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This podcast explores death and law from a rich variety of disciplinary perspectives, including law, anthropology and philosophy. The podcast explores such issues as buried goods, data protection, dignity and memory. It forms part of a broader project in the University of Aberdeen's School of Law entitled, 'Death and Law – Interdisciplinary Explorations' and is generally sponsored by the Aberdeen Humanities Fund Staff Research Award 2024.
Hello, everyone, and welcome to the second podcast in the University of Aberdeen School of Law's Death and Law Interdisciplinary Explorations podcast series. I'm Doctor Jonathan Ainslie. I'm a Lecturer in Private Law within the School of Law. I'm joined by my colleagues, Neil Curtis and Jennifer Riley. Neil, would you like to introduce yourself?
Yes. I'm Neil Curtis. I'm Head of University Collections at the University of Aberdeen, and among my responsibilities is acquiring archaeological material through the Treasure trove Process for the university collections.
And Jennifer?
Hi. I'm Doctor Jennifer Riley. I work in the Divinity School as a Research Fellow. I'm currently on a Leverhulme Early Career Fellowship.
Thank you. In this podcast, we shall be discussing grave goods in their contemporary context as well as the discovery of grave goods by archaeologists many centuries after they have been initially interred. And so this will be a podcast in two parts, dealing with both grave goods and the law of treasure trove. In this section of the podcast, we shall be discussing the law of treasure trove, which is the area of Scots and English law engaged when grave goods are dug up by archaeologists many years after they have been interred. I'm joined in this discussion by Neil Curtis, our Head of Collections at the university.
I'm going to focus primarily on some of the differences between Scots law and English law concerning the legal definition of treasure. And then Neil shall be discussing the practical aspects of the Treasure Trove Unit and the allocation process in Scotland. To begin with then, what is the law of treasure trove? Treasure trove is concerned with objects which are discovered either buried or embedded within the ground and which vest in the ownership of the Crown in exercise of the Crown's prerogative rights. Items which are not treasure fall to be considered under the ordinary rules of property law and will therefore usually belong to the land owner.
The first and most important question which must be addressed in any treasure trove regime is what falls within the definition of treasure and what does not. And different jurisdictions have answered this question in quite different ways. In England, for example, historically, an item had to meet three criteria in order to be considered treasure. Firstly, it had to be made substantially of either silver or gold. Secondly, it had to be concealed with the intention of being recovered at a later date.
And finally, it had to be no longer possible to trace the original owner of the treasure, or to trace the identity of the person who initially buried it. Now this definition of treasure was originally designed in the medieval period in order to secure revenues for the Crown, and it didn't necessarily serve the modern policy rationale of a treasure trove system in the twentieth and twenty first century, which is to secure archaeological finds for the public benefit. The main deficiency of the definition of treasure at common law in England was how narrow it was. In particular, it didn't include goods which had not been concealed with the intention of later recovery. And the definition of treasure in England therefore could not include grave goods, items which had been left, associated with the burial of human remains and which the individual burying the objects did not intend to recover later.
A very famous example of this was the Sutton Hoo find in England. The Sutton Hoo find related to an Anglo Saxon ship burial dating from the sixth or seventh century, which was discovered near Woodbridge in Suffolk in England in the 1930s. The objects contained within the Sutton Hoo find could not fall within the definition of treasure, because they had not been concealed with the intention of later recovery. And the Coroner's inquest in the 1930s therefore determines that the items fell into the ownership of the local landowner, a lady called Edith Pretty. Now Mrs Pretty decided that she would donate the Sutton Hoo finds to the British Museum, but she was under no obligation to do so.
She could, had she so chosen, keep them for herself, sell them at a profit, or donate them elsewhere. And this is perhaps the most famous example of the narrowness of the English legal definition of treasure causing difficulties, and perhaps arguably failing to safeguard important archaeological finds for the public benefit. The approach taken to the definition of treasure in Scotland is radically different from that in England. In Scotland, we do not have a technical legal definition of treasure. We treat it instead as a subset of a larger class known as the bona vacantia or apparently ownerless property.
