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TREASURE TROVE (1)
LOST, STOLEN OR STRAYED
Stéphanie Nicolle QC
In 1911 workmen demolishing L'Ancienneté, an old house in St. Brelade, found a vase containing thirteen gold coins embedded in one of the walls. The find was not reported to H.M. Receiver General, receiver of the Crown's revenues in Jersey, but having learnt of it informally he claimed the coins as treasure trove. In due course they were handed over to him, whereupon he wrote to the Lords Commissioners of H.M. Treasury in the United Kingdom (at that date responsible for the administration of Crown estates) seeking instructions in a letter which concluded in some perplexity
"" Treasure Trove" is of such rare occurrence in this Island that I am not aware whether Treasury Regulations exist concerning all cases or whether each case is considered on its merits; & I shall therefore be glad to receive Their Lordships’ instructions in this matter."
The rarity of treasure trove was nothing new. Some two centuries earlier Le Geyt, writing of treasure trove, managed to cite only two local cases before commenting -
"Le Thrésor est aussi rare que le varech est fréquent;[1]"
[Treasure is as rare as wreck is frequent]
In the absence of case law, most of such guidance as there is as to the nature of treasure trove comes from the commentators, Norman and Jersey, on the customary law. Le Gros, writing in 1943 relied on La Glose (a 14th/15th century work on Norman customary law) for his definition -
"D'après La Glose, trésor trouvé est toute masse d'or ou d'argent assemblée en un même lieu et qui a été gardée si longtemps que la mémoire en est éteinte[2]."
[According to La Glose, treasure trove is every mass of gold or silver assembled in a single place and which has been kept so long that it has been forgotten about (literally, that the memory thereof is extinguished).]
The reference to a masse of gold or silver brought together in the same place (en un même lieu) suggests that there must be something in the nature of a hoard. Where the dividing line might be drawn it is difficult, in the absence of authority, to say. A single gold coin would presumably not be regarded as a masse, nor perhaps would two or three, but eventually the point must come where a number of coins is sufficient to constitute a masse. The point remains undecided.
Under the customary law of Normandy prior to its reform in the 16th century, the Duke was entitled to le trésor trouvé en sa terre, [treasure found in his land] wherever it might be trouvé ou enfouy [found or buried][3]. In this context en sa terre meant within the Duchy, that is, within the jurisdiction of the Duke, and not literally in the land owned by the Duke[4]. In the chapter on Tresor Trouvé already referred to, Le Geyt cites for his definition of treasure trove a passage which he attributes to a work to which he refers as L'Ancien Coûtumier de Normandie. The wording is almost indistinguishable from that of Article XVIII of the Grand Coutumier, save that the words trouvé ou enfouy [found or buried] in the Grand Coutumier appear in Le Geyt's citation as trouvé enfoui [found buried].
In 1683/85 the customary law of Normandy was recast in a compilation, produced by royal edict and ultimately approved by the (French) Sovereign, which has since been known as the Coutume Reformée or the Nouvelle Coutume. Post dating as it does Jersey's separation from continental Normandy by centuries, the Coutume Reformée is not uniformly declaratory of the law of Jersey. Some of its articles are authoritative, some persuasive, some irrelevant.
Article211 of the Coutume Reformée provided that treasure found in lands in the Sovereign's domain belonged to the Sovereign, and if found elsewhere belonged to the Seigneur of the Fief, whether lay or ecclesiastical. De Gruchy, in his Medieval Land Tenures in Jersey, states that the 17th century custom in Jersey, based on the Coutume Reformée, (presumably Article 211, though he does not say so) gave treasure trove to the Seigneur of the Fief on which it was found, and that the Sovereign only got it on the Demesne and Fiefs in his hands[5]. He cites no authority for this proposition, which is controverted by Poingdestre and Le Geyt, two local 17th century jurists who may be supposed to have been better placed than De Gruchy to speak with authority on the law of 17th century Jersey.
In his unpublished Remarques et Animadversions sur la Coutume Reformée Poingdestre categorises the provisions of Article 211 as nouvelle coutume. He then reiterates the old customary law rule that treasure trove belonged to the Duke, which he says is subject to only two exceptions. His preference for the old custom is repeated in his Commentaires sur l'Ancienne Coutume[6]where he says of the chapter on treasure trove in the Ancienne Coutume [Article XVIII of the Grand Coutumier cited above] that it is consonnant à notre coustume.
