1. This is an appeal brought by the defendants against the order of the High Court made on 10 December 1986 directing the return to the plaintiffs of certain valuable antique articles constituting what has become known as the Derrynaflan Hoard upon payment of £25,800 by the plaintiffs to the defendants, or in the alternative at the option of the plaintiffs an order that the plaintiffs do recover against the defendants the sum of £5,510,200 .

2. The Derrynaflan Hoard consists of a chalice, silver paten, silver and bronze paten stand, gilt bronze strainer and a bronze basin. It has been described as one of the most significant discoveries ever made of Christian art. The chalice is believed to date from the ninth century and the entire find constitutes an immensely important contribution to knowledge.

3. The plaintiffs, who are father and son, on 17 February 1980 went to a place near Killenaule in County Tipperary, known as Derrynaflan which consisted of an island of pasture land surrounded by a very large area of bog. It contains the remains of a church and other buildings which formed part of an abbey and also a tomb which is supposed to be that of the Guban Saor. Buildings described as Derrynaflan Abbey or Guban’s Church and Grave were the subject matter of a Preservation Order made by the Minister for Finance under s. 8 of the National Monuments Act 1930, which order was made on 8 June 1935.

4. The lands known as Derrynaflan were at the time of the finding of the hoard jointly owned in unequal shares by a Mr. Denis O’Brien and a Mr. John O’Leary.

5. Each of the plaintiffs had with him a metal detector and the purpose of their visit to these lands which they reached by travelling on a raised road going through the bog was to search for metal objects which might be buried in the lands. They did not seek any permission from the owners of the lands before entering on them. After a relatively short time searching with the metal detectors one of the plaintiffs got a positive reaction and upon digging into the bottom of a bank close to the abbey and buildings with a small hand trowel the plaintiffs succeeded in unearthing the objects which constitute the hoard. They brought these objects back to their house in Clonmel and having consulted an archaeologist as to their importance and also having received the advice of their solicitor, Mr. Binchy, the first-named plaintiff delivered the articles the following day to the National Museum, bringing with him a letter written by his solicitor in the following terms:

6. We have been consulted by Mr. Michael T. S. Webb with reference to certain articles which he and his son, Mr. Michael Webb, Junior, found on the 17th February 1980. These articles appear to be a chalice, tray and screener and it is possible that they may constitute treasure trove. Our client has been advised that these articles should with the minimum possible delay and handling be delivered to the care and custody of experts who have the facilities for examination and preserving same. We have accordingly advised our client that he should deliver these articles to your care for the present and pending determination of the legal, ownership or status thereof; and also of course subject to any rights to payment or reward which our client and his son have.

7. Yours faithfully

8. The articles were received by Dr. Breandán Ó Ríordáin, the Director of the National Museum, who immediately recognised their general value and importance and it was established at the trial that Dr. Ó Ríordáin told Mr. Webb that he thought that the articles making up the hoard were treasure trove but that with regard to that aspect of the matter he would have to be guided by the Attorney General’s advice. He also told Mr. Webb that he (Mr. Webb) would be honourably treated.

9. Shortly afterwards the first-named plaintiff met officials of the museum and pointed out the precise place where the hoard had been found by him and his son.

10. Within a short time the museum having ascertained the owners of the land and having received their permission carried out further excavations on the site and these, which lasted for approximately six weeks resulted in a number of missing parts and components being found, belonging either to the paten, the strainer or the bronze basin. A reconstruction was then carried out together with preservation work, partly by the National Museum and partly by the British Museum at the request of the National Museum, resulting in the restoration, to a very great extent, of the articles consisting of the hoard in what must have been their original condition.

11. The solicitors for the plaintiffs on 9 October 1980 wrote the Dr. Ó Ríordáin reminding him of the undertaking that the plaintiffs would be honourably treated with regard to the finding of the hoard and asking that this promise would be implemented. To that letter a reply was sent, stating that the matter was being considered by the head of the Department of Education. No further communication was received, however, from Dr. Ó Ríordáin and the solicitors for the plaintiffs wrote again on 2 March 1981 asking for a firm commitment within one month. On 16 June 1981 the Chief State Solicitor wrote to the solicitors for the plaintiffs referring to the letter of 18 February 1980 addressed to Dr. Ó Ríordáin and stating that the Government would be willing to make an award of £10,000 to the plaintiffs in respect of their interest in the finds. There does not appear to have been a direct response to that letter but on 23 November 1981 the plaintiffs’ solicitors wrote seeking the return of the hoard to the plaintiffs. Reminders were sent but no response to that demand was made until 8 February 1982 when the Chief State Solicitor wrote to the solicitors for the plaintiffs pointing out that his instructions were that the hoard was the property of the State and that the Government was prepared to make an award of £10,000 to the plaintiffs as had been stated in his letter of 16 June 1981. These proceedings were then instituted by plenary summons on 11 March 1982.

12. In March 1980 a solicitor acting on behalf of the owners of the land, Messrs. O’Brien and O’Leary, had written making a claim to an award. Considerable correspondence took place between the State and these owners and eventually both agreed to accept a sum of £25,000 each, and in consideration of that payment to convey to the Minister for Education all rights, property or interest that they may have in the objects now known as the Derrynaflan Hoard. Mr. O’Brien and Mr. O’Leary executed a document on 7 July 1981 acknowledging the payment of the sum of £25,000 and transferring to the Minister for Education all their rights and interests in accordance with the agreement.

13. In his judgment leading to the making of the order of 10 December 1986, the learned trial judge reached the following conclusions:-

14. Having reached the conclusion as a matter of law that the State was estopped from challenging the title of the plaintiffs to the hoard because it was placed estopped with them and accepted on a bailment, the learned trial judge did not find it necessary to decide the question of the right or title of the landowners to the hoard. He expressed his opinion that the action was not an action concerned with the ownership of the hoard but was an action between a bailor and a bailee and the sole issue was whether the plaintiffs as bailors were entitled to the return of the hoard from the State. The action, he stated, is not concerned with the ownership of the hoard and will not determine its ownership.

15. The first issue which falls to be determined on this appeal, from a logical point of view, is the question as to whether, assuming that the hoard was received by the National Museum as agent for the State in the capacity of a bailee, there must be an implied term in that bailment that the plaintiffs as bailors had a good title to the goods. The decision of the High Court was based on the decision of the Court of Appeal in Rogers Sons & Co v. Lambert & Co [1891] 1 QB 318

16. I have considered that decision and I have come to the conclusion that on the facts of this case there can not be implied into the arrangements between the plaintiffs and the defendant, surrounding the deposit of the hoard with the Museum, any term establishing a title in the plaintiffs to the hoard. The terms under which the hoard was deposited are clearly set out in the letter written by the solicitors for the plaintiffs which was brought to the director of the Museum at the same time as the articles were. The reference in that letter, which I have already quoted in full, to deliver these articles to your care for the present and pending determination of the legal ownership (emphasis added) is, in my opinion, wholly inconsistent with implying into any bailment arising from that delivery an acknowledgment or admission of the plaintiffs’ title to the goods. Whilst, therefore, I would accept as a general proposition of law that bailment involves an implied term as to the title of the bailor of the goods, it can only do so to the extent and in the instances where such an implied term is not by the express terms of the bailment excluded. I am satisfied that this case is one in which such an implied term is by the express terms of the letter excluded from the bailment.

