Boston Raphael: Legal Art History

September 19, 2014

By Belinda Rathbone

In 1969, my father, Perry T. Rathbone, then Director of the Museum of Fine Arts, Boston (the “MFA” or the “Museum”), bought a previously unknown painting by Raphael from an elderly art dealer in Genoa. Attributed to one of the great artists of the Italian Renaissance, this portrait of a young girl was to be the crown jewel of the MFA’s centennial year: 1970. But questions about the legitimacy of its exportation from Italy, compounded by widespread doubts about its attribution to Raphael, almost immediately turned this celebratory event into a tragic fiasco. For my father, it spelled the unraveling of his distinguished thirty-two year career as a museum director. In the then emerging field of art law, the Boston Raphael became a landmark case.

At the time, Italian export laws established in 1939 stipulated that any work of art considered an important piece of the nation’s cultural heritage could be exported only after the state itself was given a two-month option to acquire it.  Furthermore, if the right was not exercised, a hefty 30% export tax was imposed on any potential buyer from outside of Italy.  This law effectively paralyzed the Italian art trade for important works, and the Art Dealers Association of Italy fought the export tax for years, without success. However, an unknown or unpublished work stood a reasonable chance of legal export. Though technically speaking an important work of art, whether known or not, should have been registered with the Italian government, it was unusual for private owners to volunteer such information. The result was that countless works of art in private hands remained unregistered, including the Boston Raphael. Dealers and foreign collectors alike took advantage of this gray area of the law; while they weighed the odds, the only certainty they could rely on was that once the object was safely outside Italy, Italian law did not apply. As explained by art law specialist John Merryman in Law, Ethics, and the Visual Arts, “although the offended nation could punish the smuggler, if it could catch him, and might have the power to confiscate the illegally exported article if it should be returned to the national territory, it could not expect the foreign nation to punish the smuggler or seize and return the object.” With the Museum Board’s approval, Rathbone agreed to pay art dealer Ildebrando Bossi $600,000 for the painting, drawing on the previously untapped Charles Bayley Fund, which was earmarked for the purchase of an important painting.

Unfortunately for the MFA, contemporaneously with the acquisition, Italy’s top art sleuth, Rodolfo Siviero [1911-1983], was looking for a high profile export case to burnish his diminishing reputation before he retired. Almost as soon as the picture was unveiled in Boston, Siviero began his investigation into its source, working through a network of art historians in Italy. Before long he had traced the picture to Bossi in Genoa, who already had a reputation for illicit art smuggling. Siviero also began to question the U.S. Customs agents to track the painting’s recent arrival in Boston. At the same time, as if there was not enough for the Museum’s administration to worry about, experts on both sides of the Atlantic began questioning the painting’s attribution to Raphael.

With scandal looming, Rathbone and the trustees of the MFA were now faced with a dilemma: how to quell both Siviero’s accusations of smuggling, as well as questions from U.S. Customs agents who had been consequently alerted. Seeking legal counsel, they hired the Washington D.C. law firm of Covington & Burling (Covington), whose lawyers at first reassured them that they had operated within the law. What they did not know at that time was that MFA curator Hanns Swarzenski, who had hand carried the picture to Boston from Genoa, had neglected to declare it when he came through customs in September 1969. While there was and still is no import duty to pay on an object over 100 years old, the painting should have been declared. This technicality, which under regular circumstances would have been considered a minor omission, would end up costing MFA its first and only Raphael.

On the morning of 7 January 1971, U.S. Customs agents, armed with a search warrant, entered the Museum without warning and seized the painting. Because of its fragile nature and the below freezing temperatures outside, the MFA’s head conservator was able to persuade them to leave it in the Museum in a vault under the customs seal. One week later a registered letter arrived from U.S. Customs informing the Museum that it was liable for a penalty of $1,200,000 (the estimated domestic value of the painting, even though the penalty twice exceeded what MFA paid in the end) for Swarzenski’s  failure to declare the painting at Customs in violation of the provisions of section 1497, Title 19, United States Code. Soon afterward Rathbone and Swarzenski appeared before a grand jury in Boston to determine if they had conspired to defraud the U.S. government.

Meanwhile lawyers from Covington in collaboration with Ropes & Gray in Boston hammered out a nine-page petition for the mitigation of fines and release of the painting from Customs, arguing that “The penalty proposed is extremely severe, particularly when the government has no revenue at stake… such disastrous consequences should not be visited upon the museum because of the failure of one employee to declare a non-dutiable painting.”

The fine was reduced from $1.2 million to $5000, and no indictment was returned from the grand jury. No treaty existed requiring the U.S. to return the painting, an action that could only be considered as an act of generosity. The UNESCO convention of 1970, which the U.S. had joined other signatories in adopting, had broken ground on new agreements between nations on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural property, but these were far from codified when the picture left Italy in 1969. However, in a meeting called on short notice when Rathbone was traveling abroad in the summer of 1971, the MFA trustees voted to voluntarily return the painting to Italy.

Soon after a formal agreement between the MFA trustees and assistant U.S. Treasury secretary Eugene Rossides, the painting was escorted on a flight to Rome in September 1971, and received by the triumphant Siviero. The MFA was never reimbursed for the money they had already spent on the painting, about $350,000 USD, for another unfortunate piece of timing was that the elderly Genoese art dealer, Ildebrando Bossi, died in prison awaiting trial for illegally exporting the Raphael. The Italian government had seized his assets and apparently felt no obligation to refund the MFA.

Many questions remain about this curious case. Most importantly: was the painting an authentic Raphael, and therefore an important piece of Italy’s cultural heritage? Based on its consignment to storage in the Uffizi Gallery in Florence since the early 1980s, it would not seem so. Were the MFA Trustees meeting their fiduciary responsibility in returning the disputed painting with no promise of a return on their investment, and its attribution in question?

The case of the Boston Raphael served to heighten awareness of the need for more consistent policies between nations on the export of works of art. The UNESCO convention of 1970 sought to reconcile values of cultural property and the promotion of free trade, breaking ground for bilateral or multilateral agreements on the export laws pertaining to works of art and antiquity. In recent years high profile cases involving illegally excavated antiquities bought by American art museums have brought these issues to the foreground and led to a more vigilant regulatory environment. The Boston MFA is one of the few museums to employ a full time provenance researcher and earlier this year the Museum announced that it would be returning eight antique sculptures to Nigeria after confirming that they had been stolen before making their way onto the United States art market and acquired by the Museum.

About the Author: Belinda Rathbone is a biographer and fine arts journalist. She is the author of Walker Evans: A Biography, and The Guynd: A Scottish Journal.

For the full story of the Boston Raphael read her forthcoming book, The Boston Raphael, Boston: David R. Godine, which reviews the circumstances behind the acquisition and return of the painting, the various conflicting motivations behind the key players in the episode, and the questionable inevitability of its outcome.