DONOR RESTRICTIONS AND WHISTLER'S PORTRAIT OF LAD Y EDEN: REAPPRAISING WHISTLER V. EDEN (1897).
| Author | Cooper, Elena |
Introduction
The University of Glasgow, as Alicia Hughes and Grischka Petri have explained, (1) holds one of the pre-eminent collections of the work of the painter and print-maker James McNeill Whistler (1834-1903). This includes oil paintings, drawings, watercolours, pastels and impressions of etchings and lithographs, in addition to his papers and studio contents, gifted to the University in 1935 and 1958 by Whistler's ward and heir Rosalind Birnie Philip (1873-1958). One of the oil paintings--Brown and Gold: Portrait of Lady Eden (1894-5) (2)--has remained in the vaults of The Hunterian, University of Glasgow, since it was gifted by Birnie Philip to the University in 1935; it has been out of public view for over a century and only briefly brought into the gallery space. (3) Portrait of Lady Eden was last publicly displayed in the final years of the nineteenth century, in the law courts in Paris, as evidence in legal proceedings: a case brought by the commissioner of the painting, Sir William Eden, against Whistler. The case, Whistler v. Eden, decided in December 1897 by the Paris Court of Appeal, and upheld by the Cour de Cassation (the French Supreme Court) in March 1900, is known by copyright lawyers today as significant to the development of the author's moral rights under French law. Different aspects of the case inform gallery practice in Glasgow: at The Hunterian, the case is understood today to underpin Birnie Philip's wishes that there would be a perpetual restriction on the painting's public exhibition. This article revisits the history of the painting and reappraises the decision in Whistler v. Eden for the purpose of casting new light on Birnie Philip's intentions with regard to this specific painting, and for opening up the possibility of the display of the painting today in Glasgow by The Hunterian.
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'Brown and Gold: Portrait of Lady Eden'
What story lies behind Whistler's Portrait of Lady Eden? In 1892, Sir William Eden (1849-1915), a wealthy baronet and landowner, expressed that he would like Whistler to paint his wife Lady Sybil Frances Eden (1867-1945). (4) Sir William was an art collector and the owner of Whistler's oil painting The Seashore, (5) Whistler initially said he would charge 500 guineas, which Sir William thought to be too much. (6) Later Whistler changed his mind and said he would agree to paint Lady Eden for between 100 and 150 pounds. (7) Lady Eden first sat for the portrait in Paris in January 1894 in Whistler's studio at rue Notre-Dame-des-Champs. On 14 February 1894, Sir William saw the painting in Whistler's studio and, as he was "completely satisfied" with the painting, he sent a cheque to Whistler for 100 guineas (under cover of a humorous note referring to the fact that their meeting took place on St Valentine's day). (8) Whistler accepted the cheque, but kept the painting and wrote to Sir William as follows:
I have your Valentine--
You really are magnificent!--and have scored all round--
I can only hope that the little picture will prove, even slightly worthy of all of us--and I rely upon Lady Eden's amiable promise to let me add the few last touches we know of--She has been so courageous and kind all along in doing her part. (9)
Eden then travelled to India on a sporting tour, and while he was overseas, Whistler sent the painting to an exhibition in Paris, at the Societe Nationale des Beaux-Arts, where it was exhibited as 'Brun et or;--Portrait de Lady E. (10)
When Sir William returned from India, he demanded delivery of the painting, which was communicated to Whistler through Eden's lawyers on 24 October 1894. (11) Whistler refused to deliver the painting to Eden and, acting through his lawyers, on 9 November 1894, sought to return the money which Eden had paid him. (12) Whistler's position was that, in returning the money, he was not obliged to deliver the painting to Eden. Sir William's lawyers did not accept Whistler's cheque. (13) Then, in November 1894, Eden started legal proceedings against Whistler in Paris, for delivery of the painting. The case was heard by the Tribunal civil de la Seine in February 1895, by which time Whistler had painted out the face and the figure of Lady Eden, and painted, over the top, the portrait of another sitter--Margaret Curzon Hale (1862-1948) (14)--and added a pot of flowers to the right of the sitter. When the case was decided by the Court, Mrs Hale is believed to have sat beside Whistler, wearing the brown costume in which she had posed for Whistler. (15)
