THE PARTHENON REPORT: Morality vs. Law

THE PARTHENON REPORT: Morality vs. Law 1

That we’ve broken their statues,
that we’ve driven them out of their temples,
doesn’t mean at all that the gods are dead.

– IONIAN, Constantine Cavafy

 

THE BRITISH MUSEUM ACT 1963
No discussion of the Parthenon Sculptures would be complete without talking about the British Museum Act 1963 and its notorious Provision 5(1)(c). Anyone seriously interested in the fate of these sculptures and in the resolution of this issue must confront the reality of this law and what constraints it imposes on us. We can’t wish it away or change it easily. And even if the Trustees of the British Museum, the Government and all its Ministers, the Queen and her corgis and Boris Johnson himself all unanimously and in good faith decided that the sculptures should return to Athens, it still couldn’t happen without first passing through The British Museum Act – either by amending the Act itself or passing separate legislation.

The Act is Cerberus, the three-headed dog guarding the gates of Hell. It is the proverbial eye of the needle, Catch-22 and the fig leaf covering the nakedness of 25 trembling trustees. The British Museum Act 1963 is where all the pleasant chatter, whining, tea-sipping and wishful thinking finally confront the one clear and unambiguous obstacle to the repatriation of these sculptures. So, let’s see exactly what we are up against and wherein might lie the solution.

First, a little history
The year 1753 marks the death of Sir Hans Sloane and, consequently, the birth of  the British Museum. Sloane, a prominent Anglo-Irish physician, naturalist and plantation owner (through his wife’s inheritance), was a polymath of seemingly endless curiosity and was even credited with the discovery of quinine as a cure for malaria and the invention of chocolate milk – as a cure for everything else. Enabled by the profits from their sugar plantations (worked by hundreds of slaves), he also amassed a collection of 71,000 books, plants and “1,125 things relating to the customs of ancient times.” It was this collection which he bequeathed in his will to King George II “for the nation” in order to establish a museum that would be free and openly accessible to the public. In order to turn this bequest into a public institution, Parliament enacted the British Museum Act 1753. At the same time, The British Museum Library came into being, later evolving into The British Library. It was through another Act of Parliament in 1963, however, that The British Museum was reconstituted and a separate Museum of Natural History spun off, based on Sloane’s collection of specimens from nature and governed by a separate Board of Trustees.

The Natural History Museum and Dippy the Diplodocus
Inspired by Sir Richard Owen and housed in a stunning Romanesque building in South Kensington designed by Alfred Waterhouse, the Natural History Museum was home to the widely beloved dinosaur “Dippy” the Diplodocus and now features the skeletons of another dinosaur (Mantellisaurus), a wooly mammoth from Missouri and a great blue whale named “Hope” hanging from the ceiling of Hintze Hall.  (Note: Dippy has been on tour for the past several years and currently resides in the nave of Norwich Cathedral until the end of October 2021.  Go now.  If you are a child, run away from home if you must. And try to time your visit to coincide with an organ recital or service of Evensong.)

The Act Itself
As for British Museum Act 1963  this is one of those rare-to-medium-rare occasions when a detour to visit an external resource is not just interesting but important.  Editors wince when one adds hyperlinks to such outside destinations and liken it to getting off the bus or subway every few minutes to explore new specimens of graffiti or pat a stray dog. In this week’s column, however, there are a few characters worth knowing a little better and two key resources. After spending several weeks looking into Lord Elgin’s collecting activities, missing nose and marital woes, this week we turned our attention to two of Britain’s most interesting museum founders, Sir Hans Sloane and Sir Richard Owen. Now, we need to consider the twin blueprints for one of the world’s most important and influential museums. The British Museum Act 1963 and the British Museum’s own policy statement on the de-accession (disposal) of objects from the collection are the two documents which lie at the heart of our subject and which are absolutely critical to an understanding of how we can craft a practical and constructive solution to “The Elgin problem” – one which does that rarest of all rare things: leaves both parties in a dispute feeling satisfied with the solution and happy with each other. So while these documents may not be everyone’s idea of a light summer read, they provide a quick and bracing cure for all but the most advanced cases of naïveté and wishful thinking. One of the key arguments cited by the British Museum for not being able to return the Sculptures to Athens is The British Museum Act 1963, which describes and defines how the Museum operates and sets out how – and by whom – the 25 trustees are appointed as well as how and under what circumstances an object may be removed from the collection. Here we quote section 1 (c) of Provision #5 of the British Museum Act, which deals with the “Disposal of objects”:

The Trustees of the British Museum may sell, exchange, give away or otherwise dispose of any object vested in them and comprised in their collections if in the opinion of the Trustees the object is unfit to be retained in the collections of the Museum and can be disposed of without detriment to the interests of students.”

