Annex A
Was the Removal of the Parthenon Marbles
by Elgin Legal?
1. One of the most debated issues regarding
the removal of the Acropolis sculptures by Lord Elgin and their
transfer to England in 1800-01 is the legality of that act. In
the present essay we will confine ourselves to the written evidence
invoked to support the legality of the marbles' removal. This
evidence is an English translation of an Italian translation of
a Turkish document. It was presented by Dr Hunt, chaplain to Elgin,
to the British Parliamentary Committee formed in 1816 to examine
the issue of the marbles' acquisition by Elgin. The Turkish document
itself, together with any other written testimony which could
confirm that Elgin acted on the legitimate approval of the Ottoman
authorities, has been lost.
2. According to Dr Greenfield, who has recently
dealt with the issue of the restitution of objects of cultural
significance to their countries of origin, "it is often presupposed
that the legal position regarding the marbles is beyond serious
dispute". This point of view has never been closely examined
and demands serious scrutiny...The view of the British Government
has also always been expressed in terms of the legality of the
acquisition of the marbles. The Trustees and officials of the
British Museum have often gone on record as saying that the marbles
were legally purchased...In the House of Lords debate of the proposed
amendment in 1983 to the British Museum Act, Lord Nugent declared
that the "question of legal ownership is beyond all doubt".[8]
The legality of this act, therefore, is taken for granted by the
British Government and the Trustees of the British Museum and
is not debated.
3. Professor Merryman of Stanford University
is of the same opinion, which he supports, relying "upon
the subsequent acts of ratification by the Turkish authorities
to overcome any arguments about those actions taken in excess
of the original terms of the firman. In particular there were
said to be two such instances of acquiescence, namely the issue
by the sultan of additional firmans addressed to the voivode and
disdar of Athens, in which he generally sanctioned what those
local officials had done for Elgin and his party, and written
orders by the Ottoman Government to the Athenian Government releasing
a shipment of marbles to England when they were held up in Piraeus,
the port of Athens. Again, whilst these events are referred to
in correspondence, there are no authentic original documents in
existence".[9]
4. It is expedient, first of all, to go
through the events that led to the issue of this single document.
Lord Elgin was appointed ambassador of Great
Britain to Constantinople in 1799. Even before setting out for
his new post, he had planned to employ painters and designers
to make replicas of Greek antiquities, following the cultural
trends of his time.[10]
Passing through Sicily, he met painter and designer, Giovanni
Batista Lusieri, who convinced Elgin to turn his interest to Athens.[11]
While in Italy, Elgin and his personal secretary, W R Hamilton,
hired some painters and architects who, after going to Constantinople,
arrived in Athens in the end of July 1800.[12]
There they met Spiridon Logothetis, the British Consul, who helped
them to settle and start their work.[13]
5. Elgin's men had from the beginning difficulties
in getting access to the Acropolis to draw sketches and pictures
of the monuments. They, like other travellers before them, had
to bribe the Turkish dizdar into allowing them entry. It was later
stated that the amount of money they gave to the dizdar was five
guineas a day.[14]
If that was true, the total amount would have been incredibly
high, especially since Lusieri's salary was 200 English pounds
a year.
6. The sum of five guineas a day was even
characterized as "monstrous" by Smith. Many years later
in Egypt an English pound was equivalent to 72 piastres (gurus).[15]
A payment of five guineas would suggest that they were paying
at least 400 piastres a day to enter the Acropolis when Logothetis
wrote to Elgin during the same period (September 1800) that 100
piastres was enough for the dizdar and another 100 for the Turks
living around the Parthenon, a mosque at the time. Logothetis
also asked for a letter recommending the artists and himself to
the voivode,[16]
the representative of Kizlar Agasi, the Archieunuch of the Sultan's
Harem, under whose authority Athens was a "vakouf" of
the Sultan's mother (Valide Sultan). According to Elgin's statement
to the Parliamentary Committee which examined the marbles' acquisition,
payment of the five guineas a day went on from August 1800 to
April 1801.[17]
In February 1801 Logothetis asked in another
letter for a firman that would allow Elgin's artists free access
to the Acropolis. In March, the document they were expecting did
not arrive.
