Posted by Tom Johnson, 6 June 2022.

On a Sunday night in August 1465, a group of people gathered in the village of Bunwell – about 15 miles southwest of Norwich, to summon an “aerial spirit,” in the hope that it would lead them to buried treasure. The spirit revealed to them through a mirror that great riches lay just a couple of miles away in Forncett, the next village over, beneath a burial mound. The spirit would show them exactly where to dig if they would offer a “Christian body” as a sacrificial burning.

The ringleaders, John Cans and Robert Hikkes, now found themselves in a bit of a quandary. But one of the pair obviously had a lawyerly eye for detail. The spirit’s bargain stipulated a Christian body, rather than a human one. The solution was obvious: they would simply baptize an animal as a Christian and present that to the spirit instead.

Somehow, the two of them managed to lay their hands on a cockerel and some holy water, godfathers and godmothers were promptly assembled (it was common to have two of each in late-medieval England, so why should the fowl miss out?), and the cockerel was baptized and “given a Christian name.” Abracadabra – a Christian body. Having had its immortal soul thus saved, the cockerel fared rather less well thereafter, for subsequently it was made as a “burnt offering” to the spirit.

Uniquely, perhaps, among the ranks of tricked or scorned spirits in folkloric tales, it was perfectly contented with this arrangement, and promptly rendered up its side of the bargain, showing that the treasure lay at the mound known as Nonmetehill in Forncett. Cans, Hikkes, and the rest of them went to begin digging. And soon afterwards, they unearthed the great treasure, finding one hundred shillings – not bad for a night’s work.

***

This story is without a doubt the strangest narrative I have ever come across in a medieval legal record, and probably the only time I have laughed out loud as I was sat reading in an archive.[1] But what in the name of a christened cockerel was it all about? Why did this strange business come to the attention of the legal authorities? And what might it tell us about the obscure legal concept of “treasure trove” in medieval England?

Treasure trove refers to the right of the crown to have any gold or silver that was found buried in the earth. It forms part of the “royal prerogative,” the set of ancient entitlements owed to the king by sovereign right. (Other parts of the royal prerogative included the right to “wreck of the sea,” and to “royal fish,” both of which I have written about elsewhere.[2]) But unlike other aspects of the royal prerogative, very little has been written on treasure trove, and indeed, actual cases are few and far between.[3]

I have thus been working on this project periodically for many years now, gathering little fragments of evidence here and there when they appear. What follows is a brief summary of some of my findings from this evidence, along with some suggestions about what it might all mean. I cannot promise to untangle the strange events that took place at Nonmete Hill in Forncett five hundred years ago. But I can, I hope, place them in a slightly broader context that helps to make sense of – some of – what Cans, Hikkes, and the others were up to, and why this strange story was written down by a legal official.

***

It is useful to begin any inquiry into obscure medieval legal concepts with a quick look at Bracton, the great early thirteenth-century legal treatise.[4] Treasure trove is mentioned in a few earlier laws and treatises, but it is in Bracton that it is first given a substantial treatment – though it is worth noting that this section was probably an interpolation by one of the later writers who revised the text.[5] It is, I think, still worth quoting this passage in full.[6]

There is, among others, a serious contempt against the king and his crown and dignity which partakes of the nature of the crime of theft, namely, the fraudulent concealment of treasure trove, as where one is accused of finding treasure, that is, silver or gold or metal of some other kind, no matter in what place. When he has been accused of this by the country, [if the rumor arises] among good and responsible men, let him be attached at once to be before the justices at their coming. Whereupon, if he denies that he has found anything, (the truth may be declared by the country though he was not [found] seised of anything, [for] there may nevertheless be reasonable presumptions against him which must stand until the country finds to the contrary, as where he exhibits greater prosperity than usual in clothes and other apparel, in food and drink and the like) [and] is found guilty thereof, let him be committed to prison, afterwards to be heavily ransomed at the king’s pleasure.

There are a couple of points to pull out here. First, we notice that Bracton says that treasure trove is a crime “of the nature of theft” (in Latin quasi crimen furti). Elsewhere, drawing on the Digests, he says that theft is distinguished by its fraudulent character; the intention to deceive is what makes theft a crime. Treasure trove, by implication, is thus about fraud and secrecy, or what Bracton calls occultatio, hiddenness.