The Court delivered judgment on 20 March 1895, in Sir William's favour: Whistler was ordered to deliver the portrait to Sir William, on the grounds that it was his property, to refund the 100 guineas paid for it and also to pay damages to Sir William in the amount of 1,000 francs with interest. (16) Whistler appealed to the Paris Court of Appeal, which decided the case in Whistler's favour in December 1897, and that decision was upheld by the Cour de Cassation in March 1900 (and these decisions are discussed in detail at Section 3 below). In April 1900 Eden was ordered to pay Whistler's costs before the Cour de Cassation. (17) In the interim (before the rulings of 1900, but after the Paris Court of Appeal ruling), Whistler reported to Birnie Philip, that he was sandpapering the picture down to reveal Lady Eden again:
I have been sandpapering it down all the afternoon ... the more I scrape off, the more the original comes through! And I don't think the whole thing ever looked so like Lady Eden before, dress & all!! (18) Whistler also published, in 1899, the full transcript of the Court of Appeal proceedings, together with a humorous preface and resume, as Eden Versus Whistler: The Baronet and the Butterfly: A Valentine with a Verdict (19) Portrait of Lady Eden remained in its sandpapered-down state in Whistler's possession during his lifetime, and then passed on his death in 1903, with the rest of his estate, to his ward Rosalind Birnie Philip.
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Rosalind Birnie Philip and the University of Glasgow
Birnie Philip, as noted above, (20) gifted Portrait of Lady Eden to the University of Glasgow in 1935, as part of a larger donation of works by Whistler to the University of Glasgow. The schedule to the memorandum of gift of 1935, which lists the property to be gifted, includes the painting alongside the other oil paintings to be donated, and refers to it as the 'Destroyed Portrait of Lady Eden'. (21) The painting, therefore, is subject to the more general restrictions imposed by Birnie Philip in the memorandum of gift (explored by Alicia Hughes and Grischka Petri elsewhere in this issue): it "shall never be removed from the buildings of the ... University". (22) However, there is no mention in the memorandum of any additional restrictions applying specifically to Portrait of Lady Eden.
A review of archival material held by the University of Glasgow Library, suggests that any such restriction was introduced in 1936, after the memorandum of 1935 was concluded but before the oil paintings were transferred to the University. In February 1936, Freshfields, Leese & Munns solicitors, acting for Birnie Philip, sent the University a schedule of the oil paintings comprising 'the second instalment' to be transferred to the University. This includes, as item '40' the 'Destroyed Portrait of Lady Eden', accompanied by the following restriction, preventing the University from 'exhibiting or parting with' the painting:
This picture of Lady Eden caused a lawsuit between the artist and Sir William Eden. The book entitled 'The Baronet and the Butterfly' was written by the artist to explain his position with regard to Sir William Eden, and to point out that the case had made a difference in the Law. The picture is not to be exhibited or parted with, but it is to be kept by the University as a record of the picture about which so many false statements have been made. (23) Also in the University archive is a subsequent letter from Freshfields to Birnie Philip, advising her on the drafting of the condition, which indicates that Birnie Philip considered a reference to the Eden family in the wording of the restriction:
You can, of course, impose in respect of Lady Eden's portrait the conditions referred to in the list of paintings you sent us. On the other hand I do not myself think it would be desirable even if it would be practicable to attempt to impose any conditions referring specifically to members of the Eden family. (23) Birnie Philip's reply does not survive, but a further letter to her from Freshfields, sent two days later, suggests that the condition imposed (at least) concerned the 'exhibition' of the portrait:
We will certainly see that the condition precluding exhibition of the Eden portrait is made quite clear. (25) There are also references to a restriction on the exhibition of Portrait of Lady Eden in later records. A researcher wanting to find out more about the painting at The Hunterian's archive, held at Kelvin Hall, Glasgow, will be referred to the painting's 'Object File'. This file includes correspondence that shows that, as late as 1985, curators at The...
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