17. It is next necessary to consider the issue as to whether even assuming that the title of the plaintiffs to the goods is not an implied term in this bailment, the State is by reason of the bailment estopped from asserting its own title to the goods which it claims it derived from the landowners, O’Brien and O’Leary.

18. The decision of the learned trial judge in this context was again based largely on the decision in Rogers Sons & Co v. Lambert & Co and also in Biddle v. Bond (1865) 6 B & S 225 which is cited with approval in that case. There can be no doubt that Rogers Sons & Co v. Lambert & Co is a clear authority for the proposition that if a bailee seeks to refuse the return of goods, asserting the right of a third party to the possession and ownership of them, that he can only do so expressly on behalf of and with the authority of the third party, and that having asserted such a right he must prove it. The decision, however, does not appear to me to exclude or indeed to deal at all with the situation where a bailee asserts not the right of a third party to the goods but his own title to them, even if it has been acquired subsequent to the original bailment. The facts of Rogers Sons & Co v. Lambert & Co where the plaintiffs had purchased copper from the defendants and paid for it and whereby the defendants expressly undertook to warehouse the copper and upon payment of the proper warehousing charges to deliver it to the plaintiffs or their order, made it, of course, quite unnecessary to consider any assertion by the defendants of a title in themselves to the copper. In considering the nature of jus tertii which can be asserted by a bailee Lopes LJ at p. 328 of the report quotes with approval from the decision in Biddle v. Bond where Blackburn J delivering the judgment of the Court of the Queen’s Bench said:-

19. We think that the true ground on which a bailee may set up the jus tertii is that indicated in Shelbury v. Scotsford, viz., that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount.

20. In my view, the true legal position which arises where a bailee asserts and establishes a title in himself to the goods is that he establishes the termination of the bailment and that by reason of that termination any estoppel which would otherwise arise between a bailee and a bailor ceases to operate. Such a view of the law appears to be logical and, in my view, appears also to yield a just result for there could be significant injustice if a bailee having lawfully and properly acquired a title to the goods which had been bailed with him were obliged to return them to the bailor by virtue of an estoppel and presumably left to the remedy of a subsequent second action for the delivery back of the goods to himself again. I, therefore, conclude that it is necessary in this appeal to determine the question as to whether by virtue of the contracts and conveyances made between the State acting through the Minister for Education and the owners of the land the State had, by the time of the institution of these proceedings acquired a title to these articles as against the plaintiffs.

21. The defendants assert a title to the goods derived through the landowners, Messrs. O’Brien and O’Leary, on two separate grounds. Firstly, they allege that the landowner had a title to any chattel found in the land against any finder of it, under any circumstances. Secondly, they allege that the plaintiffs, having found the chattels and obtained possession of them by an act of trespass as found by the learned trial judge, namely, the digging in the land, and/or being guilty, as it is alleged, of an offence under s. 14 of the National Monuments Act 1930, cannot derive any lawful title to the goods thus acquired.

22. In the submissions before this Court it was suggested on behalf of the defendants that an offence against s. 26 of the National Monuments Act 1930 may also have been committed and it was in addition suggested that

23. The decision of Chitty J in Elwes v. The Brigg Gas Company (1886) 33 Ch D 562, is a clear and unequivocal authority for the proposition that the owner of a fee simple interest in land is entitled to any chattel which may be in the land as against the finder of that chattel, even where the finder is excavating the land with the licence of the owner. I have carefully considered the judgment in that case and I find it a very persuasive precedent.

24. The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence It is free to anyone who requires a specific intention as part of the de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorised interference.

25. Later on in his judgment the Chief Justice stated this principle in somewhat different form and, in particular, appeared to apply it to things which may be upon or in the land, where the statement would appear to apply to everything which is attached to or under the land. This slight qualification, if it is such, of the earlier statement is dealt with in the judgment of McNair J in London City Corporation v. Appleyard [1963] 2 All ER 843. I am satisfied that the true legal position is that there must be distinguished, with regard to the question of control, things which are on land and things which are attached to or under it. This distinction makes consistent the decision in Bridges v. Hawkesworth (1851) 21 LJ QB 75, and the decision in Parker .v. The British Airways Board [1982] ER 834 which dealt with objects on land and with an absence of control over them with the decisions in the cases to which I have referred, dealing with objects attached to or under the land. The extent to which, where objects are attached to or under the land, an absence of control may deprive the owner against a finder is probably limited to cases such as Hanna v. Peel [1945] KB 509, where the owner of a house had never entered into possession of it though the title had developed upon him. There is no evidence in this case of anything approaching that type of absence of control on the part of the landowners. From a consideration of all these cases, although it is clearly obiter to the facts contained in it, I would find the general propositions set out by Dolandson LJ in Parker v. British Airways to be a careful and, in my opinion, correct assertion of the relevant principles applicable. Two of the propositions he there states are relevant to the issues arising in this case, the first being that an occupier of land has rights superior to those of a finder over chattels in or attached to that land, and the second being that the finder of a chattel acquires very limited rights over it if he takes it into his care and control...in the course of trespassing.

26. I, therefore, conclude that on the facts of this case the owners of the lands, Messrs O’Brien and O’Leary had a right to possession of these chattels, superior to the plaintiffs who were finders of them, and that by the agreements made between the State and those two landowners these rights have become vested in the State.

27. That conclusion would obviate the necessity to reach a conclusion as to whether the plaintiffs, by reason of the fact that their finding of these objects constituted a trespass by the digging in the soil would, in any event, lose any right to possession they might have. This matter was very fully argued, however, and I feel that although it is not necessary for the decision of this case that I should express a view upon it. I do not consider that having regard to the fact that the allegation that the plaintiffs acted contrary to s. 14 of the National Monuments Act 1930 is an allegation of the commission of a criminal offence, that the evidence could support such a conclusion. The subsection involved is s. 14 (1)(6) of the Act which makes it an offence to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument without or otherwise than in accordance with the consent hereinafter mentioned. Such evidence as was given, and it does not appear to have been in any way emphasised or fully investigated with regard to the relationship between the area in which the hoard was found and the buildings constituting the national monument does not appear to me to form a safe base for even prima facie establishing a criminal offence.

28. With regard to the question of trespass, however, the position would appear to be as follows. The learned trial judge found that the act of digging was an act of trespass, and even though the plaintiffs may have entered with the implied licence of the owners, as was found by him, this would lead to the legal conclusion that they then became, upon commencing to dig, trespassers ab initio.

