4th May 2021
This post is prompted by an outstanding and thought-provoking book about museums.
The book is The Whole Picture: The colonial story of the art in our museums & why we need to talk about it by Alice Procter (Amazon page here – but do order from your local bookseller if you can).
Two thoughts that the book provoked for me were about the British Museum.
This post sets out those two thoughts and where those thoughts then led me.
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The first thought was a recollection of this eloquent and plausible 2004 justification by the museum’s then director Neil MacGregor of the museum’s position relating to controversial items in its collection.
The passage in that piece that struck me at the time and has stayed with me was this about the founding of the museum back in 1753 (and I have broken up the paragraphs for flow):
‘To ensure that the collection would be held for the benefit of citizens, and not the purposes of the crown, Parliament hit upon a solution of extraordinary ingenuity and brilliance.
‘They borrowed from private family law the notion of the trust. The decision that the museum would be run not as a department of state, but by trustees had – and still has – crucial implications.
‘Trustee ownership confers duties rather than rights. Trustees must derive no benefit for themselves, but hold the collection exclusively for the advantage of the beneficiaries.
‘The collection cannot be sold off.
‘The museum was set firmly outside the commercial realm, a position epitomised by the principle of free admission.
‘Even more astonishingly, it was in large measure removed from the political realm.
‘Trustees are not allowed by law merely to follow government orders: they have to act as they judge best in the interest of beneficiaries, including, crucially, future and unborn beneficiaries.
‘Who are the beneficiaries for whom the trustees hold the collection?
‘Startlingly, they are not just the citizens of Britain.
‘The British Museum was from the beginning a trust where the objects would be held “for the use of learned and studious men [in 1753 they were mostly men], both native and foreign”.
‘In his will, Sloane had declared his desire that his collection should be preserved “for the improvement, knowledge and information of all persons”.
‘The rest of the world has rights to use and study the collection on the same footing as British citizens.’
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I have often thought about that passage.
It is convincing as far as it goes – once an item is part of the collection it is safeguarded and retained for the benefit of all.
But.
There was something missing.
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Here we come to the second thought provoked by the book.
This is a legal principle – known to lawyers and also normal people – which is known in its Latin form nemo dat quod non habet.
In plain language: a person cannot have a greater property right (‘title’) in a thing than the person who provides them with the thing.
So if I provide you with a thing – but I do not own it to begin with – then you will not own it either.
Applied to the British Museum, it seemed to me that it was all very well the British Museum boasting of how well an item in its collection will be looked after under the terms of its trust – but that was no answer if the original acquisition was unsound.
Nemo dat quod non habet – or garbage in, garbage out in legalese.
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So with these two thoughts I then wondered: what is the position in respect of an artefact in the British Museum if the acquisition was tainted?
That, for example, the person providing the item had stolen it?
And this query led me to the British Museum Act 1963 and the 2005 case of the Attorney General vs the British Museum.
In essence, once an item is part of the British Museum collection, the 1963 Act provides only only a narrow basis for the trustees to ‘dispose’ of the items.
This narrow basis is primarily set out in section 5 of the 1963 Act.
(There is also an exception for transferring an item to another museum – and there is an exception for the return of human remains.)
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So unless an item in the collection is within the scope of section 5 of the Act then, in effect, the trustees of the British Museum cannot at law give back the item – regardless of the circumstances of its acquisition.
What this meant in practice was illustrated in the 2005 case.
The museum had purchased after the second world war four items that has been looted by the Nazis from their owner.
The issue before the court was whether there was implicit exception to the terms of the British Museum trust in respect of when there would be a moral obligation to return the items.
The judge – the very head of the court of chancery and equity – held that the trustees did not have the power to do this, even if they wanted to do so (which they plainly did).
Any application of the principle of nemo dat quod non habet appears to have been precluded by operation of the Limitation Acts.
The judge did indicate in passing that if title in the items had not passed on acquisition then the items would not have (technically) formed part of the collection of the first place and thereby the terms of the trust and section 5 would not apply.
But it would presumably be out of time for title in respect of a 1945 acquisition to be contested sixty years later.
Happily, there was a (fascinating) recommendation by the (wonderfully named) Spoliation Advisory Panel that the heirs to the person whose art had been looted be compensated by an ex gratia payment.
And since the 2005 case, there is now the Holocaust (Return of Cultural Objects) Act 2009 that provides a statutory basis for the return of items looted by the Nazis.
