UK May Revise Nazi-looted Art Policies

The UK is considering new legislation that would revise the restitution process to more easily allow national museums to return works of art looted during World War II.  The Holocaust (stolen art) restitution bill would allow these institutions to return objects from their collections.  Andrew Dismore, the Labour MP for Hendon is quoted in the Guardian:  “I hope it will close another chapter from the Holocaust . . .  It means recognising a right that has been denied for decades. I suspect many people would be prepared to allow their artwork to stay in public collections but it’s their right to decide what happens to it.”

The change is needed because of cases like this one:

When the Germans invaded Czechoslovakia in 1939, the Feldmanns were evicted from their home, leaving a collection of Old Master drawings in Gestapo hands. Arthur died after being tortured by the Nazis in the Spilberk Castle prison in his home city of Brno. Gisela died in Auschwitz.

With the help of the London-based Commission for Looted Art in Europe, Feldmann’s descendants proved that four of his drawings had ended up in the British Museum. The museum was prepared to return them to the family but was blocked by a high court judge. Instead the family negotiated a deal, including an ex-gratia payment of £175,000, that allows the drawings to remain in London. 

Feldmann’s grandson Uri Peled, 66, who lives in Israel, said that although he did not wish to have the items returned, the principle of the bill – allowing the rightful owner to make the decision about what to do with their art – was important.

 The change will open speculation for claims for other works in UK institutions that may have been taken under less-than-appropriate circumstances—like the Parthenon marbles, the Benin bronzes, the Rosetta stone, or the Lewis chessmen.  As such the legislation is limited to “objects stolen between 1933 and 1945 by the Nazi regime”.  Though the legislation is sharply focused on a narrow historical period, one wonders why only those objects are left open for restitutions when the others are not.  The Second World War was a special circumstance perhaps, but its not clear how that historical period is different from other conflicts. 

Questions or Comments? Email me at derek.fincham@gmail.com

My Article on the Portable Antiquities Scheme

I’ve posted on SSRN my article from the August edition of the International Journal of Cultural Property, A Coordinated Legal and Policy Approach to Undiscovered Antiquities: Adapting the Cultural Heritage Policy of England and Wales to Other Nations of Origin 15 Int’l. J. Cult. Prop. 347 (2008). Here’s the abstract:

Blanket ownership laws, export restrictions, and the criminal law of market nations are the default legal strategies currently used by nations of origin to prevent the looting of archaeological sites. Although they have been remarkably successful at achieving the return of looted objects, they may not be the best strategies to maximize the recording and preservation of archaeological context. In England and Wales a more permissive legal regime broadly applied and adopted by the public at large has produced dramatically better results than the strong prescriptive regime of Scotland, which can be easily ignored.

This article attempts to clear up any misconceptions of the cultural policy framework in England and Wales. It accounts for the legal position accorded undiscovered portable antiquities, and describes how this legal framework is perfected by a voluntary program called the Portable Antiquities Scheme (PAS). This approach stands in stark contrast to Scotland, which has used a legal strategy adopted by most other nations of origin.

The domestic legal framework for portable antiquities in England and Wales is unique and differs from the typical approach. Coupled with the PAS, this legal structure has resulted in a better cultural policy, which leads to less looting of important archaeological sites, allows for a tailored cultural policy, and has produced more data and contextual information with which to conduct historical and archaeological research on an unprecedented scale. Compensating finders of antiquities may even preclude an illicit market in antiquities so long as this compensation is substantially similar to the market price of the object and effectively excludes looters from this reward system. Although the precise number of found versus looted objects that appear on the market is open to much speculation, an effective recording system is essential to ensure that individuals who find objects are encouraged to report them.

I wanted to write what I hope is a thoughtful piece which describes in an objective way what the PAS does, and how it creates a pragmatic compromise. Many of the very best heritage scholars are still seemingly under a misimpression about what it does and does not do. It’s not a perfect system, but it has produced some dramatic results, and may change the way we conceptualize heritage and context. I hope those interested in the scheme and archaeology will do me and the employees of the PAS the courtesy of reading the piece before dismissing my position. Sadly I’m afraid some already have reacted, without even reading the piece.

I have no doubt that some of my assertions may prove controversial, and I’m happy to have a vigorous debate, but I think everyone interested in heritage issues needs to work harder to make sure they are leaving room for meaningful discourse and disagreement and that we’re respectful of differing views and positions.

Pictured here are a horse and rider found in Cambridgeshire which appeared in the 2007 PAS annual report, via the PAS flickr page.