29. As such, the general principle of public policy seems clearly to be that they should not, because of that trespass, acquire any rights of ownership to the land or things found in it.

30. It was submitted on behalf of the plaintiffs that their trespass was minimal or certainly not very serious and that this altered what otherwise might have been the legal position.

31. There can be no doubt that the plaintiffs in this case behaved extremely responsibly once they found these objects and that their conduct subsequent to the finding of them, both in the discretion with which they approached the Museum and the expedition with which they did so, and in the very active co-operation which they subsequently gave to the officials of the Museum concerning the find, was exemplary.

32. The principle which I have shortly outlined, that the law leans against the acquisition by a person of property rights by trespass, save in cases of prescription, is based on the requirement of the common good that the ownership and right to possession of land shall be protected from an unlawful invasion of it. There does not appear to me to be any grounds in logic or justice for a rule of law that a person who by a trespass of little extent obtains possession of a very valuable chattel would be exempt from this provision of the law, whereas a person committing a larger or more extensive trespass, and possibly deriving a much smaller profit would be penalised by it.

33. I would, therefore, conclude that even if the right of ownership of the hoard as between the owners of the land and the finders were different from what I have stated it to be, that the fact that these plaintiffs are finders by an act of trespass would disentitle them to any rights in the objects found, certainly as between them and the owners of the land.

34. On behalf of the plaintiffs challenge was made to the validity of the ‘conveyances’ obtained by the State from Messrs O’Brien and O’Leary. This was based on the fact that they are described as conveyances and yet do not appear to have been executed under seal. I am satisfied that there is nothing in this submission. What was being conveyed was the right to possession and ownership of the two owners of the land in the objects which had been found in it. These were, of course, chattels, and in the circumstances the written acknowledgment of the agreed consideration, coupled with the asserted transfer of the rights of ownership and title were sufficient to vest all the rights of the landowners in the State.

35. I am, therefore, satisfied that upon the execution of these documents and the payment of the money, the receipt of which is acknowledged in them, that the State became entitled to the ownership and possession of these objects subject only to the establishing by some person of a title to ownership as the ‘true owner’. In other words, it would be necessary to deprive the State of its ownership for a person to assert and establish that he was validly the successor in title to the person who owned the objects and was entitled to possession of them at the time they were, as was found by the learned trial judge, concealed in the pit in the bank.

36. Having regard to this view, it was not for the purpose of the main claim made by the plaintiffs in this action, namely, for the return of the hoard, necessary to determine the issue as to whether and to what extent the right or prerogative of treasure trove is part of the law of Ireland.

37. The plaintiffs, however, in the alternative, have claimed that in the event of their submission that the right of treasure trove was not part of the law of Ireland failing that, a constituent part of that right was the entitlement of the finder of treasure trove to a reward; that they the plaintiffs as finders of so much of the hoard as constituted treasure trove were entitled to such a reward and that on the facts of the case and, in particular, on the statements made on behalf of the State by the Director of the National Museum, that they had a legitimate expectation to a reasonable reward, enforceable in the courts.

38. To deal with this claim it is necessary, in the first instance, to determine whether the right or prerogative of treasure trove is part of our law.

39. The defendants have submitted that it is part of the law on two quite separate grounds.

40. Firstly, it is contended that the prerogative of treasure trove was a loyalty or franchise within the territory of the Irish Free State and that as such it was expressly vested in the Irish Free State by the provision of Article II of the Constitution of the Irish Free State (the 1922 Constitution). That being so, it is argued, the provisions of Article 49.1 of the Constitution vest that prerogative in the People and the provisions of Article 49.2 provide that it shall be exercised by or on the authority of the Government.

41. The second and quite alternative ground on which it is alleged the prerogative of treasure trove has survived into the law of Ireland is an assertion that as part of the wider and more general right of bona vacantia it is an inherent and necessary attribute of a sovereign State and that since this State is by virtue of Article 5 of the Constitution declared to be a sovereign State that it must follow that it is entitled to the prerogative of treasures trove.

42. To examine these two contentions it is, in my view, necessary, as shortly as possible to consider the nature and to some extent the history of what is known in law as the prerogative of treasure trove.

43. Treasure trove as we know it, is a creature of the common law. It is part of the more general right of bona vacantia which is the common law of England belonged to the Crown. The general purpose of the vesting of the property in bona vacantia in the Crown is usually stated to have been to prevent the strife and contention to which title by occupancy might otherwise give rise in relation to goods, land or rights to which no one can make a lawful claim.

44. With regard to that prerogative of treasure trove, however, it would seem clear that, historically, it also had the major purpose of being a source of revenue for the Royal Mint.

45. It applied only to valuable chattels which it could be established were concealed for the purpose of protecting them and with the intention of subsequently recovering them by the person who hid them and which were made of the precious metals of silver or gold, a combination of them or an alloy containing a substantial ingredient of either or both of them. The right of the Crown to the possession and ownership of such treasure trove was subject always to the obligation to restore it or its value to the ‘true owner’ if he could be found.

46. It would appear obvious that the confining according to the common law of the right of treasure trove to gold and silver objects or objects substantially made of either or both of these metals was directly associated with the purpose of enriching the Royal Mint, and it is stated in most of the textbooks concerning this topic that in early days treasure trove when recovered by the Crown was frequently melted down into coin.

47. It would appear that since the accession of George III the right to treasure trove vested in the Crown has been part of the surrendered revenue of the Crown, surrendered by each succeeding monarch to the Treasury for his lifetime in return for the provision of the Civil List.

48. It would appear that from the earliest times the right to treasure trove was enforced on the one hand by penalties imposed on the finders of such treasure trove who failed to reveal to the appropriate authorities the find and failed to yield them to the Crown, and on the other hand by the giving of rewards to those who did reveal their finds and yielded them to the Crown.

49. By the 19th Century it is quite clear that the prerogative treasure trove in England and in Ireland continued to be exercised on behalf of the Crown by the Government of Great Britain and Ireland but for a purpose wholly different from that which had been its historical origin. Its purpose now clearly was the retention by the State, for the common good, of antiquarian objects, interest and value, which formed part of the heritage of the people.

50. Thus, during this period it would appear, for example, that internal arrangements were made by the Treasury of the British Government, dealing with the scale and measure of rewards for the finding of treasure trove which were quite inconsistent with the possibility of the acquisition by the State of the objects of treasure trove for the purpose of profit. Furthermore, the right or franchise of treasure trove in Ireland was apparently de facto exercised on behalf of the State by the Royal Irish Academy who received a grant from the Treasury for the purpose of providing rewards and who do not appear to have had any obligation to account in any way to the State for the value of what they might have acquired under this right.

