There was a time—it seems so long ago—when New Yorkers awaited the arrival of their Sunday Times with a distinct sense of anticipation. In the arts, literature, and cultural sections of the bulky package, one invariably found a variety of interesting insights and opinions, delivered by a team of perceptive, well-informed commentators. On Sunday, November 12, 1972, the paper once again did not disappoint its readers. On the front page was a brief report that the Metropolitan Museum had made a spectacular acquisition; its Director, Thomas Hoving, announced the purchase of a magnificent Attic sixth-century kylix krater, signed by the potter Euxitheos and the painter Euphronios. That Sunday, The New York Times Magazine also featured the fabled artifact on its cover in glowing color—an unprecedented case of double-exposure on the same day. Inside, a long article spared no superlative: the hitherto unknown masterpiece would, in Hoving’s words, “re-write the history of Greek vase painting.”

Even readers with the most superficial knowledge of classical archaeology and the antiquities market must have smiled wryly at the museum’s disingenuous assertion that the thrilling discovery emerged from a “European collection formed at the time of World War I.” Although no further details were forthcoming, the real provenance of the great vase was only too easily imagined: it must have been found in an Etruscan necropolis, probably somewhere north of Rome and, in all likelihood, only months before.

Indeed, by early February 1973, a bit of clever investigative reporting by Nicholas Gage and others had forced an embarrassed Metropolitan to reveal not only the name of the seller of the vase but also an almost comical montage of fictitious circumstances surrounding its presumed earlier “history.” The Italian Carabinieri, on their own, quickly got to “their” truth, no doubt aided by the disgruntled local diggers who realized they had only gotten pennies of the reported $1 million paid by the Metropolitan.

The Euphronios krater is returning “home.”

And there things stood, for decades, in stalemate and in perfect equilibrium: the Italian authorities occasionally clamoring for the return of the great treasure and the museum steadfastly defending the legality of its ownership. And so the splendid Euphronios krater remained—immovable and firmly perched on its pedestal on Fifth Avenue—until February 3 of this year. That day, New Yorkers learned the distressing news that they will no longer be able to participate in the lament over the noble Sarpedon’s death. That masterfully rendered episode of the Homeric legend, and the monumental vessel on which it was painted, will, in fact, soon be departing for Italy; the Euphronios krater is returning “home.” The event is so significant and fraught with implications for the future that serious thought ought to be given, not only to the concept of “home” as expressed above, but also to the reasons why, from 1972 to 2006, everything changed. Then, we were secure that the vase was ours; now, it is theirs; indeed, its present label reads “on loan from the Government of Italy.”

That Italy should have always been considered a home for art is hardly surprising. More of it was created there, brought there, and exported from there, over the last three millennia, than anywhere else. Put another way, Italy is the ultimate source country. Quite understandably, it was in Italy—in the Vatican State to be precise—that the concept of artistic patrimony was first given legal standing in 1820. This occurred via a remarkably innovative decree promulgated that year by Cardinal Bartolomeo Pacca. Serving as Secretary of State to Pius VII in the tumultuous years of the French occupation of Rome and of the Pope’s exile, Pacca steadfastly defended the sovereignty of his state, and was keenly aware of the relentless depredations of artistic treasures carried out by Napoleon and his minions. These experiences surely prompted the Cardinal, after the Congress of Vienna, to enact the edict that bears his name and which, for the first time, established a state (as opposed to a private) procedure to catalogue, protect, and preserve artistic properties within the Church territories.

The Pacca Code was soon followed by similar laws elsewhere in Italy: in 1822 in the Bourbon Kingdom of the Two Sicilies, in 1827 in the Veneto and, in 1857, in the Grand Duchies of Tuscany and Modena. The first comprehensive law covering artistic properties in the newly united Italian state was adopted in 1909. Most subsequent legislation, not only in Italy, but in other states both in Europe and elsewhere, is based, at least conceptually, on these early codes.

Central to every discipline seeking to regulate works of art, whether movable or immovable, is their identification; in other words, their description and the subsequent recording of that description in some form of general register. Artistic (or cultural) properties, identified and catalogued as such, will then, inevitably, fall in two general categories: those that are privately and those that are publicly owned. This aggregate—this known and catalogued body of works—is generally referred to as artistic patrimony, a term that has, more recently, been expanded to include also so-called cultural patrimony. The laws and regulations, as they have evolved from the Pacca Code in Italy and elsewhere, have sought to protect this known quantity according to varying local needs and traditions. Over the last century they have done so with uneven success, at best. The inherent asymmetry and great complexity of dozens of individual national, even regional, codes, has often hindered, rather than facilitated, the reasonable administration of the patrimony to be protected.