Questions or Comments? Email me at derek.fincham@gmail.com

Scotland’s Cultural Policy


I have recently come across some very interesting excerpts from Scottish Parliamentary Questions and Answers. Now, these are seldom mistaken for serious policy debate, but these reveal some shortcomings in current policy. There exists a serious gap from what Alex Salmond and the Scottish National Party are saying about repatriation, and what they are actually doing.

First, with respect to “tainted cultural objects”, the Scottish Labour Party’s Shadow Minister for Culture asks what Scotland is doing to ensure stolen or looted objects aren’t bought and sold in Scotland. The answer, it seems, is not much.

Q S3W-8645 Malcolm Chisholm: To ask the Scottish Executive what
legislative changes it believes are required to ensure that dealing in
tainted cultural objects does not occur in Scotland. (SP 21/01/08)

A Answered by Linda Fabiani (08/02/08): While we are not aware that
Scotland has a problem with this type of illicit activity at present, the
government remains sympathetic to such legislation and we are looking at
the options available to us, including examining legislation that already
exists such as the Dealing in Cultural Objects (Offences) Act 2003. This
will assist ministers in determining how best to proceed.

It seems Scotland are still waiting to act, but it would be regrettable indeed if they made the same mistakes that were made by their neighbors down south. The Dealing in Cultural Objects (Offences) Act 2003, in force in England and Wales, is not a criminal offence which will likely have any kind of measurable impact on the illicit trade, as I’ve argued here. The evidentiary hurdles are simply too great given the current state of the art and antiquities trade. One hopes that MSP’s don’t wait until another high-profile theft or sale takes place before they act. One would have thought the arrests following the recovery of da Vinci’s Madonna of the Yarnwinder would have at least eliminated the argument that this is not a problem, and nothing needs to be done.

More interesting perhaps, is the question regarding the repatriation of cultural objects held by Scottish museums. One would think that given the repeated claims Alex Salmond has made for the “return” of objects such as the Lewis Chessmen, his Government would have formulated a cohesive cultural policy. Not so it seems:

Q S3W-8842 Malcolm Chisholm: To ask the Scottish Executive what its
policy is on returning cultural artefacts held in Scottish museums to their
nation of origin. (SP 25/01/08)

A Answered by Linda Fabiani (07/02/08): Decisions on the repatriation of
cultural objects held by Scottish museums are for the Board of Trustees of
each museum to take. The Trustees of National Museums Scotland recently
agreed to requests to return a Tasmanian skull to Australia and other human
remains to New Zealand. Under the National Heritage (Scotland) Act 1985,
Scottish ministers approved the Australian Government and The National
Museum of New Zealand as bodies to which National Museums Scotland could
transfer objects from their collection.

Alex Salmond has been arguing for a return of the Lewis Chessmen for over a decade now. Is that the best cultural policy his government can come up with? They will simple leave it to individual Boards of Trustees.

I’ll ask again, what is the cultural or historical imperative which dictates the chessmen should be taken from the British Museum, and returned? And if so, does this mean other treasures such as the St. Ninian’s Isle treasure should be returned to Shetland? On the one hand Salmond argues against this perceived injustice which led to the current location of the Lewis Chessmen (even though they are Norwegian), but he makes no corresponding changes in Scotland for objects in its collections, which may have been taken under far more questionable circumstances.

Questions or Comments? Email me at derek.fincham@gmail.com

St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the director of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums. For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home. I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make for the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere. It might also commit him to abandon the notion of a “Museum of Scotland”.

First, a bit of background of the St. Ninian’s Isle treasure. The objects were discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533, saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown. St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland. The question is, does Shetland have a claim for the objects? In my view that’s a question of allocation domestically. Scotland, which is roughly the size of South Carolina, has a surprising degree of local and regional pride which can sometimes turn heated.

I think it may be worth asking whether the St. Ninian’s treasure should be returned to Shetland, however that would require Salmond and the SNP to formulate a cohesive cultural policy. At present it would appear if he is merely making statements, which are often misleading, to depict Scotland as a continuing victim of English imperial aggression. If that happens though, there will be trade-offs. Researchers may have more difficulty studying objects as they may not have access to objects from other cultures which have been returned, and creating a safe and secure display facility for all of these various objects will certainly be an expensive undertaking. These are important questions to be sure, but I haven’t seen a serious analysis of these issues despite these calls for return.

(Hat tip: Archaeology in Europe).


Questions or Comments? Email me at derek.fincham@gmail.com

The Lewis Chessmen

On December 19th, Alex Salmond, Scotland’s First Minister, stated “I find it utterly unacceptable that the Lewis Chessment are scattered around Britain in a bizarre parody of the Barnett formula. And you can be assured that I will continue campaigning for a united set of Lewis Chessmen in an independent Scotland.”

