This story only highlights the problems with the laws governing so many museums & galleries in Britain that the Government needs to take action to resolve.
The Art Newspaper 
British Library set to return Benevento Missal
By Martin Bailey
The Benevento Missal is to be returned to Italy, as a result of a claim submitted following an investigation by The Art Newspaper. On 23 March the UK’s Spoliation Advisory Panel recommended that the British Library should restitute the 12th century manuscript to Benevento cathedral.
This will be the first time that a UK national institution has returned an artwork or manuscript looted during the Nazi era. A change in the law will be required, since the British Library is legally barred from deaccessioning the manuscript.
The Art Newspaper heard rumours about the questionable status of the Benevento Missal in April 2000. With the help of the British Library, we quickly established the basic facts. The manuscript, which had for centuries belonged to the Benevento cathedral library, was acquired by a Captain D.G. Ash, who bought it in April 1944 from a Naples bookdealer.
In November 1946 Ash showed the missal to the British Museum Library and on 23 June 1947 he auctioned it at Sotheby’s. It was acquired for £420 by the London dealer Bernard Quaritch, who sold it to the British Museum Library. The question was: how had it left the cathedral library?
When our inquiries began UK national museums (including the British Library) were just starting to develop a more positive approach towards tackling the issue of Nazi-era spoliation. We therefore received considerable assistance from the British Library, and also made inquiries with the archbishop of Benevento. The results of our investigation were published in the July 2000 issue of The Art Newspaper (no. 105, pp. 1 and 5).
On 13 September 2000 the Metropolitan Chapter of the cathedral wrote to the British Library, requesting the return of the manuscript. This was rejected by the British Library on 22 September and shortly afterwards the case was formally referred to the Spoliation Advisory Panel.
In November 2000 The Art Newspaper’s correspondent visited Benevento, 60 kilometres north-east of Naples, to meet Archbishop Serafino Sprovieri. He showed us the armadio (cupboard) where the manuscript had been kept, and the gap on the shelf for no. 29, the missal now in London. We also interviewed Giovanni Giordano, then aged 79, who had helped move the most precious manuscripts by cart after the cathedral and its library were bombed by American forces on the night of 13/14 September 1943. Finally, we tracked down a rare copy of a 1940 pamphlet by Salvator De Lucia on the Benevento library, which mentioned the manuscript now in London.
Our follow-up article was published in January 2001 (no. 110, p. 9). By this time the Spoliation Advisory Panel had taken on the case, and we therefore left it to the official body to investigate. The cathedral’s claim was handled by Jeremy Scott, of London solicitors Withers.
This was the second attempt to claim the missal. The cathedral had first realised that their manuscript was in the British Library in October 1976, and eighteen months later they lodged an official request for its return. But this had been turned down, on the grounds that the statue of limitations barred the claim and that the British Library was not able to deaccession.
For the Spoliation Advisory Panel, the most important factual issue to be resolved was the timing of the loss. The cathedral argued that it must have occurred after the library was bombed in September 1943 and before the missal was bought by Ash in April 1944. This loss would therefore have occurred during the 1933-45 period of Nazi-era spoliation.
The British Library took a different line, arguing there was no real evidence that the missal had been looted in 1943-44. The only firm evidence of the manuscript being in the library was as far back as 1909, when it was recorded there by the scholar E.A. Loew. It could have gone missing at anytime between 1909 and 1944 – and was therefore not necessarily spoliated.
The 1940 De Lucia pamphlet was soon placed “centre stage” in the inquiry, and became “the subject of minute examination by both sides.” Although De Lucia stated that the manuscript was then in the library, it was unclear whether he had checked that it was actually there in 1940, or if he was merely repeating what had been published earlier. The Panel eventually concluded that the booklet did not provide sufficient evidence on this crucial point.
Circumstantial evidence was then considered. Although the Panel felt the arguments were “finely balanced”, it eventually came down on the Benevento side. Taking into account the difficulties of proof during wartime, “we have come to the conclusion that the circumstantial evidence relied upon by the claimants is sufficiently robust to vindicate their submission that the missal was spoliated between the time of the bombing in 1943 and its acquisition by Captain Ash in 1944.”
Until recently, it had proved impossible to identify Captain D.G. Ash, and to determine whether he might still be alive. However the Panel eventually got access to official records and established that he was Captain Douglas George Eric Dacre Ash, of the Intelligence Corps. He had died in Brighton on 6 March 1994. His daughter told the Panel that he had posted the missal back to Britain, wrapped in several yards of satinlike fabric. Exporting the manuscript would then have been illegal under Italian law.
Ash took the manuscript to the British Museum Library for an opinion. He explained in a letter: “When I was in Italy I bought an old book in Naples in April 1944. Knowing nothing about it except that it was very old, it being described by the second-hand bookseller as molto antico… I am interested in anything old and have a collection of swords and armour, but this book is completely beyond me.”
Having established that the missal had been looted at some point in the seven months before it was acquired by Ash, the Panel moved on to consider the “moral” issues.
Both sides suggested the other had not been sufficiently vigorous in pursuing matters. The British Library pointed out that although the disappearance of the manuscript had been noted in Benevento in 1948, it was not until thirty years later that it had been tracked down and a legal claim filed. Benevento argued that the British Museum Library had purchased the missal without making proper inquiries as to whether it had been looted or where it might have come from.
The Panel decided that “doubtless the standards of the time were less rigorous than today’s, but the possibility that the missal had been looted was so manifest that its provenance should have been further investigated.”
In the end, the Panel’s final conclusion was that Benevento had, “on balance, made good their moral claim”. The “just and fair” solution was that the missal should be returned.
Under the British Library Act 1972, the library is unable to deaccession manuscripts which it inherited from the British Museum. The missal can therefore only be restituted if there is a change in the law. The Panel proposed two solutions.
There could be a new law which would permit the British Library and British Museum to deaccession items acquired during the 1933-45 period. This would enable the two institutions to return Nazi-era spoliation, but not allow restitution in other circumstances (although not mentioned by the Panel, it would therefore not affect claims such as the Parthenon Marbles). The second option would be to introduce a new law which applied solely to the Benevento Missal, allowing its return to Italy.
Proposed changes to the law will now be discussed by the Panel, the British Library, the British Museum, the Department for Culture, Media and Sport, and other government departments.
It will be years before a new law comes into effect. In the meantime, the Panel is recommending that the missal should be “returned to Benevento as soon as possible on loan, and that the parties should forthwith engage in constructive discussions on the terms and conditions of such a loan.”
Italian embassy in London pursues claim to Benevento missal (January 2001)
Italian cathedral claims missal in British Library (July 2000)