“Oh, good!” one might rashly exclaim; “that means we only have to all agree that the Parthenon Sculptures are unfit to retain”. Please imagine this discussion in a round-table setting involving all the usual suspects and stakeholders. It would be neither short nor pretty, and in this really real world the answer obviously lies elsewhere.

The British Museum’s Own Policy on the Disposal of Objects in the Collection
At this point, we also need to explore (and perhaps download and memorize) the British Museum’s own policy document regarding the de-accession (disposal) of objects in the collection. We will return to this policy statement in a later column, especially this excerpt from the preamble: “The Trustees of the British Museum have a strong commitment to the integrity (emphasis my own) and global public value of the Collection, and do not normally deaccession objects from it.” For the time being, however, it is enough to observe how closely Museum policy follows from and is influenced by the 1963 Act. More interesting, however, is the real-world experience and painful lessons one can see reflected in different sections of this policy statement, evidence that the institution is not entirely impervious to change nor entirely oblivious to the tidal forces lapping at its doorstep.

Seismic Events and Acts of Parliament
Specifically, one can detect in the text of this policy statement the aftershocks from two seismic events in the Museum’s history. The first involves a series of claims brought by various indigenous tribes and nations to recover ancestral remains and sacred objects taken from them by force and added to the 8,000,000 other objects in the Museum’s collection. These claims eventually led to an Act of Parliament – The Human Tissue Act 2004 – which then allowed (according to the Trustees) or forced (according to the plaintiffs) the Museum to return these items to the descendants of their rightful owners. The second seismic event which is relevant to our own case involves the return of artworks looted by the Nazis during World War II. While not materially different from the case of the Parthenon Sculptures or other important artefacts gathered without the consent of their original owners, the dramatically horrendous nature of such artworks’ provenance makes them toxic for any museum to hold in their collection. And while the British Museum continues to fight a rearguard action in defense of holding on to the Parthenon Sculptures – at whatever the cost to its reputation – it has performed an array of acrobatic maneuvers to rid itself of these other examples of looted art. As with the case of indigenous remains, a series of restitution claims against British museums by descendants of Jewish families murdered in the Holocaust led Parliament to enact the Holocaust (Return of Cultural Objects) Act 2009, which again allowed/forced Trustees to return such artworks to their rightful heirs, a mere 70 years after they were stolen from their owners.

The British Museum Act 1963 is brilliantly useful. On the one hand, it allows the UK Government to dodge responsibility for controversies involving the collections in its most important museum, citing its famous “arms length” policy. On the other hand, it also shields the Museum Trustees themselves from exercising responsibility in these same cases, since it is a Government Act which prevents them from de-accessioning objects in their collections except under the most ridiculously narrow circumstances. Both Government and Museum regularly declare that, as much as they would like to help the Museum become more responsive to matters of social or historical justice, their hands are tied by this Act of Parliament, and it is actually the other’s bailiwick. Neat trick.

The Feldmann Case
Since the dissolution of colonial empires and the end of World War II, questions of restitution and repatriation have bedeviled nations, clogged the courts and given birth to whole new branches of the law. The most important case regarding the ability of the British Museum to take real responsibility for the objects in their collection unfolded between 2002 and 2005. “The Feldmann Case” (officially titled HC04CO3885 : Her Majesty’s Attorney General v. The Trustees of the British Museum) involved the first claim against a British museum seeking the return of artworks stolen by the Nazis.  When Germany invaded Czechoslovakia in 1939, the Gestapo confiscated the art collection of Czech Lawyer Arthur Feldmann, who later died of injuries in prison, while his wife Gisela was murdered at Auschwitz.

In 2002, family members discovered that a number of Old Masters drawings taken from the family in 1939 were currently in the British Museum, despite the fact that a recent Museum survey of its 8-million-object collection looking for illegally acquired artworks or artefacts had found nothing suspicious. Checking again after the Feldmann claim, however, the Museum discovered that ‘yes, indeed, it now seemed that these works had been looted by the Nazis and that the Museum would very much like to return them to Dr. Feldman’s heirs.’

After consulting with the Museum Board on the matter, the Government’s Attorney General, Lord Goldsmith QC, passed the case along to the British Supreme Court for a clarification on whether the Museum had the power – even if it felt a moral obligation – to return looted objects from its collection. Britain’s cultural establishment held its collective breath while the High Court made its deliberations, knowing that if the Museum Trustees were allowed to follow their consciences and exercise discretionary authority and real responsibility over their collections – momentous changes would most likely ensue. The case of the “Elgin Marbles” was in the back (or front) of nearly everyone’s mind.