And in Scots law, all bona vacantia vest in the ownership of the Crown. There is therefore no requirement that finds in Scotland be made substantially of gold or silver or any kind of metal for that matter. And further, there has never been any requirement in Scots law for treasure to have been buried with any particular purpose in mind. In particular, there is no requirement that treasure must be buried or concealed with the intention of later recovery. And this means that grave goods as well as accidentally lost items have always been considered treasure in Scotland, whereas they would not historically have been considered treasure under the common law in England and Wales.
If the Sutton Hoo finds had been discovered in Scotland in the 1930s instead of in England and Wales, they would have automatically vested in the Crown at the moment they were discovered. And it would never have been left up to the landowner, Mrs Pretty, to make a decision as to whether they should be donated to a museum or not. All treasure in Scotland follows the quod nullius rule, quod nullius est fit domini regis, which is to say that all apparently ownerless property vests in the Crown. And historically, the basis of this rule in Scotland was understood to be the status of the monarch as the universal landlord under feudalism.
Under a feudal land tenure system, which we had in Scotland until 2004, the Crown is deemed to be ultimate landlord of all property. And therefore, it can exercise certain prerogative rights in relation to land, such as rights to minerals, such as gold and silver. And before the 1960s, most Scottish lawyers would have told you that the basis of the quod nullius rule, granting the Crown rights to treasure in Scotland, was their status as the universal landlord under feudalism, that the right to treasure was fundamentally a feudal prerogative. This understanding changed, however, in the case of Lord Advocate against the University of Aberdeen and Budge, which was decided in the 1960s after the Saint Ninian's Isle treasure was discovered in the Shetland Isles. The Saint Ninian's Isle treasure was uncovered by an excavation led by a professor at the University of Aberdeen, and the University of Aberdeen had initially taken possession of that treasure.
Following which, the university resisted an action brought by the Lord Advocate on behalf of the Crown to assert the Crown's rights to the Saint Ninian's Isle treasure. Now it isn't necessary here to go into the details of the arguments made in Lord Advocate against the University of Aberdeen. But the essential thrusts of the arguments made by counsel for the university, TB Smith, was that feudal land tenure did not apply in the Shetland Isles, and therefore, the Crown should not enjoy the rights to treasure as a feudal prerogative. The outcome of this case was a rearticulation of how Scottish lawyers understood the basis of the Crown's right to treasure in Scotland. The point made by the Lord Ordinary in the Outer House and then reiterated on appeal to the Inner House was that the quod nullius rule and the right of the Crown to treasure in Scotland was based not on their status as a universal landlord under feudalism, but instead on their status as the representative of the national community, and that the crown therefore took treasure in order to safeguard the public interests and not as a landlord under feudalism.
This is why the crown's right to treasure in Scotland survived the abolition of feudal tenure in 2004. Now in recent years in England, there have been a number of attempts to expand their previously very narrow definition of treasure. In 1996, legislation was passed removing requirements that it be concealed with the intention of recovery, and further changes were made by a statutory order in 2023 to expand the definition of treasure to metallic objects not made out of gold or silver, provided that they demonstrated an exceptional historical, archaeological, or cultural insight. It remains to be seen, however, whether all of the objects that we would ideally like to see safeguarded for the public benefit will fall within this expanded definition of treasure. So these are the legal issues relating to treasure in Scotland and in England.
And as you will be able to see, while grave goods have always fallen within our definition in Scotland, they historically did not in England. And this is only finds which have been discovered since 1996, which should be considered treasure, if they were buried with human remains as part of a gravesite. I'm now going to hand over to Neil Curtis, our Head of Collections, to talk about some of the practical aspects of the treasure trove system in Scotland.
Thank you. Yes.
So that's if I can give a few comments first on the implications of that history and how we work, and then run through how the system operates. And then finally reflect a wee bit on, thinking about improvements to the practice. There's been a recent review of the treasure trove system. So one thing that really strikes me about the way it developed is, like in England, there was no original plan that the quod nullius rule would be to benefit museums or archaeology. Museums or archaeology didn't exist in the Middle Ages.
So that's something that really developed through the nineteenth century, that we have some records at the very beginning of the century to the Society of Antiquaries of Scotland and to Marischal College and University of Aberdeen of coins being allocated. So not directly enriching the crown, but enriching public benefits and having museums. So that's the very beginning of it. In the middle of the nineteenth century, the private museum of the Society of Antiquities of Scotland was conveyed to the state and became what is now the core of the National Museum of Scotland. And so that, therefore, took a different emphasis that the feeling then was that Crown claimed material should be allocated to the national museum.