51. In general terms, it would appear that at common law the payment of a reward to the finder of treasure trove was an act of grace and the finding and giving up of treasure trove to the State or its agent was not considered to confer on the finder any right enforceable at law to the payment of any particular reward or of a reward at all.

52. Having regard to this very brief summary of the apparent history and characteristics of the prerogative of treasure trove, I have, with regard to the submissions made on behalf of the defendants, under two separate headings, come to the following conclusions.

53. I agree with the view reached by the learned trial judge in this case that on the authority of Byrne v. Ireland no royal prerogative in existence prior to the enactment of the Constitution of 1922 was by virtue of the provisions of that Constitution vested in the Irish Free State. I agree with the judgment of Walsh J in Byrne v. Ireland which was expressly concurred in by a majority of the court that the provisions of Article 2 of the Constitution of 1922 declaring the Irish Free State to be a Sovereign State and the provisions of Article 51 of the same Constitution expressly vesting in the King certain executive functions, being the executive functions of the Irish Free State, are inconsistent with the transference to that State of any royal prerogative. As is also set out in the decision in Byrne v. Ireland it must follow from this conclusion that the royal prerogatives were not prerogatives exercisable in Saorstát Éireann immediately before 11 December 1936 and were therefore not captured by Article 49.1 of the Constitution.

54. It was contended on this appeal that it was possible to distinguish between a prerogative of immunity from suit, which was the subject matter of the decision in Byrne v. Ireland and which could be traced to the royal dignity of the King and a prerogative of treasure trove which it was stated could be traced or related not to the dignity of his person but to his position as sovereign or ruler. Such a distinction does not alter the view which I have expressed with regard to the effect of the provisions of the Constitution of 1922, and appears to me to ignore the essential point which is that by virtue of the provisions of the Constitution of 1922 what was being created was a brand new sovereign State and that the function, power or position of the King in that sovereign State was such only as was vested in him by that Constitution and by the State created by it.

55. With regard to the second submission made by the defendants concerning the question of the prerogative of treasure trove, I have come to the following conclusions.

56. Article 10.1 of the Constitution provides as follows:-

57. All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.

58. Article 10.3 provides as follows:-

59. Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property.

60. I am satisfied that the phrase ‘all royalties’ contained in Article 10.1 of the Constitution, construed in the light of Article 5, must be widely construed and must include one of the definitions of royalty to be found in the Shorter Oxford English Dictionary, namely, the sovereignty or sovereign rule of a State.

61. It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern States, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that a necessary ingredient of sovereignty in a modern State and certainly in this State, having regard to the terms of the Constitution, with an emphasis on its historical origins and a constant concern for the common good is and should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.

62. The existence of such a general ingredient of the sovereignty of the State, does, however, seem to me to lead to the conclusion that the much more limited right of the prerogative of treasure trove known to the common law should be upheld not as a right derived from the Crown but rather as an inherent attribute of the sovereignty of the State which was recognised and declared by Article 11 of the 1922 Constitution.

63. For the purpose of determining the issues in this case, therefore, I would conclude that there does exist in the State a right or prerogative of treasure trove, the characteristics of which are the characteristics of the prerogative of treasure trove at common law which I have already outlined in this judgment as they stood in 1922.

64. As I have already indicated, it would appear that the characteristics of the right to prerogative of treasure trove at common law included the practice of rewarding a diligent and honest finder who revealed his find and yielded the object of it to the Crown. This practice is, however, apparently established as one of grace only and not conferring a legal right enforceable by the courts.

65. The plaintiffs’ alternative claim for the enforcement by this Court of a right of reward in respect of so much of the hoard as constituted treasure trove is based on an assertion that a combination of the practices both of the British Treasury prior to 1922 and of the State through the agency of the National Museum since that time and the particular conversations and conduct of the officials of the National Museum acting as agents for the State after the finding of this hoard gave to the plaintiffs a ‘legitimate expectation’ of the making to them of a substantial reward by the State which they are entitled to enforce in the courts.

66. In support of the assertion that they are entitled to rely on a ‘legitimate expectation’ the plaintiffs point to the evidence which was adduced, some of it undoubtedly being hearsay but apparently without objection, as to the rewards which had been paid in the past by the Museum in respect of the finding of antique objects and in respect of interdepartmental or administrative minutes and decisions made with regard to the general

67. It would appear that the doctrine of ‘legitimate expectation’ sometimes described as ‘reasonable expectation’, has not in those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is but an aspect of the well-recognised equitable concept of promissory estoppel (which has been frequently applied in our courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor. The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning in Amalgamated Investment & Property & Co Ltd v. Texas Commerce Investment Bank Ltd [1982] QB 84, 122:-

68. When the parties to a transaction proceed on the basis that an underlying assumption - either of fact or of law - and whether due to misrepresentation or mistakes makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.

69. Applying the law as there stated, which seems to me to accord with fundamental equitable principles, I am satisfied that the unqualified assurance given to the first-named plaintiff by the Director of the National Museum that he (Mr. Webb) would be honourably treated was an integral part of the transaction under which the hoard was deposited in the Museum and accepted on behalf of the State, and that the State cannot now go back on the assurance. It must be given effect to in the form of a monetary award of an amount which is reasonable in the light of all the relevant circumstances.

70. It is not necessary to rule on the submission made on behalf of the plaintiffs that, regardless of any specific assurance given on behalf of the State, the plaintiffs are entitled as of right, as finders, to appropriate monetary payment for the treasure trove acquired by the State. As I have indicated, the right to treasure trove asserted by the State in this case is essentially the right vested in the State by reason of its sovereign nature bearing the characteristics attached to it by the common law prior to 1922. Prior to 1922 it appears to have been the practice in this country to give monetary rewards to finders of treasure trove. The defendants contend that such rewards were mere honoraria given as a matter of grace and not on foot of any legal liability to give them. The plaintiffs on the other hand contend that the giving of rewards to finders of treasure trove was so well-established and regular that the expectation of a reward in this case was so well-founded that the courts should give effect to it.

71. It is not necessary for the resolution of this case to choose between those two submissions. In my opinion the plaintiffs’ claim for compensation rests solidly on the fact that the assurance given to Mr. Webb that he would be honourably treated (which should be held to mean that he would be reasonably rewarded) was an integral part of the transaction whereby he deposited the hoard in the National Museum. It would be inequitable and unjust if the State were to be allowed to repudiate that assurance and give only a meagre and disproportionate award. For the State to avoid giving the plaintiffs a reasonable reward would not be to treat them honourably.

72. Evidence of the amounts paid in respect of previous finds of valuable antiques tendered in the High Court does not appear to me to assist in any particular way as to the appropriate amount which should be paid in this case for no distinction seems to have been made in those circumstances between objects of antique or historical value which were gold and silver and those which were not. In particular, the only comparable object which was found and brought into the possession of the National Museum would appear to be the Ardagh Chalice and certainly the evidence tendered with regard to the amounts paid to various people in respect of that find would indicate a total absence of relationship between its true commercial or market value and the amounts paid.

