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Colonial Cases

Di Cesnola, 1878

[conflict of laws]

Di Cesnola

District Court, Larnaca
Source: The Manchester Guardian, 14 November 1878



   The following letter from the Times correspondent at Nicosia raises the question "under which king" the Cypriots are living.  The correspondent says:-

   Mr. di Cesnola, who was arrested for conducting excavations without leave, was brought before the Medjlis Davi, or District Court of Larnaca, charged with an offence under article 7 of Turkish law of the 20 Sefer, 1291 (the 24th of March, 1874), concerning the searching and excavating for objects of antiquary.  Mr. di Cesnola was found guilty, and was sentenced by the Court to a fine of four Turkish pounds, and to the confiscation of the objects he had obtained by excavation. After the sentence was passed, a letter was read by Colonel White, the commissioner of the district and ex officio assessor of the Court, from the High Commissioner, declaring that it was His Excellency's pleasure to remit any such fine as the Court might inflict, although the confiscation of the discovered objects was to hold good.

   Mr. di Cesnola protested, as an American and a man, against being called to account before a tribunal which, he affirmed, was neither a Turkish nor an English Court.  He protested also against his arrest, which he regarded as illegal, and against the confiscation of his property.  Besides thus protesting against the whole proceedings and the jurisdiction of the Court, Mr. di Cesnola argued, in defence, that the objects found in his possession could not be proved to have been obtained by excavations of the soil, and that he had made no excavations of the soil for the purposes interdicted by the Act.  When witnesses were called to prove the digging and that they were paid for digging, Mr. di Cesnola sought to set up a plea that the digging was innocent and for the purposes of agriculture; But the Cadi caused a question to be interpreted to him which provoked the smiles of the Court and effectually disarmed the defence.

   "Ask Mr. di Cesnola," the Cadi said, "If he was not, then, spending a great deal of money for the pleasure of digging holes and filling them up again." Mr. di Cesnola was asked if he could produce a firman authorising his excavations, but he had not even that semblance of authority.  He stated, finally, that he accepted the proceedings and the sentence of the Court as by force, reserving to himself the fullest rights of protest and acknowledging the remission of the fine as in no sense favour.

   The case created great interest in Larnaca among the natives as being the first visible evidence of the novel condition of government in Cyprus, in which all men, without distinction of rank or position or means, are amenable to the law, and among the more reflecting of the British community as being the first instance of the practical disallowance of the consular jurisdiction which has existed here hitherto as in other parts of Turkey.    It is not quite clear whether Mr. di Cesnola, in protesting against the competency of the tribunal, desired to argue that he was free in Cyprus to commit what breaches of the law might be suitable to his tastes.  It is certain that if the court of the District could not try him no other Court colds.

    I imagine there are at present no persons legally entitled to act as consuls of foreign powers in Cyprus.  Such gentle men as continue to fly flags from their respective consulates are accredited, not to the British, but to the Turkish Government of the island.  Consuls do not enjoy the immunities of ambassadors.  The residence of any individual consul in a state is subject to the revocable will of the Government, which may withdraw its exequatur and send back an offending consul to his own country.  It will, I imagine, therefore be necessary for the Powers desiring to maintain consuls or consular officers in Cyprus to secure their recognition by the English and not by the Turkish Government.  But were there not this obstacle in the way of the exercise here of any consular jurisdiction arising out of the fact that there are no recognised consular officers in the island, the consular jurisdiction could not be allowed.  The case is one, I imagine, to which the maxim of cassante ratione cessat lex applies in its plenitude.  The conditions our of which arose the necessity and advantage to  foreign powers of keeping representatives in Cyprus to guard their  subjects from ill-use have been swept away, and, with much other debris, the so-called capitulations and conventions of Turkey with foreign Powers must go too.

   Foreign Powers will, there can be little doubt, be only too thankful to gain for their subjects the better status which the abolition of the effect of the conventions will certainly leave them.  Bankers and merchants will tell you that there is no person with whom they will less readily deal than with a protected subject.  The recovery of debt and the enforcement or the execution  of  contracts became, under consular jurisdiction, instead of the simple matter of procedure which the interests of trade require it to be, an affair involving often the exasperation of personal and national feelings.  Mr. di Cesnola has stated, I believe, that he has placed his case in the hands of the American Consul at Beyrout, and had claimed the protection due to an American citizen.  If attention is directed to the case with the result of satisfying the doubts which seem to exist in some minds as to the effect of our occupation of the island in regard to the operation of the Turkish treaties and convention s, no very grave harm will have been done.

   I have already told you that a Turk tried in Nicosia lately for a murder committed in the district of Papho had been condemned to death and would be sent to be executed in the district which had suffered from his crime.  The execution, the first which has been carried out in the island for a long time, and the first execution of a Turk, I do not doubt, which has ever occurred here, was carried out lately, and the man was hanged.  The feeling among the Turks was so strong that the Commissioner of the district, Lieutenant Wauchope, of the 42s Regiment, deemed it expedient to have out a body of the troops stationed at Papho to provide against the possible event of an outbreak or an attempt at rescue.

   The disturbed feeling of the Turks is represented as being one of pure wounded pride and galling humiliation.  They could not being themselves to brook that a man, even a murderer, who was one of the superior, the conquering, race, should be subjected to such an indignity.  The state of mind is curious and, according to all standards of ordinary reasoning and feeling, seems to be beyond explanation.  There was no question in this case of national antipathy, of the setting of the value of a murdered Greek against that of a murdering Turk, of an idea that a Turk should never suffer death for killing a Greek, for the murdered man was himself a Turk.  The murder, too, was of the coolest and most cold-blooded  character, and excited at the time the reprobation  and horror of all the district.  The murdered man was sitting by night, with two young children, in a small hut by his sheepfold, when the murderer appeared at the door, took aim, and shot his victim dead.  No motive and no explanation of the deed were discoverable, and I think there is little doubt that the murderer was a hired assassin.  His reputation was of the worst kind; He was known to be a lawless and desperate disturber of society; he was a feared and dangerous neighbour.  His apprehension was viewed with the highest satisfaction, and testimony against him was readily coffered.  And yet, with all this, the Turks in their insufferable pride cannot brook that the brute, because he too is a Turk, shall be consigned to a death that stamps him with just degradation.  An understanding, if an understanding is possible, of this unmanageable, unnatural feeling will help the student of Turkish history to many sound views and clear discoveries.

   As an lustration of the way in which the same sentiment will on occasion enter into, disturb, and upset all rational calculations of policy and advantage, I may state a story that I have received on the best authority.  The Ottoman Bank, when submitting to the Turkish Government specimens of bank notes which the Government t was desirous of making and issuing, had set in each of the four corners of the note a stamp of the coin the note was to represent, with a superscription designating the value if it.  The superscription round each was in a different language, adapted to the use of the different races among whom in the Turkish Empire this paper would circulate.  But the Turk would not have a note that bore on its face any writing but Turkish.  A Greek or Armenian character stamped upon a Turkish note gave offence to the pride of the governing race.  And so this fatal pride tramples down interest and convenience and the claims of civilisation and good government, humane and prudent appeals alike, beneath its heavy and insensate hoof.

   The health of the troops is, you will, be glad to learn, improving. ...

Published by Centre for Comparative Law, History and Governance at Macquarie Law School