And while that happened initially in the mid nineteenth century, they then realised, and this is a factor that continues, is everything wasn't being reported. That although the law is very clear, until the 1963 judgment there was no court case. It hung on six little Latin words. And so they started bringing in awards for finders in the 1890s to try to encourage people to report. So that was encouraging the collections of the National Museum.
The interesting thing, of course well, one of the many interesting things about the Saint Ninian's Isle case was that, at that point, this was the National Museum were very keen to make sure that the treasure trove system, bona vacantia, was being used to make sure that those finds ended up in our museum, but actually specifically in the national museum. Now when Aberdeen was, displaying those in the in the 60s, the intent was that there would be a museum built in Shetland to house them in the long term. And indeed, Shetland Islands Council then built a museum. So there was a great deal of very strong local feeling in Shetland that these shouldn't be taken away.
And that's something that led to the establishment of an advisory panel, which included people from the National Museum, but also included people from other museums. And the history since the 1960s to the present day has actually seen a steady decline in the number of items allocated to the National Museum and many more allocated to local museums. And indeed, nowadays, there is a presumption in favour of local allocation. Not entirely clear what local is meant. Does that mean local as in not national, or does it mean local authority, not other museums, or does it mean closest to the find spot?
And I know sometimes when I've been writing applications, I've been measuring on Google Earth how far away a find spot is to the museum in Aberdeen to see if we are the most local museum. So there's lack of clarity in some of these things. But I think my greatest point about the way the system operates in Scotland is it's not statute law. Therefore, there's a lot more opportunity for sensitive interpretation and development of the code of practice that we're not we don't need to define what is treasure. We're not trying to get into these daft ideas they used to suffer from in England about working out the motivation of somebody who died four thousand years ago.
So it's something that could be very practical. So what happens now is that the treasure trove unit, who report to the Kings and Lord Treasurer's Remembrancer, who is actually the same person who is responsible for the Crown Office and the Procurator Fiscal Service, but operating as, you know, as a different aspect, a different hat that they're wearing. The KLTR, is responsible, and they're advised by an advisory panel. It's got an archaeological finds allocation panel to help advise what value should be set and which museum should receive material. But the system is operated by the Treasure Trove Unit who are based in the National Museum, but they're not really part of the National Museum.
I think it could be a bit clearer that they're reporting to KLTR rather than the National Museum. I find that feeds that presumption that there is a bias towards the National Museum, which there isn't in practice. And, the Treasure Trove Unit, often they have their own expertise, enough expertise within the staff to be able to say what something is, how important it is, whether it should be claimed. They can decide. Sometimes there are things that are not claimed.
I remember one case, where a spark plug had been excavated in an archaeological site, which is really important for the archaeology because it proved that it wasn't an ancient site, but it wasn't something that was ever worth keeping in a museum. So they were able to disclaim it. But then the list of fines that have been claimed, which can range from, a small item of metal found, you know, a badge or a token or a coin found by a metal detectorist right up to one that we were recently allocated was all the excavation assemblage from the Aberdeen Western Peripheral Road, 90 boxes of material. So it can be hugely important material or very, very low value individual items. Those assemblages are items that are advertised to all museums in Scotland, but there are a number of criteria that are followed and who will get which one.
And the first one is you must be an Accredited museum, so you've got to meet basic standards, and you've got to have a collecting policy that says that you already intend to intend to collect for a particular area. So, in our case, that is the archaeology of Northeast Scotland. But then there are other factors. So, do you already have material that can be seen as part of that assemblage, so you're not splitting a coin hoard between different museums? Have you the ability to conserve them to make sure they survive for the future?
And then factors that are come into play more if there are two museums interested in the same material. So are you able to support research by providing access to researchers or actually having facilities and researchers on your own staff. Those are factors you that might be considered. But I think what seems to be most important is benefiting the public. So supporting local heritage interpretation, maximising public access, these are words that are used within the code of practice.
So when there are competing applications, which there can be if you have a local authority museum, an independent museum, you know, maybe a small village has its own community museum, a university museum, a regional museum in a large city within a more rural area, and the national museum. So there can be potentially five different institutions. Now often between ourselves, we understand that we are different specialisms. So, you know, competition often doesn't come up, but sometimes it does. And that's where having the allocation panel is really important.