73. Having reached the conclusion, however, as I have done in this judgment, that treasure trove is a royalty or franchise vested in the State by virtue of its sovereign nature and having reached the further conclusion that there is associated with that a right of the plaintiffs in the particular circumstances of this case to a reasonable reward, I find that I am dealing with a situation in which a finder has got a right to a reward for which the law has not yet provided a precise method of assessment.

74. Whilst I have already decided that the fact that the finding of them arose from an act of trespass, namely, the digging in the land to enter which they had an implied licence would, apart from other considerations, defeat any right they had to the possession of the objects as between them and the owners of the land, I do not consider that the extent and the nature of the trespass in this case, having regard in particular to the subsequent conduct of the plaintiffs with regard to the hoard, could or should, as a matter of public policy, disentitle them to a reasonable reward. In particular, the statement upon which they rely which was in my view properly made, by the Director of the National Museum, after he had been made aware of the circumstances of the finding of this hoard, would be inconsistent with any such loss of rights.

75. It is not possible at this stage and in the absence of specific legislation to set out in any exhaustive detail the factors which might or should, as a matter of policy cover the assessment of what is a proper or reasonable reward for the finding of objects of treasure trove. As I have already indicated, evidence with regard to past payments made for antiquities are of little value, having particular regard to the fact that there is a great

76. It would appear to me that factors which would be certainly of relevance are the general value and importance of the objects found; the circumstances of their finding; and the nature and extent of rewards granted in other instances of treasure trove. Lastly, and of very considerable importance, is the attitude and conduct of the finders of the objects after they have been found and the alacrity with which their finding is disclosed and their possession is surrendered to the appropriate authorities. Consideration must also, in my view, be given to a situation where objects are found by an act of trespass, even though that may be not of any flagrant type and even though that may not, as on the facts of this case, disentitle the finders to their reward.

77. It appears to me that on the evidence which is before this Court and which was before the High Court, coupled with the finding by which this Court is bound, with regard to the market value of the objects found, that this Court is in as good a position as would be the High Court to assess a reasonable reward, having regard to the considerations which I have above outlined. In those circumstances, in litigation which has not in the courts had anything like a lengthy history but which being brought to the courts was delayed from the time of the finding of these objects, I think it is proper that this Court should itself assess the appropriate reward.

78. Having regard to all the considerations which I have set out above, I would assess a sum of £50,000 as a reward to the finders of this hoard to be divided equally between the two plaintiffs.

79. I do not intend to imply by anything contained in this judgment that the right or prerogative of treasure trove which I find to be vested in the State may not be enlarged or varied by legislation.

80. Indeed, the circumstances of this case may be thought to point to the necessity for such legislation. The right to treasure trove with which I have been dealing in this judgment is but an outmoded remnant of the mediaeval prerogatives which were vested at common law in the monarch. As such, its characteristics which restrict the nature of the articles to which it applies; the circumstances to be inferred as to the hiding or concealment of those objects and the vagueness as to the respective rights of the State and the finder may indicate that a variation and extension of the State’s rights in regard to ownerless articles of national importance which have been found may be called for.

81. It may be thought proper, for instance, to provide that all (or specified kinds of) articles or items of archaeological, historical, antiquarian or cultural value or interest should when apparently ownerless on being discovered or brought to light be deemed to vest in the State subject to the claim if established of the true owner. Such a provision might well abolish both any distinction between objects made of different materials and any request for evidence that the objects had been hidden for safe keeping. In ordinary cases it would probably be desirable to have a system of reward so as to encourage finders to deliver up articles or items so found. It may be thought proper that any such system of reward should be counterbalanced by penalties applicable to improper excavation of such articles or to their concealment when found.

82. However, what precise changes should be made in the law is something outside the jurisdiction of this Court and is exclusively a matter of legislative policy.

83. I would allow this appeal by setting aside the order appealed against and substituting for it an order

84. The facts of this case have been so fully set out in the judgment which has just been delivered by the Chief Justice that I do not find it necessary to repeat any of them.

85. The Chief Justice has set out in five paragraphs the conclusions of the learned High Court judge. The sequence is not exactly the same as that of the High Court judge in his own judgment but I propose to deal with the matters in the order which has been followed by the Chief Justice.

86. The defence raised in the High Court by the defendants was to rely upon the claim that the former royal prerogative in relation to treasure trove was still applicable in the sense that it was claimed that the State was the successor in title of such prerogative. The claim which the State made to the ownership of the chattels in question was founded on that assertion and was to the effect that it superseded any claim of right of the plaintiffs. For the reasons given by the Chief Justice in the course of his judgment I am of the opinion that this claim by the defendants based on succession to the royal prerogative was rightly rejected by the learned High Court judge and that it cannot be sustained in this or any court. If the State has a rightful claim then it must be found elsewhere. That is a matter to which I shall return later in this judgment. However, so far as the High Court is concerned once the learned High Court judge has reached his decision to reject the State’s claim to a royal prerogative the question of bailment became of great importance. The claim of the museum authorities, voiced through the State, to retain the articles in question notwithstanding that they were bailees of the objects had to be rejected as the claim was based, and apparently solely based, upon the title claimed through the royal prerogative. I agree with the view expressed by the learned High Court judge that all other things being equal, a bailee is not entitled to challenge the title of the bailor.

87. In this case the chattels were left with the museum authorities, as a State agency, and they were left with them for safe keeping pending the outcome of any determination of legal ownership. The bailment was a gratuitous bailment which conferred no rights upon the bailee as such even though it may have imposed certain liabilities. This case is not concerned with that latter aspect of bailment. A gratuitous bailee is precluded from using a chattel bailed in any manner whatever without the express and complete consent of the bailor, unless such use is needful for its preservation. The chattels were not bailed to the bailee for the purpose of being used for any certain time, or at all, but solely for safe keeping pending the outcome of the establishment of legal title. Being a gratuitous bailment it was open at any time to the bailor, in this case the respondents, to call for the return of the article. Other things being equal the bailee could not legally refuse to return them. The objects were bailed to the museum authorities as agents of the appellants and they were not received by the museum authorities as stakeholders or in any similar capacity.

88. In this case, the bailee’s principal, namely the State, asserted a title based on the alleged succession to the royal prerogative of treasure trove. That being the case, then the judge, in my view, was perfectly correct in holding that as the claim to title set up by the bailee in the defence to the claim for return of the goods could not be sustained he was obliged to order the return of the goods to the bailor without determining the title of the bailors. I am of opinion that the use of the words ‘pending determination of the legal ownership’ adds nothing to the matter once the bailees have failed, or their principles have failed, to establish the title which they asserted. It is also my opinion that if a claim for the return had been made before, and without waiting for the title to be established, the bailees would have no legal answer to the claim to return the goods on demand having regard the nature of the bailment unless they were able to establish a claim of title on behalf of themselves or their principals. This they failed to do. This aspect of the case does not concern any claim by a third party because the bailees were quite clearly acknowledged to be and were treated as agents of the appellants. At no time did the bailees, namely the National Museum authorities, assert a claim on behalf of any part other than the State. Obviously if the bailee can establish a title for himself or for his principals he has ousted the title of the bailor and the matter ceases to be one of bailment. However, that is not what happened in the present case.

