In February 2021, the Supreme Court ruled that two second cousins of mine could not sue in the United States for the return of the Guelph Treasure from the Prussian Cultural Heritage Foundation (spk). The Guelph Treasure (Welfenschatz in German) is a forty-two-piece collection of medieval German church ornaments that my cousins assert was coercively obtained by the Nazis in 1935 from a consortium of German-Jewish art dealers including my granduncle Saemy Rosenberg and his uncle Isaak Rosenbaum. The spk and the German art restitution commission disagreed. The treasure is valued at about $250 million. (I should note I have no personal financial interest in the case.)

The Cumberland Medallion from the Guelph Treasure, late 700s, Cloisonné enamel and gold on copper, Cleveland Museum of Art.

This is almost certainly the end of a thirteen-year case that has attracted enormous attention in the art world. When the spk appealed to the Supreme Court, a bipartisan group from the U.S. Congress wrote to the German ambassador that “your government seems to be arguing that forced sales of art to the Nazi regime do not constitute takings at all.” A separate congressional group sent a second letter. And yet in all my conversations about it, almost no one outside the art world knows anything about the case or the treasure.

So it seems like a good time to ask: how did this near-priceless cache of German church art come into the hands of four Jewish dealers and thence into the hands of the German state? Of what exactly does this treasure consist? How did it become the business of the U.S. Supreme Court, and how did they decide it wasn’t an American affair at all, when two lower courts had ruled otherwise? And if it is instead a domestic German affair, did the Limbach Commission, which rules on these issues, get it right or wrong?

Forced to abdicate along with the other von und zus after the German Revolution of 1918–19, Ernst August II, Duke of Brunswick-Lüneburg, soon found himself short of cash. It was time to sell the family silver. But this was no ordinary family silver. The Welfenschatz is a thousand years old, the Welf dynasty older still: Welf  I’s daughter married Charlemagne’s son. The treasure the duke marketed consisted of eighty-two crosses, portable altars, reliquaries, and other shimmering devotional artifacts of gold, silver, enamel, and gems.

Buyers in Dublin, London, and New York, as well as the Weimar government, thought Ernst’s price too high. It was reported as anything from $10 million on the open market down to $2.5 million for a government purchase—approximately ten to forty million Reichsmarks at 1929 exchange rates, the year of the sale. But the winning consortium offered a profit-sharing arrangement, a guarantee that everything would be offered for sale, and a distinguished record as art dealers. The deal went through at a knockdown price of 7.5 million Reichsmarks (around $25 million in today’s dollars).

Saemy Rosenberg and the three other dealers signed away what was left of the Guelph Treasure to Dresdner Bank, reputed to be acting for Göring, in July 1935.

Unfortunately, October 1929 wasn’t the best month to acquire a fabulous collection of church ornaments: after the crash, just eighteen pieces sold in Germany in 1930 and twenty-two in America in 1931. The remaining items were shipped to Ike Rosenbaum’s Amsterdam dealership, presumably because the Nazis, who had objected vociferously to the original sale, were becoming formidable.

Then, nothing happened until German officials began to correspond about the treasure in November 1933. After a long negotiation, Saemy Rosenberg and the three other dealers signed away what was left of the Guelph Treasure to Dresdner Bank, reputed to be acting for Göring, in July 1935 for 4.25 million Reichsmarks.

The treasure has to be seen to be believed. The oldest piece, the Cumberland Medallion, dates from the eighth century. Executed in cloisonné enamel, in which colored glass particles are fused by firing into separate cells created by soldering gold-and-copper filigree onto a gilt copper base, the medallion pictures Christ outlined against a cruciform halo, flanked by two roaring cubs, symbols of the Resurrection. The medallion was one of six pieces William Milliken, a Cleveland Museum curator, snapped up in Frankfurt in 1930—a coup that made the museum famous and Milliken its director. And when the treasure went on its triumphant tour of America, Milliken, an emotional man known to cry strategically at board meetings, also purchased the breathtaking Portable Altar and Ceremonial Cross of the Countess Gertrude and the Ceremonial Cross of Count Liudorf, made for Gertrude’s husband. “It is as if the cathedrals of Hildesheim or Bamberg, Mainz or Limburg had been transported to this shore,” Milliken said.

Ceremonial Cross of Countess Gertrude, 1038 or shortly after,  Gold: worked in repoussé; cloisonné enamel, intaglio gems, pearls, wood core, Cleveland Museum of Art.

These three eleventh-century commissions of Gertrude of Brunswick represent the treasure’s core. Indeed, the Schatz only became Welfen when Holy Roman Emperor Lothar III endowed Henry the Proud (a Welf) with the Duchy of Saxony—and with it Gertrude’s church, her crosses, and her breathtaking portable altar. This altar, which Milliken boasted was the only golden portable altar of German workmanship known at the time, features a rectangular porphyry slab framed in three bands of filigreed gold set into the top of a gold-covered oak reliquary chest. Porphyry, a red stone shimmering with feldspar crystals, reminiscent both of the blood of martyrs and the royal purple, was naturally popular among the high-born and devout. The sides of the altar are embossed friezes, single sheets of gold hammered from the inside, decorated in cloisonné enamel, gems, and pearls. Christ, Peter, the Virgin, and various apostles look out at us along with Constantine, Helena, and other saints. Behind a trapdoor in its base are bone fragments of various saints, martyrs, and apostles, according to the 1482 inventory of the treasure. A chip of white marble apparently comes from the block supporting the Holy Cross at Golgotha.