Le Geyt, like Poingdestre, relied upon the authority of the Ancienne Coutume in attributing treasure trove to the Duke (now the Sovereign), and dismissed Article 211 of the Coutume Reformée, which attributed it to the Seigneur, with the words -
"Toutefois cela n'est pas une Loy pour l'isle depuis qu'elle ne dépend plus de France; et quoyque le Varech parmi nous comme en Normandie passe pour un droit de Fief il ne s'ensuit pas qu'il en soit de même du thrésor.[7]"
[However that is not the law of the Island since it has ceased to be a dependency of France; and although wreck among us as in Normandy passes for a right appurtenant to a fief, it does not follow that it should be the same for treasure.]
After this, unfortunately, Poingdestre and Le Geyt part company temporarily on the exceptions to the rule. The Coutume Reformée provided in Article 212 that treasure trove found in a church or the precincts of a church belonged to the fabric of the church if found in the nave or cemetery and to whoever is responsible for the upkeep of the choir or the chancel if found in the choir of the church. Poingdestre, in the commentary on the article in his Remarques et Animadversions sur la Coutume Reformée, appears to regard the rule as good, but Le Geyt[8], appears to regard it as inapplicable in Jersey.
One essential feature of treasure trove is that the original ownership should be unknown. If evidence, which may be circumstantial or inferential, can be adduced to show that the treasure was hidden by a predecessor of the owner of the property on which it was found, he (the owner) is entitled to it -
"La Glose dit que "si le propriétaire du fonds peut informer Justice par vraies conjectures, ou autres enseignes, que son prédécesseur eust enfouuy le thrésor dans sa maison où il demeuroit, il le devroit avoir; mais que qui voudroit enseignes que son prédécesseur eust enfouy dans son champ le thrésor, il faudroit plus certaines enseignes, et que ce n'est pas semblable du champ comme de la maison, pour ce que un homme enfouit assés communément son thrésor en sa maison, et non pas ainsi communément en son champ[9]"".
[La Glose says that "if the owner of the property is able to demonstrate to the Court by valid suppositions, or other indications, that his predecessor had buried the treasure in his house where he lived, he should have it; but if anyone wishes to adduce indications that his predecessor had buried the treasure in his field, there must be stronger indications, and it is not as likely in the field as in the house, because a man quite commonly hides his treasure in his house, but not as commonly in his field".]
The working of the exception is illustrated by the case of Thomas Lemprière[10], cited by both Le Geyt and Le Gros in their respective chapters on treasure trove. Lemprière was the owner of a house in the wall of which were found hidden a number of pieces of gold. Despite a claim by the Crown Officers to the gold as treasure trove the Royal Court awarded the gold to Lemprière as having formerly belonged to his predecessors.
The claimant to the L'Ancienneté gold was not so successful. The house, which was described by the Receiver General in his letter to the Treasury as "very old", had (with one brief intermission) been in the ownership of the Seale family for centuries. It was eventually sold by John Seale to Athelstan Riley, apparently for the purpose demolishing it and using the material on another property owned by Mr. Riley. The conveyance contained a clause to the effect that if anything of value were found during the demolition it should be the property, not of the purchaser, but of the vendor.
In reliance upon this provision Mr. Seale laid claim to the coins. The claim was rejected by the United Kingdom Treasury, and as Mr. Seale could not afford to litigate it, it went by default. Reading the correspondence it is difficult not to feel sympathy for Mr. Seale. His claim that the gold had probably belonged to his ancestors appears strong enough to satisfy the vraies conjectures test: the house had been in the possession of his family for centuries, which would take the family's ownership back beyond the date when the coins were probably amassed. The coins were almost all 17th century, save for three which dated from 1700/1702, and the unusual clause relating to the possible discovery of hidden treasure suggests that there may have been some family tradition that treasure had been concealed in the property.
Had Mr. Seale been in a position to litigate, he might have been successful. As it was, all but a few of the coins were retained for what is referred to by the Treasury in the correspondence as "the national collections". Exactly what that comprised is not spelt out: it seems safe to assume that it did not include any depository in Jersey. The few coins not so retained were offered for sale to Mr. Seale at a price which he could not afford. Mr. Riley, who had asked for one coin as a memento, and the workmen who had found the hoard and handed it intact to their employer, were given equally short shrift. So ended an incident which did not, perhaps, show their Lordships of the Treasury in the most gracious light.