The second point is to note the way that the writer focuses on rumours and suspicion. He writes about the person accused of treasure trove after “the rumour arises” within the local community. And then, he goes on to say that even if the accused did not actually have any treasure — if he was “not found seised of anything”— then suspicion would still be enough to have “reasonable presumptions” against such a person. In short, the writer is concerned with the fundamental problem of knowledge that arises in relation to treasure troves — by their very nature they were hidden and secret. First they were hidden underground, and then afterwards, it was feared, they would be hidden from the king’s justices.

And indeed, as Bracton’s rather cynical and chary account of treasure trove suggests, as historians we have to be constantly vigilant in distinguishing rumours about buried treasure — even when they were reported in official documents — from actual situations in which people dug up gold and silver. All of which is to say, as a legal phenomenon in medieval England treasure trove was not just about the material treasures themselves, or their financial value — although it was certainly about that — but also about the act of concealment: about secrecy, suspicion, rumour, and distrust.

***

This may help, in part, to explain why there are so few cases of treasure trove in the legal record, and why, in turn, many of those that do appear seem to involve malicious accusations, denials, and rumours. For example, the earliest deliberately malicious case I have been able to find, from 1276, seems to have a strong antisemitic undertow. A Jew of Stamford named Diey de Hulmo had been indicted for murder, receiving thieves, and other trespasses. Diey himself had been arrested, and his goods searched. And, the patent roll records, there was “a sum of money concealed within the walls of his house, which was seized for that cause or as treasure trove.”[7]

It looks very much as though Diey was being targeted for his wealth, and this interpretation is possibly strengthened by the fact that the money seized from Diey was to be delivered to a Florentine merchant named Luke de Luke, who was to put it to the king’s use. The late 1270s were a time of increasing hostility towards Jews — parliament had just passed restrictive legislation against them, and they would be expelled from England just 14 years later. Unfortunately, I have not been able to learn anything more of Diey.

But with the expulsion of 1290, any possibility of further using treasure trove as a device to seize ready monies from Jews was also extinguished – though the antisemitic connotation of some treasure trove rumours seems to have remained. In an episcopal visitation of Suffolk in 1499, a woman named Marion Clerk was cited before the visitors on charges of using magic and superstitious arts. She admitted to being able to prophesy the future, among other things, but interestingly for our purposes, she also admitted being able to find buried treasure. Asked about this by the church official, she said “that there was hidden treasure in a place in Bury St. Edmunds called ‘Moises Halle’ and that the Jews had custody of this treasure.”

This building, Moyse’s Hall, still stands today (appropriately enough it is a local history museum). It was built sometime in the twelfth century, but I have not found any evidence that connects it to the Jews of Bury, who were expelled from the town in 1190. It seems possible that Marion assumed (incorrectly) that the name “Moyse” was associated with “Moses”; but it is noteworthy that this antisemitic association between Jews and treasure trove was still in circulation two centuries after their expulsion from England.

Another crop of malicious accusations of treasure trove seem to connect with executors of wills, who might find themselves in possession of large amounts of cash. For example, an escheator’s inquisition held in 1448 at Northampton to discover whether Thomas Lane and William Clinte had found 3000 marks in gold nobles in the wall of a rectory in the town of Towcester. The jury found that they had — but that it was money left by William Spoune, the late rector, and the “finders” were the executors of his will. As the inquest put it, “no money, the ownership of which is unknown, came to their hands.”[8]

Even if the money turned out to be well-accounted for, this case provides an interesting insight into how such rumours might start. Was this rector unusually rich, and thus a target for malicious accusations? Or conversely, was it impossible for people to explain how his executors had this much money unless he had acquired it by treasure trove? Or a third option, I suppose, is that the treasure troves were actually real, and the excuse about being an executor was a convenient way to prevent it being confiscated.

A third tranche of malicious accusations revolve around disputes between members of the gentry, and in particular, men who held the office of escheator, the royal official who was responsible for investigating and securing the crown’s prerogative rights – including treasure trove. Thus in a petition of 1399, Robert atte Mille, who had been the king’s escheator in Surrey until he was found guilty of concealing a treasure trove worth £600, claimed that he had been framed by his rival John Wadham, who went on to hold the office. As a direct offence against the Crown, which by its nature involved secrecy, accusations of concealing treasure trove may have been particularly effective as means of bringing down rivals.

