Attorney General of the Duchy of Lancaster v G. E. Overton (Farms) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DUNN,LORD JUSTICE OLIVER |
| Judgment Date | 18 November 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1118-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0487 |
| Date | 18 November 1981 |
[1981] EWCA Civ J1118-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
From: Mr Justice Dillon, Chancery Div. (London)
Royal Courts of Justice,
The Master of the Rolls
(Lord Denning),
Lord Justice Dunn
and
Lord Justice Oliver.
81/0487
MR RICHARD SCOTT, Q.C., and MR HUBERT PICARDA (instructed by Messrs. Frere, Cholmeley, WC2) appeared on behalf of the Appellant (Plaintiff).
MR IGOR JUDGE, Q.C., and MR COLLINGWOOD THOMPSON (instructed by Messrs. Bolton & Lowe, EC4, Agents for Messrs. Epton & Co., Lincoln) appeared on behalf of the Respondents (Defendants).
( )
"Treasure trove" has long been part of the Law of England. It dates back to the time of Edward the Confessor in 900 A.D. It was said that "Treasures from the earth belong to the King".
Today we have to decide what objects are properly the subject of treasure trove. Is it confined to gold and silver objects? Or does it extend beyond?
In March 1973 a stranger came to the door of a farmhouse in Lincolnshire. It was near Coleby. He did not give his name. He said that he was interested in archaeology. He asked if he could have permission to dig and potter about in the fields. He said that he was hoping to find some Roman coins. The farmer told him he could, but nothing was to be removed from the land without his permission.
A few weeks later the stranger came back. He told the farmer's wife that he had found some pieces of old broken pottery. He gave them to her and went away. He said nothing about coins.
Now unbeknown to the farmer and his wife this stranger was a Mr Kilshaw from Boston. He had been out on to the fields with a metal detector. He had gone to a field called Quarry Field, about 200 yards from the Church. He made a find. He detected something underneath the ground. He dug down a few inches and discovered pieces of pottery, and thousands of coins round about. Put together, as they were afterwards, the jar would have been quite big, about 14 inches high and with a diameter of about 10 inches. It had originally been nearly full with coins. The coins numbered, in all, 7,811. They were very small and thin, about the size of one new halfpenny, or one old farthing. They were dirty, greenish, and looked like "bronze. The stranger, Mr Kilshaw, took them to his home in Boston. He then went round to a local shop to see if he could do a deal with them. He did. The shopkeeper was interested. He bought and sold some of them. He made deals amounting to £300 or £400. Other people got to hear about it. The police came. A coroner's inquest was held. An expert came down from the British Museum and gave evidence. The jury found the coins to be treasure trove. Afterwards Mr Kilshaw was prosecuted for theft. He was convicted but given a suspended sentence. He did not have to go to prison.
The coins were examined by experts from the British Museum. They are very knowledgeable. They could tell the dates when these coins were minted, because they had on them the insignia of the old Roman Emperors. These experts did not examine all of these 7,811 coins. They only examined 923 of them. Then, looking up the insignia of the Emperors, they could find their dates. They were all minted between 253 A.D. and 281 A.D. The big jar was of about that time, the latter part of the third century. Some of the coins had been minted in Rome, in the Central Roman Empire. Others were minted in France in the Gallic Roman Empire. The coins were called Antoninianii. No doubt they had been brought over to England by some of the Roman legionaries or civilians and used as currency here. One of the Romans must have saved them up and put them into the jar. He put it into "a safe place", as we always do, hoping to come back some time and get them. The Romans went. He went. He never came back. They remained there at Coleby in Lincolnshire hidden for 1600 years, until in March 1973 Mr Kilshaw from Boston found them with his metal detector.
The British Museum have also metallurgical experts. They broke up fifteen of the coins to see what was inside. Taking them as samples, and going by the dates, they reported that all the 923 had only a tiny amount of silver in them. Nearly half of them—448 of them—had only 1.6% of silver, 130 had less than 4%, 157 had 6.8%, 121 had between 1.5% and 18%. 41 of them were forgeries. Someone had been forging coins in the Roman Empire.