 

THE PARTHENON REPORT: Morality vs. Law 2
St. Dorothy with the Christ Child by a follower of Martin Schongauer

 

The Verdict of the Feldmann Case – and what it means
On 27 May 2005, Sir Andrew Morritt CVO, Chancellor of Britain’s High Court, ruled that the British Museum did not have the power, no matter how strong its feelings of moral obligation, to deaccession objects from its collection in contravention of an Act of Parliament. He added that only new legislation or a “bona fide compromise” could allow the Trustees to legally transfer the works. In other words, the British Museum Act could not be overruled by a moral obligation, no matter how outrageous the particulars of the case might be.  Reactions to this verdict were swift, widespread and predictable. Most of the statements from the British Museum emphasized that the Feldmann drawings represented “a unique moral claim” and that its trustees “do not accept” that there is a moral claim to any other objects in its collection. Bad enough to have to admit that the Museum contains looted objects, but the thought of people drawing conclusions and making comparisons with the “Elgin Marbles” or Benin Bronzes drove Museum officials, like a threatened squid, to emit clouds of ink in all directions. The British Government was similarly desperate to limit the fallout from this case. A spokesman for the Department for Culture, Media and Sport (DCMS) said that Judge Morritt’s ruling had clarified the issue and that the Ministry would “now look seriously at the case for legislative action.” As a result of this mutual desire by Government and Museum to put this matter behind them and not deal with it again, the Holocaust (Return of Cultural Objects) Act 2009 moved quickly through Parliament, shaped and shepherded by Andrew Dismore, former Labour MP for Hendon, north London and recently retired member of the London City Assembly. Perhaps better than anyone else in the UK (or the world), Dismore understands how to amend the British Museum Act or craft and pass separate legislation to allow the deaccessioning and repatriation of select objects from the Museum’s collection – without opening the “floodgates” and emptying the galleries as some museum directors fear. At the time of the Feldmann Case, Matthew Taylor (whose web-site “Elginism” contains everything that has ever been said, done, written, or imagined about the efforts to repatriate the Parthenon Sculptures) ventured this analysis of the subject:

“The government’s major concern about Mr. Dismore’s Private Members’ Bill is that amendments may be put to extend its scope. In particular, it will inevitably be seized upon by parliamentarians who are campaigning for the return of the Parthenon Marbles to Athens. Similar moves might be made by those calling for the return of the Benin Bronzes to Nigeria, the Rosetta Stone to Egypt or the Lewis Chessmen to Scotland. The DCMS is therefore expected to press for a clear wording that would preclude de-accessioning being extended beyond the 1933-45 period.”

Only a meeting of the minds:  An Act of Conscience and an Act of Parliament
In reality, the repatriation of the Parthenon Sculptures, made possible either by amending the 1963 Act or by enacting separate legislation as in the cases cited above, would need the support of both Museum Trustees and the UK Government.  Where there is a meeting of the minds between the two – as suggested by MP Eddie O’Hara below – even this most difficult of disputes can be resolved. The protocol and mechanics involved in amending the British Museum Act are clear, and a blueprint for such an action has been painstakingly developed by Andrew Dismore.  Since it has been demonstrated that such problems can be solved – it brings us to the question of how we can help both Museum and Government, independently and together, to understand that returning the Sculptures is the right thing to do and, more important, is in their best interest.

“The British Museum Trustees shelter behind the argument that it is the law – that they are entrusted with these artefacts and cannot divest themselves of them… But the government simply needs to legislate to say ‘yes, this is possible.’ – as they did with Nazi loot.”

– former MP Eddie O’Hara


NEXT WEEK: We will examine the possibility and usefulness of seeking an advisory opinion on the case of the Parthenon Sculptures at the International Court of Justice (ICJ) in the Hague. When and under what circumstances might this occur?

ABOUT THE PARTHENON REPORT | DON MORGAN NIELSEN:
In this bicentennial year since the birth of the modern Greek State, of both pandemic and celebration, Greek City Times is proud to introduce readers to a weekly column by Don Morgan Nielsen to discuss developments in the context of history, politics and culture concerning the 200-year-old effort to bring the Parthenon Sculptures back to Athens.

Classicist, Olympian and strategic advisor, Don Morgan Nielsen is currently working with an international team of colleagues to support Greece’s efforts to repatriate the Parthenon Sculptures.


Click here to read ALL EDITIONS of The Parthenon Report by Don Morgan Nielsen


 

Introducing The Parthenon Report

Feature Image : Copyright Nick Bourdaniotis | Bourdo Photography