The Struggle Continues

by Ori Z. Soltes

Which struggle? 

Not just that on behalf of claimants whose cultural property was seized by the Nazis more than half a century ago and resides in various museums and private collections. Not just that on behalf of the Hopi and Acoma Native Americans and other indigenous peoples whose communal spiritual property--and not merely individual or communal cultural property is being sold on the auction block as if it is merely a series of desirable baubles. Not just the struggle to get museums to educate themselves and their audiences about the provenance aspects of artworks and their histories. But the struggle to get certain museums, auction houses--and nation-states--to consider seriously the importance of moral and not just legal issues. The morality/ethics vs law distinction is fundamental to the distinction between law and justice and to principles that institutions like museums and auction houses consistently lay claim to as essential to what they are: the preservers of civilization (yes, this blog may be seen as a continuation of several previous blogs written by Marc Masurovsky or me). 

Three different bits of news underscore this nicely. A California judge ruled that the Thyssen-Bornemisza Museum in Madrid, that holds within its collections a valuable 1897 Pissarro painting seized in 1939 by the Nazis from Lilly Cassirer, (in exchange for a few hundred dollars and a visa out of the country), need not return it to her great-children (their father, Paul, initiated the attempt for restitution when he found where the painting was, back in 2000) on legal grounds. Purely legal grounds: that the laws of Spain, in whose jurisdiction the issue must remain (although the painting moved thorough the American art world for 25 years during its post-war travels) do not mandate that the current owner need return it, since that owner, the museum, purchased the painting (from a Swiss-German baron) unaware of its provenance and thus that it was stolen property.

The judge did go out of his way to express hope that the museum would not allow the matter to end here, but would seek some extra-legal outcome, for moral reasons. So it is clear not only that laws are not always laws--had the judge pushed the case to be adjudicated within an American jurisdiction, the fact that the painting had been effectively stolen from Cassirer-- regardless of how many owners since that seizure by the Nazis had taken possession of it--may well have meant that the current owner doesn't own it. But in no case does anyone dispute the moral fact of the Cassirer ownership and entitlement. So: law wins, justice loses, morality loses. Civilization? a draw, I suppose. We need laws in order to be civilized, but when they permit immoral, unjust outcomes, then are they performing their intended job?

French law, like Spanish law, does not concern itself with the individual from whom an object was illicitly taken in the matter of property possession, just as long as the current owner paid for it--the presumption is that such a purchase was done in good faith and therefore the current possessor should not be penalized for not having bothered to inquire into the provenance of the property. And isn't it a heck of a coincidence that just a few days before the Cassirer verdict the French raised such a ruckus regarding the potential auctioning off of some royal historical artifacts: a 17th- century portrait of King Louis XIII, a portrait of the Duchess of Orleans, and an accounts book from the Chateau d'Amboise, a 15th-century royal residence in the Loire Valley? 

Fleur Pellerin, French Culture Minister

To be precise, the French government intervened to impose an export ban on these three items that descendants of France's former royal family (the House of Orleans) consigned to Sotheby's Paris offices. This was made possible--the State trumps the individual's rights with regard to his/her property--because France's cultural minister, Fleur Pellerin, declared the items as part of France's patrimony, its "national treasure." That designation gives the government legal ground for preventing these objects from going under the hammer and from leaving the country. 

Louis XIII in all his glory

This, of course, as readers of this blog will already now, came fast on the heels of the failure of the Conseil des Ventes--the government office that is tasked with overseeing all auctions and auction house activity in France--refused for the fourth time in barely a year to halt the auction of a number of objects sacred to the Hopi (Arizona) and Acoma (New Mexico) Native American tribes. These are all objects that, by definition can only have ended up in Paris auction houses, such as EVE and Drouot, by having been removed illicitly from these tribes and by being smuggled out of the United States--where the laws against dealing in the sacred and cultural property of Native Americans have become strict--and into France, which does not recognize the American laws as such.