The reason for the small amount of silver was that, at that time, the Roman Empire—the Emperors—were debasing the coinage. They were having inflation, just as we have now. They were inserting these tiny, small bits of silver when they were minted so that they could be passed off as if they were silver coins. The expert of the British Museum took the view that these tiny bits of silver were deliberately inserted into the coins. He said:
"In my opinion these percentages, low as they are, cannot represent trace element in the metal but represent deliberate placing of silver in the alloy. This is an intended silver denomination".
That was the evidence which he gave at the coroner's inquest. The coroner told the jury: "It is not at all sensible to divide up this hoard into the individual coins. Take the whole lot as they are". The jury did so. They took the whole lot as they were. They found the whole to be treasure trove.
That finding of the coroner's inquest is not binding on the courts of law. The farmer did not agree with it. He claimed that the coins belonged to him as being the owner of the land. The Crown then took proceedings in the courts to determine whether the coins are treasure trove or not. The Crown did so in the name of the Duchy of Lancaster: because this part of Lincolnshire is within the Liberties of the Duchy of Lancaster. So the action was tried between the Attorney-General for the Duchy of Lancaster, as representing the Crown, and the farmer—it happened to be a limited company—G.E. Overton (Farms) Ltd. The judge held the coins were not treasure trove and that they belonged to the farmer. Now the Duchy of Lancaster, through their Attorney-General Mr Richard Scott, appeals to this court.
We have had a fascinating two or three days in which counsel have put before us all the learning upon the subject. We are much indebted to them for the research that they have done, together with their helpers.
The first authority is Bracton. He lived about 1250–1258. He wrote a great law book. It was in Latin. We have not got his original. We have only copies made up by other scribes at the time. They put in interlineations of their own, so we cannot be sure that everything is just as Bracton wrote it. But the important thing is that he did not confine treasure to gold and silver. He extended it to any other metal. This is what Bracton is believed to have written about 1250–1258, put into English:
—"treasure, that is, silver, or gold or metal of some other kind…Treasure is any ancient store of money or other metal which has been forgotten so that it no longer has an owner; thus it belongs to the finder since it belongs to no one else".
The next authority is Sir William Stannford, one of the Justices of Common Pleas. He wrote in 1548 or thereabouts. But he does not count very much. He was a copyist. He simply copied out Bracton. He is quite frank about it. He starts off by saying: "Bracton speaks of 'treasure trove' in this manner", and then he quotes Bracton verbatim in Latin.
Next we come to the greatest authority of all, Sir Edward Coke. He was Chief Justice of the King's Bench. He was dismissed in 1616. But he then set to work and wrote his Institutes. In them he brought the mediaeval law of the time of Bracton up to date to fit into the needs of his time, the time of Elizabeth I and James I. I will read his chapter on Treasure Trove. It forms the basis of all subsequent law upon the subject. It is his Third Institute at page 132:
"Treasure trove is when any gold or silver, in coin, plate, or bullyon hath been of ancient time hidden, wheresoever it be found, whereof no person can prove any property, it doth belong to the king, or to some lord or other by the kings grant, or prescription".
There are the words on which we have spent much time, "when any gold or silver, in coin, plate, or bullyon". Mr Richard Scott asks us to read that as though it was "gold or silver is contained in gold coin, plate or bullyon". I do not think we can or should do this. Later commentators read it as meaning "gold or silver in the form of coin, plate or bullion".
Coke makes it clear a few sentences later:
"Gold or silver]. For if it be of any other metall, it is no treasure; and if it be no treasure, it belongs not to the king, for it must be treasure trove".
So Coke says that the treasure has got to be a gold or silver object. It may be in the form of coin, it may be in the form of plate, or it may be in the form of bullion. "Coin" is coin of gold or silver; "plate" is something manufactured of it; "bullion" is a lump of it. Anything which is not a gold or silver object is not treasure trove.
Coke refers to it also in his Second Institute at page 576. Speaking of money, he says this:
"The money of England is the treasure of England, and nothing is said to he treasure trove hut gold and silver: See the Third Part of the Institutes, Chapter 'Treasure Trove'".
In Coke's time our money was all gold or silver. We had not any copper at that time. So he says:
"The money of England"—meaning the gold and silver money of England—"is the treasure of England".
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