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For items looted by the Nazis, therefore, the legal position is now that the loot can be returned – even if it is part of the collection.
But what of items looted by others at other times and other places – why should the unfairness caused by only one manner of theft be addressed?
To its credit (to an extent) the British Museum is open that this is an issue.
On its press page, it has links to explanations as to its positions in respect of what it calls ‘contested items’.
(It also has a page setting out how it has settled the Nazi loot claims.)
The impression that the British Museum is no doubt seeking to promote with these pages is that it is taking the issues seriously and is sensitive to grievances.
But.
The attempt to give this impression is not convincing.
This is partly because the leadership of the museum is still wedded to the notion that the terms of the trust gives it some elevated status that means the grubby question of acquisition is not relevant.
In 2018, the current chair of the British Museum trustees wrote the Guardian in almost identical terms to those employed by MacGregor in 2005:
‘In what was one of the great acts of the Enlightenment, in 1753 parliament established the British Museum as a trust, the first of its kind in the world, which was to be run independently of politics and of parliament. This autonomy has been central to its scholarship and public purpose for the past 265 years. […]
‘Trustees today have three broad responsibilities: to conserve and enhance the collections for ever; to generate new knowledge, especially by supporting the kind of research that is only possible in a large encyclopaedic museum; and to make the collections accessible to the whole world. They work with colleagues across the UK and around the world to share knowledge and objects from their collections as widely as possible. But they don’t see the objects for which they are responsible as negotiating chips in a political debate.’
But again, this go-to ‘trust’ defence says nothing to the issue of how the items were acquired.
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In 2019 one trustee resigned, and she gave as one of her reasons (which is broken up for flow):
‘In November 2018, a French report commissioned by President Macron recommended the full restitution of looted African artworks.
‘It burst open the debate over the repatriation of cultural artefacts. Museums, state officials, journalists and public intellectuals in various countries have stepped up to the discussion.
‘The British Museum, born and bred in empire and colonial practice, is coming under scrutiny. And yet it hardly speaks.
‘It is in a unique position to lead a conversation about the relationship of South to North, about common ground and human legacies and the bonds of history.
‘Its task should be to help us all to imagine a better world, and – along the way – to demonstrate the usefulness of museums.
‘This would go some way towards making the case for keeping its collection in London.
‘But its credibility would depend on the museum taking a clear position as an ally of coming generations.’
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It is correct that the provisions of the 1963 Act prevent the trustees from giving away or giving back items in its collection.
And the operation of the Limitation Act means that, as the chair of the spoliation panel said in one report, the position of the museum is legally impregnable.
Nemo dat quod non habet may well be a principle of law – but it is subject to statutory bars and exclusions.
But.
As with the items looted by the Nazis, where there is a will there is a way.
Legislation may be required – similar to the 2009 legislation for holocaust items.
And even without legislation, the position of the museum – but-for-the-legislation – could be made more clear – as it was in the 2005 case above.
But instead the impression one gains from reading around the subject is that the museum hides behind terms of the 1963 Act – that it is an excuse not for thinking seriously about the issue.
For even if the Limitation Acts rob the principle of nemo dat quod non habet from having practical legal consequences, it still has the full force of a moral imperative.
Instead of rhapsodising about the heady genius of the 1753 trust, the leadership of the museum should be conscious that nothing about the terms of the trust goes to how the items were acquired.
Of course, specific ‘contested’ items will raise specific concerns and objections.
And there is the possibility that items could leave the collection only to be destroyed or lost to the black market – though this risk should not be over-stated, still less assumed.
But as a general rule, the British Museum and other museums should accept morally (if not legally) that if an item was acquired when those from whom the item was taken did not give permission then, as a matter of principle, the item should be returned.
And if the law does not permit this, then the museum should be unafraid to aver that the law should be changed.
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I recall Corbyn, during a rambling interview, talking about returning items from the British Museum to from whence they came.
I looked up the history of the museum and learnt that a Prime Minister has no power to move an exhibit by a mm within the Museum, let alone remove it, permanently, from the collection.
I also noted that the Board of Trustees comprises up to 25 members.
One Trustee is appointed by Her Majesty The Queen, 15 are appointed by the Prime Minister and five appointed by the Trustees themselves.
The remaining four Trustees are appointed by the Secretary of State for Digital, Culture, Media & Sport on the nominations of the Presidents of:
the Royal Academy
the British Academy
the Society of Antiquaries of London
the Royal Society
The Chair is elected by the Board from among its members.
