First Possession of Ancient Treasures
Ronnie Di Iorio
Taken in 1801 by Lord Elgin, then British Ambassador to the Ottoman Empire, the Parthenon Marbles remain encased in the British Museum, nearly 2,000 miles away from their original home in Athens, Greece. In a lost firman (permit), Elgin allegedly obtained permission from the imperial Ottoman Authorities to cast, draw, and erect scaffoldings of the Parthenon’s statues. However, debate surrounds whether he was actually authorized to remove the Marbles, including almost half of the famed frieze. After falling into severe debt, Elgin sold the sculptures to the British government in 1816.
In 2024, Greece’s Prime Minister renewed formal calls for the Marbles' return, reigniting a dispute that has simmered for over two centuries. At the center of the controversy is a question of property law: who rightfully owns the iconic sculptures? Greece contends that Elgin took the statues without proper authorization and that the Ottoman Empire, as an imperial occupier, lacked any legal or moral authority over Greece’s cultural heritage. In Greece’s view, Elgin was never the first rightful possessor and, thus, no subsequent sale could have established valid ownership. On the other hand, the British Museum posits that Elgin legally obtained the statues. This dispute over the initial claim to ownership echoes another, older property case, involving something much smaller: a fox.
In analyzing this dispute, we might look to a famous case in the United States that dealt with issues of first possession and the authority required to claim ownership—principles similarly central to the debate over who rightfully owns the Marbles. In Pierson v. Post (1805), a New York court held that to claim ownership of a wild animal, two elements must be satisfied: the animal must be unowned, and the individual must establish some form of physical possession, not mere pursuit. The case began when Post, the plaintiff, was hunting a wild fox on unclaimed land. Before Post could reach it, however, Pierson, a nearby farmer, spotted and killed the fox himself. When Pierson refused to give Post the fox’s carcass, Post brought suit, claiming that his pursuit of the fox constituted a claim of ownership. Alternatively, Pierson claimed that by physically killing the fox, he had established ownership. The court sided with Pierson, reasoning that “pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken.” Thus, despite Post’s longer pursuit, the court found that the fox rightfully belonged to Pierson because he had made the first clear act of possession—killing it.
Drawing a comparison between Pierson v. Post and the Parthenon Marbles dispute, the fundamental question of property law in both cases centers on the idea of first possession. Applying Pierson’s rule, a party must not only demonstrate a clear act of control but also establish that the object was unowned at the time of taking. Lord Elgin clearly meets the first element of physical possession; he and his team physically removed the sculptures from the Parthenon and transported them to England. However, the remaining issue is whether the Marbles were legally unowned–or at least capable of being claimed by the Ottomans–at the time of Elgin’s acquisition.
From Greece’s perspective, the second element, that the thing possessed must be unowned at the time, fails. The firman that Elgin relied on was lost, and even if its terms authorized removal of the statues, Greece argues that the Ottoman Empire, as an occupying power, had no rightful claim to the Marbles in the first place. If the Ottomans never legally owned the statues, they had no authority to transfer title. Thus, even though Elgin satisfied the first element of physical possession, his taking of the Marbles was not an act of first possession or legally valid. Much like Post never secured ownership of the fox because he failed to capture it, under Greece’s theory, Elgin could not establish rightful ownership because the Marbles were never unowned; they already belonged to Greece, despite the occupation.
Conversely, from the British perspective, both elements of the Pierson rule were satisfied. First, Elgin physically removed the Marbles, a clear act of possession. On the second element, the British might argue that Greece lost the statues once the Ottomans invaded, and that, while sovereign, the Ottoman Empire did not treat the Marbles as protected or explicitly owned property. Thus, the Marbles were not actively possessed or claimed by any state or individual at the time. Furthermore, the Ottomans permitted their removal, suggesting they did not view the statues as held property. In the absence of a clear owner, Elgin’s physical taking of the statues constituted a first possession of an unowned object, similar to Pierson’s taking of the fox. Alternatively, the British might depart from the Pierson rule altogether, arguing that the sculptures were owned, but that the Ottomans lawfully possessed them as the ruling power. Under that view, Elgin would have received valid title through a legal transfer and the concept of first possession would be rendered irrelevant.
Thus the dispute over the Parthenon Marbles mirrors the legal tensions explored in Pierson v. Post: was the property unowned, and did the claimant take valid physical possession? While Greece argues that Elgin’s authority was never legitimate and that his possession was not legally valid, Britain contends that Elgin’s physical control over the statues satisfied the requirements for lawful ownership. Though the case remains unresolved, it raises important questions about international relations and how property law principles apply in the context of colonial history and cultural heritage. Like in Pierson v. Post, however, the outcome may hinge less on who was morally entitled to the property and more on who the law recognizes as having established rightful possession.
Ronnie Di Iorio is a law student at the American University Washington College of Law.
Image: Txllxt TxllxT, London - Great Russell Street - British Museum - Greece- Parthenon - Elgin Marbles III.