What has particularly muddied the waters, certainly in every source country, is that, in addition to the known patrimony, there exists an often very substantial unknown body of works: these may have either been forgotten through neglect, may have languished unrecognized through ignorance, or simply may have remained undiscovered, generally buried underground. As a result, this unknown, unrecorded material can only theoretically be considered as pertaining to an artistic and cultural patrimony. Regulating such a theoretical, and unknown, patrimony has, for obvious reasons, always presented inherent problems, and, in this sense, archaeological finds comprise the most conspicuous and troublesome category of such patrimony. A Greek vase or a Roman bronze is unknown until it is discovered somewhere underground; however, they exist, and have always existed, in a juridical sense, according to Italian and other European jurisprudences. Although these undiscovered and unrecorded artifacts may have never been seen, they are, nonetheless, considered very much part of these nations’ artistic and cultural patrimony.

The Euphronios krater, if, indeed, it was unearthed in Italy, was therefore regarded, in Italian law, as stolen property.

In Italy, as in most of continental Europe and Latin America, modern civil law developed from the Napoleonic Code, which itself was based on earlier Roman law and the Corpus Juris Civilis of Justinian. One of the fundamental tenets of Roman law, as it applies to land, or “real,” property is that possession does not extend beyond its surface. In other words, jurisdiction above and below a property pertains to the state. An owner is not entitled to material emerging from below his land, be it gravel, petroleum, or . . .  ancient artifacts. The Euphronios krater, if, indeed, it was unearthed in Italy, was therefore regarded, in Italian law, as stolen property because it was removed from below the ground and not turned over to the state. Had this principle guided American law, restitution would simply have been a matter of reciprocal recognition of a similarly applicable statute in a similar circumstance. Theft is everywhere regarded as a crime; the product of a theft remains, within the statutes of limitations, subject to seizure and return everywhere.

But, in the context of international law, things were not so simple. Even if the Italian authorities had been able to demonstrate with absolute certainty the origin of the krater (never an easy matter, after the fact), there was no reciprocity in the law. The krater might well have been a “hot pot” in Rome, but it was only lukewarm in New York. The case would have had no standing here. Jurisprudence in the United States (except for the state of Louisiana) essentially descends from English common law as it was institutionalized in the twelfth century by the first Plantagenet king, Henry II. It is basic to the concept of “estates in land” or “real” property in common law, that possession, jurisdiction and, hence, enjoyment of the land, extend above and below the surface of the property. “Treasure trove,” is, in fact, a well-recognized principle in England, and most of its former colonies. What else, then, if not “treasure trove” was the Euphronios krater? And, as such, was it not the legitimate property of the owner on whose land it was unearthed? Indeed, in American law, the vase was not considered stolen property and consequently was not subject to seizure and restitution.

It is a crucially vexing paradox that virtually all source countries base their jurisprudence on Roman law and that, in the primary destinations (the U.S. and Great Britain), these principles are generally not recognized. Beyond this, there is the subsidiary but no less important issue of export regulations. These may be more or less restrictive, but are almost invariably an integral part of most nations’ art-patrimony codes. It stands to reason that if an object is criminally obtained through digging, it is highly unlikely that it will turn up at the government’s export office for a legal license.

By the middle of the last century, the problem had, indeed, become so vexing that, in 1970, the United Nations Educational, Scientific and Cultural Organization (UNESCO) drafted what is still today the most important instrument dealing with cultural property. Its title, in typical UN hyper-speak, says it all: “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.” In 1972, the United States joined the other hundred signatories in adopting the Convention. This may well have occurred on the very day that the Metropolitan sealed the deal on the Euphronios krater! The coincidence is undoubtedly amusing but not as egregious as it seems.

The Convention is actually a very prudently worded and even-handed document, the purpose of which was certainly not to shut down the circulation and collection of art objects. It does not impose automatic observance of restrictive export laws and, most importantly, it narrowly limits the definition of “stolen property,” clearly excluding items not described in existing inventories of collections, museums, or religious institutions. Although it took another ten years for the U.S. Congress to pass legislation implementing the provisions of the UNESCO Convention, there was general agreement that, by so doing, a fair balance was being struck between the needs of source countries and the legitimate aspirations of U.S. cultural institutions and collectors. In fact, part of the Implementation Act passed by the Congress was the establishment of the Cultural Property Advisory Committee, an appointed body to which applications from source countries would be referred and which, in turn, would advise the president and other federal agencies on specific actions to be taken.