***
A malicious accusation about treasure trove was not just a way of prompting a legal investigation; it was also potentially a way of spreading a rumour about someone’s wealth, and how they had acquired it. And indeed, there seems to have been a widespread discourse connected with treasure trove about what we could call “social mobility” – and which contemporaries regarded more as “social climbing.” As we saw, this idea was present even in Bracton, when it suggested that suspicion for the concealment of treasure trove might apply to someone who “exhibits greater prosperity than usual in clothes and other apparel, in food and drink and the like…”

I have not found any evidence for these criteria being applied in legal practice, but I have found some evidence from the fifteenth century which seems to tap into similar ideas. Specifically, there are several mentions at this time of the term “hill-digger.” This seems to have been a term of abuse. For example, it occurs in a defamation suit heard in the Consistory Court of Norwich in 1500. Here, a witness testified that the defendants had said to the plaintiff: “Thou false lollard and heretyk, mony-maker, and hildiggar thou hast derservyd to be hanged and brent.” Hill-digging here is connected with heresy — another crime closely associated with hiddenness and concealment — and of course money-making.

This term “hill-digger” recurs in two other Norfolk cases, both of which involve blackmail. The first is a petition to Chancery from around 1475-1485. William and Richard Sterling complained about the behaviour of Sir Thomas Brews, then escheator of Norfolk and Suffolk, and an intimate of the Pastons. The Sterling brothers were the executors of John Baker, who had been one of Brews’s tenants. They alleged that Brews had falsely asserted that Baker was “an hille dygger and afynder of tresoure be the meane of the same to the value of £100”, and that he had concealed this from the king. Brews had then attempted to blackmail him with this allegation, and made him seal an obligation for £40, although it is unclear that Baker ever paid this. Then, after Baker died, Brews came to the Sterlings as the executors and demanded some money.

This tangled story is unclear about whether Baker had actually ever found any treasure — the implication is that he did not — but it is interesting, nonetheless, that the accusation of being a “hill-digger” was so potent. So this is the kind of context we find for this term “hill-digger”; I have not been able to find it in any contemporary literary sources, although it does appear in a statute of 1540, in which the practice is prohibited. It seems to be a byword for someone who is an expert in finding buried treasure; yet it was also clearly an insult, presumably because it implied the nefarious means by which this might be achieved, and also, I think, because it connoted ill-gotten wealth.
***

Money appearing out of thin air was not merely socially disruptive, it might actually appear to be magic. And indeed, as our opening case showed, there is a clear association between treasure trove and magic, particularly in the fifteenth and sixteenth centuries. This connection appears a great deal more readily in the church courts, which were more routinely on the look out for “superstition” or the practice of “magical arts” in general.[9] Marion Clerk, who we met earlier, was jointly tried with her mother Agnes, who had taken a holly stick to be blessed by the parish priest; “with a stick so blessed she would without doubt find hidden treasures, to wit a very valuable silver cross, a chalice and gold in great quantities.” The church officials were skeptical, and both mother and daughter were sanctioned.

Indeed, many of those involved in such cases seem to be a far cry from the literate world of “learned magic,” and some were outright dupes. In 1466, case of Robert Barker of Babraham was brought before Bishop of Ely, having been found in possession of a book and other equipment for performing witchcraft; he claimed that a man named John Hope had promised him wealth if he paid £2, 6s, 8d. for all this stuff, which would direct him to gold and silver, and had gone searching in Saffron Walden. In a case of 1527 from Lincoln diocese, a man began to dig for £3000 worth of treasure but gave up when he found it was guarded by “a man spirit and a lady spirit.”[10] As with John Cans and Robert Hikkes, there is an element of comedic incompetence to many of these cases. It seems more than possible that those who went hunting for treasure, as well as being derided for their arriviste aspirations, were regarded as rather foolish.

