John Bray Oration by Geoffrey Robertson QC, Adelaide University, April 2, 2019
In a very interesting, and only slightly windy, lecture, Robertson QC gave us a very entertaining and erudite exegesis on both South Australia’s Periclean Chief Justice of the 1970s, Dr John Jefferson Bray QC, and the vexed and more immediate question of title to ancient artefacts, a subject close to TVC‘s heart.
This is a topic that evokes much chest-beating and arm-waving. But take the Elgin (or Parthenon) Marbles, one of the more contentious works of art subject to a claim by the Government of Greece (it now has about half of the pieces; the others remain firmly ensconced in the British Museum – a Solomon-like, albeit temporary solution). In our earlier note on them, we cited Kaspar Gutman’s comment to Sam Spade about the provenance and title to the mythical Maltese Falcon: “Well Sir, you might as well say it belonged to the King of Spain. I don’t see how you can honestly grant anyone else a clear title, except by right of possession.”
Robertson made a pretty good general case for the return of the ‘marbles’ but much will depend on how the international jurisprudence develops. Article 31 of the UN Declaration on the Rights of Indigenous Peoples recognises First Nations peoples’ right “to maintain, control, protect and develop their cultural heritage, traditional knowledge…oral traditions, literatures…designs.” But like most emanations from the UN, this is boilerplate stuff.
Robertson advised the Greek Government in an action in the International Court of Justice, but the plaintiff thereafter suffered a touch of insolvency and the case stalled. The claim rests on an attack on the actions and motives of one Thomas Bruce, 7th Earl of Elgin, who had the pieces carried away from Athens in and from 1803. His remuneration from the British government only covered about half his costs, but Robertson (in a flourish of advocate’s zeal) labelled him an adventurer, and a thief. But if The Varnished Culture were defending the Poms in the matter, we would suggest that the Greek Government has as little claim to the marbles as we do. After all, they were created by the greatest sculptor of all, Phidias, and commissioned by Pericles, head of the great City State of Athens (not Greece). To paraphrase Mr. Gutman, you might as well say they belong to Pericles: we don’t see how you can honestly grant anyone else a clear title, except by right of possession.
Moreover, had they not been stored in Bloomsbury all these years, who knows what state they’d be in?
We don’t anticipate this would resonate in terms of international law, but an argument from adverse possession might suggest that if you leave an asset of value to rot, someone else might make a better fist of it. Robertson himself made that argument regarding the Rosetta Stone (above), which the French allegedly left on a trash-heap for decades. Robertson’s contention is simpler and basically fair: artefacts obtained by theft, conquest, or (more controversially) colonisation, should be returned to their place of provenance. Thus the return of Nazi loot, Egyptian antiquities and native bones (such as the Tasmanian aboriginal remains, or those of Gimuy Walubara Yidinji people, returned today, April 16, 2019, from Munich, Freiburg, Halle and Stuttgart).
In any event, this was a valuable talk from a man who has been immersed more than anyone in these interesting difficulties. But in considering the question posed in his keynote, “Who owns the past?” we were chillingly reminded of the dictum of Mr. O’Brien in Nineteen Eighty-Four – “Who controls the present controls the past.” In other words, no-one could challenge British title by possession while it still possessed an Empire.