Indeed the President of the Conseil de Ventes, each of these times when she has been confronted with a plea to remove sacred items from the auction block, has failed to do so on purely legal grounds: that the Hopi and Acoma are not entities entitled to legal standing within her jurisdiction (although they are, in the United states) and/or that those who represent the Hopi and the Acoma lack that standing for one technical reason or another. In other words, the moral issue is not one that even crossed her countenance; her ruling was shaped in pure legal terms.

So the sacred objects of Native Americans, essential elements of their identity, count for nothing in the French courts, although a historical account book--which is French, after all!--does. As Marc Masurovsky observed, in comparing the two French situations: "It would appear that sacred artifacts belonging to indigenous tribes the world over don't weigh much against royal artifacts." And while Evelio Acevido Carrero, managing director of the foundation that maintains the Thyssen-Bornemisza Museum noted gleefully how "very satisfying" it is to have an American court recognize the ownership rights of a Spanish museum--noted without a scintilla of irony--there is some other kind of irony in the tone of dismissal used by the French CVV toward both American law and American artifacts.

What all three cases have in common (among other things) is the question of where justice and morality fit into these legal questions. Los Angeles Judge John F. Walter invoked morality at the end of his decision, expressing hope that the museum would "do the right thing," even as he felt obliged to ignore "the right thing" in his decision, in the interests of the law; the French court and auction houses and the Spanish museum have both used the law in order to ignore justice and morality--have thus far made it clear that law is the armor in which they shall wrap themselves to protect themselves from justice and morality.

And then--lest we forget!--the Fred Jones, Jr, Museum, at the University of Oklahoma, continues to hang on desperately to “The Shepherdess” by Camille Pissarro that doesn't legally or morally belong to it, against the claim of Leone Meyer, a French woman, from whose father the Nazis stole it--thanks to legal technicalities having to do with the jurisdiction in which the case might be decided--in spite of the moral outrage of nearly everyone in the State of Oklahoma.

It would be nice if law, justice and morality could coincide in these cases that are linked by the lack of that coincidence. It's not that justice is blind, it's that too often many legal practitioners are blind to justice. So the struggle for moral outcomes goes on in the darkness.

Happy birthday, Vincent van Gogh! Part Two

by Angelina Giovani

[Editor’s note: This is the second installment of the story of the “Portrait of Dr. Gachet” by Vincent van Gogh. The first part, entitled “Happy Birthday, Vincent van Gogh: Portrait of Dr. Gachet, a book review” was posted on March 30, 2015.] 

Paul Cassirer

In 1904 Paul Cassirer, born in 1871 to an upper middle class family, displayed van Gogh’s Portrait of Dr. Gachet, at his Berlin Gallery, strategically situated next to other modern dealers such as Fritz Gurlitt, Keller & Reiner, and Schulte. Unlike other dealers, Cassirer had managed to establish a working connection with Johanna van Gogh-Bonger, mainly because he never argued with her high prices. Committed to introducing the French avant-garde in Germany, he had borrowed nineteen canvases from Johanna van Gogh-Bonger in 1901 and organized Germany’s first substantial van Gogh exhibition. Cassirer sold The Portrait of Dr. Gachet to Count Harry Kessler who also bought Maurice Denis’ Mother and Child which Ballin had consigned at the same time as Dr. Gachet. Kessler paid Cassirer 3,378 German marks for both works.

The arrival of the Portrait of Dr. Gachet coincided with a transition period during which Berlin was replacing Munich as a primary market for contemporary art in Germany. Unlike other places the Berlin bourgeoisie had a liberal taste for the modern, and proved to be a perfect audience for van Gogh’s work. At the time that Kessler bought Dr. Gachet, there were altogether seven paintings by van Gogh’s in German private collections: Karl Osthaus, Hugo von Tschudi and Julius Meier-Graefe. After the sale of Dr. Gachet to Kessler, the Stedelijk in Amsterdam and the Salon des Indépendants in Paris held van Gogh retrospectives. Sales picked up and, in 1905, Cassirer sold a total of twenty paintings by the Dutch master. Prices doubled in as many years, however, Johanna van Gogh-Bonger did not grant Cassirer the honor of being her ‘sole agent for Germany’. Up until the outbreak of World War I in 1914, Cassirer enjoyed continuous success. He signed a contract to publish van Gogh’s letters, and bought 151 works. Other collectors were also expanding their collections, such as Helene Kröller, a wealthy art history major from Essen, and an American-born pharmaceutical magnate, Alfred C. Barnes, the first American to own a van Gogh. 