7. In the spring of 1801 Lusieri went to
Constantinople, obviously to brief Elgin on the progress of their
work. At the beginning of March, Lusieri left for Athens where
he arrived on 15 April. According to Smith, "a firman of
some sort seems to have been obtained and forwarded to Logotheti,
but it failed to reach him for a long time, and turned out to
be an illusory document".[18]
In other words, it has never existed.
8. Lusieri wrote to Elgin that his men were
facing difficulties in carrying out their duties because they
did not have the necessary firman, supposedly sent by Elgin to
Logotheti before his departure from Constantinople; it follows
that he did not have any document on his arrival in Athens. According
to Lusieri, Logotheti had never received the document[19].
The dizdar declared that he could no longer allow Elgin's men
to enter the Acropolis without a firman, because the kadas and
the voivode threatened him, and so Lusieri begged Elgin to have
one sent as soon as possible, with a content that would prevent
the occurrence of new obstacles.[20]
By the time Hunt arrived in Athens on 16 May, no document had
been received. He himself then wrote to Elgin asking for the firman,
otherwise it would be impossible to carry out any work of copying
and drawing of the monuments.[21]
9. The document, so much desired by Elgin
and his men, and used to justify the removal of the Parthenon
metopes, the Caryatid, and other antiquities from the Acropolis,
was at last issued on 1 July 1801. A few days earlier, the French
army in Egypt surrendered to the British army. It seems that Elgin
took advantage of the situation and was granted by the Turks,
as a gesture of gratitude, what he had been requesting, to no
avail, for a long time. Elgin received it on 6 July and, two days
later, Hunt, who was in Constantinople again, left for Athens,
arriving on the 22nd of the same month. He presented it to the
Turkish authorities the next day; Elgin's workmen were now free
to begin their task.[22]
10. The English translation of this document,
the only one to survive, is as follows:
"Translation from the Italian of a Fermaun,
or Official Letter from the Caimakan Pasha, (who filled the office
of Grand Vizier at the Porte, during that minister's absence in
Egypt) addressed to the Cadi or Chief Judge, and to the Faivode
or Governor of Athens, in 1801."
11. After the usual introductory compliments,
and the salutation of Peace, it is hereby signified to you, that
our sincere Friend his Excellency Lord Elgin, Ambassador Extraordinary
from the Court of England to the Porte of Happiness, hath represented
to us, that it is well known that the greater part of the Frank
(ie Christian) Courts are anxious to read and investigate the
books, pictures or figures, and other works of science of the
ancient Greek philosophers: and that in particular, the ministers
or officers of state, philosophers, primates and other individuals
of England, have a remarkable taste for the drawings, or figures
or sculptures, remaining ever since the time of the said Greeks,
and which are to be seen on the shores of the Archipelago and
other parts; and have in consequence from time to time sent men
to explore and examine the ancient edifices, and drawings or figures.
And that some accomplished Dilletanti of the Court of England,
being desirous to see the ancient buildings and the curious figures
in the City of Athens, and the old walls remaining since the time
of the Grecians, which now subsist in the interior part of the
said place; his Excellency the said Ambassador hath therefore
engaged five English painters, now dwelling at Athens, to examine
and view, and also to copy the figures remaining there, ab
antiquo.
And he hath also at this time expressly besought
us that an Official Letter may be written from hence, ordering
that as long as the said painters shall be employed in going in
and out of the said citadel of Athens, which is the place of their
occupations; and in fixing scaffolding round the ancient Temple
of the Idols there; and moulding the ornamental sculpture and
visible figures thereon, in plaster or gypsum; and in measuring
the remains of other old ruined buildings there; and in excavating
when they find it necessary the foundations, in order to discover
inscriptions which may have been covered in the rubbish; that
no interruption may be given them, nor any obstacle thrown in
their way by the Disdar (or commandant of the citadel) or any
other person; that no one may meddle with the scaffolding or implements
they may require in their works; and that when they wish to
take away any piece of stone with old inscriptions or figures
thereon, that no opposition be made thereto.