89. But in so far as the learned High Court judge held that the bailees could not avail of a title to the goods acquired after the bailment, it appears to me that he was not correct.

90. The second ground of defence which was offered by the appellants in the High Court was that if they did not have a right to the title before the bailment, they did acquire the title by assignment from those who had it before it was sought to determine the bailment. This post bailment title, which is asserted, is claimed to be derived from the owners of the lands in which the chattels were found, namely Messrs O’Brien and O’Leary. The landowners had by an agreement, for consideration of £25,000 to each of them, assigned to the State all their title to the chattels found. Naturally, this was only effective to pass title if they had any title.

91. This claim is based on the argument that the owner of the fee simple of the land is entitled to any chattel which may be on the land against any finder of the chattel upon the land. There is legal authority for such proposition and, also, there is legal authority to distinguish between a claim which the owner of land may assert in respect of objects found upon this land as from those which are found in or under the land surface. The Chief Justice in his judgment has referred in some detail to the legal authorities in question and has analysed them.

92. These cases reflect that the importance which appears to have been attached to the ownership of lands was such as to denigrate, if not obliterate, the true title claimed in respect of the chattels themselves.

93. I think it is true to say that there is no such thing as a chattel which has never had an owner. In this particular case the judge found as a fact that the chattels had been placed in or on the land for safe keeping. I say in or on the land because I have regard to the number of centuries that has elapsed which makes it difficult to say whether the initial hiding place was beneath the surface of the soil or simply achieved that situation through the course of time. On the view I take of this case it is not necessary for me to decide whether some distinction should be drawn between the chattels found upon the land and those found in land or under land. Leaving aside any question which might arise under the Statute of Limitations, 1957, which was not relied upon in this case, it cannot be asserted that these articles were abandoned in the sense that ownership had been abandoned. If chattels are expressly or by implication abandoned in favour of a particular and ascertainable person or persons then the chattels become the property of that person or those persons if they accept them. If they do not accept them then the chattels have no particular owner. Articles cannot be regarded as lost if they are intentionally placed in a particular situation. In my opinion it would be a great injustice if the true owner of the chattels, having intentionally placed them in a particular place for safe keeping and then cannot recall where he placed them, or where he did not have an opportunity to come back to recover them, should be deemed to have lost his title in favour of the owner of the lands in which he placed them. Strictly speaking nothing can be said to be lost in the literal sense if it continues to exist even though its owner may be unknown or because it has been unknowingly misplaced. Notwithstanding the number and the weight of the authorities cited it is my opinion that the owner of the land upon which mislaid or unremembered chattels are intentionally placed for safe keeping, whether in or under the surface, cannot claim to be the owner of the chattels simply by reason of his being the owner of the land. To so hold would be fail to vindicate the rights of property of the true owners of the chattels so placed and would permit the type of injustice which Article 40.3 of the Constitution is designed to prevent. The owner of such land is to be deemed to be in bare possession of the chattels even if he does not know of their existence on his lands. He can assert a good claim to possession, as distinct from ownership, against any claimant whether it be trespasser, or otherwise, whose claim is based on simply unearthing and removing the chattels in question. Even the former royal prerogative of treasure trove acknowledged that in so far as treasure trove was concerned the true owner, or his successors in title, could always claim ownership and possession of the treasure if he could establish title.

94. In the present case the owners of the land never sought to recover possession of the property. They simply sold their right of title, if any, which in my view was nil, to the State. They could not assign a right to bare possession divorced from ownership when they had already got permission. The Museum authorities, in accepting the goods as bailees, at no stage attempted to set up a true jus tertii in favour of or for the benefit of the owners of the land.

95. In so far the appellants sought to base their case on alleged breach of s. 141(b) of the National Monuments Act of 1930, I take the same views as those expressed by the Chief Justice.

96. The case does not concern chattels which are lost in the literal sense of the term or which were abandoned. The essential finding of fact by the trial judge was told that the chattels were left for safe keeping. Therefore, I am not concerned to offer any view on what might be the situation if the chattels were truly lost or abandoned.

97. In this Court the appellants sought to base their claim to ownership upon the provision of Article 10 of the Constitution of Ireland. In effect they abandoned the unsuccessful claim as successors of a royal prerogative.

98. I fully agree with the view expressed by the Chief Justice that it would now be universally accepted by the people of Ireland that one of the most important national assets belonging to the People is their heritage and the knowledge of its true origins, and the buildings and objects which constitute the keys to their ancient history. I also agree with him in his statement that it is a necessary ingredient of the sovereignty of a modern state, and for the reasons he gives, that is for the common good that there should be ownership in the State of all objects which constitute antiquities of importance and which are discovered to have no known owner. When I speak of ownership in this context, I speak of a claim of ownership as against all the persons except those who can establish a title by succession to the original owner of the chattels and other materials which make up this heritage. However, I do not wish to be understood as saying that it would not be within the competence of the Oireachtas to vest ownership in the State in the interest of the common good, in accordance with Article 43 of the Constitution, and subject to the payment of just compensation, if in the circumstances justice required to payment of any compensation. I fully agree when the Chief Justice says that it would be inconsistent with the framework of the society which is created by the Constitution and which is sought to be protected by that Constitution that such objects could become the exclusive property of those who by design or by chance discover them and take possession of them. In my view that opinion applies to the owners of the land in or on which they are found or to any other persons who find them in or upon lands. But unless and until legislation be enacted the State must be regarded as owners in the sense of having a better right to possession than anyone else. I am content to base my opinion upon what I believe to be the fundamental duty of the State to safeguard all the national assets whether truly in the ownership of private individuals and more importantly, where the owner is not known or cannot be ascertained. It cannot be doubted that the chattels which are the subject of this case, fall within that category. I see no reason why it should be confined to such items as fall within the definition of treasure trove under the former law. In this country this definition would be of little benefit as so many of our antiquities in chattel form are not made of either gold or silver.

99. I regret that I cannot subscribe to the view that Article 10 of the Constitution rules this case. To understand Article 10 of the Constitution it is first necessary to look at Article 11 of the Constitution of Saorstát Éireann. It provided that:-

100. This was considered and analysed by Kingsmill Moore J in Irish Employers Mutual Insurance Association Ltd, In re [1955] I.R. 176 at p. 220 to 222. (The judgment was actually delivered in 1950).