Count Harry Kessler

Count Harry Kessler was born in Paris in 1868. He was the son of Adolf Kessler, a Hamburg banker, and Alice Blosse-Lynch, an Irish explorer’s daughter. He was educated in England and Germany, traveled a lot and wrote for Pan, an Art Nouveau journal, Pan. In 1903 he was appointed director of the Grossherzogliches Museum für Kunst un Kunstgewerbe in Weimar. He brought the Portrait of Dr. Gachet to his house in Cranachstrasse, Weimar, which was designed by Henry van de Velde. The house itself was impeccably conceived to entertain and display the Count’s collection, the perfect vehicle through which to introduce The Portrait of Dr. Gachet to critics, artists, writers, and other members of the intelligentsia. For many, it was their first encounter with a van Gogh. As director of the Grossherzogliches, Count Kessler strove to turn Weimar into a center of modern culture. He organized monthly public exhibitions of Impressionists and neo-Impressionists which eventually drew rebukes from Weimar’s conservative circles. 

Four years after acquiring the picture, Kessler consigned Dr. Gachet with Eugène Druet, in Paris. A specialist in Postimpressionists, Druet had started out as a photographer of Auguste Rodin’s sculptures and made significant purchases of van Gogh works. The Paris art market was in constant evolution. After Cézanne's death, Ambroise Vollard organized Matisse’s first one-man show, Picasso completed Les Demoiselles d’Avignon, while Georges Braque produced his first collage. Collectors from Europe and North America dominated the Paris art market, driving Impressionist prices higher than ever before. Duet exhibited Dr. Gachet in 1908 together with thirty-five other pictures, and although the exhibition ran for twelve days, he did not sell a single painting. Despite this, the Portrait of Dr. Gachet stayed with Druet until February 1910, when he purchased it himself, for 14.000 francs. Then he lent it to Roger Fry, the British art critic and a leading painter in the Bloomsbury circle. Just like with the French, the British were not ready for van Gogh. A critic with the Daily Express called van Gogh’s works "unintelligible". Seeing how "England had no use for Dr. Gachet" the portrait returned to France.

The following year, on February 20, 1911, Druet shipped the painting to Georg Swarzenski, the director of the Städelsches Kunstinstitut in Frankfurt since 1906, an institution renowned for its Old Master collection. Prior to acquiring the picture, Swarzenski had seen it in Kessler’s house in Weimar and also at Galerie Druet in Paris. This was the first postimpressionist canvas to enter the Städel. Swarzenski planned to transform the museum into a shrine for modern art.

Georg Swarzenski

Swarzenski was barely thirty years old when he became director of the museum. He was born in Dresden to a Jewish merchant, and was initially trained as a lawyer before switching to the study of art history. His goals were not only that the Städel should expand its collection, but also that it compete with other great museums of Europe. The only way to do this was to expand the collection with Impressionist works. As a result he removed all plaster copies of Roman and Greek art from the museum floor, and within 2 years he acquired over 350 pieces of sculpture both from Europe and Asia.

By 1911, the tendency to buy Impressionist works from France stirred a protest called “A protest of German Artists” fueled by 140 participants consisting of conservative artists, critics and museum directors.  Swarzenski asked Victor Mössinger, a businessman who later became his father-in-law, to purchase Dr.Gachet and donate it to the Städel.