They're able to make a decision independently without us having to fight over it or something. So, but there are a number of wrinkles in the system that, you know, I think having a review last year, was really valuable to sort of have a look fresh at the whole system. And so there are things, like I said, that definition of national and local. There's also the issue that keeps running on, which is how do you encourage reporting? In a system like they have in England where fewer items are claimed, I think more are reported.
And so almost in any place, you have to make that decision. Do you think that it's more important to have the archaeological knowledge of what has been found, or is it more important to make sure that things come to the museum? So the award system helps that by making sure that people can't financially benefit from selling things on the black market. But I think there is a difference. If people feel that things are being taken away to Edinburgh, away from the locality, that sometimes dissuades them from handling things in.
So I think this is one of the things that we need to do is to make sure it's seen as a national system and not as something just for the National [Museum]. So that's one bit. Another bit that is a problem that, you know, Jonathan mentioned is this question about, what about in an excavation of a grave, what about the human remains, the skeleton? Those are not ownable property. What about remains of animals, which again are not really property?
What about soil samples that includes, you know, pollen samples that could be used to help interpret what the landscape was like. So these different things, when there is a site that has, an artifact, then what currently happens is there was other items thrown next to them travel alongside. But what about sites where there are no artifacts; when it is only a skeleton, in a grave that may be of archeologically great value and may also we might feel, well, a human skeleton needs treating in some way? We need to have a way in which we can come to a decision about what is the best future for them, whether that's reburial or care in a museum. So there is rather an absence of legal guidance in that area that would be good.
I think there are some issues that increasingly important, such as excavations run by community groups. And so are they having to go through the same system that a professional archaeology unit is going through, when they might have a very close relationship with a particular local museum? And if they if they're not allocated to the museum, the museum can't really then buy display cases and do things to interpret them if they might not end up getting them. So, I'd be very keen on seeing earlier allocation. I think that would be very helpful.
Likewise, there has been going back to the 1890s, this idea of awards being given to finders to encourage them. And there's an idea, I think, behind that that says that people wouldn't willingly hand things over, that they need that financial incentive. And so that means that items that are found through archaeological field work don't attract an award because the feeling is the archaeologists are either doing it out of the goodness of their heart or because they're employed to do it. What about a community group? Will they be classed as archaeological fieldwork and therefore, there will be no award when actually they might be able to benefit from an award that would let them buy, you know, more barrows and trowels and bags and things to help them excavate.
So I think that question of what award there should be, who benefits from it, sometimes can be a disincentive and sometimes it definitely operates as an incentive. So I think there are a number of issues which are being discussed now, but behind them all lies this flexibility of the law that bona vacantia, quod nullius is tremendously flexible and lets us think what is the best thing we can do in the current circumstances where we do have a desire to have museums, we do have a desire to support taking finds into museums, and increasingly to support local community groups in doing the archaeology. So I think we're very fortunate in Scotland to have such a flexible system. The disadvantage is how few people actually understand it and sometimes want statute law, which I think would be a dreadful mistake.
Yes. And I would tend to agree with you on that, Neil, that codification of treasure trove in Scotland is a recipe for all manner of trouble. Some really interesting observations there about the decentralisation of the treasure trove system in Scotland, and I hadn't thought about the implications around community groups and ex gratia payments. So it's interesting to hear a practitioner's perspective on that.
It is amazing for, I say, six little Latin words. And if you look at the most recent review (Yes) An enormous publication, how much can be built on top of so little?
It is notable the extent to which the treasure trove system in Scotland is almost entirely extra legal. Yes. Lawyers have relatively little to say about it beyond the rule itself and the justification for the rule. Whereas English lawyers have an awful lot to say about it.
And the manifest difficulties of trying to adjust a rule that was designed to support the revenues of the crown for a modern policy objective. Well, thank you very much, Neil.
Thank you.
This section of the podcast will examine contemporary grave goods in Scotland and in other parts of the UK. And I'm very pleased to be joined by Doctor Jennifer Riley to discuss the topic.
Jennifer is a Leverhulme Early Career Research Fellow at the University of Aberdeen. Jennifer, would you like to talk to us about your current research on grave goods?
