A Pragmatic Approach to the Problem of Portable Antiquities: The Experience of England and Wales
Bland, Roger, Antiquity
All countries have found the need to devise a system of protection for objects of archaeological, historical or cultural importance found in their territory by members of the public by chance--what we will call here 'portable antiquities'. These approaches vary widely and in many states, the UK included, different territories contain separate legal regimes. In many countries of Europe the state requires that all objects of archaeological importance be reported and frequently the state claims ownership of them; there are mechanisms for paying rewards to the finders of varying generosity and there is usually protection for archaeological sites and controls over the use of metal detectors (Bland 1998). All countries experience problems with the illicit recovery of archaeological finds from sites and their sale on the market.
The purpose of this paper is to explain the approach that has been adopted to these issues in England and Wales, particularly the Treasure Act 1996, the Portable Antiquities Scheme and recent measures to stem the illicit trade in archaeological objects originating from the UK. It is a pragmatic approach and one that has its critics, but it is also, I would argue, beginning to bear some quite remarkable results.
Until 1997, effectively the only legal protection afforded antiquities found in England and Wales was provided by the common law of treasure trove. Only objects of gold or silver that had been deliberately hidden, with the intention of recovery, qualified as treasure trove and became the property of the Crown (Hill 1936). The main difficulties stemmed from the fact that it was never intended as an antiquities law. It was extremely restricted in scope; it was riddled with anomalies and was legally unenforceable. In the nineteenth century, antiquarians realised that the old law of treasure trove had a significance over and above that of simply adding to the royal revenues and so in 1886 the Government announced that finds claimed as treasure trove would be offered to museums, and finders (but not landowners) would be paid a reward. This practice of paying rewards for finds claimed by museums is, I believe, a crucial factor in encouraging the reporting of finds.
So, although archaeologists had succeeded in providing an incentive for finders to report their finds, many problems still remained with the law, especially its very restricted scope. In 1944, one of the aims of the newly established Council for British Archaeology (CBA) was to reform the law of treasure trove, but no progress was made mainly because of the difficulty of achieving a consensus among archaeologists as to what needed to be done and also of persuading the Government to take action.
The whole issue was transformed by the widespread use of metal detectors. These machines became widely available in the 1970s and at their peak, in around 1980, it is thought there were as many as 180 000 metal detector users in this country (the figure now is thought to be nearer 10 000). One obvious consequence of this was an enormous increase in the amount of objects being found, the great majority of which fell outside the law of treasure trove.
In its early days metal detecting was a very anarchic activity: many detector users felt that they had the right to take their machines anywhere they chose, whether on private or public land, and to keep whatever they found. Many archaeological sites suffered damage from such rogue detector users. It was only in the 1980s that detector users (or 'detectorists') started to organise themselves into clubs and adopt a more responsible attitude.
Archaeologists responded by seeking to ban or restrict the use of metal detectors and this is the approach that has been followed in many European countries. In Britain, however, the Government was not persuaded to go down this route, although archaeologists did win one significant success when the 1979 Ancient Monuments Act included a provision making it a criminal offence to use a metal detector on a scheduled monument without the permission of the state. …