101. I agree with his conclusions that Article 11 owed its political philosophy and statement of principle to, and indeed reflected, the Declaration of Independence and the Democratic Programme issued by the First Dáil at its first meeting in January, 1919. The latter document proclaimed the right to the ownership of Ireland in the following terms:-

102. We declare, in the words of the Irish Republican proclamation, the right of the people of Ireland to the ownership of Ireland. We declare that the Nation’s sovereignty extends not only to all men and women of the nation, but to all its material possessions, the nation’s soil and all its resources.

103. That was a categorical rejection of all notions of royal rights or privileges and this was repeated by Article 11 of the Constitution of Saorstát Éireann where Article 11 differed in some details from the Democratic Programme of 1919 was that Article 11 did not speak of ‘all its material possessions’ or to ‘all its resources’. Those expressions were sufficiently wide to capture chattels and artifacts. Article 10 of the Constitution of Ireland provides in section 1 that all natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.

104. That Article is for all practical purposes in this case the same as Article 11 of the Constitution of Saorstát Éireann. The word ‘lands’ and the word ‘waters’ which appeared in the former Article 11 are not repeated in the present Article 10.1. That is of no consequence as the expression ‘all natural resources’ captures both. The effect of the article is that the State is the ultimate owner of all the matters therein mentioned and is by Act of the Oireachtas the ultimate intestate successor of all property capable of being the subject of succession; see s. 65 of the Succession Act 1965 . It is to be noted that the State’s immediate interest in mines and minerals arises largely from various provisions of the Land Acts which reserved to the Land Commission mining rights in respect of land sold by the Commission and vested them in the State and the development of them was dealt with by the Mines and Minerals Act 1979.

105. This case is concerned with artefacts, that is to say, with the product of human art and workmanship. Artefacts are quite distinct from similar and other objects naturally produced. When Article 10 speaks of ‘all natural resources’ it cannot, in my opinion be held to include artefacts. They could have been captured by the wording of the Democratic Programme of 1919 where it spoke of ‘all its material possessions’ and also where it spoke of ‘all its resources’, because of the reasons already given articles of the nature of those the subject of the case must in the context of the national heritage be regarded as part of the ‘natural resources’. However as I have already mentioned these phrases were omitted from the former Article 11 and the present Article 10 and therefore cannot be captured under the heading of ‘natural resources’, instead they are to be regarded as ‘national resources’.

106. What then is the meaning to be attached to the reference to ‘all royalties and franchises’ in the context in which these expressions appear. In their primary and original meanings both words were related to the royal privileges and prerogatives. A franchise was a royal privilege in the nature of a prerogrative when enjoyed by the King but became a privilege when he granted it to a subject.

107. As was pointed out in the Attorney General of Ontario v Mercer (1882) 8 App. Cas. 767 at pp. 778 and 779 the expression ‘royalties’ in its primary and natural sense is merely the English translation or equivalent

108. In the present case for the reasons given it is quite clear that the expression ‘royalties’ cannot be given its primary meaning. Therefore the question is, is there a secondary meaning available in keeping with the context of Article 10 of the Constitution? In view of the references to ‘natural resources’ and ‘all forms of potential energy’ it is my opinion that ‘royalties’ is to be construed as referring to the sums paid or payable for the use or exploration of the natural resources, particularly in respect of mines and minerals and the sources of potential energy all of which belong to the State by virtue of Article 10 subject to all estates and interests for the time being lawfully vested in any person or body. In my opinion to equate the word ‘royalties’ in the context in which it appears in Article 10 with the sovereignty or the sovereign authority of the State would be to say that the sovereignty of the State is conferred by Article 10 whereas it is asserted and declared by Article 5 of the Constitution.

109. I am satisfied that the people as the sovereign authority having by the Constitution created the State, and by Article 5 declared it to be a sovereign State, have the right and duty, acting by the State which is the juristic person capable of holding property by virtue of the Constitution, to exercise dominion over all objects forming part of the national heritage, whether they be found or not, subject always to the lawful title of a true owner if and when the true owner is discovered and to exercise full rights of ownership when no true owner can be ascertained.

110. It is within the power of the Oireachtas, acting on behalf of the people, to make such arrangements as it sees fit by legislation for the disposal or other use of all such objects, subject to all provisions of the Constitution as the Oireachtas deems proper in the interest of the common good. While it is not for this Court to indicate to the Oireachtas how this power should be exercised it is the duty of this Court to state that pending any such legislation the State is entitled to possession of all such objects unless and until the true successors in title of those who hid them for safe keeping can be ascertained.

111. With regard to the claim that the plaintiffs/respondents should be entitled to some reward for discovering and taking possession of these articles special considerations apply. I fully recognise that as a matter of prudence and indeed as a way of safeguarding similar such objects as may in the future be found that it could well be regarded as expedient on the part of the State, not merely to reward such persons but generously to reward them for the sake of ensuring, or assisting in ensuring, that the objects will be disclosed to the State and will be dealt with by the State, for the benefit of the common good in accordance with the law for the time being in force. There is evidence that experience in other countries indicates that the more generous the reward the greater is the assurance of the continued availability or even survival or such objects. While it is hoped that the State in its legislation or in the exercise of its other powers might see matters in the same way, particularly in the case of persons as honest and as frank as the present plaintiffs that is a matter for the Oireachtas. For the reasons I have already given I take the view that the owners of the land were not entitled to assert a claim to ownership. It was their good fortune that the State saw fit to pay them. On the basis of ordinary justice it appears to me that the plaintiffs should be equally entitled, if not more entitled, legitimately to expect to be rewarded on a no less generous scale. I agree with the opinion of the Chief Justice on this topic already expressed in his judgment.

112. It is difficult to exaggerate the importance, nationally, historically, and aesthetically of the Derrynaflan Hoard, all objects of religious significance, found within the precinct of an ancient monastery, and appearing to range in date from the later 8th and the 9th century. The trial judge found that the hoard had clearly been buried in the pit in which it was found with the object of concealing it. It had probably been there since the later 9th or 10th century. It was found by the first-named plaintiff together with his son, the second-named plaintiff, using metal detectors, on 17 February 1980 when they had the implied permission of the owners of the land to go there, but did not have any permission to dig in the lands as they did when the metal detectors disclosed the presence of what turned out to be this hoard of treasure of such quality and nature as to produce a reaction of numbness in the Keeper of Irish Antiquities in the National Museum and editor and part author of ‘The Derrynaflan Hoard - I - A Preliminary Account’, to which I am indebted for the summary I have given. Apart from the items found by the Webbs, in the course of further excavations carried out by the National Museum, a number of missing components were found in the spring of 1980. On 18 February 1980, when Mr. Webb, senior, delivered the hoard as found by him and his son to Dr Ó Ríordáin, the Director of the Museum, he did so with an accompanying letter from the Webbs’ solicitors stating ‘we have accordingly advised our client that he should deliver these articles to your care for the present and pending determination of the legal ownership or status thereof; and also, of course, subject to any rights to payment or reward which our client and his son have.’ Dr. Ó Ríordáin told Mr. Webb that he would be honourably treated but no approach was made to him until 16 June 1981 when the Chief State Solicitor, on behalf of the Government, made an offer of an award of £10,000 to the plaintiffs, which offer was rejected on 23 November. The National Museum had set about ascertaining who were the owners of the land and on 7 July 1981 the Minister for Education paid the owners £25,000 each as consideration for the conveyance to the Minister

113. Dr. Ryan had valued the hoard at between 2.5 and 3 million pounds; the learned trial judge subsequently found the value to be over 5.5 million pounds. The National Museum sought to honour its undertaking; other agencies took a more niggardly view resulting in the offer of £10,000.