To these three magnificent pieces, Henry the Proud added the Guelph Cross, another glowing eleventh-century artifact. But it was his famous son Henry the Lion who augmented the collection decisively as he expanded his kingdom through conquest and marriage to Mathilda of England, the sister to Richard the Lionheart and daughter of the power couple Henry II and Eleanor of Aquitaine.

Some pieces came from Henry’s pilgrimage to the Holy Land in 1172, from which he returned bearing fourteen mules weighed down with gold and silver formerly belonging to the Byzantine Emperor Manuel Comnenus. Particularly striking are five magnificent arm reliquaries of carved wood covered in silver sheets and clothed in gilt silver vestments bearing delicate die-stamped borders.

Guelph Cross, Twelfth century,  Cloisonné enamel on gold in the Senkschmelz or ‘sunk’ technique; gold plate, gold filigree, niello, gemstones, pearls; wood core; foot: cast silver, parcel-gilt, Kunstgewerbemuseum, Staatliche Museen zu Berlin.

Other pieces Henry commissioned, drawing mostly on local talent. But the treasure’s most valuable item, the two-story Byzantine-styled Dome Reliquary, reputed to have contained the skull of Saint Gregory of Nazianzus, is of Cologne manufacture. “The dome reliquary is our Mona Lisa,” says Lothar Lambacher, the deputy director of the Kunstgewerbemuseum in Berlin, where the treasure gleams under glass.

Henry’s son Otto IV further filled out the treasure, possibly from returning Crusaders who sacked Constantinople in 1204. He also donated it to Brunswick Cathedral, which Henry had built to replace Gertrude’s church. Over the centuries that followed, the treasure continued to grow, acquiring magnificently worked reliquaries purportedly containing remains of saints, apostles, and the True Cross, along with other devotional items of silver, gold, and gold-encrusted gems. Indeed, the long and continuous period over which the treasure was assembled makes it a running history of the development of the plastic arts in Europe and points east.

Perhaps the best example is the portable altar of both champlevé and cloisonné made by Eilbertus, Cologne’s most important goldsmith and enameler, the only portable altar we are sure was made by him. Champlevé involves gouging out channels in metal plaque, leaving thin walls with supporting pins. Molten glass of various colors is poured into the depressions, creating a perfectly smooth, luminous polychrome image. The top features a miniature of Christ Pantocrator under a sheet of rock crystal. Surrounding him are four plaques of the apostles and two plaques with scenes of his birth, infancy, and the redemption. Around the sides are Hebrew prophets holding inscribed banderoles.

My cousins were unable to reach an agreement over the treasure with the spk, upon which both parties agreed to go to the Limbach Commission. Officially designated the “German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property,” the commission is unsurprisingly known by the name of its erstwhile chairperson. But the commission ruled in March 2014 that the treasure should stay with the spk.

Frustrated, my cousins filed suit in February 2015 in Washington D.C.’s district court. The spk filed a motion to dismiss in 2016, but the court ruled in March 2017 that the plaintiffs could proceed. The spk had filed based on the statute of limitations, but the Holocaust Expropriated Art Recovery Act of December 2016 reset the clock. So the spk tried another tactic and pled the U.S. Foreign Sovereign Immunities Act instead, which prohibits lawsuits against other countries. But the fsia excepts “expropriations of property in violation of international law.” My cousins argued that the coercion of Jewish property was part of the Nazi program of genocide, a violation of international law. Courts in the United States agreed.

Arm Reliquary of the Apostles, ca. 1190, Gilt silver, champlevé enamel, oak, Cleveland Museum of Art.

But the spk’s last-resort petition at the U.S. Supreme Court succeeded. The court heard oral arguments in December 2020. Two months later, in an impressive combination of swiftness and unanimity, the Nine said nein, putting the plaintiffs back where they had been seven years earlier.

How did the Supreme Court arrive at a decision contrary to lower courts? Chief Justice Roberts wrote that “We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.” Because no international property law was at issue, the affair was covered by the fsia, and the only avenue left to the plaintiffs was to argue back in the district court to which Roberts remanded the case that the dealers were effectively not German nationals at the time of the transaction, a hard row to hoe, because the law stripping German Jews of their civil rights was still two months away at the time of the sale.

The American courts addressed only the question of jurisdiction, not whether the sale was a fair one. Was it?

The Limbach Commission endorsed three claims the spk made. First, the consortium had itself approached the Reich. Second, Göring was not involved. Third, the price was fair.

