a larger scale.Footnote ⁶⁴ Consider two examples. First, take into account a Neolithic axe found in Northamptonshire bearing remarkable similarities to other axes fond around the River Thames, which is quite some distance away.Footnote ⁶⁵ Did these axes serve as gifts? Did they gain in value the further they moved from where they were created? Such questions may affect how we view Neolithic societies, and a resource which tracks and collects where these objects are found can help provide answers. Also consider Celtic coins as another example on which the PAS has an impressive body of information. Coins were an innovation imported from Europe via the Roman Empire, but these coins arrived before the Romans. As Alun Salt points out, “how much of this was adopted because of the [Roman] invasion and how much would have happened anyway?” The national scope of the PAS allows us to answer this kind of question, and a larger transnational PAS across all of Europe for example could allow us to answer more of these kinds of questions about ancient economies, trade, and movement.

The largest practical barrier to implementation of similar schemes surely is cost. The PAS costs £1.3 million annually, and even its funding has been in jeopardy. This is a sum many other nations of origin will be unwilling or unable devote to heritage protection. There are models in place, however, that may allow nations of origin to raise these funds. Although it is highly controversial, they may consider selling or arranging for long-term leases of antiquities. These sales or loans could be justified by showing how these funds produce practical heritage benefits. Similarly, the great cultural institutions of North America and Europe like the Met, the British Museum, or the Louvre could consider funding such programs, which would increase their standing in nations of origin and allow them to fulfill their educational missions in new ways.