12. We therefore have written this letter
to you, and expedited it by Mr Philip Hunt, an English gentleman,
Secretary of the aforesaid Ambassador, in order that as soon as
you shall have understood its meaning, namely, that it is the
explicit desire and engagement of this Sublime Court endowed with
all eminent qualities, to favour such requests as the above-mentioned,
in conformity with what is due to the friendship, sincerity, alliance
and good will subsisting ab antiquo between the Sublime
and ever durable Ottoman Court and that of England, and which
is on the side of both those Courts manifestly increasing; particularly
as there is no harm in the said figures and edifices being thus
viewed, contemplated and designed. Therefore, after having fulfilled
the duties of hospitality, and given a proper reception to the
aforesaid artists, in compliance with the urgent request of the
said Ambassador to that effect, and because it is incumbent on
us to provide that they meet no opposition in walking, viewing,
or contemplating the figures and edifices they may wish to design
or copy; or in any of their works of fixing scaffolding, or using
their various implements; it is our desire that on the arrival
of this letter you use your diligence to act conformably to the
instances of the said Ambassador, as long as the said five artists
dwelling at Athens shall be employed in going in and out of the
said citadel of Athens, which is the place of their occupations
or in fixing scaffolding around the ancient Temple of the Idols,
or in modelling with chalk or gypsum the said ornaments and visible
figures thereon; or in measuring the fragments and vestiges of
other ruined edifices; or in excavating, when they find it necessary,
the foundations, in search of inscriptions among the rubbish;
that they be not molested by the said Disdar (or commandant of
the citadel) not by any other persons, not even by you (to whom
this letter is addressed); and that no one meddle with their scaffolding
or implements, nor hinder them from taking away any pieces of
stone with inscriptions or figures. In the above-mentioned manner,
see that ye demean and compound yourselves.
(signed with a signet) SEGED ABDULLAH KAIMACAN.
NB: The words in Italian rendered in two places
"any pieces of stone", are "qualche pezzi di pietra".[23]
13. We are not going to examine whether
this document gave permission to Elgin to remove the sculptures
from the Acropolis and transfer them to England. It is obvious
that there is no such allusion in its content. Besides, it was
only during the course of the works that Hunt asked and, after
some hesitation, received authorization to remove one metope from
the Parthenon. From then on, the removal of more was easy. Hunt
himself admitted in 1816 to the House of Commons Committee constituted
to consider the purchase of the monuments, that the "voivode
had been induced `to extend rather than contract the precise permission
of the firman'".[24]
It seems that the voivode was in some way persuaded to allow much
more than was stated in the document.
14. It becomes evident from the above that
the legality of the marbles' removal, even taking into account
the extension of the initial order, is based upon this single
document, everywhere referred to as a "firman".
15. To understand the legal importance of
this unique document upon which the legality of Elgin's enterprise
is based, one has to consider the diplomatic language of the Ottoman
documents, as well as the whole organization and operation of
the Ottoman administration during the beginning of the nineteenth
century.
In the Ottoman empire during that period, there
was no legislative body to debate and enact the state's legislation.
Being a theocratic and authoritarian state, what was only acceptable
was the "holy law of Islam" (shari'a) as the basis of
the state and the sultan's right to amend the provisions of the
holy law, where that was inadequate, with decrees not contradictory
to it (orf). This right was expressed in firmans. Any act, therefore,
that followed the issue of a relevant firman was legal, as it
had the approval of the legislator, the sultan. In this case,
we could accept that Elgin acted on the lawful permission of the
Ottoman authorities, despite extending his right to copy the antiquities
to the point of removing them. Is the document presented as such
a firman, however?