Some years earlier the Receiver General had been less successful in an attempt to assert a claim of treasure trove. On that occasion the bone of contention was a gold torque which had been bought by the Société Jersiaise from a workman who had been working on a site in Lewis Street in the parish of St. Helier. The vendor's story was that he had found the torque while excavating foundations on the site. On the basis of that story, all the criteria for treasure trove were present: the torque was gold, its ownership was indisputably unknown, and it was said to have been found buried.
The Receiver General launched a claim to the torque in a letter of the June 10th, 1890. The correspondence continued thereafter with more dignity than speed, until in 1894 the Société produced with some triumph a report made in 1890 of an examination of the site which, so it was claimed, indicated that the torque had not been found on the Lewis Street site and thus disproved the story given by the workman who had sold the torque. The suggestion was advanced that the torque might have been stolen from a museum in Belgium or France. How convincing the Lords Commissioners of the Treasury found this suggestion it is impossible to say, but they eventually abandoned their claim in a letter of February 26th, 1896, with the guarded comment that -
"… my Lords think that the Société Jersiaise may properly be informed that They are not prepared, in view of the somewhat ambiguous statements as to the facts attending the appearance of the Torque in Jersey, to assert a claim to it as Treasure Trove."
The refusal of the Treasury in the L'Ancienneté case to make any payment to the finders appears to have been based on the fact that they did not report the find to the Receiver General. Because of the rarity of cases of treasure trove in Jersey it is impossible to point to a settled practice of rewarding the finder who reports the find.Le Gros says that the rights of the finder are fixed by what he refers to as "un autre acte de la trésorerie de l'année 1930[11]". It is possible that he is referring to one or other, or the combined effect of both, the Home Office Instruction 159308/14, dated June 30th, 1925, and theHome Office Instruction 159308/47, dated June 12th, 1931. The effect of these Home Office Instructions is summarised in Halsbury’s Laws of England, as follows -
"Reward of finders. It is the practice of the Lords Commissioners of the Treasury (which cannot be regarded as giving rise to any legal claim by or on behalf of the finders or others) to return to the finders of coins, ornaments and other objects constituting treasure trove who fully and promptly report their discoveries and hand over the treasure to the proper authorities, the coins and other objects which are not actually required for national and other institutions and to pay to those finders the full antiquarian value of such objects as are retained.[12]"
The Instructions have ceased to be of relevance in England and Wales, where the position is now regulated by the Treasure Act 1996 and the Code of Practice issued under that Act. Whether the Instructions had ever been brought into play in respect of treasure trove found in Jersey is unclear, nor is there any way of knowing whether their provisions would still be regarded as regulating the position in respect of treasure trove found in Jersey now that they no longer regulate it in England and Wales. As stated in the Halsbury's commentary quoted above, the Instructions did not, in any event, give rise to a legal claim by or on behalf of the finder or others. The safest conclusion seems to be that the matter is in the discretion of the Receiver General, but there is no reason to suppose that some reward would not be paid to a finder who reported the find.
One of the essential elements of treasure trove was that it must have been deliberately hidden or buried by the owner. Objects which have been lost, or casually abandoned, cannot be treasure trove, though they may be claimed by the Crown as choses gaives.
Choses gaives were defined by the Grand Coutumier as things not appropriated to the use of man which have been found and are not claimed by anyone -
"Choses gayves sont qui ne sont appropriées à aulcun usaige de homme, et qui sont trouvées que aulcun ne réclame siennes[13]."
[Choses gaives are those things which are not adapted to any use of man, and which are found in circumstances where no one claims them as his.]
In the definition adopted in Jersey, choses gaives are unclaimed objects which are not appropriated to the use of man. Examples commonly given by the commentators of what is not appropriated to the use of man are animals, but the term is not synonymous with natural as opposed to man-made products. Other examples so given are wool, material in bulk which has not been made up, skins or unworked gold or silver (gold and silver would of course be treasure trove if found buried or hidden).