The Barnett formula is a means by which the United Kingdom allocates its expenditures. This statement is sure to gain support among those Scots who feel England has been harassing and plundering Scotland for centuries. However I find the claim for the removal of all the chessmen to Scotland half-hearted. If one were to be unkind it could be called intellectually laze, intended to strengthen the notion of an independent and historically separate Scotland. It’s the kind of irresponsible and base nationalistic claim that does a disservice to legitimate repatriation claims.

The Lewis chessmen are a medieval collection of 93 pieces forming four or five complete sets. They were most likely carved in Norway in the 12th century, and then were likely taken by a merchant on their way to nobles in Ireland perhaps. However the pieces were lost, and were rediscovered sometime shortly before 1831 on a sand bank near the Bay of Uig on the West coast of the Isle of Lewis. The island at the time was ruled by Norway. The precise details of the discovery are unknown, but they were exhibited by Roderick Ririe at a meeting of the Society of Antiquaries of Scotland in 1831. Soon after 10 pieces were purchased by Kirkpatrick Sharpe and this collection eventually was donated to the Royal Museum in Edinburgh in 1888, now the National Museum of Scotland. The remaining pieces were purchased in 1831 for the British Museum in London.

The pieces are fantastic, and reproductions of the set are quite popular. They are carved from walrus ivory and whale teeth, and many of the human figures are quite expressive. In fact, the representations have a lot to teach about medieval weapons and dress.

Ian Jack in an excellent article in the Guardian examines the possible claims Scotland might have to all of the chessmen, and rightly comes to the conclusion that

It would be easy to accuse Salmond of nothing more than opportunism, adding to his reputation for that streak. In fact, he has been sporadically campaigning for the return of the Lewis Chessmen for 10 years. My explanation is that his demand comes out of a previous era of nationalism that was quite blind to Scotland’s history as England’s imperial partner – needed to be blind to it, because in terms of wealth it was Scotland’s golden age and inconvenient to anti-English grievance. I had thought that the grievance mode was passing. But not yet, not yet.

Neil MacGregor, the director of the British Museum contacted Scotland’s culture minister, to ask if the statement was serious: “Because if it is, we need to understand the principles that lie behind it.” No response has apparently been sent to this query. What kinds of events can trigger a return? In the case of the string of the recent repatriations from American institutions to Italy, they came in response to solid evidence, including photographs that the returned objects had been looted, in violation of Italian law. In other cases, if an object is an ethnographic object important to ongoing religious or community practices for example, an excellent case can be made for a return; such is the case with vigango from Africa. However Salmond is unable to provide this kind argument for a return. His motivating animus seems to be that a unified set would make a great deal of money for the National Museum of Scotland or the Isle of Lewis. In fact in 1995 a complete exhibition of the chessmen was held on the Isle, and it attracted record crowds.

Salmond has been making this claim since at least 1996. In a Sunday Times piece by Alastair Robertson from 1 Dec. 1996 Salmond argued “just as the Elgin marbles should be restored to Greece … so should ancient artefacts come home to Scotland. There is no justification for them to remain in England.” Now this policy has some troubling consequences for Scotland’s museums. Its collections are packed with objects taken home by Scots during the colonial era, and many of these objects were hardly taken in a properly bargained for exchange. These institutions would surely have to quickly dispose of much of their collection. In fact, the chessmen were legally acquired, and there is absolutely nothing to suggest they were wrongfully acquired. If we were to return these objects to their homeland where they were created, they would not return to the Outer Hebrides, but rather to Norway.

Given the fact that Great Britain has such an ancient and fascinating history, it is perhaps unsurprising that various communities have called for the return of various objects. Inhabitants of St. Ninian’s Isle have begun to call for the return of medieval treasure, currently housed at the National Museum of Scotland. Many of these arguments would appear surprising to visitors to others from larger and more disparate nations. Scotland is after all not much larger than South Carolina.

When objects are allocated to regional museums, it makes the risk of theft and other difficulties more pressing. A handful of regional institutions are more difficult to safeguard than larger centralized locations of course. More importantly though, these objects should have a substantial curatorial or cultural imperative which dictates a return. If Salmond is able to construct or to offer such a narrative, perhaps he will move beyond base political rhetoric. If he’s looking for an example, perhaps he should take a look at the St. Louis Museum of Art’s exhibition of George Caleb Bingham’s The Sunday Election, which Tyler Green praises today.

Questions or Comments? Email me at derek.fincham@gmail.com