16. Any expert in Ottoman diplomatic language
can easily ascertain that the original of the document which has
survived was not a firman. "Ferman, in Turkish, denotes any
order or edict of the Ottoman sultan. In a more limited sense
it means a decree of the sultan headed by his cypher (tughra)
and composed in a certain form".[25]
17. A firman has some common features that
distinguish it from documents of other types. First, the tougras,
the emblem of the sultan. A firman's compilation is always the
same. The document begins with the "invocatio", invocation
to God (da' vet tahmid). After a long gap, a sign of respect to
God, there follows the sultan's "monogram" with his
name, his father's name and the wish "for ever victorious"
in Arabic. The text begins by mentioning the official or officials
to whom it is addressed ("inscriptio"). Before each
name, a series of complementing phrases is written in Arabic,
pertinent to the position and rank of the person (elkab) followed
by a wish, in Arabic as well (du'a). The text includes characteristic
phrases typical only to a firman. The presentations of the case
("narratio") always begins with the clause "Upon
arrival of the great imperial document, let it be known that:"
(Tevki-i ref'i-i humayun vasil olicak ma'lum ola ki). The order
("dispositio") begins with phrases such as "if
it is thus" now (it is necessary)", "upon the arrival
of my high command", etc (oyle olsa, imdi <gerekdir ki>,
hukm-i sherifim vusul buldukta) or in other instances with the
words "I have ordered so that" (buyurdum ki). The ratification
of the command ("corroboratio") is expressed with the
words.
"So you should know and obey to my great
emblem (the tougra)". (Soyle bilesiz; alamet-i sherifim itimad
kilasiz). All these features are absent from the text of the document
referred to as a firman.
18. Furthermore, a firman always ends with
the date of issue in Arabic and in full, followed by the place
of issue written separately on the left corner. These features
are also absent from the document. Finally, a firman never mentions
the name of the editor, for it is issued in the name of the sultan,
and it certainly does not bear his seal. These are features of
a common letter or document of the official issuing it. Consequently,
the document whose translation we have is not a firman.
19. The document is not even a "buyuruldu"[26],
a formal order of a vezir, a rank held by the "kaimakamis",
and he could issue it. A document of this kind bears on the top
right end the emblem (pence) with the name of the editor. During
the time of issue of the document we examine here, it also bears
his seal and always ends with the word buyuruldu (it has been
ordered), hence its name, written in the form of a discontinuous
line. It is nearly always dated.
20. Such an order, though, would bring the
kaimakami into disrepute, since it would not be based on a sultan's
command as it should. This document is nothing more than a "letter"
(mektub), as named in its text. In this type of document, the
name of the sender is indicated in the end of the text, at the
left corner, where also fixed is the personal seal on the ring
of the editor, different from the big seal used in a buyurdi.
These letters are not dated in most cases. The document is an
Official Letter, as referred to in its text, and not an order.
It starts by mentioning the officials of the Ottoman administration
to whom it is addressed, with the usual compliments that accompany
an address in similar documents and the "salutation of peace",
a wish for the addressee. The document was sent to the Cadi, or
Chief Judge of the city who had the duty of entering the text
of the document in the register of the court (sicil) and of overseeing
its application, and to the voivode of the city, the highest-ranking
administrative and judicial representatives of the state.
21. The document consists of two parts.
The first defines the reasons for which it was issued. It is clear
that it repeats, as was customary, almost word for word the content
of Elgin's document with which he asked for a firman, but received
this "official letter" instead. The reference to the
"Dilletanti", the number of the five "English painters"
working in Athens, and the detailed description of their work
there, must derive from Elgin's document.
22. The second part of the document, which
reiterates the first in many points, states what the recipients
should do. Nowhere, however, does it have the meaning of an order.
The expressions used are typical: "it is the explicit desire
and engagement of this Sublime Court", ie the official sending
the document; "It is our desire that...". Therefore,
it is a wish and not an order or enforcement of a law or a Sultan's
command.
23. The editor of the document was Kaimmakam
Seyid (descendant of Prophet Mohammed), Abdullah Pasha. He was
born in 1762-63. His father, Antali Omer Pasha, went to Constantinople
where he became a civil servant. He had had several posts before
becoming cavush-bashi (in command of the body of the Cavushes)
[27]
from 1794 to 1796.
On 1 December 1799, having the rank of vezir
and the title of Vali of Anadolu, he was appointed Kaimmakam (deputy)
of the Grand Vezir Kor Yusuf Ziyauddin Pasha [28]
who was in Egypt in charge of the war against the French army.