I would love nothing more. So yes, I'm currently, in the middle of a project called Baggage for the Beyond, which is, as you say, all about contemporary grave goods. And we're all quite familiar with the concept, things that get put with people when they die.
But most of us probably primarily associate it with ancient civilisations, maybe the Ancient Egyptians, something like Sutton Hoo. We're probably less conscious that actually it's going on all around us in the UK to a reasonably significant extent, we think. And that people actually often put an awful lot of significance by it when someone dies. And for me it was the first time I encountered it was during a piece of research about COVID-19. So we were looking as a team at the University of Aberdeen at funerals as how they were affected by the pandemic and the restrictions placed around them during the pandemic.
And people were putting grave goods, objects, in the coffins almost in a kind of compensatory way. So in the absence of being able to have a kind of quote unquote normal funeral with lots of people, there was kind of a felt need to do something more. And so suddenly people were thinking outside the box and maybe reaching for grave goods in a way that they wouldn't have before. Although that's not to say it's a particularly new phenomenon, particularly if we think of clothing, people wearing their own clothes in their coffins. That's a phenomenon that has been really important now in the UK for a good fifty years, so from the 1970s onwards to the point where we now don't really think of clothes as grave goods and the idea of the naked dead actually really unsettles us.
So I get to spend my days principally talking to people, people who work in death industries, funeral directors and celebrants and crematorium managers, about the grave goods that they encounter, but also to people who have lost somebody and have picked something specific out. Or perhaps specifically chosen not to because there are some people for whom the idea of putting something in a coffin is either faintly unpleasant or a bit irrational or doesn't help them in any particular way. So I'm as interested in the people who pick no grave goods at all as those who pick out all manner of different things.
Marvellous. Would you be able to tell us more about the contemporary legal significance of grave goods, Jennifer?
I can now, but only because I found myself, towards the start of the project, asked a question about their legal status and realised I didn't actually have a clue. I'm not a lawyer, by any sense. But it was an interesting question. The question came from our colleague, Alisdair, who said, you know, are they classified as property? What if there's something very valuable and that detracts from the worth of someone's estate?
So when you're going through the probate process, suddenly you've got an object that maybe some relatives wish to bury, others don't, or even wish to cremate, that being a slightly more permanent decision I suppose. So I did some digging. I'm probably now slightly too familiar with things like crematorium regulations, the difference between English and Scots law, because of course they are different, when it comes to handling the body and particularly handling the body once it's been buried. Now with cremation, there's an extent to which, you're a bit stuffed. Once the coffin has been sealed, almost certainly it's not going to be opened and obviously most things placed in the coffin alongside human remains are going to be destroyed.
But it gets a bit more interesting with burial because while there are no specific laws or policies around grave goods as property or valuable items, not in the way that we think of treasure troves and ancient grave goods certainly, you do have to comply with exhumation law. And exhumation law, the Scots law term for it is particularly beautiful. You would be in violation of sepulchre or the right to sepulchre, if you were to go and extract someone, or their coffin or anything in the coffin from a grave. And so again, I kept digging. I'm probably on some sort of watch list now for the government.
Looked at the Ministry of Justice application form. Apparently, they get they get a thousand applications a year in England and Wales for exhumation licenses and discovered that what we're dealing with is actually kind of not quite law, and I think that's partly why it's interesting. So when somebody dies, usually you instruct a funeral director. That's a fairly standard thing to do, whether they're going to be buried or cremated. Usually go through a funeral director.
And that's the point at which the first kind of legal pinch point for grave goods arises because people don't always agree about grave goods. Even if there is something in somebody's will or funeral plan about what they want to happen to their belongings, particularly valuable belongings, unless that's part of the will specifically, it doesn't have any legal status. So the wishes of the dead have no legal weight, they have moral weight, I suppose, and, you know, we all like to think that we'll leave our relatives behind us with goodwill and good wishes, but that's not always the case, and when objects are very valuable, there can be a tussle. So if there were to be a disagreement about whether or not, say, a valuable piece of jewellery should be buried with somebody, we don't really have a legal precedent for knowing what should happen. Funeral directors will probably say let's err on the side of caution, it is very complicated to get a warrant for exhumation, it's impossible to reverse a cremation process, and so a wise funeral director will usually try and say let's take a step back and look at the big picture here, but I think there's an extent to which we don't have laws around this just because people are a little bit reluctant to make laws around it.