When the Seignorial Rights (Abolition) (Jersey) Law, 1966, vested in the Crown a number of rights formerly vested in the Seigneurs of Fiefs, Article 2 of that law, which transferred the right to choses gaives, referred to them as "waifs or strays". “Waifs or strays” is a term of English law which is not synonymous with choses gaives, and the draftsman has created a potential pitfall for anyone who seeks to find out what were choses gaives by suggesting that they should consult authorities on waifs and strays. Waifs at English law were goods stolen and discarded by the thief in his flight, whereas at Jersey law an object the ownership of which is unknown may, if it satisfies other criteria, be a chose gaive regardless of whether it was discarded by a thief or lost and abandoned by the original owner. Conversely, for an object to be a chose gaive at Jersey law, it must be not appropriated to the use of man. There appears no similar distinction in English law relating to waifs.
The Grand Coutumier attributed choses gaives to the Duke. The Coutume Reformée attributed choses gaives to the Seigneur of the Fief on which they were found[14]. According to Le Geyt, this was the law of Jersey, although Poingdestre, in his Remarques et Animadversions sur la Coutume Reformée, regards it as an innovation. The point is now only of historical interest, because Article 2 of the Seignorial Rights (Abolition) Law vested in the Crown the right of Seigneurs to a number of rights including choses gaives.
Clothing, rings or other things appropriated to the use of man are not deemed to be choses gaives, and therefore did not belong to the Seigneur. Accordingly they would not now belong to the Crown. According to some commentators, they belong to the finder[15]. That this is the law of Jersey is supported by Le Geyt in Privileges, Loix et Coustumes -
"Les choses gaives qui ne sont appropriées à aucun usage d'homme appartiennent aux Seigeurs sur les fiefs desquels elles sont trouvées, mais celles qui sont appropriées à tel usage demeurent à l'inventeur[16]."
[Choses gaives which are not appropriated to any use of man belong to the Seigneurs on whose fiefs they are found, but those which are appropriated to such use go to the finder.]
This is a difficult area because of the lack of precision in the reference to things not appropriated to the use of man. One of the examples given by the commentators of a thing not appropriated to the use of man is material in bulk which has not been made up; yet it must be arguable that material, which has been made by man, could in some circumstances be regarded as appropriated to the use of man.
Berault, in his commentary on Article DCIII, in the passage referred to above, says that chains of gold or silver which have been coined as money, are not deemed gaives and that they belong neither to the King nor to the Seigneur, but to the finder. He cites a decision of July 8th, 1611, given in Rouen, by which seven or eight pieces of gold found wrapped in a paper were adjudged to the finder[17]. Basnage, in his commentary on the same article, cites this and another judgment and states that gold which has been coined into money, and jewels which have been set, are things which are appropriated to the use of man, so that the Crown is not entitled to them as wreck nor the Seigneurs as choses gaives. He does not however refer specifically to the rights of the Crown to treasure trove[18]. Possibly he did not regard treasure trove as being in question because the coins were not hidden nor buried.
Commenting in his turn on the articles of the Coutume Reformée which deal with choses gaives, Pesnelle states that things which are appropriated to the use of man such as clothes, agricultural implements, and silver coined into money which is "trouvé dans un chemin" are not deemed to be choses gaives[19].
Article 604 of the Coûtume reformée states that choses gaives are those which are not appropriated to any use of man and not claimed by anyone, was considered in its application to Jersey by Poingdestre in his commentary on the Coutume Reformée. He comments that it follows exactly the former text (that is, the Ancienne Coutume). He then adds that La Glose states that choses gaives include not only domestic animals which have strayed but also all other things except those which pass under the name of treasure, such as gold, silver, jewels etc. In his commentary on the Ancienne Coutume, he states, as he said of treasure trove, that the chapter on choses gaives are "consonnant à notre coustume".
The best way of reconciling what is said by the commentators about gold and silver when commenting on choses gaives with what is said about treasure trove is that gold and silver which is found buried or hidden is treasure trove, but gold or silver which is neither buried nor hidden, but is simply lying unclaimed, is chose gaive if it has not been appropriated to the use of man, i.e. unworked metal, but is not chose gaive if it has been appropriated to such use, i.e. worked as jewellery or coin etc. In that latter case it would, on the authority of the commentators referred to above, belong to the finder.