114. The State, through the Minister for Education, has bought whatever title the landowners had. If the landowners had a good title in possession, that is, paramount to such right of possession as the plaintiffs might have had as finders, then such title passed to the Minister. I do not find any estoppel.

115. I have considered the observations of the Chief Justice and of Walsh J holding that the landowners had a right to retain possession (Walsh J) or a right to these chattels, superior to the plaintiffs who were the finders of them (the Chief Justice).

116. Assuming that such right as the landowners had was limited to a right of possession, it would seem to follow that when the National Museum took as I believe they did take the hoard as bailee, it was an implied term of the bailment that the bailor, the Webbs, had a good title. Whilst I recognise that the terms of the solicitor’s letter ‘pending determination of the legal ownership’ recognises that such ownership may lie elsewhere, it does not, in my view, affect the limited implication of the bailment that the bailor had a better title than the bailee. Accordingly, I would accept the conclusion of the learned trial judge that the State is estopped from denying the title of the bailor and so is estopped from claiming that the plaintiffs’ possession was unlawful. This is no way inconsistent with my conclusion that the first plea of estoppel is not good in law.

117. Despite the authority cited by the Chief Justice, which, in this context, was not considered by the trial judge, who held against the State on estoppel No. 1, I am far from satisfied that ownership of land necessarily carries with it either ownership or a right to possession or other right in respect of chattels found in or over the land as against the claim of a finder. By definition, the owner, until the find, is unaware of the presence of the chattels; if the owner is a purchaser, he has bought and the vendor has sold for a price that takes no account of the chattels; these circumstances are quite apart from the problems that arise from the possible existence of a series of superior or inferior titles to the land, which term must, for this purpose, include real property of any kind. In this regard I find most persuasive the judgment of Whitehouse J, giving the judgment of the Supreme Judicial Court of Maine in Weeks v. Hackett (1908) 71 Atl. Rep. 858 where English and American authorities up to that date (1908) were cited. In Armory v. Delamarie 1 Strange 505 , a chimneysweeper’s boy found a jewel (presumably in a chimney) and brought it to the defendant who was a goldsmith to know what it was; the goldsmith gave it to his apprentice who, under pretence of weighing it, took out the stones, and called to the goldsmith to let him know it came to three halfpence, where upon the goldsmith offered the boy the money; he refused to take it and insisted on having it back whereupon he got the socket without the stones. Pratt CJ ruled:-

118. Public policy is an unruly horse; it is a form of judicial policy making, in this instance to be used to establish a right in someone who was unaware of the subject matter of that right until it was brought to his attention by the person who is to be denied that right. Because of the view I take on what I regard as the most fundamental issue in this appeal, I do not find it necessary to express any concluded view; I do not accept that the defendants have established a right consequent on the transaction of 7 July 1981.

119. In the defence it is contended that the Derrynaflan Hoard is treasure trove and as such the property of the State. Blayney J, relying upon the judgment of Walsh J in Byrne v. Ireland [1972] I.R. 241 concluded that what had been the royal prerogative of treasure trove was not carried over by Article 49.1 of the Constitution. In their notice of appeal the defendants challenged the judge’s conclusion in:-

120. Section C of the appellants’ written submissions dealt with whether the Hoard is the property of the State as treasure trove. Nowhere in the submission is there a reference to Article 10 of the Constitution or Article 11 of the Constitution of Saorstát Éireann. It appears to have been during the argument in this Court that for the first time the question arose as to whether or not the State might claim title to the chattels by virtue of Article 10. The Chief Justice recites this argument as:-

121. Firstly, it is contended that the prerogative of treasure trove was a royalty or franchise within the territory of the Irish Free State and that as such it was expressly vested in the Irish Free State by the provisions of Article 11 of the Constitution of the Irish Free State (the 1922 Constitution). That being so, it is argued, that the provisions of Article 49.1 of the Constitution vest that prerogative in the People and the provisions of Article 49.2 provide that it shall be exercised by or on the authority of the Government.

122. The second and quite alternative ground on which it is alleged the prerogative of treasure trove has survived into the law of Ireland is an assertion that as part of the wider and more general right of bona vacantia it is an inherent and necessary attribute of a sovereign state and that since this State is by virtue of Article 5 of the Constitution declared to be a sovereign State that it must follow that it is entitled to the prerogative of treasure trove.

123. The Chief Justice rejects the first but upholds the second submission that a necessary ingredient of sovereignty in a modern state and certainly in this State having regard to the terms of the Constitution is and should be ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. With this view I fully agree. Like Walsh J, I do not subscribe to the view that Article 10 of the Constitution covers the matter; I am content to found in my view upon the attributes of sovereignty possessed by the State derived from the People and identified by Article 5. What were formerly the subject of the royal prerogative as treasure trove or bona vacantia do not appear to me to fall within the term ‘natural resources’ or ‘royalties and franchises’; whether or not the subjection to all estates and interests for the time being lawfully vested in any person or body qualified both natural resources and royalties and franchises, by definition such estate or interest cannot be identified. The further sections of Article 10, in my view, lend force to the conclusion that the Article is concerned essentially with what is covered by ‘all natural resources’ and the royalties and franchises affecting or derived from them and not otherwise. For my part, I would not seek to indicate to the Oireachtas how the power to make arrangements for the disposal of or other use of such chattels should be exercised.

124. Whilst it may be contended that the plaintiffs were merely complying with law when they brought the Hoard to the attention of the National Museum, in my view, for the reasons that are set out in the judgment of the Chief Justice, they were entitled to rely on a legitimate expectation that the State would make to them a substantial reward and that they are entitled to enforce this in the courts. In this area of the case, indeed, I believe that public policy plays a significant role. Whatever criticism may be made of the plaintiffs in the use of metal detectors or for the fact that they dug below the surface in order to retrieve the Hoard, their subsequent conduct and attitude has been entirely praiseworthy; I would wish that I could say the same of those responsible for the assessing of the offer of £10,000 made to the plaintiffs, when the owners of the land ignorant of the existence of the treasure until found by the plaintiff and who had done nothing whatever save own the land, were each paid the sum of £25,000 from the same source.

125. I would allow this appeal accordingly and concur in the order proposed.