There's a broader sense in which, English and Welsh law in particular, is quite patchy and quite complicated when it comes to burial and cremation, or at least to my non lawyer eyes, it's very complicated and patchy. And grave goods seem to have kind of fallen between the cracks, as it were, this kind of property as it belongs to the deceased as it's being interred or burnt, we don't know quite how to handle it. A second pinch point will come if you're being cremated. So about seventy five percent of deaths in Britain are cremations and there are some things you cannot put in a cremator. Anything that's going to explode, unsurprisingly, so batteries, electronics, rubber, which for a lot of people means they can't wear shoes.
Coconuts, it turns out, unless they have holes drilled in like for a coconut shy, and potatoes, for example. And much as, some people seem to think that things will vaporise often in a cremator and it does get very hot, actually an awful lot of things won't vaporise, they will melt. And again, here we've got something very, very fuzzy going on. Whose responsibility is it to make sure that nothing ends up in that cremator oven that's going to cause damage? And from a policy perspective it tends to fall with the funeral directors, but it's not actually the law.
There are regulations, those are set at local authority level usually, and individual crematoria have more or less similar versions of the same cremation form whereby a funeral director has to sign to say I've taken responsibility for this body, I have checked thoroughly, what is inside, and I can say in good conscience that there is nothing in there that will cause damage. And again, in theory, they could be sued so that's where the legal precedent could come in, but again I'm yet to find any, example of that having actually, been tested. So again you're relying on the funeral director, you're relying on them having a certain amount of due diligence, you're relying on them being on side of the crematorium rather than on the side of say, a family that might want to bend the rules and people do. People do try and quote unquote sneak things in, so they have to be reasonably thorough. And I have heard anecdotally, but I'll take it on reasonable authority, that there are cases where a funeral director would rather see a family's wishes for what their loved ones should have with them when they die and when they pass on quite against some of the regulations.
Now we're probably not talking explosives, but we might be talking burning things like more plastic than maybe is advisable, or leather for example. So there's your there's your second pinch point, and, again, there's this kind of legal ish, but not fully legal, untested precedent and dependence on funeral directors. And then that third pinch point would be if you were to bury somebody and regret it and make a mistake and at which point you would be, as I said, coming under exhumation or, sepulchral law. And when I first started looking into this, I couldn't find any examples of kind of grave goods gone wrong, if you like, but I'm pleased we waited to record this because I was interviewing, a couple of weeks ago, somebody who had indeed encountered grave goods gone wrong, so he had been, kind of privy to an application by a funeral director where they had accidentally buried a wedding ring and it was requested that that would be retrieved. And then I also came across an example of the opposite where somebody left out a wedding ring from a coffin, and it was requested that that be put back in.
So at least in England we do have something of a a precedent and the Ministry of Justice website for this does say, you know, these will be treated sympathetically, so much as their policy doesn't say anything about grave goods at all and most, local authority regulations around cremation also say very little specific or nothing specific, there is a kind of a route, but it's slow, it's bureaucratic, it's expensive, and it often involves consulting an awful lot of people, in a kind of hierarchy diagram of next of kin, and/or grave, or in Scotland, lair ownership. So it's not a straightforward route. So you can see why funeral actors err on the side of maybe not burying something if they think it's going to cause a dispute.
That's fascinating. I have a personal interest in violation of sepulchres in Scots law, because it relates to more general issues around the property law status of the human body and human remains.
In that when a deceased human body is interred, it remains a thing or a res, as we would say in property law, but it falls into a special category of res, which is extra patrimonial, meaning that it cannot be subject to private ownership. And so the offence of violation against sepulchres is not an offence against property nor is it an offence against the person. It falls into its own special category. And, of course, it's possible to abandon corporeal movables in Scots law and thereby cease to be the owner. And one would imagine that if you place grave goods in the coffin, in the knowledge that it will be buried, and will therefore come under the protection of the law of sepulchres, that one is abandoning that thing.
But it's very unclear, and and that there isn't a great deal of litigation on the issue.