This did not stop the Tudor state taking such practices seriously, however. The very first statute against witchcraft in England, passed under Henry VIII in 1542, recites in the preamble that people had been practicing conjurations in order to “get Knowlege for their own lucre in what place treasure of golde and Silver shulde or mought be founde and had in the earth or other secrete places,” and made such acts a felony. It was soon repealed in 1547, but revived again in the Elizabethan law of 1563, just as the English witch craze was beginning to take off. Johannes Dillinger has documented these associations across Europe, and their passage into North America, throughout the sixteenth and seventeenth centuries.[11]

***

All of which, hopefully, allows us to say a little more about Hikkes and Cans and their christened cockerel. What they were doing, in digging up a hill, was by the fifteenth century a well-established practice – one associated, perhaps, with concerns about ill-gotten wealth and the occult arts, but not so mysterious as to defy explanation. Their precise rituals might have been unusual, but the procedure by which they were indicted was entirely conventional for the time. A grand jury reported the offence – an outlandish tale that was presumably in wide circulation – to the escheator, whose clerk diligently recorded it. For all the burnt offerings and aerial spirits, it was the treasure itself that he had to account for. One-hundred shillings seems like the amount of money you might put if you weren’t sure.

Like these officials, we’ll probably never know what really happened on that night in rural Norfolk. But through my ongoing, slow-burning project to unearth more evidence, I hope to be able to shed more light on both the legal and social practices that surrounded this most secretive of crimes. My suspicion is that there will be a significant tranche among the records of the escheators. Their regular inquisitions remain largely unpublished, but forays by the team of Chris Briggs and Ben Jervis have turned up several further cases of treasure trove in the course of their investigations into the inventories of felons. I can’t help but think that there will be many more, just lying there, waiting to be dug out.

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Tom Johnson is a Senior Lecturer in Late Medieval History at the University of York. His first book, Law in Common: Legal Cultures in Late-Medieval England (2020), explores the way that law and legal ideas were used in everyday life in fifteenth-century England. He recently wrote a series of blogs on his approach to legal history for the Legal History Blog, which you can read here.

Images:

The images of cockerels were found via The Medieval Bestiary, with images from the following manuscripts, used by courtesy of their respective repositories: Bibliothèque Municipale de Douai, MS 711 (De Natura animalium), folio 36r; British Library, Royal MS 13 B VIII (Topographia Hibernica/Expugnatio Hibernica/Itinerarium Kambriae), folio 19v; and Huntington Library, HM 27523 (Livre des Propriétés des Choses), folio 134r.

The coins depicted are from a hoard of Castilian gold, dated 1350-69, found in Myddle, Shropshire; the full image is available at finds.org.uk from the Birmingham Museum Trust, shared by a CC-BY attribution license.

Notes:

[1] The record is The National Archives, E 153/1235.

[2] On “right of wreck,” Tom Johnson, “Medieval Law and Materiality: Shipwreck, Finders, and Property on the Suffolk Coast, c. 1380-1410,” American Historical Review, 120:2 (April 2015), 406-432; and on royal fish, Tom Johnson, “The economics of shipwreck in late-medieval East Anglia,” in Custom and Commercialization in Rural England, c.1350-1750: Revisiting Postan and Tawney, ed. Alex Brown and James Bowen (University of Hertfordshire Press, 2016).

[3] The only major work on the law of treasure trove is the dated but useful George Hill, Treasure Trove in Law and Practice from the Earliest Time to the Present Day (The Clarendon Press, 1936).

[4] For an introduction to this text, see the wonderful new book by Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (OUP, 2019).

[5] The first certain mention is in the Leges Henrici Primi, of 1114×1118, where it is noted as part of the jura regis; it is given a slightly fuller (though anomalous) explanation in the Leges Edwardi Confessoris of the 1130s. I have not been able to find any earlier mention of it in England – if anyone knows of one, please get in touch!

[6] Bracton on the Laws and Customs of England, ed. George E. Woodbine, trans., with revisions and

notes, by Samuel E. Thorne, 4 vols. (Harvard University Press, 1968–1977), 2: 339.

[7] Calendar of Patent Rolls, Edw. I, i, 137.

[8] Calendar of Inquisitions Miscellaneous (Chancery) preserved in the Public Record Office, Volume VIII, 1422-1485 (The Boydell Press, 2003), 127 [Case 212].

[9] I’ve written about this here: Tom Johnson, “Soothsayers, Legal Culture, and the Politics of Truth in Late-Medieval England,” Cultural and Social History, 17:4 (2020), 431-450.

[10] These cases are both cited in George Lyman Kittredge, Witchcraft in Old and New England (Harvard University Press, 1929), 207-9.

[11] Johannes Dillinger, Magical Treasure Hunting in Europe and North America: A History (Palgrave, 2011).