In November 1933, Georg Swarzenski, an art historian who co-wrote the German exhibition catalogue for the treasure, wrote to Friedrich Krebs, Frankfurt’s mayor, urging that Germany purchase the Welfenschatz. Krebs wrote on to Hitler, who passed the matter to Göring, who passed it to Goebbels. Meanwhile, Adolf Feulner, a Frankfurt museum director, wrote to a high-ranking public servant that “After consultation with Mr. Hackenbroch . . . the owners are very willing . . . to enter into negotiations with the Reich.” (Hackenbroch was one of the owners of the treasure.)

Portable Altar of Countess Gertrude, ca. 1045, Gold, cloisonné enamel, porphyry, gems, pearls, niello, wood core, Cleveland Museum of Art.

This is the spk’s “proof” that the consortium made the approach. But who says Swarzenski spoke for the consortium? Feulner’s letter certainly reads as if he made the approach. Anyway, what latter-day Mordecai, waiting for better days, would see Hitler attain the chancellorship, the Reichstag burn, Germany cease to be a democracy, and the appalling onslaught against the Jews—and then approach the Nazi Haman? Certainly, nothing can be made of Hitler’s not taking an interest at the time, because we know he wanted the treasure for Germany. It seems clear that negotiations began when an agent of Dresdner Bank (the “Nazi bank”) came knocking unbidden.

What about Göring? The glittering young World War I ace joined the party in 1922 and got the Nazis’ thuggish paramilitary wing into shape for Hitler. Wounded in the Beer Hall Putsch, he lived in exile until 1927. But by 1932, he was the Reichstag president. Soon after the Reichstag fire that ultimately made Hitler dictator—a fire most believe he engineered—Göring was the Prussian prime minister, Reich commissioner of aviation, head of the Gestapo, and director of the first concentration camps. To a German Jew, his career would have looked like a steadily ratcheting nightmare. No transaction conducted in his shadow could be considered uncoerced.

And yet the spk admits a negotiating plan was developed “after consultation with Prime Minister Hermann Göring.” Are we to accept that “there is no evidence of Göring’s involvement,” because “this plan was not implemented”? Göring was the most committed art plunderer in history. Nor was his hysterical acquisitiveness simply personal: the Nazis were no ordinary art thieves, because they were no ordinary historians.

Every elite creates for itself a usable past.

Every elite creates for itself a usable past. But the further the elite drifts from reality, the more it must invent history rather than study it. Hence the Nazi fantasy that, for instance, the eugenicist Plato was a “Nordic lookout” who prefigured the Nuremberg Laws. The mad rapacity of the Nazi despoliation, which extended to roughly a fifth of the world’s art treasure, carried an unexampled ideological freight. It’s hardly too much to say that Göring must have been involved somehow: what we know about the Nazi attitude to history and art—which included the veneration of Henry the Lion, whose grave Hitler visited more than once, and which he explicitly sought to make a site of pilgrimage—would put the Welfenschatz near the very top of any list of artworks he cared about. Already in 1930, the Nazis had pushed through a resolution in Frankfurt, home to the consortium and the treasure, that the “most valuable and oldest cultural assets of the German people, in particular the Welfenschatz, should not be permitted to be sold abroad.” The spk casts doubt on The Baltimore Sun’s July 1936 item, bylined Berlin, about Göring’s “surprise gift” of the Welfenschatz to Hitler. Do they think the Sun’s correspondent simply made it up? Note also that the dealers had only to fear that Göring was involved for intense pressure to be brought to bear.

And so to our third question: Did Göring pay a fair price? In the spk’s tortured account, three things may be discerned. First, my calculations suggest that the dealers received 2.5 million Reichsmarks for the forty pieces they were able to sell, which they had paid 1.5 million to buy. This would give the remainder, bought for six million, an implied value of ten million. On this basis, Göring’s outlay of 4.25 million was just 42.5 percent of the 1931 value of what he bought—in 1935’s stronger economy. Second, the two parties remained far apart for most of the negotiation, apparently because someone on the buyer’s side was leaking information that led Saemy Rosenberg to believe he could get six or seven million for the treasure. Third, at least one other buyer who was prepared to pay significantly more than the final sale price appears to have been kept out of the negotiations by Bernhard Rust, the gauleiter of Hanover and Brunswick, and Dresdner Bank.

In late 2016, Germany reformed the Limbach Commission, which had returned just thirteen artworks in thirteen years. Its work is still painfully slow. At current rates, it will be many lifetimes before we are done. This is not what the art historian Christoph Zuschlag means when he describes restitution as a “permanent task.”

In 1997, some other cousins of mine got Egon Schiele’s Portrait of Wally restituted by Austria in the case that launched the modern era of Nazi art restitution. The case was fought while the painting was impounded in New York. This appears to be the only significant difference between Wally and the Welfenschatz. Must we conclude that possession is nine-tenths of restitution law, which is to say, might makes right? And that, having suffered looting under Nazi rules, we must now suffer restitution by those rules, too?

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This article originally appeared in The New Criterion, Volume 40 Number 9, on page 35
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