According to Sureyya, biographer of personalities from the Ottoman
state, Abdullah Pasha died on 10 February 1801 (2 Sevval 1215).
[29]
This date cannot be correct, because it would exclude him from
issuing the document of 1 July 1801. According to the historian
of the Ottoman Empire, Cevded, Abdullah Pasha died from cardiac
arrest on 5 February 1802 (2 Sevval 1216).[30]
He was replaced by cavush-bashi Mustafa Bey who was promoted to
the rank of vezir.[31]
Cevded gives a fairly detailed account of Abdullah
Pasha's death, making him a more informed and credible source
than Sureyya. The latter mentions only the date of Abdullah Pasha's
death, probably based on Cevded but copying erroneously the year
of his death.
24. Abdullah Pasha issued the letter that
survived in translation, as a gesture of gratitude to the British
Ambassador who was at that time at the peak of his influence at
the Porte because of the successful outcome of the war in Egypt.
But Abdullah Pasha would not dare to issue a firman to the same
effect because he would need the approval of the Sultan himself,
who would probably reject Elgin's request. Consequently, the document
upon which the "legality" of the removal of the Acropolis
monuments is based had neither the strength of a law nor even
that of a legal order of the Sultan's government, as it would
have if it was a firman, but it is simply a "reference letter"
supplied to the British Ambassador by the deputy of the Grand
Vezir, succumbing to his persistent demands and his powerful influence
at the time. The fact that such a document of inferior authority
was enough for the authorities in Athens to allow the ravage of
the Acropolis should not surprise us. Elgin himself later said
that: "in point of fact, all permissions issuing from the
Porte to any distant provinces, are little better than authorities
to make the best bargains that can be made with the local magistracies".[32]
25. The alleged existence of another earlier
"firman", the one which was lost in a mysterious way
and never reached Athens, is contradicted by the surviving document.
An earlier order, especially one by the Sultan, should have been
referred to in the document we have. This is the bureaucratic
Ottoman custom evident in countless Ottoman documents. If there
was such a firman, the editor of the document concerned would
be quick to mention it in order to validate his own order. But
there is no reference to any earlier document, for the simple
reason that there was not one.
26. Also doubtful is the existence of the
documents which, according to Cook,[33]
Elgin acquired from the Turkish Government when he returned from
his visit to Greece in the Summer of 1802, and which approved
of all that the voivode and the dizdar did in Athens to help Lusieri,
working on behalf of Elgin.
It is very strange and unusual for the "Turkish
Government" (there was not a government in the modern sense
of the word, ie with a Prime Minister and ministers with responsibilities,
at the time of the Ottoman Empire) to ratify years later acts
of previous officials—Seyid Abdullah Pasha had already died—that
were not legally sanctioned and their legality outside the Ottoman
Empire could in future be disputed.
27. Cook adds that these documents were
handed to these two officers by Lusieri and even copies of them
did not survive. The truth is that documents issued by any Turkish
authority were always held by the persons concerned and not by
the authorities addressed to and only one copy of them was recorded
in the register of every kadas. It is thus curious, to say the
least, that none of the Turkish documents alleged to have been
issued for the removal of the Acropolis marbles has survived.
Vassilis Demetriades
University of Crete
8 Jeanette Greenfield, The Return of Cultural Treasures,
2nd ed, Cambridge University Press, 1996, pp 76-77. Back
9
John Merryman, "Thinking about the Elgin Marbles",
Mitchigan Law Review, vol 83, No 8, August 1985, p 1899.
1985. Greenfield, op cit, p.80. Back
10
A H Smith, "Lord Elgin and his Collection", Journal
of Hellenic Studies, 1916, pp 165-66. Back
11
Smith, op cit, p 169. Back
12
Smith, op cit, pp 172-73. Back
13
Smith, op cit, p 179. Back
14
Smith, op cit, p 180. Back
15
Eduards Lane, The Manners and Customs of the Modern Egyptians,
Everyman's Library (1st ed 1860), London 1963, p 579. Back
16
"It became common for pashas to appoint agents for the administration
of . . . districts, under the name mutesellim for sancaks and
voyvoda for kadas, and to share with them the revenues derivable
from the tax-farms which the pashas now frequently held themselves,
on a life tenure. The sole interest of these agents was to make
as much money as they could while the opportunity was still theirs."