On August 3, 1914 Germany declared war on France. Communication between art world figures in France and Germany became more complicated. The advent of war severed ties between Johanna van Gogh-Bonger and Paul Cassirer who was inducted into military duty as was Swarzenski. At war’s end in 1918, Swarzenski ordered that construction resume on the modern galleries, which were completed in 1923. By 1928, Swarzenski wore many hats in the Frankfurt art world, as head of the Städel and the Städtische Galerie but also of the Museum of History, and the Museum of Art and Crafts. Until the mid 1930, van Gogh and his works gave rise to new art historical writings as well as treatments in psychological and psychoanalytical literature.

In Spring 1933, months after Adolf Hitler rose to power in Germany and, with him, the Nazi Party, Swarzenski removed Dr. Gachet from the walls of the Städel and locked it in a room under the museum’s roof together with a lot of Expressionist paintings. On March 12, the Reich Ministry for Public Enlightenment and Propaganda was established under Dr. Joseph Goebbels. His mission was to align German culture with the ideology of the Nazi party. In September 1933, he established the Reichskulturkammer (Reich Chamber of Culture) which among other things imposed strict controls on the production of art in the Reich as well as on art exhibitions and the art market. Nazi ideology condemned modern art and labeled as ‘degenerate’ all forms of German and French Expressionism.

On March 13, 1933, Frankfurt’s Socialist mayor was replaced by Göring, and within weeks Swarzenski was suspended from his position as director at the Museum of History, the Museum of Arts and Crafts, the Städtische and his position as professor at the University of Frankfurt. Yet, Swarzenski managed to remain as director of the Städel, which was a private foundation and technically the Nazis had no jurisdiction. Still, he was summoned before a commission, and only managed to hold on to his position thanks to the Lord Mayor, Friedrich Krebs, who had been an early member of the Nazi party and oversaw the closing of over 500 Jewish-owned businesses in Frankfurt during the first year of the Third Reich. Krebs also belonged to Alfred Rosenberg’s Combat League for German Culture, a rival of Goebbels’ Ministry to promote Nazi-approved art and attack modernism. Krebs did not consider Swarzenski as a threat.

Friedrich Krebs

In 1935, Swarzenski met Alfred Barr, director of the Museum of Modern Art of New York (MoMA), at the Parisian gallery of Paul Rosenberg.  At this meeting, Barr asked to borrow Dr. Gachet for a van Gogh retrospective that he was organizing at MoMA. Upon his return to Frankfurt, Swarzenski wrote to the "Ministry in Berlin" requesting permission to lend the painting. The Ministry denied the request. Alfred Wolters, the Nazi-designated successor of Swarzenski as director of the Städtische, dispatched a photograph of Dr. Gachet to Goebbels, at his request. Communication between Wolters and the Ministry focused on paintings in the museum’s collection that could be sold for a profit. Wolters, a close friend of Swarzenski, explained that selling Dr. Gachet would be a terrible loss for the city of Frankfurt. Moreover, it had not been acquired with city funds, but had been a gift of a private citizen, Victor Mössinger. Friedrich Krebs, a vocal opponent of modern art, also wrote to Berlin, asking that the Frankfurt collections should be spared. Dr. Gachet remained safe for the time being, while eleven paintings acquired by Swarzenski for the Städel were confiscated and taken to Munich and displayed at the Degenerate Art show which opened on July 19th, 1937.

On December 1st, 1937, Adolf Ziegler, one of the chief organizers of the Degenerate Art exhibit and a rabid anti-Semite, met Wolters and demanded five more paintings to be delivered to the Propaganda Ministry, including Dr. Gachet.  Stalling for time, Wolters asked the Ministry for an official written request. Wolters was able to buy only a few days. The Portrait of Dr. Gachet was taken out of storage.  It left the museum on December 8, 1937, a move reported in an article published by the Frankfurter Allgemeiner Zeitung (FAZ). Johanna, Victor Mössinger ’s wife, read the article and inquired about the painting’s whereabouts. No one knew that the painting had ended up at a Berlin museum depot for "degenerate art" on Köpernickusstrasse, along with tens of thousands of other art works slated to be destroyed. The Portrait of Dr. Gachet by Vincent van Gogh was number 15,677.