And I think it's that lack of clarity and that fuzziness that I find fascinating. (Yes.) And I suppose it's worth pointing out that I've been talking in terms of things that are materially valuable. So metals in particular.
But a lot of people do pick grave goods that are to all intents and purposes utterly valueless. So a lot of people want to be buried or want their loved ones to be buried because the wishes do usually come from the relatives rather than the person themselves, with food items, for example. So I suppose I'm tickled by the possibility that somebody could trigger the extensive bureaucracy surrounding exhumation or violation of sepulchre to recover a Mars Bar potentially. But as I say, lacking legal precedent for that either.
Would you be able to tell us about any ongoing legal changes that might affect the practice relating to grave goods going forward?
Yes. Absolutely. So this is a well, I think this is a very exciting time to be studying grave goods, but it's particularly, an exciting time to be studying from a legal perspective, and that's for two main reasons. So on the one hand, we've got what has just closed, the Law Commission review. Now I'm mindful that the Law Commission only applies to England and Wales, so briefly put Scotland aside, although basically because they've done a much better job before England and Wales up to this point in keeping things tidy.
So the Law Commission is currently looking at, that patchwork of laws, that apply to England and Wales. So in England and Wales, the burial act that we use is still the 1857 burial act. So we're talking early Victorian. We're talking a very different culture, and we're talking an absolute assumption that burial is for eternity. We're also talking, an England and Wales that were much less heavily populated.
This was in the middle of the Industrial Revolution. They were starting to have problems with gravespace, particularly in big cities, but we now have a big problem with gravespace. So one of the things that the Law Commission review is looking at is smoothing over some of those laws and working out if that might give us capacity to look at grave reuse. They're also looking at, introducing potentially some legal status to the wishes of the deceased, so that will be quite separate from their will, which is already obviously a legal document. We'd be talking about more informal wishes or at least which are currently informal wishes about things like what you would like your funeral to be like, whether you would prefer to be buried or cremated or other options I'll come on to that in a second, and for example whether or not you would like any of your property to be included as grave goods.
And so it'd be an interesting thing to see whether or not we're still in that phase where we like to be a little bit kind of fuzzy about some of these things. Do we prefer clarity or do we prefer rules that are maybe open to a bit of interpretation? Because some people I think, would say we need a clear structure for grave goods, particularly from an environmental perspective. A lot of the reason that you can't cremate things is to do with the emissions that they create. We live in a climate crisis I suppose, and so needing to kind of reify these things for the sake of long term ecological sustainability is important.
But there are other people who would say actually this is a time of death and grief. The examples where grave goods, as I say, go wrong, are very far and few between. What's the benefit of adding legal status to these wishes when actually, most of the time, we don't need them to have legal status? So that is going to be an interesting thing, to watch. As I say, Scotland is slightly ahead of the game there.
They have recently brought in, a new set of, regulations which I believe kick in formally on the 01/03/2025, so it's not long left to go. A new funeral director code of practice, which will eventually introduce an inspectorate, something like Ofsted, but for funeral directors. And so that is a slightly different approach to kind of smoothing out, some of the differences and varieties, that can otherwise occur in the funeral industry, which at the moment, at least for the next two and a half weeks, in the UK is, unregulated. They also nicely tidied up their cremation and burial laws into one neat package in 2016, so thank you for that, Scotland. That makes digesting the legal background a lot easier for people who aren't lawyers like me.
But part of the reason that we need to look at this patchwork of burial law and cremation law in England and Wales is because we are, and you heard it here first, we are on the cusp of a, a death revolution and we're on the cusp of a death revolution, particularly in the form of, what is known as alkaline hydrolysis. So alkaline hydrolysis, is also known as water cremation. You might hear it referred to by the brand name Resomation, and it's an alternative mode of disposing that's a distasteful word but that is essentially what we're talking about here disposing of dead bodies. So rather than using a cremator oven, you would be using, an alkaline solution, which essentially mimics and speeds up the process of natural decomposition. And you're left at the end, with water, which is, doesn't contain any human DNA, and in that respect can be sent back into the water system, and a fine white powder.