Each trustee shall hold office for such period as is specified in the instrument by which he or she is appointed, but that period shall not exceed ten years, or five years in the case of a person whose appointment takes effect at or within twelve months after the end of any period for which he was previously appointed a trustee of the Museum under the Act.
A trustee may resign his or her office by notice in writing served on the person or body who appointed him.
An iconoclastic Prime Minister might encourage resignations and, thereby, change the composition of the Board and thus seek to influence the policy of the Museum?
That wouldn’t work because, as David’s article points out, just as the PM has no power to return items from the collection, neither do the trustees. For all the trustees’ vaunted independence, Parliament hasn’t granted them the power to make an independent decision to return items. If a PM wished items to be returned, appointing different trustees wouldn’t help. He would need to introduce legislation into Parliament permitting or requiring the return of the items, and secure its passage.
That was an absolute cliffhanger. Leaving it until the very last sentence to include the verb aver. My heart was pounding so fast at the end that I had to go back and read the piece all over again.
Excellent article, thank you.
This is an excellent and most informative discussion of this issue.
Whatever the legal position, one might have thought that, from a Prime Ministerial point of view, there would be much to commend returning some items, such as, for example, the Elgin Marbles, which would do much for Anglo-Grecian relations both by addressing a grievance and by greatly assisting with the Parthenon restoration project, whilst also allowing “learned and studious men” (and women) to study the objects in their original setting, which would, one might have thought, be academically and aesthetically superior to viewing them in the museum of the looting nation.
And with the the British Museum Act 1963 and the Heritage Act 1983 apparently being the only impediment to the British Museum joining Germany and a number of its regional museums in returning the Benin bronzes, it might also be politically beneficial for a Prime Minister seeking to demonstrate his Global British influence, and armed with an unassailable parliamentary majority and an unusually compliant set of party MPs, to put forward some changes to those Acts that would remove the impediment.
Naming the Parthenon’s marble after the man who stole them is probably not giving the best image of the British Museum’s desire to return stolen goods.
I’m not sure it would help this particular Prime Minister domestically though; his core support seems to come from those who still think we have an empire, and have never done anything wrong!
True
And some people thought leaving the EU was simple.
A fascinating post – looted artefacts in the British Museum is a subject that has interested me for some time.
Back in 2005, when I knew little about the law, but a lot about the museum, I blogged about the Feldmann case that you mention.
http://www.elginism.com/similar-cases/what-does-the-feldmann-case-verdict-mean-for-the-elgin-marbles/20050603/126/
Originally when the Holocaust (Return of Cultural Objects) Act 2009 came in, it had a sunset clause meaning that after 10 years it would cease to operate. This was put in to appease MPs who would otherwise have voted against it.
I spoke to the original bill’s author Andrew Dismore about this sunset clause back in 2016 & he was still of the belief it would come into operation – but by 2019, Theresa Villiers (at first an unlikely figure, but she represents an area where this would be a popular policy) proposed a bill to remove the sunset clause. This amendment passed fairly easily.
Once people had got used to a new way of things happening and the sky hadn’t caved in, going back to the old way no longer seemed quite so appealing.
This sort of approach applies fairly often.
Look at the arguments given against things like e.g. abolition of rotten boroughs, votes for women, decimalisation etc in the past, but shortly after the moment passes, few would advocate returning to the old way.
Another interesting case that follows this pattern is that of the wonderfully unpronounceable Kwakwaka’wakw mask from a Canadian first nations tribe.
An agreement was reached in 2005 to return it on loan.
The terms agreed were that it would be a 3 year loan renewable loan, that could be renewed 2 more times (i.e. 9 years in total). That ran out in 2019. The mask is still in Canada.
The British Museum’s own website rather tersely describes it as “Location: not on display”
Once it’s in its rightful place, reverting to the former status quo suddenly makes far less sense.
The fact that the British Museum Act now has multiple exceptions cut in it suggests that overall it is not fit for purpose. The Holocaust example is particularly problematic at times as it refers (perhaps for for good legal reasons) to items looted during the Nazi era, rather than items looted by the Nazis. The much trumpeted first return made possible by the act was the Benevento Missal from the British Library (once a part of the British Museum). It was looted during the Nazi era, but there was nothing to suggest it had been looted by the Nazis – making it’s case no less morally right than many others not covered by the Act.
Another recent story that has a relevance is the one in last weekend’s FT about Sit Charles Dunstone resigning as Chair of the Royal Museums Greenwich after the government failed to re-appoint a trustee whose academic work they disagreed with.