The disposal of unclaimed property has been the subject of some, albeit limited, statutory intervention. Of general application are the Police Force (Disposal of Property) (Jersey) Regulations, 1975. Those regulations provide that where property has come into the possession of a police officer, and the owner of the property cannot be ascertained or found, the property may be disposed of by sale by auction or otherwise. Perishable property, or property the custody of which involves unreasonable expense or inconvenience, may be sold at any time provided that the proceeds remain in the possession of the police for three months from the date of sale. Any property other than money may be sold as soon as may be after it has been in the possession of the police for three months. Money is retained in the possession of the police for the same period and is then dealt with as if it were the proceeds of a sale.
The Regulations give the Chief Officer a discretionary power to pay to any person by whom the property has been delivered to the police such reasonable compensation as he thinks fit, and there is also a provision for the deduction of any expenses incurred in connection with the sale or storage of the property or advertising for the owner of the property. Once any deduction has been made for expenses and/or compensation, the proceeds of the sale of the property are to be credited to the Annual Income of the States.
Clearly these Regulations have the potential for infringing the Crown's right to choses gaives (and indeed to treasure trove) should any come into the possession of the police. They were however made under Article 14 of the Police Force (Jersey) Law, 1974, Article 14 of which provides that the States may make regulations for the disposal of property which has come into the possession of a police officer in cases where the owner of the property cannot be ascertained or found. The article specifically states that such regulations may include a power to dispose of such property by sale and for the proceeds of such sale to be credited to such account as the regulations may specify.
The Law received the Royal Assent. On one analysis it might be arguable that the Crown, in giving assent to a Law which conferred upon the States a power to make regulations disposing of property in the possession of the police, without reserving the right to choses gaives and treasure trove, by implication waived the right to claim as choses gaives or treasure trove any objects to which such regulations, once made, might apply. The contrary argument is that a right of the Crown can only be given up in express terms, and that to the extent to which the regulations purport to give a power of disposal over objects which may be treasure trove or choses gaives they must be regarded as ultra vires and to that extent invalid. In the absence of a Court ruling it is impossible to do more than speculate.
Of more limited application is the Civil Aviation Act 1982 (Jersey) Order, 1990. Article 38A of this Order empowers the Harbours and Airport Committee to make provision by Order for dealing with property found on premises belonging to the Committee or under its control, or on any aircraft on such premises. At the date of writing no such order has been made, and even it one were to be made it would not regulate the disposal of property found outside the limited areas specified in the empowering article.
Few would argue that the existing law provides adequate protection for artefacts of archaeological or other historical significance. Some statutory forays have been made in the field of protecting what is now loosely but conveniently referred to as "heritage", but there are still too many unprotected areas. Such protection as there is relates to searching for artefacts in the first place and to exporting them from the Island.
Article 9 of the Island Planning (Jersey) Law, 1964, as amended, empowers the Planning and Environment Committee by Order to designate as a site of special interest buildings and places of public importance by reason of inter alia the special archaeological, architectural, artistic, cultural, geological, historical, scientific or traditional interest attaching thereto. Article 9A provides that no person shall use or operate on a site of special interest any device designed or adapted for detecting or locating any metal or mineral in the ground, nor injure or deface the site, nor, without the consent in writing of the Committee, carry out certain activities on the site.
Crown land cannot be designated a site of special interest. This is because a statute does not bind the Crown unless specifically stated so to do, and the Island Planning Law does not state that it binds the Crown.
There is in draft a new Planning and Building (Jersey) Law, which is intended to repeal and replace the Island Planning Law. This includes at Part 5 provisions relating to sites of special interest. These will, as under the existing Law, enable the Committee to designate sites of special interest, and will restrict specified activities on sites of special interest. A provision not found in the Island Planning Law, but which appears in the draft Planning and Building Law, is one empowering the Committee to make funds available by way of grant or loan to the owner or occupier of a site of special interest towards any cost necessary to protect, repair or restore the special interest of the site.
In contrast to the Island Planning Law the draft Planning and Building Law provides that subject to certain restrictions, which do not relate to sites of special interest, the Law will apply to the Crown and to Crown land. It follows that if this Law is passed by the States and receives the Royal Assent it will be possible for the Planning and Environment Committee to designate Crown land as a site of special interest. Once any land (whether Crown land or not) has been so designated, the consent of the Planning and Environment Committee will be needed for any operation or change of use, which, while not amounting to development, would adversely affect the special interest of the site, It will also be unlawful to carry out activities such as the use of metal detectors, which might injure or deface the site, without the written permission of the Committee, unless the activity is specified as a permitted activity in respect of that site.