Unfortunately, five years before the Implementation Act was passed in 1983, a case involving some Mexican artifacts was argued before the U.S. Court of Appeal for the 5th Circuit. The objects had been obtained from an illegal but undocumented site in Mexico and had been brought into the U.S. for sale. In United States vs. McClain, the court convicted the defendant on the basis of the National Stolen Property Act, a 1940s omnibus federal statute covering interstate traffic in stolen property (everything from cars to counterfeit tax stamps). It was a stunning feat of judicial over-reaching: in McClain, the court, in essence, recognized a patently dubious claim of theft on foreign soil, and then adopted this claim in support of punitive action on American soil. And this, on the basis of a statute (the NSPA) that is entirely silent not only on artistic and cultural properties, but on the interpretation of possible illegality in a foreign jurisdiction!

The ominous implications of McClain were, of course, not lost on lawmakers as they were drafting the Implementation Act. There was even an attempt, by Senators Dole, Matsunaga, and Moynihan, to introduce a bill modifying or annulling McClain, but it came to nothing, mainly as a result of opposition from the State Department and U.S. Customs.

In matters pertaining to artistic and cultural patrimony, the past quarter-century has witnessed a progressive erosion of the carefully crafted international bi- and multilateral agreements such as the UNESCO Convention and legislation such as the Immunity from Seizure Act (enacted in the 1960s to assure foreign lenders to American exhibits that their works would be returned). A striking example of judicial pre-emption affecting the orderly progress of cultural exchange is the deplorable episode of the Egon Schiele painting known as Portrait of Wally that had been lent to the 1997 MOMA exhibition of works from the Leopold Museum of Vienna. Seized moments before its return to the lender in Austria, the painting has been for years tied up in a harrowing series of court battles. In effect, it has been considered illicit property by the U.S. Attorney’s Office—fruit of a presumed theft that (perhaps) occurred more than a half century ago, and half a world away from our shores.

More recently still, prosecutors in the New York jurisdiction again employed McClain; this time as the bludgeon to convict a well-known and respected antiquities dealer—on the basis of Egyptian law! It was yet another example of an American court asserting its role as arbiter of foreign law, in contrast to existing international treaties and domestic legislation. If this, indeed, is an inexorable trend, it would probably have been only a matter of time before an activist local magistrate issued an injunction to seize the Euphronios krater. Conveniently, a gentleman named Giacomo Medici made that unnecessary.

Medici, working from Rome and Geneva, had for years been one of the foremost dealers of classical antiquities in the world. Because of the legal complexities mentioned earlier, Medici, his associates, and clients were obligated to operate carefully and discreetly, if not downright secretly. Unfortunately, Mr. Medici, true to his Italian nature and perhaps due to his great success, boastfully and quite carefully documented his career in words and photographs. He was like Louis Mazzini (the part played by Alec Guinness) in Kind Hearts and Coronets, memorializing his life of crime in pursuit of the D’Ascoyne earldom and then being undone when his writings were discovered after he had forgotten them in his cell.

In 1995, Medici’s “gallery,” located in a duty-free Swiss warehouse, was searched. Its contents were surprising, to say the least. Investigators found a welter of mostly nondescript archaeological specimens. The real interest, however, resided in the countless images, notes, and references identifying works of art—many hardly nondescript—that, through Medici’s ministrations, had found their way to museums and collectors everywhere, but mostly in America. For the first time ever, the Italian authorities had irrefutable proof (as opposed to the disgruntled confessions of diggers and farmers) that certain objects—yes, including the krater—were unearthed in Italy. As an almost ludicrous vanity, Medici had himself photographed standing proudly next to a series of lovely objects, now beautifully restored and installed in museums including, besides the Metropolitan, the Getty and the Cleveland Museum.

The return of most of these objects was now only a matter of negotiating a polite way out. Unfortunately for a former curator of the Getty Museum, it has also meant criminal prosecution in a “show trial” in Rome. A combination of legislation by judicial fiat in America and fortuitous chance in Europe, had, in these thirty years, made the loss of our prized and priceless krater inevitable.

