As New Yorkers start to grapple with the scale of the raid that Italy has just made on the Metropolitan Museum, they are going to start to wonder at the behavior and the logic of what might be called the “patrimony police.” The patrimony police have been lauding the Met’s decision to return the Euphronious krater – the famed bowl – to the Italian government. This might at first seem to be a pro-property rights position. Italy does, after all, claim it has a legal basis for asserting ownership of the bowl, even if the Mussolini-era law in question is of dubious provenance. But the more it is examined that claim will be seen as but a manifestation of a pro-government, promuseum bias.

And who will speak up for New Yorkers? Note a recent New York Times editorial in respect of the krater: “The Metropolitan Museum has rightly agreed to return the krater and several other antiquities to Italy, not as a matter of principle but because the Italian government has demonstrated to the museum’s satisfaction the likelihood that they were stolen.” Furthermore, the paper lambasted a “notoriously corrupt” antiquities market and hoped the Met’s decision would “lend new energy” to the efforts of other countries trying to repatriate such objects. To top it all off, the paper decried “what has amounted to ceaseless cultural ransacking over the centuries.”

We can’t help but recall the fracas that erupted less than a decade ago, when the city was wracked by an even more heated controversy precipitated by heirs of Holocaust victims who asked the Museum of Modern Art to hold on to two disputed works by an Austrian painter, Egon Schiele, that it had borrowed for an exhibition. When the museum demurred, New York’s district attorney, Robert Morgenthau, attempted to impound the artworks, stolen by the Nazis, before they could be shipped back to Austria, seeking to have them held as evidence while he conducted a criminal investigation. When the courts rebuffed him, one work was seized by a heroic commissioner of United States Customs by the name of Raymond Kelly. The other was returned to Austria because, although it had been stolen by the Nazis, the claimants did not appear to be the legitimate owners. The dispute over the other work grinds on.

In that instance, the Times opposed the efforts of law enforcement, claiming it wanted to protect the climate for people to lend works to museums here. The Times argued that a New York law that shields galleries that borrow works from having those works seized “has helped make this city a vital center for the exhibition of art from around the world.” The publisher of the Times at the time, Arthur O. “Punch” Sulzberger, a trustee of the Metropolitan Museum, even sent Mr. Morgenthau a “Dear Bob, … Sincerely, Punch” letter trying to dissuade Mr. Morgenthau from pursuing the case on the theory that “the action which your office has initiated has put at risk the ability of the Metropolitan and other New York museums to obtain loans essential to their exhibition programs.”

In other words, the Times appears to have been admitting that there can be instances where a property right that it deemed poorly defined could hurt the public interest. So much so that it was prepared to put the district attorney of New York County in the back seat and sideline the rights of the heirs of individual holocaust victims. In the case of the Schieles, it reckoned an American lawman’s investigation of contested ownership claims could dampen the people’s access to fine art by discouraging future loans.

By our lights the Holocaust claims are completely different from the patrimony claims, and the Times applied the right argument to the wrong set of facts. In the Schiele case it objected to adjudication of property rights when the crime was committed within living memory. Now it rejoices in the return of an ancient object that lay buried and forgotten for millennia and, as we’ve noted, belongs to everyone and no one, and when the basic state claim is based on a law promulgated by none other than Mussolini. In the Schiele case, the Times worried about the effects of property rights on the loan and display of artworks, but now it stands behind an action that, as one dealer has remarked to us, will make private collectors who hold important objects less likely to offer those objects to museums for display.

One thread ties together the positions of the Times then and now: institutionalism. The Times sided then with institutions, MoMA and the lending Austrian gallery, and it sides now with institutions, the Met and the Italian government. In both cases, it has scorned, explicitly or implicitly, private collectors. Not that the Times is alone. It is merely the most abject mouthpiece for a line of thought that’s common throughout much of the museum and archaeological world. Such types distrust the idea that the best custodian of art could be private hands. This is the attitude that links the partisans of patrimony in the Schiele and Euphronious cases. Not only is it a misguided notion of how best to preserve critical pieces, but it leads to absurd practical results that defy not only logic but justice. “Not as a matter of principle” indeed.