Who do these $24m Cranachs belong to?

August 22 2016

Image of Who do these $24m Cranachs belong to?

Picture: Norton Simon Museum

A long-running legal despute over a pair of paintings by Lucas Cranach the Elder appears to have been settled. Cranach's 'Adam and Eve' (above) were bought by the Norton Simon Museum in California in 1971 for $800,000. But Marie von Saher, the heir of the Jewish Dutch art dealer Jaques Goudstikker, whose collection was looted by the Nazis in 1940, has been suing the Norton Simon for a decade in her battle to get the pictures restituted. In her battle to reclaim Goudstikker's collection, Ms von Saher has so far successfully sought the return of over 200 other pictures from collections and museums worldwide. But the Norton Simon museum has resisted her claim from the outset - and now looks to have won, after a US judge ruled in their favour last week.

In this case, Goudstikker's ownership of the paintings was never doubted. The Norton Simon museum acknowledged that he had owned the pictures between 1931 and their forced sale (to Goering) in 1940. But the museum relied on the fact that in Holland, the Goudstikker family failed to lodge a claim for the Cranachs before a Dutch government imposed deadline to do so for looted property in 1951. Because of that, Goudstikker's art collection became the property of the Dutch government, and was distributed to various Dutch museums. Therefore, as US District Court judge John Walter ruled:

“This Court is required to apply a ‘strictly legal’ approach, as opposed to one based on policy or moral principles [...] That ‘strictly legal approach’ compels the conclusion that the Dutch State acquired ownership of the Cranachs, which necessarily resolves this action as matter of law in favor of Norton Simon.”

You might well think that such a narrow ruling ignores the wider moral question. However, there is a twist in this tale. The Cranachs turned out to have been looted twice; they had in fact been bought by Goudstikker from the Soviet government, in a 1931 auction of the Russian aristocratic Stroganoff collection. This meant that in 1966 the Dutch government returned the pictures to the Stroganoff heir, George Stroganoff, who had launched his own restitution claim. He in turn sold them to the Norton Simon in 1971.

The case therefore raises a number of interesting questions. First, how far back do we go on the restitution question? To World War Two? To the Russian revolution? To World War One? To the Napoleonic era? There is no easy answer, and all four periods have recently seen pictures seized or restituted (here's an example of the oddest case, from all the way back in 1818!).* 

Following on from that first question, which wronged owner do we feel the need to give recompense to most in this case? The Russian aristocrats or the Dutch Jew? It's certainly a difficult choice - both parties and their families were victims. But in this case, does the successful Stroganoff claim mean that Goudstikker's ownership of the Cranachs was effectively unlawful, in the sense that Jacques Goudstikker didn't have proper title to the pictures when he bought them in 1931?

Here, however, the answer is clouded by two factors. First, Ms von Saher's claim is that although the Cranachs were sold in 'the Stroganoff sale', they were in fact not part of their collection, but were taken from a church in Kiev, the Church of the Holy Trinity. Second, it comes down I supposed to what we define as 'lawful'.

On the first point, the evidence is not certain that the pictures were taken from the Kiev church. The pictures were claimed as Stroganoff pictures at the time of the sale, but there is also no concete evidence of that before the 1931 sale (which is not unusual, of course, and proves little). Neverthelss, even if the pictures were taken from a church and not the Stroganoff family, they are still surely 'looted' in some sense - and doubtless the Ukrainian government of today would say so too.

Secondly, on the legal point, by the standards of the day Goudstikker thought he was buying his pictures perfectly legally. The notion of restitution, and of someone subsequently challenging his ownership, evidently did not matter to Goudstikker even though he knew the circumstances of their sale. And in turn, Goudstikker's forced sale of the works was itself 'legal' under Nazi laws passed at the time. These laws were of course immoral and illegitimate in a thousand ways - which is why we have the European Human Rights Act -  but the point is that today's restitution cases are governed by today's moral standards as much as today's laws. As a result, the Dutch government has already handed back to Ms von Saher some 202 pictures, even though under Dutch law the fact that Goudstikker's family missed the 1951 deadline meant that the pictures became property of the Dutch state. Rightly, the Dutch government decided to change its policy on restitution in the 1990s.

In that sense, I can share the concern of some restitution campaigners that a US court has based its ruling on a law from another state which is no longer recognised by that state as being morally valid. For quite rightly, we today view arbitrary claim deadlines such as the 1951 date used by the Dutch government as irrelevant.** So I find the judge's ruling in this case somewhat unsettling.

And yet, it seems to me that the question is not so clear cut. Ultimately, Ms von Saher was seeking the restitution of two Cranachs which could only morally have been hers in the first place if she ignored the fact that they had in turn been seized from their previous owners - whoever that may be - by the Soviet government. 

* My own view is that some form of generational time limit should be imposed on restitutions. For example, should the children and grandchildren of looting victims be given recompense? Of course. Great-grandchildren? Probably. Great, great grandchildren, or other relatives four generations on? Not so sure.

** The State of California passed a law in 2006 limiting Holocaust era claims to 2010. 

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