(H A R Gibb-Harold Bowen, Islamic Society and the West,
vol 1, Islamic Society in the Eighteenth Century, Part
1, Oxford University Press, London, New York, Toronto 1963, p
198). Back
17
Smith, op cit, p 181. Back
18
"A firman of some sort seems to have been obtained and forwarded
to Logotheti, but it failed to reach him for a long time, and
turned out to be an illusory document." Smith, op cit, p
183. Back
19
Smith, op cit, p 185. Back
20
"I therefore beg your Excellency to have one sent to us as
soon as possible, drawn up in such terms as to prevent us meeting
with new difficulties in resuming and peaceably continuing our
work." Smith, op cit, p 186. Back
21
"Positive firmans must, however, be obtained from the Porte,
to enable the Architects and Modelers to proceed in their most
interesting labours. ...Till those firmans are obtained, the bas-reliefs
on the frieze, and the Groupes on the Metopes can neither be modelled
nor drawn." (Smith, op cit, p 188). Back
22
For these dates see BF Cook, The Elgin Marbles, British
Museum Publications, p 55. Back
23
Smith, op, cit, p 69. Back
24
"The Voivode had been induced `to extend rather than contract
the precise permission of the firman'" (Cook, op cit p 58). Back
25
U Heyd, Ferman, Encyclopedia of Islam. Back
26
Buyuruldu: order of an Ottoman grand vizier, vizier, beglerbegi,
defterdar, or other high official to a subordinate (U Heyd, Buyuruldu,
Encyclopedia of Islam). Back
27
The position of cavush-bashi was very important in the central
administration during the 18th and beginning of the 19th centuries.
His duties were numerous and varied. "Owing to the assumption
of the Sultan's judicial functions by the Grand Vezir, the Cavush-Bashi,
whose primary duty it was to conduct proceedings at the sitting
of the court in which these functions were performed, came to
attend more generally on the minister rather than on the monarch
and so to be regarded as yet another of his lieutenants: it is
for this reason that the Cavush-Bashi appears not only as an officer
of the Household but as a functionary of the administration .
. . In later times the Cavush-Bashi performed a variety of duties.
They all had their origin, however, in his command of the Cavushes
. . . The Cavush-Bashi, gave them the necessary orders, and also
played an important part in the proceedings of the court. By the
18th century he had come indeed to be regarded as its vice-president
. . . It was the duty of the Cavushes under him to marshal petitioners,
litigants, and accused persons in the Grand Vezir's court, to
carry messages and to execute certain sentences. (Gibb-Bowen,
op cit, pp 117-19). Back
28
"Vezirs appointed to replace the Grand Vezir when he was
commanding in the field were called Ka'im-makam. It was generally
the Second Vezir that was given his duty. He enjoyed for the time
being almost all the authority of a Grand Vezir except in the
area where the army was operating, though less than his pomp.
For since most of the principal officers and officials of the
administration would accompany the Grand Vezir on campaign, the
Ka'im-makam had to support him at home only the officers and officials
that were appointed to replace them. This curious system is dated
from the days when the Sultans led their armies to war in person.
Their chief ministers followed them, leaving substitutes at the
capital. And in later times it was continued even when the Sultans
remained at home and the Grand Vezirs commanded." (Gibb-Bowen,
op cit, p 114). Back
29
Mehmed Sureyya, Sicil-i Osmani veyahud Tezkere-i Meshahir-i
Osmaniyye (Ottoman Code or Biographics of Renowned Ottomans),
Instanbul 1311, (1895), vol 3, p 391. Back
30
Ahmed Cevded, Tarih (History), Istanbul 1301-07 (1885-91),
vol 7, pp 143-44. Back
31
Cevded, op cit, p 145. Back
32
Greenfield, op cit, p 78 Back
33
Cook, op cit, p 59. Back
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