At issue now is: where will this all end? Rest assured, it’s a fair bet the Elgin marbles will not be returned to Athens. Nonetheless, it’s clear that cultural institutions, collectors, and an entire category of scholarly, dedicated professionals cannot be held hostage to the misguided conviction that artistic and cultural patrimony is sacredly site-specific. Above all, we in the United States must not become enforcers of that principle in jurisdictions other than our own.

Most knowledgeable curators, academics, and collectors are well aware that unknown or undiscovered artistic wealth, even in the richest source areas, is limited. It is particularly limited in that topmost category of quality and importance that elevates an object to the status of a national treasure. Finds of this magnitude are exceedingly rare, yet they are the ones that promise the greatest rewards for the seekers and constitute the greatest losses to the artistic patrimony from which they are subtracted. These discoveries are now almost invariably criminalized. Pursuing such events criminally, both locally and abroad, cannot be the answer.

An answer does exist, and it exists by virtue of the one ingredient that is habitually cast as villain along with the other usual suspects (greedy dealers, unscrupulous curators, rapacious collectors, et al.): money. But money, in this instance, is not the problem; it may well be the solution. We know that great discoveries seldom occur. Three, possibly four, objects comparable in importance to the Euphronios kylix have turned up in Italy in the last thirty years, an average of one every eight or ten years. Is there any reason why a nation should not simply purchase its national treasures if these are deemed so important to its cultural patrimony? Put another way, is there an economy so bereft of financial resources that it is incapable of allocating sufficient funds for such occasional acquisitions?

Even less sophisticated bureaucracies should not find it impossible to devise appropriate mechanisms so as to intervene effectively and at market rates when necessary. As a fundamental priority in such schemes, the local authority would manifestly declare itself the buyer of first resort, promising to assess value fairly and promptly reimburse the finder. That authority would also be given access to the site of the find, if previously unrecorded, and be given first choice on other material of lesser importance. Those items, if not purchased, would be recorded for scientific purposes and then be allowed to circulate legally and freely on the local as well as the international market. Not even Italians have suggested that their nation might not have been able to afford the purchase of the kylix when it was discovered. Had this occurred along the lines suggested above, the money would have been equitably divided between the finders and the landowner, the site would have been properly excavated and studied, and Mr. Medici would have been out of business long ago. In other words, poverty is no excuse for a nation that is serious about protecting its heritage; it simply needs to implement an efficient and realistic procedure to legalize the management of its yet-to-be-discovered artistic heritage. What is more important is that the stewardship of that heritage should not be delegated post facto to foreign courts, in the United States and elsewhere. Source nations will have no one to blame but themselves if they remain incapable or unwilling to enact adequate yet liberal preventive measures; the exodus will simply continue.

An exemplary legislation that incorporates this principle was recently adopted in Great Britain. Although rooted in English common law, the concept could easily be applied in nations with a Roman law tradition. Called the Treasure Act of 1996, the law obliges finders of objects legally defined as “treasure” to report such finds to the local bailiff. An appropriate committee of experts is then asked to determine the importance of the find and to recommend either purchase by the nation or free circulation in the market under the so-called Portable Antiquities Scheme. It is no coincidence that, among other successes, the Ringlemere gold cup entered the British Museum since enactment of the law.

The title of this article—“Who Owns the Past?”—is taken from a recently published book, edited by Kate FitzGibbon. The volume was produced in collaboration with the American Council for Cultural Policy and is a collection of articles by a diverse but well-informed group of contributors on subjects that range from Native American burial grounds to preservation in the Kathmandu Valley. Yes, the Elgin Marbles put in appearance. This excellent anthology should be required reading for anyone engaged in a serious discourse on the disposition, protection, and exchange of artistic or cultural material. It would particularly benefit those journalists who, on the pages of the Times (both in New York and Los Angeles), habitually use such terms as “looting” and “plunder” in their accounts of the acquisition policies of their local museums. Consider, as a typical example, The New York Times art critic Holland Cotter’s mindless essay (March 29, 2006) wherein he glibly states: “the history of art is, in large part, a history of theft,” ending with: “So the Euphronios krater will be in Italy instead of New York. Do we really care?” Alas, Mr. Cotter, we do care, passionately!

A careful reading of Who Owns the Past? is highly recommended. One can begin to understand that, if a society is serious about maintaining and preserving its artistic and cultural heritage, it cannot hope to do so simply through restrictive and punitive legislation. Doing so only keeps the clandestine markets healthy and the courts busy.

This article originally appeared in The New Criterion, Volume 25 Number 4, on page 19
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