So very much like ash but a little bit more aesthetically pleasing, a little bit less literally kind of grey and grizzly. And Resomation doesn't qualify as either burial or cremation. So in England and Wales it would not be qualified under the 1857 Burial Act nor would it be under the, I think, 1902, although don't quote me on that, Cremation Act. It's kind of its own thing and so while it's legally allowed, we obviously have no sites that can offer it yet, that's still under development, it's going to be a little while. We don't actually know kind of what laws, if any, would govern this practice other than presumably health and safety laws, so I've mentioned the, the water effluent, that's one of the examples where health and safety law, would apply.
But the other interesting thing about Resomation is that it's deliberately marketed and indeed has deliberately been developed as an ecologically friendly, option. Cremation, and burial, both in their own way, are polluting. Cremation, you're releasing, toxins and carbon into the air. Burial, you're obviously burying them in the earth. Resomation in theory will do neither, and so potentially, although you need to offset the energy the machines use, potentially it is the greenest way forward.
But that leaves a bit of an issue, at least in terms of grave goods, because that will mean there probably need to be some really quite strict regulations around what we can and can't put, in the tank with the body. The preference would be for the body to be essentially plain with nothing but a shroud made from biodegradable natural materials. And on the one hand, you can legislate for that, or you can at least create a policy for that with precedent to create legal challenge off the back of the policy, but the law is a is a blunt instrument, and whether or not we're ready for policies, that kind of enforce that from a practical perspective but require us to really quite significantly change our moral sensibilities around what a good death physically looks like remains to be seen. But I suppose the thing that is worth underlining here is we talk about cremation and burial, and that mixed economy, in the UK as though it's always been like that, whereas, actually, cremation is really young, in its kind of present modern iteration. I mean, cremation dates back thousands and thousands of years, but modern cremation, in the kind of late Victorian, let's build a machine to do this fashion, has really only been around for a hundred and fifty years.
And so it's sometimes useful to remember that what we think of as an established norm, something like people wearing their own clothes, even people being in coffins, really is part of our culture, but in a very kind of flash in the pan kind of way. And so, actually, you know, moral sensibilities around death and dying can change and do change, and, indeed, we have seen a kind of preshift around the emergence of, natural burial in the UK. We've only really been doing natural burials in the UK, again, in a kind of modern iteration rather than the act of burying someone in the ground, which is itself reasonably natural, since the late 1990s. I am slightly older than the modern iteration of natural burial in the UK. And again, there's policy there, but there's also a bit of self selection going on.
The people who choose natural burial or choose natural burial on behalf of somebody else are more likely to already be mindful of the kind of eco implications of human dying as well as human living. So it might be that actually when we get to Resomation, and it's a little way off, it's coming, but it's a little way off, actually natural burial has already set that precedent for having policies that favour the environment, but which the people who are opting to follow them are actually already keen to follow.
Thank you very much. As a Roman lawyer, I'm fascinated by shifts in burial practices, because the law of sepulchres ultimately has its origins in ancient Roman law. The Romans cremated their dead and then buried buried the ashes.
Exactly. They moved between the two as well across the different parts of the Roman era. They are a lovely, yeah, I suppose.
There was some syncretism in different parts of the empire. Yes.
Yeah. Absolutely.
And so for the Romans, a sepulchre was an urn. (Yes.) And its associated monuments or objects.
Well we quite often stick urns in the back of wardrobes because the UK is relatively unusual in that it has no regulations really around scattering ashes.
So okay we're not talking grave goods anymore but we're talking a close parallel. A lot of my colleagues in Europe kind of do a physical kind of start when I go, well, yeah, you can just do whatever you want with ashes. So I suppose we don't apply, sepulchre to urns. So in that sense, we're very distinct from the Romans.
No. Indeed. Indeed, we don't. No. Unless they have been buried.
Of course.
But, giving legal effects to the wishes of the deceased is is something that I think will be explored further as part of the death and law project, both with regards to the manner of disposal of the deceased and and wishes which have been expressed in the the will in that regard, and also in any objects that they would like to be to be buried or cremated with. Thank Thank you very much, Jennifer, for for a fascinating discussion. In this podcast, we have discussed grave goods in both their contemporary context, looking at the practice of leaving grave goods with the deceased in modern Scotland. But we have also looked at the legal regulations governing grave goods which are unearthed many decades or centuries after they have been buried, and perhaps after the identity of the deceased and indeed the culture to which they belong has passed out of memory. Thank you very much.