The government claims it can’t weigh in on these arguments as they are dealt with by independent trustees – but how independent are the trustees?
The ancient common law rule of “nemo dat quod non habet” (i.e. no one gives what they do not have) dates back to at least the time of Justinian, and specifically book L of the Digest, at 50.17.54, where the following slightly less pithy phrase is attributed to Ulpian, a jurist of the 2nd and 3rd century: “Nemo plus iuris ad alium transferre potest, quam ipse haberet.” eg https://www.thelatinlibrary.com/justinian/digest50.shtml
The rule of English common law now largely works out through section 21(1) of the Sale of Goods Act 1979. “Subject to this Act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.” https://www.legislation.gov.uk/ukpga/1979/54/section/21
Anyone who thinks they have better legal title to items in the British Museum than the museum trustees may have recourse to the courts. But I am not convinced a court of law is the correct venue to determine many moral questions.
Is there not a wider issue here?
The UK still holds many territories / privileges worldwide. Were the history books to be opened and no statute of limitations applied, how many of those possessions would stand modern scrutiny as to how they were acquired?
Perhaps the UK can’t afford to start looking even at museum treasures for fear of where such investigations might lead.
On the other hand, if the UK initiates the process by volunteering to return the marbles or the bronzes or other British Museum artefacts, that would perhaps provide it with some justification for control of what it does and does not give up and a degree of resilience against external pressures to give up those things that it genuinely cannot afford to relinquish.
Great piece, really informative. I found the line about the collection being held for “both native and foreign” people particularly striking. It reminds of the aid world (at its worst), i.e. our mission benefits you foreigners, but on our terms. It’s easy to put “foreigners” as beneficiaries on paper, but how do you truly fulfil that? Take the collection on a perpetual world tour? For the most part, the “foreigners” who can benefit from the collection are the ones wealthy enough to travel to London to see it.
Or, you could consult them. Doesn’t sound simple, I know, when you’ve effectively put “all foreigners” among your beneficiaries, but the aid world (at its best) does seek to do this, e.g. through research (led by “foreigners”) or consulting credible representatives on different issues.
Putting “foreigners” down as beneficiaries seems to give the organisation a certain mandate, but really it’s a mandate conferred by the institution itself and the government that established it.
David –
I would like to draw you readers’ attention to another alternative to Amazon for those unable to get to a physical bookshop.
https://uk.bookshop.org/ (qv) was set up in close involvement of the UK Booksellers & Publishers Associations and gives back real money to the bookshop community.
I had a look at the 2005 decision to which you referred and at par 5(1)(c) of the 1963 Act. I was a bit surprised to discover that there was no attempt to argue in the case that the objects the subject of it were unfit to be retained in the collections of the Museum and could be disposed of without detriment to the interests of students.
Great article and an important topic, both in terms of cultural policy and the law. You make the statement ‘Any application of the principle of nemo dat quod non habet appears to have been precluded by operation of the Limitation Acts’. This may be so, but the Limitation Act 1980 that operates in England & Wales establishes special rules if an object has been stolen, whereby the usual 6 year limitation period does not begin to run until a ‘conversion unrelated to the theft’ (see section 4), usually understood to mean a provable good fait purchase.
So it is conceivable that, under the 1980 Act, title to certain stolen property could never become part of the museum’s collection in the first place. That would mean an original owner could bring a claim in conversion and seek delivery up – the only defence the trustees might then have is to argue good faith purchase more than 6 years prior, but the onus would be on them to prove this. There are also other postponement provisions in the 1980 Act (section 32), which can only be defeated (again) by a good faith purchase or else discoverability.
All that to say there are ways in which a claimant might be able to recover in law property held at the museum. Though such circumstances will likely be rare – and in most cases would align with the ethical stance one would hope the trustees would take to return recently stolen property.
The problem with Nazi-looted art, as demonstrated in the 2005 Feldmann claim, is that the theft/taking occurred long before the 1980 Act came into force. Sadly under predecessor legislation (the Limitation Act 1939), there was no special dispensation in relation to theft as there was in the 1980 Act. Therefore a theft would usually start the 6 year limitation period, meaning it would long since have expired when the claim was brought.
I hope this helps. A little nuance perhaps, just to demonstrate that in certain cases what you write about title and nemo dat quod non habet can certainly come into play in relation to national museum collections like the BM’s.
Thank you for this useful comment