The Import and Export (Control) (Jersey) Law, 1946, provides that the Finance Committee (now the Finance and Economics Committee) may by Order make such provisions as the Committee thinks expedient for prohibiting or regulating, in all cases or any specified classes of cases, and subject to such exceptions, if any, as may be made by or under the Order, the exportation from the Island of all goods or goods of any specified description. The Import and Export (Control) (Jersey) Order, 1992, made under this Law, provides in Article 2 that subject to the provisions of the Order all goods are prohibited from being exported from the Island. Article 3 goes on to provide that notwithstanding Article 2 any goods may be exported under the authority and in compliance with the terms and conditions of a licence granted by the Committee or the Agent of the Impôts. It further provides that any goods, not being goods specified in the First or Third Schedule, may be exported to any other of the British Isles. The Third Schedule lists the goods which may not be exported except under the authority and in compliance with the terms and conditions of a licence granted by the Finance and Economics Committee or the Agent of the Impôts. The combined effect of all this is that a licence is needed for the exportation of any scheduled article.
This Schedule was amended in 1997 by the Import and Export (Control) (Amendment No.5) (Jersey) Order, 1997. In summary, it prohibits the export without a licence of (a) material of archaeological interest found within or relating to the Channel Islands; (b) photographic images which satisfy certain criteria as to nature, age and value; (c) paintings, sculptures or other physical representations, which satisfy certain specified criteria as to nature, age and value; and (d) items manufactured or produced in the Channel Islands or by persons at any time ordinarily resident therein which satisfy specified criteria as to age and value. Unfortunately, although the Order can prevent articles of archaeological, historical or cultural significance from leaving the Island, it does not control what can become of them if discovered here. Thus while it would be unlawful for the finder of a Bronze Age burial urn to export it, nothing would prevent him from drilling a hole in the bottom and using it as a flower pot.
Of recent years, a number of factors such as an increased concern for the preservation of the local "heritage", and the current interest in metal detecting, have come together to turn what a few decades ago might have been regarded as a subject of academic or romantic interest into something of live concern. Change can only be effected by legislation. If the preservation of the past is a desirable objective it is of paramount importance that the opportunity should not be missed of creating a legislative framework which will combine the optimum protection for those items which are of such historical importance that every member of the community has an interest in their preservation with the maximum workability in practical terms.
Against the background of possible future legislation, the second part of this article will draw comparisons with the system which has been introduced in England and Wales by the Treasure Trove Act 1996 and its Code of Practice with a view not merely to describing the system but also to identifying those provisions which experience since the implementation of the Act has shown might be bettered.
Stéphanie Nicolle QC is an advocate of the Royal Court. She was appointed Her Majesty’s Solicitor General for Jersey in 1994.
[1] Le Geyt, Constitution, Lois et Usages, du Trésor Trouvé, Tome 1 page 52
[2] Le Gros, Droit Coutumier de Jersey, Du Trésor Trouvé, page 380
[3] Grand Coutumier, Article XVIII
[4] See Terrien, Commentaires du Droict Civil de Normandie, 2nd edition, 1778, page 100
[5] GFB de Gruchy, Medieval Land Tenures in Jersey, published by States Printers, Jersey, 1957, at page 122
[6] Pages 18 - 19
[7] Le Geyt, op.cit,. page 51
[8] Op. cit, page53
[9] La Glose, cited by Le Geyt, op. cit. loc. cit.
[10] Causes Remises, November 22nd, 1632
[11] Op. cit, page 382
[12] 3rd edition 1954, volume 7, paragraph 1163
[13] Grand Coutumier, Article XIX
[14] See Article DCIV
[15] See Basnage and Berault in their respective commentaries on Article DCIII of the Coutume Reformée
[16] Du Varech,Titre II,Article 9
[17] Commentaires sur la Coutume de Normandie, 1776, Tome Second, page 706
[18] Commentaires sur la Coutume de Normandie, 3 ème édition, Tome Second, page 482
[19] Coutume de Normandie, 4th edition, Tome Second, page 807