IN THE MATTER OF THE PARTHENON SCULPTURES (“ELGIN MARBLES”)
AND IN THE MATTER OF CLAIMS TO TITLE ARISING FROM THEIR REMOVAL IN 1801–1812
OPINION
1. INSTRUCTIONS
The legal implications, in property and international legal terms, of the proposition that no Ottoman firman existed authorising the removal of the Parthenon sculptures by agents of Thomas Bruce, 7th Earl of Elgin, and to determine the consequences for the validity of subsequent transfers of the sculptures, including their acquisition by the British Government in 1816 and present possession by the Board of Trustees of the British Museum.
2. ISSUES
The principal issues for determination are:
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Whether, absent a firman, Lord Elgin acquired any lawful title or right of removal over the Parthenon sculptures.
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Whether the British Crown, through Parliament’s purchase in 1816, could acquire good title from Elgin notwithstanding the absence of lawful authority in Elgin.
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Whether the doctrine nemo dat quod non habet (“no one gives what he does not have”) applies so as to render Britain’s title defective.
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Whether any countervailing doctrines, including (but not limited to) good-faith purchase, sovereign acquisition, prescription, or historical sovereignty, operate to cure an initial defect in title.
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The legal consequences for claims presently advanced by the Hellenic Republic.
3. FACTUAL ASSUMPTION
For the purpose of this opinion, I accept as an unqualified assumption that:
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No Ottoman firman or imperial authorisation ever existed granting Elgin permission to remove, detach, export, or take possession of the Parthenon sculptures.
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Any assertions of such authority are treated as erroneous, fabricated, or unsupported by documentary evidence.
This assumption is critical and determinative of the analysis.
4. APPLICABLE LAW
4.1 Domestic Property Law Principles
At common law, and consistently in both English and Ottoman legal traditions of the period, the following principle applies:
A person cannot transfer a better title than he himself possesses.
(nemo dat quod non habet)
A purported transfer of property by a person lacking lawful ownership or authority is void ab initio; any subsequent transfers are equally incapable of conferring valid ownership.
Good faith, payment of consideration, or the status of the purchaser are insufficient to cure the defect.
4.2 Authority of an Occupying Power
In early 19th-century international law, a sovereign authority (including an imperial occupier) could authorise interference with property under its jurisdiction. However, such authority must in fact exist.
Where the sovereign issues no grant, no person may presume or invent authority by implication.
4.3 Parliamentary Acquisition (1816)
Parliament may validly purchase property only if the seller possesses valid title. An Act of Parliament may regulate custody, display, management, or in some cases vest property, but cannot retroactively create title ex nihilo in respect of property unlawfully taken prior to the Act, absent explicit statutory language—which the 1816 Elgin Marbles Act does not contain.
5. ANALYSIS
5.1 Absence of Firman = Absence of Lawful Authority
If no firman existed, Elgin’s agents removed the sculptures:
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without licence,
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without authority of the governing sovereign (Ottoman Empire), and
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without any legal entitlement recognised at the time.
Such removal, judged even against the standards of 1801–1812, constitutes a wrongful taking. It would meet the modern analogue of conversion or trespass to goods.
Elgin therefore acquired no title whatsoever.
5.2 Application of Nemo Dat Quod Non Habet
Because Elgin had no lawful title, any purported sale or transfer to the British Government in 1816 was incapable of conveying legitimate ownership.
Elgin could not transfer what he did not possess.
The British Government, however innocent, acquired no better title than Elgin.
5.3 British Title Not Saved by Good Faith or Sovereign Purchase
Neither the good-faith nature of Parliament’s purchase nor its sovereign status confers title where none existed.
The common law is clear that:
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a thief cannot convey good title even to a good-faith purchaser;
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payment of a fair price does not cure the unlawful origin;
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sovereign acquisition by payment is still subject to nemo dat unless specific statutory vesting powers are invoked (which they were not).
5.4 No Doctrine of Prescription Available
The British Museum’s possession, though long-standing, is not capable of maturing into title by prescription because:
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English law does not recognise acquisitive prescription over chattels;
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international cultural property principles reject acquisitive prescription when the original taking was unlawful;
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long possession does not cure original illegality where cultural patrimony is involved.
Thus, mere lapse of time does not convert unlawful possession into lawful ownership.
5.5 Consequence for Greece’s Title
If the initial taking lacked authority, the sculptures remained at all times the property of the pre-existing cultural estate from which they were taken.
Though Greece as a modern state did not exist until 1830, the principle applicable is succession to cultural patrimony:
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Cultural property of a subjugated people remains that people’s property even when sovereignty changes.
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Upon independence, Greece inherits the rights to its ancient cultural assets.
Thus, the sculptures would vest in Greece by succession.
6. CONCLUSION
6.1 Summary of Findings
On the assumption that no Ottoman firman ever existed, I conclude:
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Elgin acquired no legal right or title to the Parthenon sculptures.
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His removal of the sculptures was without lawful authority.
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Under the doctrine of nemo dat quod non habet, Elgin could not transfer any title to the British Crown.
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The British Government’s purchase in 1816 did not and could not confer valid ownership.
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The British Museum accordingly does not possess good title.
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Title resides with the Hellenic Republic as successor to the cultural patrimony of the Greek people.
6.2 Overall Opinion
On these assumptions, the legal position is that the British possession is custodial but not proprietary. It follows that Greece has the stronger claim in both law and equity, and, absent a firman, the argument for restitution is legally compelling.
